Hutchinson v Van Den Berg; Sayers-Hutchinson v Van Den Berg
[2020] SASC 128
•8 July 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HUTCHINSON v VAN DEN BERG; SAYERS-HUTCHINSON & ANOR v VAN DEN BERG & ANOR
[2020] SASC 128
Decision of The Honourable Justice Bampton
8 July 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT
Application to strike out 15 impugned paragraphs of reply – where Supreme Court Civil Rules 2006 (SA) apply – where defence raises six special defences – where reply does not respond to special defences contrary to rule 101(1)(b) – where reply contains matters going to character that are not material facts contrary to rule 98(2)(b) – where reply contains paragraphs that are an abuse of process, prejudice the proper conduct of the action and introduce scandalous and/or frivolous irrelevant allegations which detract from the material issues.
Held: application granted, the 15 impugned paragraphs of the reply are struck out.
Uniform Civil Rules 2020 (SA) r 1.4(b), r 71.2(1); Supreme Court Civil Rules 2006 (SA) r 92, r 94, r 98, r 100, r 101, r 103, r 104, r 117; Civil Liability Act 1936 (SA) s 43, referred to.
Williams v Australian Telecommunications Commission (1988) 52 SASR 215; Fleming v Advertiser-News Weekend Publishing Co Pty Ltd & Anor [2013] SASC 92, discussed.
Irving v Starmaker (No 51) Pty Ltd [2005] SASC 309; Miller v Miller (2011) 242 CLR 446; Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in liq) (2003) 214 CLR 514; Bradman v Allens Arthur Robinson (No 2) [2009] SASC 180, considered.
HUTCHINSON v VAN DEN BERG; SAYERS-HUTCHINSON & ANOR v VAN DEN BERG & ANOR
[2020] SASC 128Civil: Application
BAMPTON J: Jodi Van Den Berg makes application (“the application”)[1] for an order striking out 15 paragraphs of Troy Hutchinson’s second reply (“the reply”)[2] and an order requiring him to comply with r 101(1)(b) of the Supreme Court Civil Rules 2006 (SA) (“the Previous Rules”)[3] and file a proper reply.
[1] FDN 48.
[2] FDN 56.
[3] The Uniform Civil Rules 2020 (SA) commenced on 18 May 2020 (“the UCR”). Rule 1.4(b) of the UCR provides that a step taken in a proceeding before the commencement date of the UCR is governed by the Previous Rules. The Previous Rules are defined in r 2.1 of the UCR to mean “(a) in the context of the Supreme Court – the Supreme Court Civil Rules 2006…”. The application FDN 48 was a step taken under the Supreme Court Civil Rules 2006 before the commencement of the UCR. Accordingly, the Supreme Court Civil Rules 2006 apply to the determination of the application.
Mr Hutchinson’s claim
Mr Hutchinson alleges in his fourth statement of claim (“the statement of claim”)[4] that on 18 April 2014 he and his son, Jamie Sayers‑Hutchinson, attended a property at 15 Fairway Street, Para Hills owned by him (“the property”) with two other males to undertake cleaning and rubbish removal. Mr Hutchinson asserts in the reply that he permitted his estranged wife, Jodi Van Den Berg, and their daughter, Taylor, to live in the house on the property. Mr Hutchinson also alleges in the reply that during her occupancy of the property Ms Van Den Berg allowed the property to fall into disrepair and abandoned it in about January 2014, leaving it in an uninhabitable state.
[4] FDN 47.
Mr Hutchinson alleges in the statement of claim that whilst he was at the property on 18 April, Ms Van Den Berg arrived driving a Mazda 3 sedan (“the vehicle”). An argument then occurred between Mr Hutchinson and Ms Van Den Berg. Mr Hutchinson asserts that he was outside a neighbouring property at 13 Fairway Street, Para Hills when Ms Van Den Berg reversed the vehicle so it was facing towards the driveway of 13 Fairway Street. He alleges that she then drove the vehicle “into and/or over him” and “into and/or over” his son (“the collision”).
Mr Hutchinson alleges that the collision was caused by Ms Van Den Berg’s negligence and as a result he sustained injuries. He commenced these proceedings in 2016 seeking damages for the injuries he allegedly sustained. Mr Sayers‑Hutchinson also seeks damages in action SCCIV-18-703 for the injuries he alleges he sustained as a result of the collision.[5]
[5] Proceedings were commenced in the District Court by Jamie Sayers-Hutchinson in DCCIV-17-506 and transferred to this Court pursuant to a Master’s order made on 21 June 2018 and allocated file number SCCIV-18-703. On 12 February 2020, I ordered that SCCIV-16-1273 and SCCIV-18-703 are to be managed and heard together.
Jodi Van Den Berg’s defence
In her second defence (“the defence”),[6] Ms Van Den Berg pleads that there was a history of violence perpetrated by Mr Hutchinson against her. She alleges that, after the verbal altercation at the property, Mr Hutchinson kicked the front passenger door of the vehicle, then moved around to the driver’s side of the vehicle and hit the driver’s side mirror. Ms Van Den Berg asserts that she put the vehicle in motion with the intention of leaving the scene due to fear for her own safety and that of her passenger daughter. She further alleges that Mr Sayers‑Hutchinson approached the vehicle and forcibly removed the driver’s side window and hit the windscreen with his fist causing it to shatter, heightening her fear for her safety. She pleads that it was while she was manoeuvring the vehicle to leave the scene that she collided with Mr Hutchinson and Mr Sayers‑Hutchinson. Ms Van Den Berg pleads the following six special defences pursuant to r 100 of the Previous Rules:[7]
·No duty of care;
·Limited duty of care;
·Obvious risk and volenti;
·Section 43 of the Civil Liability Act 1936 (SA);
·Common law illegality;
·Contributory negligence.
[6] FDN 54.
[7] The obligation prescribed by r 100 of the Previous Rules to plead special defences in a defence is not contained in r 67.6—Defence Pleading Rules in the UCR. However, the obligation to give fair notice imposed by r 67.02 of the UCR obliges a respondent to plead special defences.
Mr Hutchinson’s objection to the bringing of the application
Mr Hutchinson argued that the application should be refused as it was filed on 6 February 2020, a year after the filing of the first reply on 21 February 2019. He contended that Ms Van Den Berg has sat idle for a year and offers no explanation for the delay in bringing the application.
Ms Van Den Berg filed her defence to the second statement of claim on 19 July 2017. The time for filing a reply prescribed by r 94(2) of the Previous Rules was 14 days after service of the defence. On 11 October 2018, Mr Hutchinson was ordered to file a reply if so advised within eight weeks. On 12 December 2018, he was given a further extension of time to 25 January 2019 to file his reply. The first reply was filed on 21 February 2019, some 19 months after the filing of the first defence. The parties each made disclosure in February 2019 and each has, during the course of the interlocutory period, obtained orders for disclosure by third parties. As counsel for Ms Van Den Berg acknowledged, both parties have proceeded slowly “getting these pleadings sorted out”.[8]
[8] Transcript of Proceedings, Hutchinson v Van Den Berg & Ors; Sayers-Hutchinson & Anor v Van Den Berg & Anor (Supreme Court of South Australia, Bampton J, 23 March 2020) at p 21/5-7.
Ms Van Den Berg referred to her solicitor’s affidavit filed in support of the application, sworn 6 February 2020, in answer to the criticism that she has sat idle. Her solicitor deposes that he forwarded a letter dated 22 August 2019 to Mr Hutchinson’s solicitors raising the alleged defects in the first reply and that no response has been received. During the hearing of the application, Ms Van Den Berg’s counsel clarified that Mr Hutchinson’s solicitors sent a letter dated 4 September 2019 noting the 22 August 2019 correspondence saying, “Despite these outstanding matters we’ll be asking the court to excuse the parties from compliance and list the matter for trial”.
The matters in issue are delineated by the pleadings in the statement of claim filed 1 November 2019, the defence filed 13 February 2020, and the reply filed 26 February 2020. It is the pleadings filed in February this year which are the subject of the application.
The fundamental purpose of pleadings is to provide a structure for litigation “designed to promote a just outcome” by defining the issues between parties and to provide fair notice.[9] The application deals with issues concerning compliance with the pleading rules prescribed by the Previous Rules and the proper conduct of the action. For the reasons that follow, I am satisfied the orders sought should be made. I permit the application to be brought in the interests of the proper conduct of the action.
[9] Williams v Australian Telecommunications Commission (1988) 52 SASR 215, 216.
The power to strike out pleadings
Unless otherwise stated, all references in these reasons to the rules are references to the Previous Rules. As with all pleadings, a reply is subject to r 98 and must not contain matter that is scandalous, evasive or ambiguous, frivolous or vexatious, or an abuse of process.[10] Pursuant to r 104, the Court may strike out a pleading in whole or in part if the pleading does not comply with the Previous Rules and is an abuse of the processes of the Court or prejudices the proper conduct of the action. The Court may also, pursuant to r 117(2)(e), strike out a document or proceeding if satisfied it is frivolous, vexatious or an abuse of process of the Court. Rule 117(2)(e) encompasses the striking out of part of a document.[11]
[10] Rule 98(2)(c) of the Previous Rules.
[11] Bradman v Allens Arthur Robinson (No 2) [2009] SASC 180.
The submissions
Ms Van Den Berg seeks to strike out paragraphs 1.3, 1.4, 1.5, 1.6, 1.7.7, 1.7.8, 1.7.10, 1.7.11, 1.7.12, 1.7.13, 2.3.2, 2.3.3, 3, 5 and 6 of the reply (“the impugned paragraphs”).
The impugned paragraphs plead matters pertaining to Ms Van Den Berg’s character, the history between her and Mr Hutchinson, and her conduct.
Ms Van Den Berg argued that:
·The impugned paragraphs fail to comply with r 98 and r 101(1)(b) and, as such, are an abuse of process and should be struck out pursuant to r 104 or alternatively r 117(2)(e); and
·Mr Hutchinson is required to comply with r 101(1)(b) and respond to the special defences raised in the defence in the reply and, as such, a new reply should be filed.
Ms Van Den Berg submitted that the statement of claim is an “orthodox pleading of negligence”, which pleads and particularises only negligence, not trespass. She acknowledged that it does plead two background facts namely, that she and Mr Hutchinson were married but separated and that, immediately prior to the collision, an argument occurred between them.
Ms Van Den Berg submitted that the following additional facts pleaded in the defence take the collision out of the standard driver versus pedestrian category:
·There was a history of violence perpetrated by Mr Hutchinson against her (paragraph 11.1 of the defence);
·That after the verbal altercation at the scene and time of the incident Mr Hutchinson kicked the vehicle in the front passenger door then moved around to the driver’s side and hit the driver’s side mirror (paragraph 11.5 of the defence);
·That she then put the vehicle into motion with the intention of leaving the scene due to fear for her own safety and that of her daughter (paragraph 11.6 of the defence);
·That Mr Sayers-Hutchinson pulled out the driver’s side window and shattered the windscreen heightening her fear for her own safety (paragraph 11.7 of the defence);
·That it was while manoeuvring the vehicle to leave the scene that she collided with Mr Hutchinson and Mr Sayers-Hutchinson (paragraph 11.8 of the defence).
Ms Van Den Berg contended that the foregoing facts pleaded in paragraph 11 of the defence raise the special defences referred to above and require responses by way of reply.
A reply is required to indicate which, if any, allegations in the defence are admitted or will not be challenged at trial,[12] and any allegations not responded to are taken to be denied.[13]
[12] Rule 101(1)(a) of the Previous Rules.
[13] Rule 101(3) of the Previous Rules.
Further, r 101(1)(b) requires a plaintiff to outline the plaintiff’s answer to each special defence raised, with a short summary of any material facts and matters on which the plaintiff's answer is based.
Ms Van Den Berg submitted that the requirement imposed by r 101(1)(b) is a uniquely drafted, mandatory obligation to outline the plaintiff’s answer to any special defence, which if accepted, means the special defence cannot be maintained.[14]
[14] Fleming v Advertiser-News Weekend Publishing Co Pty Ltd & Anor [2013] SASC 92.
Mr Hutchinson submitted that as r 94 provides that a “plaintiff may file” a reply, the filing of a reply is optional. He contended that his answer to each of the allegations and special defences is that they are all denied and that no further response is necessary. He further argued that Ms Van Den Berg has elected to plead evidence impugning his character and he should be entitled to do the same.
Rule 92 mandates that a defendant who proposes to resist a plaintiff’s claim must file a defence. The pleading of a defence must comply with r 98 and r 100. Subrules 100(1)(c), (d), and (e) impose obligations on a defendant regarding the raising and pleading of a special defence upon which the defendant relies. The filing of a reply is not optional where a defendant pleads special defences. Rule 101(1)(b) imposes a positive obligation on Mr Hutchinson to plead to special defences pleaded in the defence. Further, once a reply is filed, r 101 is enlivened and the reply must comply with the mandatory requirements of r 101(1)(a) and (b).
Mr Hutchinson also relied on r 103(1)(a), which provides that a party cannot, without the Court’s permission, lead evidence at trial of facts that should have been but were not alleged in the party’s pleadings.
Pursuant to r 98(2)(b), pleadings must only state material facts and matters relied on and not the evidence or arguments by which the facts or matters are to be proved. If a party pleads a matter regarding character, the pleading must be of a fact that is material to the cause of action being pleaded, not simply an allegation as to character. Material facts are the facts that a party must prove to succeed in a claim for relief upon a cause of action.[15]
[15] Irving v Starmaker (No 51) Pty Ltd [2005] SASC 309, [10].
Rule 98(2)(c) provides that a pleading must not contain material that is scandalous, evasive or ambiguous, frivolous or vexatious, or an abuse of process in some other respect.
Credit issues are matters for trial. There is no requirement to plead matters going to credit. Significantly, r 103(2)(a) stipulates (subject to r 103(2)(b)(i) and (ii)) that the Court’s permission is not required to introduce evidence at trial, or to raise issues, which are relevant to credit which were not included in a party’s pleadings.[16]
[16] The UCR also does not prohibit the introduction of evidence at trial or raising of issues relevant to credit which were not included in a party's pleading. See: Note to subrule 71.2(1).
It follows that the matters of character alleged in the reply, which I infer go to Ms Van Den Berg’s credit, are matters for trial and not pleadings unless they are material to the cause of action. A pleading that only addresses character without being the material facts and matters relied on by which the facts and matters are to be proved is contrary to r 98(2)(b).
The special defences
Ms Van Den Berg submitted that there are two categories of special defences pleaded in the defence. The first category concerns her state of mind, involving aspects of her relationship with Mr Hutchinson at the time of the collision. The second category relates to the actions and intentions of Mr Hutchinson.
Category one: The special defences concerning Ms Van Den Berg’s state of mind
Ms Van Den Berg argued that three of the special defences fall within the first category focussing on her fear of Mr Hutchinson, namely, the defences of no duty of care pleaded in paragraphs 12 and 13, obvious risk and volenti pleaded in paragraphs 15 and 16, and contributory negligence pleaded in paragraph 19.
Ms Van Den Berg contended that these three special defences arise against the background of the following general pleadings as to fact:
(1)Fear in her mind is alleged to have arisen out of a history of violence perpetrated by Mr Hutchinson against her leading up to the date of the collision (pleaded in 11.1 of the defence);
(2)A verbal altercation occurred between her and Mr Hutchinson at the property prior to the collision (pleaded in 11.4 of the defence);
(3)The verbal altercation escalated whereby Mr Hutchinson kicked the vehicle in the vicinity of the front passenger side door and moved to the driver’s side to hit the driver’s side mirror (pleaded in 11.5 of the defence); and
(4)Mr Sayers-Hutchinson removed the driver’s side window and shattered the windscreen with his fist (pleaded in 11.7 of the defence).
Ms Van Den Berg argued that the aforementioned four facts pleaded in paragraph 11 made her vulnerable and instilled fear in her, and because Mr Hutchinson was engaging in illegal and dangerous activity, no duty of care was owed by her to him.[17]
Paragraphs 1.3, 1.4, 1.5 and 1.6 of the reply
[17] Miller v Miller (2011) 242 CLR 446.
The reply expressly denies paragraphs 11.1 and 11.2 at paragraph 1.2, but does not plead to paragraphs 11.4, 11.5, and 11.7, being the allegations that Mr Hutchinson kicked the vehicle, hit the mirror, and that Mr Sayers-Hutchinson caused further damage.
Ms Van Den Berg submitted that as paragraph 11 raises the special defence of no duty owed, r 101(1)(b) mandates that the reply outline Mr Hutchinson’s answer to it and he cannot rely on a bare denial.[18]
[18] Fleming v Advertiser-News Weekend Publishing Co Pty Ltd & Anor [2013] SASC 92 at [28].
Ms Van Den Berg further submitted that the pleadings in paragraphs 11.1 to 11.8 can be starkly contrasted with paragraphs of reply which she argued are vexatious, irrelevant, and go to her character. Instead of pleading to paragraphs 11, 12, and 13 of the defence which plead the facts and no duty defence, the reply pleads allegations about her mental health, drug use, and criminal offending up to 28 February 2013, 15 months before the collision. She submitted that:
(1)paragraphs 1.3 and 1.4 of the reply are allegations about her mental health, drug use, and criminal offending prior to the incident and are not contemporaneous or related to the collision;
(2)paragraph 1.5 of the reply contains allegations of fact about her living circumstances and that of Mr Hutchinson after their separation and alleges mental, behavioural, and drug issues against her, for a period that is not contemporaneous or related to the collision; and
(3)paragraph 1.6 of the reply alleges that she allowed the property to fall into disrepair and abandoned it five months prior to the incident.
Ms Van Den Berg argued that these allegations do not answer the special defence nor comply with r 101. It was argued that the facts pleaded in paragraph 11 of the defence establish the special defence, whereas paragraphs 1.3, 1.4, 1.5, and 1.6 of the reply are irrelevant pleadings of fact unrelated to a cause of action.
Mr Hutchinson submitted that his pleading in the reply is structured as follows:
·Paragraph 1.3 – during the domestic relationship;
·Paragraph 1.4 – separation;
·Paragraph 1.5 & 1.6 – post separation and leading up to the collision;
·Paragraph 1.7 – on the day of the collision;
·Paragraph 2 – additional facts relating to requests for Ms Van Den Berg to leave the property, his daughter, and ownership of the vehicle;
·Paragraph 3 – Ms Van Den Berg’s state of mind;
·Paragraph 5 – Ms Van Den Berg’s post-accident behaviour;
·Paragraph 6 – incongruity.
Mr Hutchinson submitted that paragraphs 1.3, 1.4, 1.5, and 1.6 of the reply are pleaded in response to paragraphs 11.1, 11.2, 13.1, 13.3, and 13.4 of the defence. He argued that these paragraphs of the defence plead irrelevant issues in an attempt to assassinate his character and portray him as a perpetrator of domestic violence. He argued that paragraphs 1.3, 1.4, 1.5, and 1.6 are merely his way of responding to character issues already put forward by Ms Van Den Berg. Further, he said that by pleading his version of the nature of the domestic relationship he responds to issues material to:
(1)The relationship between him and Ms Van Den Berg;
(2)The circumstances leading to their separation; and
(3)The circumstances leading up to and operating at the time of the collision as between him, Ms Van Den Berg, and their daughter.
Ultimately, he contended that the allegations concerning Ms Van Den Berg’s psychiatric history, history of antisocial behaviour, criminal offending, and history of violence towards him are relevant to her state of mind, as well as her motivation, desire and intention when she collided with him and his son.
Mr Hutchinson submitted that paragraph 1.5.4 of the reply has an additional purpose, and that is to respond to paragraphs 13.3 and 13.4 of the defence, which he said relates to Ms Van Den Berg’s desire to protect the vehicle she was driving. He submitted that he owns the vehicle which caused him injury and Ms Van Den Berg was merely the driver.
In respect of paragraph 1.6 of the reply, Mr Hutchinson submitted that Ms Van Den Berg had no regard for the property and that she allowed the property owned by him to fall into disrepair and animals to die. He asserted that this forms part of his case to explain Ms Van Den Berg’s departure from the property and the reason he attended the property with his son.
Paragraphs 1.3, 1.4, 1.5, and 1.6 of the reply do not comply with r 101(1)(b)
There is no pleading in the statement of claim that Ms Van Den Berg was under the influence of drugs or committing a crime at the time of the collision, nor that the dilapidation of the property played a role in the collision. If the allegations pleaded in the reply merely go to Ms Van Den Berg’s credit, they are not to be part of the pleadings and are issues for trial.[19] The pleadings pertaining to Mr Hutchinson giving Ms Van Den Berg permission to drive the vehicle and live in the house on the property, and the asserted abandonment of the property are arguably all matters to be pleaded in the statement of claim, not the reply.
[19] Rule 103(2)(a) of the Previous Rules.
Paragraphs 1.3 and 1.4 of the reply are allegations which only relate to Ms Van Den Berg’s mental health, drug use, and alleged criminal offending prior to the collision. Paragraph 1.5 introduces allegations in respect of the living circumstances of Ms Van Den Berg, her mental health, and alleged drug issues. Paragraph 1.6 alleges that she did not care for Mr Hutchinson’s property.
The allegations contained in these paragraphs do not respond to any of the special defences raised by Ms Van Den Berg. Rather, they introduce irrelevant matters. Mr Hutchinson’s argument that these allegations are now relevant by reason of the defence pleading an alleged history of violence between him and Ms Van Den Berg, and Ms Van Den Berg being vulnerable to him, is not borne out. Ms Van Den Berg’s allegations at paragraphs 11 and 12 are alleged factual matters relevant for the purpose of making out a special defence. They are allegations of fact relevant to the collision and contemporaneous to it; they are not allegations of character. They concern the allegation that Ms Van Den Berg became fearful as a result of the attack on the vehicle and Mr Hutchinson moving towards her, against the alleged background that he had been violent towards her. Whether or not Ms Van Den Berg had been violent towards Mr Hutchinson in the past is irrelevant for the purpose of pleading. What is relevant is state of mind and actions at the time of the collision. Tit for tat allegations have no place in pleadings. Having said that, the background to the parties’ relationship and matters going to their credit may well be relevant topics for exanimation and cross‑examination at trial.
Paragraphs 1.3, 1.4, 1.5, and 1.6 do not contain material facts and matters and thereby do not comply with r 98(2)(b), are scandalous, vexatious and an abuse of process. Pursuant to r 104 and r 117(2)(e), I strike out paragraphs 1.3, 1.4, 1.5, and 1.6 of the reply as they do not comply with the Previous Rules, are an abuse of process, and prejudice the proper conduct of the action by introducing scandalous and/or frivolous irrelevant allegations which detract from the material issues.
Paragraphs 1.7.7, 1.7.8, 1.7.10, 1.7.11, 1.7.12, and 1.7.13
Ms Van Den Berg’s complaints about the following subparagraphs of paragraph 1.7 of the reply are:
(1)Paragraph 1.7.7 alleges that she intentionally and recklessly reversed the vehicle towards Mr Hutchinson. She submitted that this is inconsistent with the statement of claim, and it leaves open a cause of action in trespass by her which is not pleaded in the statement of claim.
(2)Paragraph 1.7.8 alleges that she verbally abused and threatened harm against Mr Hutchinson. Ms Van Den Berg submitted this is irrelevant to any cause of action or defence and is simply vexatious.
(3)Paragraphs 1.7.10 and 1.7.11 relate to the involvement of Mr Sayers‑Hutchinson. Ms Van Den Berg submitted that these allegations are not an answer to the special defence regarding the conduct of Mr Hutchinson.
(4)Paragraphs 1.7.12 and 1.7.13, which make allegations about the way in which she left the scene and her failure to report the incident. Ms Van Den Berg submitted that neither paragraph is an answer to the special defence or material to the cause of action.
Mr Hutchinson submitted that the allegations contained in paragraphs 1.7.7 and 1.7.13 of the reply are concerned with Ms Van Den Berg’s state of mind and puts into proper light the allegations in paragraphs 11.4, 11.6, 13.3, and 15.1 of the defence. Mr Hutchinson disputes that this pleading introduces a new cause of action and is inconsistent with the statement of claim. He argued that it merely clarifies his position.
Mr Hutchinson contended that paragraph 1.7.8 of the reply addresses Ms Van Den Berg’s acts and state of mind at the time of the collision. He contended that the allegations are relevant by reason of allegations as to Ms Van Den Berg’s state of mind being included in the defence.
Mr Hutchinson submitted that paragraph 1.7.10 of the reply responds to the allegations contained in paragraph 11.7 of the defence. The allegations in the defence at paragraph 11.7 are directed at the involvement of his son in the collision and damage to the vehicle.
Mr Hutchinson submitted that paragraph 1.7.11 is relevant to identify the point in time when Ms Van Den Berg collided with his son.
Mr Hutchinson argued that paragraph 1.7.12 of the reply is pleaded in response to the special defences relating to his alleged illegality and the facts can be relied upon as evidence of consciousness of guilt.
Paragraphs 1.7.7, 1.7.8, 1.7.10, 1.7.11, 1.7.12, and 1.7.13 of the reply do not comply with r 101(1)(b)
Paragraph 1.7.7 alleges Ms Van Den Berg intentionally and recklessly reversed the vehicle towards Mr Hutchinson. This plea is inconsistent with the matters pleaded in the statement of claim. I agree with the submission that it leaves open the argument that there is a cause of action in trespass. If Mr Hutchinson intended to argue a cause of action apart from negligence, it needed to be pleaded in the statement of claim, not in the reply.
The allegation in paragraph 1.7.8 of verbal abuse and threatened harm by Ms Van Den Berg to Mr Hutchinson does not respond to the special defence or plead material facts and matters. It is unconnected with the cause of action or the defence.
Paragraphs 1.7.10 and 1.7.11 regarding the intentions and actions of Mr Sayers-Hutchinson are not an answer to the special defence about the conduct of Mr Hutchinson.
The allegations in paragraph 1.7.12 and 1.7.13 regarding the way in which Ms Van Den Berg left the scene and her alleged failure to make a report to the police do not respond to the special defence and are not material to the claim.
Pursuant to r 104 and r 117(2)(e), I strike out 1.7.7, 1.7.8, 1.7.10, 1.7.11, 1.7.12, and 1.7.13 6 of the reply as they do not comply with the Previous Rules, are an abuse of process, and prejudice the proper conduct of the action by introducing scandalous and/or frivolous irrelevant allegations which detract from the material issues.
Paragraphs 2.3.2 and 2.3.3 of the reply
Ms Van Den Berg seeks the striking out of paragraphs 2.3.2 and 2.3.3 which contain allegations about her daughter’s state of mind due to her alleged behaviour. Ms Van Den Berg submitted that they are no answer to the special defence about Mr Hutchinson’s behaviour.
Mr Hutchinson argued that paragraphs 2.3.2 and 2.3.3 of the reply are “entirely relevant to issues raised in the defence”, as an attempt to “set the record straight”.
Paragraphs 2.3.2 and 2.3.3 of the reply do not comply with r 101(1)(b)
The allegations in paragraph 2.3.2 of the reply, regarding Ms Van Den Berg’s daughter being distressed because of her behaviour, and paragraph 2.3.3, regarding the assertion Mr Hutchinson was comforting her daughter, do not answer the special defence regarding his conduct.
These pleadings do not directly rebut the special defence that Mr Hutchinson was not owed a duty of care. The reply is not a vehicle for “setting the record straight”.
Pursuant to r 104 and r 117(2)(e), I strike out paragraph 2.3.2 and paragraph 2.3.3 of the reply as they do not comply with the Previous Rules, are an abuse of process, and prejudice the proper conduct of the action by introducing scandalous and/or frivolous irrelevant allegations which detract from the material issues.
Paragraph 3 of the reply
The second special defence relating to the mental state of Ms Van Den Berg and the fear in her mind caused by Mr Hutchinson is the defence of obvious risk and volenti, pleaded in paragraphs 15 and 16 of the defence. Ms Van Den Berg submitted that paragraph 3 of the reply fails to respond to this special defence and alleges that her conduct was conscious and deliberate and or alternatively negligent and reckless. It was argued that the pleading in paragraph 3 (which refers to paragraph 15.1 of the defence) is insufficient and attempts to introduce a new cause of action in trespass to the person.
Mr Hutchinson argued that paragraph 3 of the reply responds directly to the special defence of obvious risk pleaded at paragraph 15.1 of the defence. It was submitted that, by reason of Ms Van Den Berg’s alleged conduct, the risk was not obvious to him.
Paragraph 3 of the reply does not comply with r 101(1)(b)
Paragraph 3 of the reply introduces a further cause of action. If the new cause of action is relied upon it must be pleaded in the statement of claim.
Pursuant to r 104 and r 117(2)(e), I strike out paragraph 3 of the reply as it does not comply with the Previous Rules, is an abuse of process, and prejudices the proper conduct of the action by introducing scandalous and/or frivolous irrelevant allegations which detract from the material issues.
The reply does not plead to contributory negligence
The third special defence in this category is contributory negligence pleaded in paragraph 19 of the defence. Ms Van Den Berg stated that Mr Hutchinson was guilty of contributory negligence by inducing a state of fear in her and in doing so failed to avoid the harm that occurred.
The reply does not comply with r 101(1)(b)
The reply is in contravention of r 101(1)(b) as it contains no response to the plea of contributory negligence. Mr Hutchinson is obliged to plead to this special defence.
Category two: the actions and intentions of Mr Hutchinson
Paragraph 5 of the reply
The first special defence in this category is that liability on the part of Ms Van Den Berg is excluded by reason of s 43 of the Civil Liability Act 1936 (SA), as she alleges in paragraph 17 of the defence that Mr Hutchinson was committing indictable offences at the time the alleged injuries were sustained. By paragraph 5 of the reply, Mr Hutchinson seeks to respond to these allegations, arguing that they are contrived and that Ms Van Den Berg failed to report the alleged offences to the police.
Ms Van Den Berg argued that paragraph 5 of the reply is not an adequate response to the special defence, as it does not plead a short summary of any material facts and matters on which Mr Hutchinson relies in response to the special defence as required by r 101(1)(b). Further, Ms Van Den Berg submitted that if contrivance is intended to mean fraud, it must be pleaded clearly and specifically with detailed particulars.[20]
[20] Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in liq) (2003) 214 CLR 514.
Mr Hutchinson argued that paragraph 5 of the reply is pleaded in response to the special defence which concerns the indictable offences detailed at paragraph 17 of the defence, and is necessary to put forward his case of contrivance of said offences. It was further submitted that no plea of fraud is being made, just contrivance.
Paragraph 5 reply does not comply with r 101(1)(b)
Paragraph 5 does not respond to the special defence in compliance with r 101(1)(b).
Pursuant to r 104 and r 117(2)(e), I strike out paragraph 5 of the reply as it does not comply with the Previous Rules, is an abuse of process, and prejudices the proper conduct of the action by introducing scandalous and/or frivolous irrelevant allegations which detract from the material issues.
Paragraph 6 of the reply
The second special defence in this category is that of common law illegality, pleaded in paragraph 18 of the defence which alleges Mr Hutchinson was acting illegally, such that it was incongruous for a duty of care to be owed to him by Ms Van Den Berg.
Mr Hutchinson submitted that paragraph 6 of the reply responds directly to paragraph 18 of the defence to rebut the submission that it was incongruous that a duty was owed by Ms Van Den Berg to him. He said that the rebuttal is framed on the same general duty of care asserted in the statement of claim.
Paragraph 6 of the reply does not comply with r 101(1)(b)
Paragraph 6 of the reply responds to this special defence by pleading a basic tenet of motor vehicle law and fails to address the allegations of illegality.
Pursuant to r 104 and r 117(2)(e), I strike out paragraph 6 of the reply as it does not comply with the Previous Rules, is an abuse of process, and prejudices the proper conduct of the action by introducing scandalous and/or frivolous irrelevant allegations which detract from the material issues.
The reply does not plead to the special defence of limited duty
The third special defence in this category is the limited duty pleaded in paragraph 14 of the defence. Ms Van Den Berg pleads that in the alternative to no common law duty of care being owed by her, a limited duty of care was owed to Mr Hutchinson as he was an assailant on the vehicle driven by her. It was submitted that this limited duty of care imposes a lower requisite standard of care on Ms Van Den Berg to avoid injury to Mr Hutchinson. Ms Van Den Berg argued that in light of the limited duty of care and accompanying lower standard of care, the duty of care owed by her to Mr Hutchinson was not breached.
The reply does not comply with r 101(1)(b)
The reply, in breach of r 101(1)(b), does not plead specifically to paragraph 14 of the defence. Mr Hutchinson is obliged to plead to it.
Conclusion
Mr Hutchinson is required to answer each of the six special defences raised by Ms Van Den Berg by providing a short summary of any material facts and matters on which his answer is based.[21] He cannot rely on r 101(3) to obviate the need to outline an answer in response to each special defence, as required by r 101(1)(b).
[21] Fleming v Advertiser-News Weekend Publishing Co Pty Ltd & Anor [2013] SASC 92.
As detailed above, I am satisfied that the impugned paragraphs are merely allegations as to character, and as such do not comply with r 98(2)(b) or r 101(1)(b), are an abuse of process and prejudice the proper conduct of the action. I have struck them out pursuant to r 104 and r 117(2)(e).
I order that the reply be repleaded, so that it addresses the special defences and complies with r 101(1)(b).
My orders on the application FDN 48 are:
(1)Paragraphs 1.3, 1.4, 1.5, 1.6, 1.7.7, 1.7.8, 1.7.10, 1.7.11, 1.7.12, 1.7.13, 2.3.2, 2.3.3, 3, 5, and 6 of the second reply, FDN 56, are struck out.
(2)Mr Hutchinson is to file a reply within 14 days pleading to each of the special defences raised in the second defence in compliance with r 101(1)(b).
I will hear from the parties regarding consequential orders and costs.
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