Kalsbeek v Commonwealth of Australia - [2018] WADC 79

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   KALSBEEK -v- COMMONWEALTH OF AUSTRALIA [2018] WADC 79
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   7 JUNE 2018
DELIVERED          :   21 JUNE 2018
FILE NO/S:   CIV 4462 of 2017
BETWEEN:   ROBERT KALSBEEK
Plaintiff

AND

COMMONWEALTH OF AUSTRALIA
Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim and action - Turns on its own facts

Legislation:

Nil

Result:

Action struck out

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	Mr M Hales

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Minter Ellison

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HEWITT:

In this matter the plaintiff was and remains a disability pensioner who was required by Centrelink to attend a job capacity assessment run by an entity called Max Employment. The plaintiff alleges that that referral was entirely inappropriate given the nature of his disabilities.
The plaintiff also alleges that various incidents occurred during the time of his attendance, an event took place which amounted to a criminal assault and there were subsequent instances of rudeness towards him by Centrelink staff.
That series of events has given rise to the plaintiff's action which is briefly summarised as:
1.A breach of a duty of care to investigate the complaint made by the plaintiff in regard to the various matters arising from the events I have earlier described.
2.Misleading a deceptive conduct under the provisions of the Australian Consumer Law.
3.Breach of a clause of a deed entered between Max Employment and the defendant which governed the terms of their relationship.
4.Defamation.
The application has been brought by the defendant seeking to strike‑out the statement of claim. A number of bases are advanced for that to occur but that upon which I intend to concentrate is whether or not the pleaded facts support the causes of action contended for by the plaintiff. In undertaking that task I shall make due allowance for the fact that the plaintiff is not a lawyer and is self‑represented and cannot be expected to thoroughly grasp the niceties of points of pleading.
The first matter to consider is the claim for defamation. That involves a communication dated 2 September 2014 generated and published by Max Employment. Those facts appear in par 7 of the statement of claim and clearly cannot support a cause of action in defamation against the present defendant. The matter does not require further consideration that aspect of the pleading cannot be permitted to stand.
The next matter concerns a claim that the defendant was in breach of the terms of an agreement between it and Max Employment although in precisely what regard is not quite clear to me. It is not however necessary to consider that matter because clearly the plaintiff is not entitled to enforce the terms of the contract between the defendant and Max Employment and it is irrelevant whether or not conduct by Max Employment was in breach of the terms of the contractual arrangements between it and the defendant or not. Unless a contractual term is clearly intended to confirm a benefit to third party that third party has no right of action under the terms of the contract. There is no basis upon which the plaintiff is entitled to pursue this aspect of his case.
The next matter pleaded is misleading and deceptive conduct in breach of the provisions of the Australian Consumer Law. In order to have application the parties need to be involved in trade or commerce. There is no basis upon which the plaintiff can contend that he was involved with the Commonwealth of Australia in a commercial or trading relationship and as a consequence his reliance on the section is completely misconceived and that aspect of his case is doomed to fail.
The final matter upon which the plaintiff relies is the breach of a duty of care to investigate the complaint which he made regarding the behaviour of Max Employment and Centrelink. Other than to allege the existence of such a duty of care the basis upon which it can be inferred is not explained. In the present case that would require the plaintiff to explain how he alleges the conduct of the defendant carried a foreseeable risk of harm to him and the failure of the defendant to take reasonable steps to deal with that risk. In fact the pleading makes it clear that an investigation was conducted but the outcome was not to the liking of the plaintiff.
Furthermore, an action or a breach of a duty of care requires, as an essential element, the infliction of damage. There are some vague references to the plaintiff's psychological condition and some potential impact as a consequence of the failure to investigate but nothing concrete and capable of supporting his claim and in any event as mentioned the pleading makes it clear that the complaint was investigated and the basic complaint is that of the two versions considered the defendant accepted that advanced by Max Employment.
An additional cause of action although arguably outside the indorsement on the writ, relies on the characterisation of the plaintiff as a whistleblower. The relevant legislation both State and Commonwealth protects a whistleblower from reprisals and discrimination. Neither act confers on a whistleblower a private cause of action and neither is relevant in the present action.
That brings me to an overall comment about the quality of the pleading. Whilst a litigant in person is not expected to have the finesse and skill of a trained lawyer when preparing a pleading nonetheless certain basic standards are required to be met. It is not acceptable, as this plaintiff has done, to simply quote chunks of letters, reports and other documents in a statement of claim. Apart from the fact that such quotations are potentially at least evidence, and as such not properly part of a pleading it is necessary for a pleading to identify the various matters which the plaintiff is required to prove in order to have a successful outcome in the litigation. Rarely have I seen a more muddled or disjointed attempt at a statement of claim. I would venture to say that it would be impossible for a defendant to deal with the statement of claim other than to admit a few uncontroversial facts, such as the fact that the plaintiff was a disability pensioner and so forth and to simply deny the rest. It would be necessary to take this approach because in my view it is almost impossible to understand exactly what it is that is being advanced by way of material allegations to support the claim.
In that context it is of note to remember that this plaintiff claims $500,000 compensate for the combination of the faults which he identifies and it is of more than of a technical importance that the defendant should be able to clearly understand exactly what it is that underpins the plaintiff's claim for such a substantial sum.
For these reasons I am of the opinion that the statement of claim is not only deficient but, for the reasons I have earlier mentioned incapable of cure. I am of the opinion that the action is fatally flawed and no amendment can overcome the basic deficiencies within it. For that reason I am of the view that not only should the statement of claim be struck out but also the action should be struck out. The basis of the striking out is the fact that the statement of claim does not disclose a cause of action and nothing within the facts pleaded suggest that any viable cause of action exists capable of being pursued in this action.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JC
REGISTRAR'S ASSOCIATE
19 JUNE 2018