Knight v Commonwealth of Australia
[2015] ACTSC 13
•9 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Knight v Commonwealth of Australia & Ors |
Citation: | [2015] ACTSC 13 |
Hearing Date(s): | 5 February 2015 |
DecisionDate: | 9 February 2015 |
Before: | Mossop M |
Decision: | See [46] |
Category: | Interlocutory application |
Catchwords: | PRACTICE AND PROCEDURE – whether leave should be granted to the plaintiff to file amended pleadings – whether defects in the proposed statement of claim that make it inappropriate to grant leave – turns on own facts |
Parties: | Julian Knight (Plaintiff) Commonwealth of Australia (First Defendant) Craig Colis Thorp (Second Defendant) Philip John Reed (Third Defendant) |
Representation: | Counsel: Self-represented (Plaintiff) Mr R Crowe SC (Defendants) |
| Solicitors: Self-represented (Plaintiff) Australian Government Solicitor (Defendants) | |
File Number(s): | SC 176 of 2014 |
Introduction
In these proceedings Julian Knight is seeking an extension of time pursuant to the provisions of the Limitation Act 1985 (ACT) in which to bring proceedings against the Commonwealth and two individual defendants. The circumstances alleged to give rise to the causes of action which Mr Knight seeks to pursue occurred in 1987.
This case has a substantial procedural history. Because Mr Knight is unrepresented, not legally qualified and incarcerated at the Port Phillip Prison in Victoria he has had difficulty pleading his case in a form which is in accordance with the Court Procedure Rules 2006 (ACT). The Commonwealth has, at various stages, raised objections to the form of the statement of claim or proposed amended statement of claim. The Commonwealth wishes to have a properly pleaded or at least readily understandable statement of claim because it submits that an understandable statement of claim is necessary for it to be able to reasonably respond to the application for an extension of time.
The present statement of claim is the document filed at the commencement of the proceedings. It is dated 8 April 2014. Mr Knight has applied for leave to amend his statement of claim. The formal application in proceedings was returnable on 24 October 2014. Various other interlocutory applications relating to the parties to the proceedings intervened. By a process which I do not need to describe in detail the parties to the proceedings are now the Commonwealth and two named individuals. All defendants are jointly represented. On 19 December 2014 Mr Knight was ordered to file and serve a proposed amended originating claim and statement of claim to be the subject of his application to amend. The proposed amended originating claim was uncontroversial and I gave leave for the originating claim to be amended accordingly. The Commonwealth, however, objected to the proposed amendments to the statement of claim.
Counsel for the Commonwealth submitted that there were defects in the proposed statement of claim that made it inappropriate to grant leave so as to permit it to be put in that form. He also submitted that it would not be appropriate to address the question of amendment and the question of an extension of time in which to bring the proceedings at the same time because the factual investigations necessary to determine the scope of any prejudice to the defendants depended upon their being an understandable and unambiguous pleading for the purposes of the extension of time application.
The structure of the claim
I will examine the structure of the claim in detail below. At the level of an overview, however, I understand the claim be as follows.
Claims in trespass to the person: The Statement of Claim alleges a series of assaults by the second or third defendants or other staff cadets against the plaintiff (described in paragraphs 2 to 10). It claims damages for those assaults as they involve a species of the tort of trespass to the person. The claim is made against the 2nd or 3rd defendants where those persons were the perpetrator and where the assault is alleged to have been by another staff cadet the claim is against the Commonwealth.
Claim in negligence against the Commonwealth: There is a claim in negligence against the Commonwealth (described in paragraph 14 of the statement of claim) involving a failure to provide a safe system of work, failure to provide proper supervision and failure to respond properly to previous complaints of misconduct. This claim contains no pleading of causation or damage although it does contain a claim for aggravated and exemplary damages.
Claim for breach of non-delegable duty: The other paragraphs, in particular, paragraphs 16 and 17, appear to include further causes of action against the Commonwealth relating to breaches of a non-delegable duty of care.
The relative simplicity of the claims as explained in this way is deceptive. There are aspects of these pleadings and additional pleadings which confuse the picture.
Individual paragraphs
I will address the individual paragraphs and the defects identified by the Commonwealth in relation to them below.
Paragraph 1
Paragraph 1 of the statement of claim provides “The plaintiff relies on his Form 6.11 Affidavit-general affirmed and filed on 8 April 2014 in support of this claim.” This is a statement which is embarrassing in that it performs no proper purpose in a statement of claim and makes it unclear whether or not it is sought to improperly incorporated into the statement of claim the whole of that affidavit. I would not permit the statement of claim to be amended to include it.
Paragraphs 2 to 10
Paragraph 2 sets out an incident and indicates that the plaintiff claims damages for the tort of trespass to the person against the first defendant.
Paragraph 3 sets out an incident and indicates that the plaintiff claims damages for the tort of trespass to the person against the first defendant.
Paragraph 4 sets out an incident and indicates that the plaintiff claims damages for the tort of trespass to the person against the second defendant.
Paragraph 5 sets out an incident and indicates that the plaintiff claims damages for the tort of trespass to the person against the first defendant.
Paragraph 6 sets out an incident and indicate that the plaintiff claims damages for the tort of trespass to the person against the first defendant.
Paragraph 7 sets out an incident and indicates that the plaintiff claims damages for the tort of trespass to the person against the first defendant.
Paragraph 8 sets out an incident and says that the plaintiff claims damages for the tort of trespass to the person against the third defendant.
Paragraph 9 sets out an incident and says that the plaintiff claims damages for the tort of trespass to the person against the second and third defendants.
Paragraph 10 sets out an incident and says that the plaintiff claims damages for the tort of trespass to the person against the second and third defendants.
Paragraphs 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the proposed statement of claim describe particular incidents when it is alleged that Mr Knight was assaulted, suffered a trespass to the person being either an assault or a battery or both. The Commonwealth objects to these paragraphs in so far as at the end of the paragraph there is a bracketed reference to passages in an exhibit to an affidavit filed in the proceedings by Mr Knight. For example, in relation to what is described as the “leaps & jumps” incident, said to have occurred at 8:00 pm on a date in February 1987, the paragraph reads as follows:
(2) 2000 hours, February 1987, Royal military College, Duntroon.
The plaintiff was employed as a junior Staff Cadet at the Royal Military College, Duntroon. The plaintiff was assaulted (punched twice in the stomach) by a senior Staff Cadet (Corporal William Mark Yates) in the Kokoda Company barracks at the Royal Military College, Duntroon, during an exercise known as “leaps & jumps”. The plaintiff claims damages against the 1st defendant for the tort of trespass to the person (battery). (see “Exhibit JK-2) at pages 14-15)
The reference to the exhibit is a reference to the exhibit to the affidavit referred to in paragraph 1 of the proposed amended statement of claim.
There are equivalent references in each of the paragraphs to which I have referred. The Commonwealth submits that at least in relation to some of the sections of the exhibit which are referred to they go beyond the facts pleaded in the body of the paragraph in a way which makes it unclear precisely the scope of the allegations pleaded.
I would not have read the exhibit references in a way that expanded the scope of the material facts pleaded. They appear simply to be included as helpful cross-references to the evidence which Mr Knight proposes to rely upon in relation to the allegations pleaded. In that sense they serve the purpose of particulars. However, I accept that the references to the exhibit are not specifically identified as particulars and hence there is a possible ambiguity. This could be secured by simply including a reference to the fact that the references to the exhibit are simply provided as particulars of the material facts pleaded earlier, for example by the inelegant but effective amendment of inserting the word “Particulars:” before the word “see”.
However, as I understand it, the submission of the Commonwealth goes further and suggests that by reason of the content of the exhibit references this would not completely cure the problem. Unfortunately that involves an examination of each of the exhibit references. I have examined each of the exhibit references to the paragraphs 2 to 10 and I am not satisfied that this submission is correct. The passages identified appear to correspond with allegations made in the body of each paragraph and I am not satisfied that there is any inadequacy in that regard. Indeed, the position of the defendant in understanding the claim made is substantially better than in most personal injury cases because the defendant has a detailed statement from the plaintiff providing detail of the incidents and putting them in context.
Paragraph 11
Paragraph 11 alleges that in each of the incidents the relevant staff cadets:
·were acting in the course of their employment; and
·engaged in authorised conduct or authorised conduct done in a wrongful and unauthorised manner; or
·engaged in conduct done in the intended performance of the tasks to which the staff cadets were authorised to perform.
This pleading is significant because it goes to facts relevant to the establishment of vicarious liability in relation to each of the incidents described by Mr Knight.
Paragraphs 12-13
Paragraphs 12 and 13 plead that the incidents either occurred at “the plaintiff’s workplace” or at a place away from the plaintiff’s workplace while the plaintiff was supposed to be on duty but was absent without leave. These paragraphs plead material facts relevant to the connection between the events pleaded and the obligations of the Commonwealth as equivalent to the plaintiff’s employer.
Paragraph 14
This paragraph pleads that the first defendant was negligent in various ways. It provides:
(14)13 January 1987-to July 1987, Royal Military College, Duntroon.
The plaintiff was employed as a junior Staff Cadet at the Royal Military College, Duntroon. During the relevant times the first defendant was negligent in:
(a)Failing to provide a safe system of work,
(b)Failing to provide an proper system of effective supervision of instructing staff & senior Staff Cadets, particularly with respect to their assimilation, induction, training & discipline of junior Staff Cadets,
(c)Failing to respond appropriately to complaints of previous misconduct (“bishing”) by senior Staff Cadets (see “Exhibit JK-2” at pages 21-23 & Smith v Department of Defence, unreported, Supreme Court of NSW, Sperling J, 6 April 1998: BC 9801079), &
(d)Failing to respond appropriately to complaints of previous misconduct (“bastardisation”) by senior Staff Cadets (see “Exhibit JK-2” at pages 29-30).
In the circumstances, the plaintiff claims aggravated & exemplary damages for the tort of negligence.
The defendant submitted that this pleading:
(a)of itself does not include any pleading of damage (as opposed to a claim for aggravated and exemplary damages);
(b)does not plead any causal link between the negligence and the damages;
(c)is not clear whether the only facts relied upon are those facts earlier pleaded in the claim or whether there are other facts which occurred during the period identified; and
(d)embarrassingly includes a reference to the decision in Smith v Department of Defence, unreported, Supreme Court of NSW, Sperling J, 6 April 1998.
I will deal with each of these points in turn.
(a) and (b): If the paragraphs are to demonstrate a complete cause of action then it is necessary to plead that the breaches of duty caused damage.
Presently there is no pleading of a causal connection between the breaches of duty and any damage. That could be cured by simply pleading that “By reason of the negligence of the first defendant the plaintiff was subject to the assaults referred to in paragraph 2-10.” Such a pleading would assume that it is those incidents and only those incidents which are the damage relied on for the purposes of paragraph 14. I have assumed that to be the case but I cannot be certain that that is the plaintiff’s intention.
It is not clear whether the claim is intended to include a claim for economic loss arising from the assaults as contemplated in paragraph 17. If it was, then that should be made clear by pleading any relevant causal link and damage, for example, “By reason of the negligence the plaintiff was forced to resign his appointment as a staff cadet, failed to graduate as a lieutenant in the Australian Regular Army and suffered damage as a result.”
Finally, the plaintiff needs to plead damage other than aggravated or exemplary damages if he wishes to recover those damages. That could readily be done by inserting before the reference to “aggravated & exemplary damages” the word “damages”.
(c): Although it possibly could be implied that the facts relied upon were limited to those in paragraphs 2 to 10, the end date in paragraph 14, namely, 2 July 1987, extends beyond the latest date referred to earlier, namely, 31 May 1987, which tends to make any implication less certain. For present purposes the point in relation to paragraph 14 is that it needs to be made clear whether the damage arose from the matters pleaded in paragraphs 2-10 or whether paragraph 14 is intending to be a broader claim not limited to the defined incidents pleaded elsewhere. As pointed out in relation to (a) and (b) above, the extent of causally related damage needs to be made clear as it would substantially affect the scope of the damages claimed and raise more difficult issues of causation of loss.
(d): In my view the reference to Smith v Department of Defence is embarrassing. It could be treated as particulars in the same way as I have indicated the references to the exhibits should be treated. However, it would be necessary to identify what about that case was relevant to paragraph 14(c), for example, “In March 1987 the Commonwealth was aware of injuries caused to Ms Smith arising from a bishing incident that occurred in March 1987.” It appears from the submissions that were made by the plaintiff that he was proceeding on the basis that the existence of the decision in Smith proved the facts referred to therein. That is not the case: see Evidence Act 2011 (ACT) s 91. Thus, it would ultimately be necessary for the plaintiff to prove by admissible means (which might include business records of or admissions by the Commonwealth) the facts found in Smith if they were to be relied upon in support of this aspect of the first defendant’s negligence.
Paragraph 15
Paragraph 15 pleads facts relevant to vicarious liability of the first defendant for the conduct of the staff cadets, including the second and third defendant’s. This seems to be assumed by the pleadings against the first defendant in paragraphs 2, 3, 5, 6 and 7 but not pleaded at that point. The plaintiff claims aggravated and exemplary damages against the first defendant for the tort of negligence. This paragraph could be simply a pleading of vicarious liability relevant to the claims already pleaded but because of the references to aggravated and exemplary damages appears to be an additional claim in negligence against the first defendant. The status of this paragraph would be made clearer if the last sentence was deleted and any claim for aggravated or exemplary damages pleaded separately. It would then be clear that it was pleading material facts and making the claim of vicarious liability relevant to the actions pleaded in paragraphs 2 to 10. However, if, in fact, it is to be a separate cause of action then this should be made clear.
Paragraph 16
Paragraph 16 contains a pleading of a non-delegable duty of care to the plaintiff and involves a claim for aggravated and exemplary damages against the first defendant for the tort of negligence. Once again this appears to be seeking to add an additional cause of action. If it was to be pleaded as such then it would need to (a) identify the facts relied upon (presumably paragraphs 2 to 10); and (b) plead causation and damage (such as, “By reason of the failure of the first defendant to ensure that reasonable care was taken of the plaintiff, the plaintiff was assaulted as alleged in paragraphs 2 to 10 and suffered loss and damage”).
Paragraph 17
Paragraph 17 contains a similar pleading of a non-delegable duty but pleads that the plaintiff was forced to resign his employment as a staff cadet and as a result failed to graduate as a lieutenant leading to a claim of damages for loss of future earnings. It refers to “continual workplace harassment and bullying” by second and third defendant’s and other senior staff cadets. It does not make it clear whether the continual workplace harassment and bullying is limited to the matters referred to in paragraphs 2 to 10 or whether this is a claim that extends to additional but not yet pleaded facts. If limited to the existing claims in paragraphs 2 to 10 the paragraph would be unnecessary so long as the separate components of damage were properly pleaded in that paragraph.
Final dot point
At the conclusion of the pleadings there is a dot point which provides “reasons for making the claim:” and then sets out in paragraphs (a), (b) and (c) following:
(a)To be compensated for the injuries, & resulting pain & suffering, suffered by the plaintiff.
(b)To be compensated for the earnings the plaintiff would have earned had he graduated as a lieutenant into the Australian Regular Army.
(c)To pursue the rights the plaintiff would have pursued within time had he not given an undertaking in 1988 to the 1st defendant, in acceptance of an offer held out on behalf of the 1st defendant, not to raise the matter is the subject of this claim during his plea hearing in the Supreme Court of Victoria in the matter of R v Knight (Case No T557 of 1988) or, by implication, in any other curial proceedings.
A statement of the reasons for bringing a claim is superfluous. Therefore, these paragraphs are embarrassing. In so far as some of the matters in paragraphs (a), (b) or (c) are elements of causes of action or otherwise material facts then they should be pleaded elsewhere. The claim for economic loss appears to be pleaded in paragraph 17. The claim of economic loss is significant because the present version of the statement of claim disavows any claim for economic loss and hence if a claim for economic loss arising from loss of earnings in the Australian Regular Army is to be made then such losses would be substantial and should be clearly pleaded.
For these reasons, although I have not accepted all of the submissions of the Commonwealth I accept its submission that it is not appropriate that leave the granted for the plaintiff to file the amended statement of claim annexed to the application in proceedings returnable on 5 February 2015.
I consider, however, that it would be appropriate to permit the plaintiff to make a further application for leave to amend his statement of claim if he so wishes. That is because it is clear that this is a case in which the problem with the statement of claim is not that a viable cause of action could not be pleaded, but instead because the unrepresented and incarcerated plaintiff has been unable to do so. Having regard to my observations on the pleadings it is likely that an unambiguous claim and hence one to which the Commonwealth might fairly respond could be pleaded.
The pleading of the plaintiff contains most of the elements of claims against the defendants for assault and in negligence. It would be a relatively simple matter for a competent junior barrister to restructure the claim so it constituted a coherent pleading and did not give rise to the difficulties that the present claim does. The most significant issues that need to be clarified at this stage are those which will significantly influence the defendants’ response to the application for extension of time: (a) is the claim based on negligence limited to damage arising out of the events pleaded at paragraphs 2 to 10?; and (b) do the damages claimed extend to claims for economic loss from the plaintiff failing to maintain a position in the Australian Regular Army?
Subject to any submissions that the parties have to make, the orders that I propose to make are:
1. The application for leave to file an amended statement of claim returnable 24 October 2014 (and referred to in the orders made on 19 December 2014 as the application dated 21 October 2014) is dismissed with costs.
2. The plaintiff is directed to file and serve any further application for leave to file an amended Statement of Claim within 14 days and that application need not be supported by an affidavit but must annex a copy of the proposed statement of claim.
3. The Registrar is to forward a copy of this decision along with the application in proceeding returnable 5 February 2015 and the documents headed “Originating claim” and “Statement of Claim – general” which were annexed to the application to the President of the ACT Bar Association with a request that the President either:
(a)identify a suitable member of the Association who is able to urgently assist Mr Knight on a pro bono basis to put his pleading in a form which is not ambiguous and is otherwise in accordance with the rules of pleading so that it may be the subject of the application referred to in order 2 and provide his or her contact details to the Registrar so that they may be provided to Mr Knight; or
(b)communicate to the Registrar if he is unable to identify any barrister able to assist Mr Knight.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 11 February 2015 |
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Amendments
11 February 2015 Order 3(a): Insert “is” in between Paragraphs: [46]
the words “and otherwise”.
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