Kovacevic v Abouharb

[2008] NSWDC 58

CITATION:	Kovacevic v Abouharb [2008] NSWDC 58
HEARING DATE(S):	19 March 2008
JUDGMENT DATE:	19 March 2008
EX TEMPORE JUDGMENT DATE:	19 March 2008
JURISDICTION:	District Court Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Proceedings dismissed generally with costs on an indemnity basis
CATCHWORDS:	PLEADINGS - statement of claim struck out as it did not contain a summary of the material facts and tended to cause prejudice, embarrassment and delay, and was an abuse of process - proceedings dismissed generally as no reasonable cause of action disclosed - WORK INJURY DAMAGES - claim for psychological injury resulting from workplace harrassment and duress - failure to comply with pre-filing requirements unde the Workplace Injury Management & Workers Compensation Act, 1998 - claim bound to fail and proceedings therefore dismissed generally - COSTS - indemnity costs - relevant delinqency - commencement of proceedings having no prospects of success - self-represented litigant
LEGISLATION CITED:	Civil Procedure Act 2005: s 56, s 57, s 58 Uniform Civil Procedure Rules (UCPR): r 13.4, r 14.7, r 14.28 Workers Compensation Act 1987 Workplace Injury Management & Workers Compensation Act, 1998: s 250, s 254, s 262 , s 313 , s 315(1)
CASES CITED:	Hillebrand v Penrith Council [2000] NSWSC 1058 Lall v 53-55 Hall Street Pty Limited (1978) 1NSWLR 310 at 313 Oshlack v Richmond River Council (1998) 193 CLR 72 McDonald v Australian Securities & Investment Commission [2007] NSWCA 304 Walsh v Prest [2004] NSWCA 94 at [4] Westpac Banking Corporation v Ollis [2007] NSWSC 1008 at [6].
PARTIES:	Phillip Darko Kovacevic (Plaintiff) Buddy Abouharb (First Defendant) Stuart Brooks (Second Defendant) Vladan Ivkovic (Third Defendant) ISS Security Pty Ltd (Fourth Defendant)
FILE NUMBER(S):	18/08
COUNSEL:	Plaintiff in person Mr M Seck (Defendants)
SOLICITORS:	EMA Workplace Lawyers (Defendants)

JUDGMENT

1. The plaintiff filed a Statement of Claim on 7 January 2008 in which he claimed damages from his former employer, ISS Security Pty Limited, and three fellow employees of that company, being the other three defendants.

2. The defendants filed a motion on 12 February 2008 seeking dismissal of the proceedings or, alternatively, that the Statement of Claim be struck out. Mr Kovacevic filed a motion on 25 February 2008, seeking leave to amend the Statement of claim to add a cause of action in contract.

3. The Statement of Claim does not contain a summary of the material facts and for that reason alone; it is liable to be struck out under r 14.7. The Statement of Claim purports to plead the plaintiff’s claim by reference to an affidavit (sworn 28 December 2007) that is some 52 pages long and to which there are 77 exhibits. The affidavit is neither coherent, nor does it allege the material facts. To that extent, the pleading has a tendency to cause prejudice, embarrassment and delay and is an abuse of process: McDonald v Australian Securities & Investment Commission [2007] NSWCA 304.

4. For these reasons the Statement of Claim should be struck out under r 14.28.

5. I turn now to consider whether in my discretion, I should give the plaintiff an opportunity to replead his Statement of Claim so as to properly plead any claim he might have, in accordance with the rules, or whether the proceedings should be dismissed generally under r 13.4. See Walsh v Prest [2004] NSWCA 94 at [4], and ss 56, 57 and 58 of the Civil Procedure Act 2005.

6. The exercise of that discretion would require me to be satisfied that the exercise would not be futile. That is, does the plaintiff have an arguable claim on the basis of the material before me?

7. The material put before me was extensive, but in essence the plaintiff’s complaint is that he suffered an injury, namely a psychological disorder, arising out of or in the course of his employment by the fourth defendant. He alleges that the injury was caused as a result of workplace duress and harassment on the part of the fellow employees he has joined as defendants, between August 2005 and 24 July 2006, when his employment came to an end. (I note that Mr Kovacevic made an application to the Australian Industrial Relations Commission alleging unfair dismissal, which was dismissed on 22 November 2007).

8. As I have already indicated, the plaintiff’s claim is limited to a claim for damages. That much at least is clear. Damages recoverable from an employer, or any person for whose acts the employer is vicariously liable (that is, employees), in respect of an injury, whether for negligence, some other tort, a breach of contract or under any other action (other than in respect of a motor accident) are defined as “work injury damages” by s 250 of the Workplace Injury Management & Workers Compensation Act, 1998 (the WIM Act). That Act, in conjunction with the Workers Compensation Act 1987, now governs the recovery of work injury damages. The legislation imposes upon a worker seeking to recover such damages a series of what might be describe as “pre-filing” obligations and requirements. That is, before a Statement of Claim can be filed seeking work injury damages, such as the present Statement of Claim, the worker is required to satisfy those pre-filing requirements. The requirements include for example:

(a) An obligation to give the employer a notice of injury: s 254(1) of the WIM Act.

(b) A requirement to serve a pre-filing statement, setting out particulars of the claim: s 315(1) of the WIM Act.

(c) A requirement that the degree of permanent impairment resulting from the injury alleged exceeds 15%: s 313 of the WIM Act.

9. There are also time limits that the plaintiff has failed to satisfy (see

s 262 of the WIM Act). But it is not necessary for the purposes of my decision to examine that issue, it being abundantly clear that the plaintiff has failed to comply with the pre-filing requirements set out above.

10. The only potential causes of action articulated or indicated, either in the documentation or in oral submissions, are to be found (if at all) in one or more of the following:

(a) A breach of duty of care or negligence.
(b) Tort (intentional or otherwise) including any breach of statutory duty.
(c) Breach of contract.
(d) Conspiracy.
(e) Some other tortious conduct.

There are also various breaches alleged of a number of different laws and statutes, such as the Commonwealth Criminal Code, the Crimes Act and the Securities Industries Act. But none of these can provide a basis for any civil liability that is apparent on the material before me. In so far as the plaintiff alleges a breach of the Occupational Health & Safety Act, such breaches are only actionable as a breach of statutory duty, which cause of action is but another genre of negligence.

11. Thus all the plaintiff has established is that to the extent that he may have any claim at all against these defendants, it is a claim for work injury damages, as to which he has not complied with various necessary pre-filing requirements.

12. For these reasons, any claim that this plaintiff might have, so far as it can be gleaned from the material before me, is bound to fail and it would therefore be futile to allow him to amend his Statement of Claim.

13. It follows that the proceedings are to be dismissed generally.

14. The defendants’ motion seeks costs on an indemnity basis. Indemnity costs may be awarded under r 42.5 in the discretion of the court where there is some relevant delinquency: Oshlack v Richmond River Council (1998) 193 CLR 72; Westpac Banking Corporation v Ollis [2007] NSWSC 1008 at [6]. It is well established that where proceedings constitute an abuse of process or were commenced with no prospects of success, it is appropriate to award indemnity costs: Hillebrand v Penrith Council [2000] NSWSC 1058; see also Westpac Banking Corporation v Ollis at [8].

15. This case never had any prospects of success. It is not to the point that the plaintiff was a self-represented litigant: see Lall v 53-55 Hall Street Pty Limited (1978) 1NSWLR 310 at 313 - 314.

16. I therefore make the following orders:

1. The plaintiff’s motion of 25 February 2008 is dismissed.

2. On the defendants’ motion of 12 February 2008, as amended on 19 March 2008,

the proceedings are dismissed generally under r 13.4.

3. The plaintiff is not to recommence proceedings in this court on any claim arising

out of or in the course of his employment by the fourth defendant, without the prior

leave of the court.

4. The plaintiff is to pay the defendants’ costs of both motions and of the proceedings

generally, on an indemnity basis.

5. The affidavits, annexures and other exhibits are to remain in court for 28 days,

following which they may be returned to the parties.