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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWDC 58
Decision Date: 19 March 2008

CaseChat Overview and Summary

The case of Kovacevic v Abouharb was before the court, where Kovacevic, the plaintiff, sought damages for psychological injuries resulting from workplace harassment and duress. The defendant, Abouharb, argued that the claim was not only unsubstantiated but also procedurally flawed due to the plaintiff's failure to comply with pre-filing requirements under the Workplace Injury Management & Workers Compensation Act, 1998. The court was tasked with determining whether the plaintiff's statement of claim was adequate and if there were any reasonable prospects of success for the proceedings. Furthermore, the court needed to consider the appropriateness of awarding costs on an indemnity basis.

The court began by examining the adequacy of the statement of claim, finding it lacking in a summary of material facts and prone to causing prejudice, embarrassment, and delay. The court concluded that the statement of claim was an abuse of process and thus struck it out. Additionally, the court found that the plaintiff had failed to disclose a reasonable cause of action. The procedural failures, including non-compliance with the pre-filing requirements, further undermined the legitimacy of the claim. The court concluded that the proceedings were bound to fail and therefore dismissed them generally.

In light of the findings, the court awarded costs on an indemnity basis, citing the relevant delinqency of the plaintiff. The commencement of the proceedings was deemed to have no prospects of success, and the plaintiff's status as a self-represented litigant did not alter the outcome. The court's decision was unequivocal in dismissing the proceedings with costs awarded against the plaintiff.

The court's final order was the dismissal of the proceedings generally, with costs to be paid by the plaintiff on an indemnity basis. This outcome reflects the court's stance on the procedural and substantive deficiencies in the plaintiff's case.

Orders

Orders of the court

Proceedings dismissed generally with costs on an indemnity basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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)