Leinenga v Logan City Council

[2008] QSC 21

[2008] QSC 21

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 226 of 1999

CAROL LEINENGA and
JURGEN LEINENGA  Plaintiffs

and

LOGAN CITY COUNCIL  Defendant

BRISBANE

..DATE 19/02/2008

ORDER

...

HER HONOUR:  This was hearing of two applications, an application by the plaintiffs for leave to file an amended statement of claim and an application by the defendant that the proceeding be dismissed as an abuse of process.

The action commenced on 11 January 1999 by filing of a writ.  Since then the plaintiff has filed a number of statements of claim.  The first was filed on 15 July 1999.

The fifth statement of claim was filed and served on 21 December 2005.  That statement of claim was struck out by Justice Mullins on 16 October 2006 with extensive reasons given for her Honour's striking out of that statement of claim. 

Her Honour also ordered that any further statement of claim not be filed by the plaintiffs without obtaining the leave of the Court prior to filing a further statement of claim.  It was the application for leave which, as I have said, brought these applications before me today.

The hearing commenced with Mr Jackson helpfully suggesting that I first look at one of the causes of action claimed in the statement of claim; there were two causes of action apparently pleaded:  one of misfeasance in public office and the other of negligence.

As it transpired, as a result of argument the plaintiff has abandoned her claim in negligence and those paragraphs of the statement of claim dealing with negligence have been struck out.  The plaintiff should not have leave to re-plead any case in negligence.

The next approach was to go through the elements of cause of action of misfeasance in public office in order to have a template against which to judge the pleading.  It was agreed between the parties that the following elements of the cause of action could be considered for the purposes of examining the pleading.  These elements were taken from the following leading decisions of the High Court and the House of Lords: Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; Northern Territory v Mengel (1995) 185 CLR 307.

Firstly, that there was an act by which the defendant exercised power or an omission to exercise power that the defendant had a duty to exercise.

Secondly, that the defendant had acted with malice which could be constituted either by an intention to inflict injury; or  by acting or omitting to act with knowledge that there was no power to do so or fail to do so; or with reckless indifference as to the availability of the power.

Thirdly, the risk of harm from the act or omission was foreseeable, or there was reckless indifference on the part of the defendant as to the likely injury.

Fourthly, that there was damage or loss caused to the plaintiff by the relevant act or omission. 

It was with those elements in mind that I then turn to the pleading.  Unfortunately for the plaintiff it was not possible to reach the point of considering the pleading against those elements.

The reason for that is that the pleading is not written in completed sentences; does not make distinct allegations separate from other allegations; is not pleaded logically and is, in its present form, incomprehensible to the reader and therefore impossible to be used as a statement of claim or for a defendant to plead to.

In those circumstances, it is not possible to measure it against whether or not it pleads the appropriate elements of the cause of action.

I apprehend from Justice Mullins' reasons that her Honour was of the tentative view that there may be a cause of action which can be properly pleaded but on the present state of the pleading it is not possible for me to tell that.

Mr Somers then asked for the matter to be adjourned so that he could attempt to plead the statement of claim in such a way as it is comprehensible, complies with the rules in the UCPR and discloses the cause of action which the plaintiff would seek to prove in a trial of the matter.  That course was not opposed by the defendant.

I should state, however, that this was the sixth statement of claim and there must come a point where the plaintiff must either plead its case or desist.

In my view, if the pleading which is delivered in accordance with the directions I am about to give could not survive a striking-out application then the plaintiff should not be given leave to re-plead.  Finally, that will be a matter for the Judge who determines the adjourned applications, although I express that view having considered the whole history of the matter.

The directions will be:

1.  The plaintiff deliver a proposed amended statement of claim by 17 June 2008.

2.  The applications be adjourned to a date to be fixed.

3.  The costs thrown away by the adjournment be paid by the plaintiffs.

Should the matter proceed past the statement of claim, the parties should agree on a set of directions for the timely determination of the real issues in dispute between the parties so that this matter can proceed to final resolution, whether by trial or otherwise.  That, of course, is only necessary if a statement of claim is delivered which complies with the requirements of the rules and articulates the elements of the cause of action alleged.

-----