Li v Hume City Council

[2019] VCC 2115

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-18-03669

Sai LI	Plaintiff
-v-
Hume City Council	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	Hearing on the Papers
DATE OF RULING:	17 December 2019
CASE MAY BE CITED AS:	Li v Hume City Council
MEDIUM NEUTRAL CITATION:	[2019] VCC 2115

REASONS FOR RULING
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Subject:Application for Summary Judgment entered against the plaintiff pursuant to s63 of the Civil Procedure Act 2010

Legislation Cited:                 Civil Procedure Act 2010;

Ruling:  Plaintiff’s pleadings have no prospect for success.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N/A	In Person
For the Defendant	Sparke Helmore

HIS HONOUR:

1       On 1 August 2019 I delivered a ruling as to the plaintiff’s statement of claim by operation of the Civil Procedure Act 2010 and the test under section 63 of that Act. There is no reason for me to repeat those previous statements made by me in the course of this ruling.

2       At that time, in the course of my ruling I made clear to the plaintiff his pleading was largely inappropriate in that:

(i)    the form of the pleading was such that for the most part the defendant could not plead to it;

(ii)  the pleading relied upon causes of action which did not exist or which the plaintiff was not entitled to pursue or which were not appropriately identified; and

(iii) aspects of the pleading were so vague that it was impossible to identify the cause of action sought to be litigated by the plaintiff.

3The primary difficulty in undertaking an analysis of the plaintiff’s amended pleadings involves the rambling structure of the paragraphs which variously contain a mixture of factual statements, assertions in the form of evidence and assertions of misconduct, many of which are inflammatory or inappropriate.

4There can be no issue that it is the obligation of the plaintiff to ensure that his further amended pleading complies with the provisions of Order 13 of the Rules of the Court, the relevant content of which may be summarised as follows:

(i)a pleading must be divided into paragraphs numbered consecutively, and each allegation so far as is practicable shall be contained in a separate paragraph;[1]

(ii)every pleading shall contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved;[2]

(iii)every pleading shall contain the necessary particulars of any fact or matter pleaded which particulars must adequately:

a)enable the opposite party to plead;

b)define the questions for the trial; and

c)avoid surprise at the trial.[3]

[1]County Court Civil Procedure Rules 2018, Rule 13.01(2).

[2] Ibid, Rule 13.02(1)(a).

[2] Ibid, Rule 13.02(1)(a).

[3] Ibid, Rule 13.10(1) and (2).

5Equally, given the plaintiff’s status as a self-represented litigant, he is entitled to some leniency in the form and structure of his amended pleading. That having been said, however, the structure must be such as to allow the opposing party to plead to the statement of claim. This is clearly not the case in this instance.

6Having considered carefully the content of the plaintiff’s pleading in his proposed further amended pleading I am satisfied that there is real merit in the defendant’s position that the pleading largely infringes each of the three obligations the subject of Order 13.

7It is a fundamental rule of pleading that a pleading is to contain only a statement in summary form of material facts upon which the party pleading relies upon in his claim but not the evidence by which those facts are to be proved.

8In reality whilst it might be possible, with substantial amendment in the structure of the statement of claim to:

a)separate statements of material fact;

b)excise pleadings as to principles of law or statements of law; and

c)identify particulars and differentiate those particulars from statements of material fact,

to determine whether the plaintiff’s pleading discloses some cause of action  which the plaintiff may be entitled to pursue against the defendant (and further a cause of action to which the defendant could appropriately plead), to the structure of the current Statement of Claim does not allow either of those processes to be achieved.

9       Each of the points made by the defendant in its final submissions dated 11 November 2019 are validly made with the exception, in my opinion, of the potential embargo upon the plaintiff bringing a claim for wrongful dismissal. In making that statement however I do so with caution in that if such a claim were to be made there must be a recognition of the fine line that arises between an appropriate pleading  and one which which gives rise to an estoppel.

10      In the context of the opportunity afforded to the plaintiff to file an amended statement of claim by reason of my previous ruling made 1 August 2019, I am satisfied that the plaintiff has been given an appropriate opportunity to file an appropriate pleading but that he has failed to do so.

11      It follows that I am satisfied that an order that it is appropriate to describe the plaintiff’s current statement of claim does not have a real prospect of succeeding should it be litigated in its current form.

12 For that reason I am satisfied that an order should be made dismissing the proceeding pursuant to the provisions of section 63 of the Civil Procedure Act 2010.

13      In making that statement it is clear that the plaintiff, if he wishes, may issue a fresh proceeding subject to the pleading in that proceeding complying with the rules of the Court.

14      I invite the defendant to file the order sought by it in the proceeding. Should the defendant make an application for costs it would be appropriate that the defendant provide to the plaintiff a brief outline as to the basis for that application.