Lin v State of New South Wales

[2024] NSWSC 77

Supreme Court

New South Wales

Medium Neutral Citation:

Lin v State of New South Wales [2024] NSWSC 77

Hearing dates:

30 January 2024

Date of orders:

09 February 2024

Decision date:

09 February 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1) The leave Ms Lin sought is refused.

(2) Ms Lin has leave to file a further motion, seeking leave to file a further amended statement of claim, by 4pm on 1 March 2024.

(3) If Ms Lin does not file such a motion before that time, the proceedings will be dismissed under r 13.4(1) of the UCPR, unless final costs have to be determined.

(4) If there is no costs dispute, the Court’s order will then be that Ms Lin is to bear the State’s costs of the proceedings, as agreed or assessed.

(5) If there is a costs dispute, the parties should approach to be heard before 4pm on 8 March 2024, with short written submissions addressing what is in issue about those costs.

(6) In that event, the proceedings will be dismissed when the costs dispute has been heard and determined by the Court.

(7) If Ms Lin does file a further motion on or before 4pm on 1 March 2024, unless the parties approach to be heard on costs, the Court’s order will then be that she is to bear the State’s costs of this motion, as agreed or assessed.

(8) If there is a costs dispute, the parties should also approach to be heard by 4pm on 8 March 2024, together with short written submissions addressing what is in issue about the costs of the motion.

(9) In that event, the proceedings will also be dismissed when the costs dispute has been heard and determined by the Court.

Catchwords:

CIVIL PROCEDURE – pleadings – where plaintiff is a self-represented litigant – where plaintiff given a number of opportunities to re-plead – whether leave to file further amended statement of claim should be granted – refused – whether pleadings disclose a reasonable cause of action – whether proceedings should be dismissed – whether plaintiff should be given a further opportunity to replead – whether guillotine order should be made

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56-60, 64

Crown Proceedings Act1988 (NSW)

Defamation Act2005 (NSW)

Freedom of Information Act1989 (NSW), s 45

Mental Health Act2007 (NSW), s 22

Police Act1990 (NSW), s 6(1)

Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4(1)(c), 14.7-14.9, 14.14, 14.28(1), 14.30,15.1, 15.5, 15.12, 15.19(1)

Cases Cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17

Beckett v State of New South Wales [2015] NSWSC 1017

Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258

Cox v Journeaux(No 2) (1935) 52 CLR 713; [1935] HCA 48

Dickens v State of New South Wales (No 3) [2018] NSWSC 485

General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125; [1964] HCA 69

Karam v Palmone Shoes Pty Ltd [2012] VSCA 97

Knorr v CSIRO (No 3) [2012] VSC 529

Lin v State of New South Wales [2023] NSWSC 953

Lin v State of New South Wales [2023] NSWSC 1092

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Reeves v State of New South Wales [2010] NSWSC 611

Young v Hones [2013] NSWSC 580

Category:

Procedural rulings

Parties:

Huai Ning Lin (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Senior (Defendant)

Solicitors:
Crown Solicitor’s Office (Defendant)

File Number(s):

2023/63093

Publication restriction:

Nil

JUDGMENT

1. By her February 2023 statement of claim, Ms Lin seeks orders requiring the State to transfer all event reports under her name in the police data base from the Mental Health category to the General category. She also seeks that a note stating that she does not have a mental health problem be added. She also pursues compensation in relation to her claimed long-term psychological suffering and loss of protection from police.

2. Particulars given included her treatment by police since mid-2020. Ms Lin claims that this treatment was extremely unjust, their approach being that she was mentally incapable and, therefore, that all of her reports raised unrealistic allegations. Additionally, police did not produce the documents she sought under the Freedom of Information Act1989 (NSW); refused to correct their records; and continued to treat her as a schizophrenic patient.

3. Ms Lin claimed that this treatment had also breached the Mental Health Act2007 (NSW). As a result, she had suffered tremendous mental pressure and serious damage to her reputation. She claimed that this should be considered under the laws of tort and defamation, given that schizophrenia is a most serious brain disorder, from which she does not suffer.

4. This judgment deals with Ms Lin’s November 2023 motion, by which she seeks leave to file an amended statement of claim. It is supported by affidavits she has sworn.

5. Her 6 November 2023 affidavit explains what caused her to file this motion. Her 21 March 2023 affidavit explains how she came to bring the proceedings, it having come to light in July 2017 Local Court proceedings that police were not aware of her nationality and that they had recorded in the data base that she suffered from schizophrenia. In 2019, given her recorded history of mental health incidents and other matters, police became highly doubtful of her allegations, which they refused to investigate further. In February 2020, it was also recorded that police had observed clear signs that her mental health issues were worsening.

6. Ms Lin explained her attempts to have her police record altered and why she claims that police breached various legislative provisions in not correcting it. This was despite her having provided medical certificates and other records, including those evidencing her academic achievements, which established that she does not suffer from schizophrenia. Still, the police continued treating her as if she suffered this disease, which has no cure.

7. Ms Lin also explained why she sought damages, including those based on the principles she said were applied in Reeves v State of New South Wales [2010] NSWSC 611 and Beckett v State of New South Wales [2015] NSWSC 1017.

8. It should be observed that in Reeves, Mr Reeves was medically discharged from the Police Service after some 29 years of service. His proceedings were brought under the Crown Proceedings Act1988 (NSW). He successfully sought damages for psychological injuries which he suffered during the course of his work, having been discharged after he had made five hurt on duty applications. Two of these applications related to injuries to his knees and three to psychological injuries. While four of these claims were accepted by the Police Service as injuries for which it had responsibility, it had denied one of his claims for psychological injury, which became the subject of those proceedings.

9. Ms Beckett had successfully pursued an appeal against a decision of the Court of Criminal Appeal about a civil claim she had brought against the State for malicious prosecution of offences it claimed she had committed against her husband: Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17. In the proceedings in this Court, Harrison J, as his Honour then was, awarded Ms Beckett $2,310,350 in damages, plus interest. That award rested on the conclusion that a Detective’s proven behaviour “was instrumental in the production or the fabrication of evidence that was not, or would not have been, otherwise available for use in the prosecution of Ms Beckett”: at [841].

10. Ms Lin’s circumstances are quite different to what arose for consideration in these cases.

Issues

11. The State opposed the leave sought being granted. In issue between the parties was whether:

1. leave to file the proposed amended statement of claim should be granted;

2. if that is refused, Ms Lin should be given a further opportunity to replead; and

3. if that is refused, the proceedings should be dismissed, or a guillotine order made.

The parties’ cases

12. There was no common ground about any of these issues when the hearing commenced. Having heard Ms Lin’s oral submissions the State accepted that she may not have properly understood her situation. It announced that it would accordingly not press for the dismissal of the proceedings, if the Court considered that a guillotine order should be made, giving her a final opportunity to replead.

Ms Lin

13. Ms Lin opposed such an order, explaining that she considered that she had complied with the applicable requirements of the Uniform Civil Procedure Rules 2005 (NSW), having provided all the necessary particulars of her claim and explained the serious issue she was pursuing. In the result, if she was not given the leave she sought, she had no intention of further amending her pleadings, but would appeal. This is despite submitting that she is seeking to pursue a claim which she considers important not only to her, but to society as a whole.

14. Ms Lin’s case was that the leave sought should be granted, her further amended statement of claim now identifying the serious claims about police misconduct which she sought to pursue. It also addressed problems identified by Chen J with her original statement of claim, which his Honour dismissed, and with the amended statements of claim which he refused her leave to file: Lin v State of New South Wales [2023] NSWSC 953. She claimed that it also now complied with the applicable requirements of the Rules, which she identified to be r 15.5.

15. In her oral submissions, Ms Lin also explained that what she pursued was police officers having illegally diagnosed her to be suffering schizophrenia, which they had neither the expertise nor authority to do; recording this in the Police data base; and then continuing to act on that diagnosis to her detriment, despite evidence she had provided, which established that she did not suffer any mental illness. It was allegations of negligence and other torts, as well as breaches of statutory duty which she now sought to pursue, with the relevant facts and circumstances of those claims also pleaded.

16. Ms Lin also indicated that she had not obtained pro bono legal advice, as Campbell J had ordered: Lin v State of New South Wales [2023] NSWSC 1092. Despite this, she considered that she now had to be given the leave she sought, given that her further amended statement of claim raised serious issues and complied with the Rules. She thus did not propose to replead again, even if she was given a final opportunity to put her statement of claim in proper form before the proceedings were dismissed.

17. Ms Lin’s position was that given her now compliance with the Rules, the proceedings could not justly be dismissed.

The State

18. The State’s case included that:

1. Chen J had struck out Ms Lin’s original statement of claim and refused leave to file the amended statements of claim Ms Lin had filed on 21 March 2023 and 14 April 2023: r 14.28(1). That rested on conclusions that:

1. Ms Lin had failed to plead material facts: at [40];

2. the proposed pleading did not establish the materiality of what was pleaded about the claimed breach of s 22 of the Mental Health Act: at [43];

3. the Freedom of Information Act, on which some claims were advanced, had been repealed: at [44];

4. no particulars of the tort claims had been provided: at [46];

5. what had been decided in Reeves and Beckett were irrelevant to the claims advanced: at [46]; and

6. the then proposed amended statement of claim was not materially different to Ms Lin’s original pleading: at [51].

2. Time to file a further amended pleading was later extended by Campbell J by consent to 10 November 2023 and Ms Lin was referred for pro bono assistance, for a limited purpose. Namely, to “consider Chen J's judgment, the new draft that the plaintiff wishes to propound and proffers advice about whether the claim has sufficient merit to justify the filing of a Proposed Amended Statement of Claim”: at [12]. But she did not receive such assistance.

3. His Honour also observed that it would be helpful if a barrister was able to proffer advice about whether there was an administrative route by which the record in issue could be corrected: at [12].

4. The result was that the pleading which Ms Lin now sought leave to file was not materially different to those which Chen J had dealt with. Although some additional particulars had been provided, as well as a reference to the Police Act1990 (NSW), along with the claim that the conduct Ms Lin complained about amounted to malpractice and breach of care towards her.

5. It also had a tendency to cause prejudice, embarrassment or delay and was unintelligible, vague or too general, that being the basis on which the original pleading was struck out: r 14.28(1). Leave should thus be refused, given what ss 56-60 and s 64 of the Civil Procedure Act 2005 (NSW) provide.

6. Ms Lin had had ample opportunity to address the deficiencies in her pleadings. It should thus be accepted that there was no real prospect that they would be rectified, if she were to be given yet another opportunity to replead, not having yet produced a pleading which complied with the Rules or disclosed a reasonable cause of action. In the result, the proceedings should be dismissed.

7. But it was finally accepted that it appeared from Ms Lin’s oral submissions that she may not have understood all of what Chen J had explained. Because she was unrepresented and had not had any legal advice, it was suggested that an available alternative for the Court was to make another guillotine order, giving Ms Lin a final opportunity to replead, which the State would not oppose. If she did not avail herself of that, the proceedings would be dismissed under the guillotine order it proposed the Court should make.

Should the leave sought be granted?

19. I am satisfied that the leave Ms Lin sought cannot be granted, given how she has repleaded. That is, despite her strongly held views, in terms which did not adequately address the problems Chen J had to deal with.

Chen J’s Decision

20. To explain that conclusion, Chen J’s decision must be understood. His Honour’s reasons included that:

1. Ms Lin’s interaction with police at her home in April 2015 had led to a police report which recorded that she was suffering from schizophrenia: at [2];

2. Ms Lin had described the circumstances, which included her denial that she had consumed drugs, drunk alcohol or had any mental health issues: at [9];

3. The COPS event report of this incident included that Ms Lin had “contacted emergency services at about 2:50am, stating that radiation was coming through her roof and into her head and she was getting dizzy as well as her mother”. In her bedroom she told police that she could “[hear] thumping noises on the roof and that radiation was coming through”. She had sticky taped aluminium foil to the ceiling to prevent the radiation from coming through. Later enquiries established that she suffered from schizophrenia: at [10];

4. In her pleadings, Ms Lin alleged that “the truth” was that she has “never suffered or had been diagnosed [with] schizophrenia”: at [11];

5. Ms Lin’s claims had included that:

1. in 2017 summary criminal proceedings which she had successfully defended, she had declared that she did not have schizophrenia or mental health problems. Her involvement in those proceedings and 2022 medical certificates established that she had never suffered any mental illness: at [12]-[13]; and

2. untrue police records had seriously affected her rights. The result was that since May 2020, she had unsuccessfully corresponded with the Commissioner of Police and also lodged complaints about the records which she sought to have corrected: at [14];

6. The thrust of her case, reflected in her pleadings, was that she was pursuing breaches of the Mental Health Act2007, the Freedom of Information Act1989 and the Defamation Act2005 (NSW), as well as torts: at [17]-[18];

7. Ms Lin’s amended pleading pursued similar claims. Essentially, she sought a correction of the police COPS event reports and “compensation” for her “suffering and losses”: at [21]-[24];

8. Her pleading also alleged “malpractice in Negligent Torts”. She still impermissibly adopted a narrative style form which set out various matters advanced in support of her claims, “which are by no means easy to follow”, making reference to a number of judicial decisions, the relevance of which was unclear: at [22]-[23].

9. The general principles that inform the nature and function of pleadings, which are reflected in the Rules, were explained in Young v Hones [2013] NSWSC 580 at [79]-[80]. They are: to state with sufficient clarity the case the defendant must meet; to define the issues for decision; to ensure the basic requirements of procedural fairness, namely that a party should have the opportunity to meet the case pursued by the plaintiff; and to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: at [27]- [30].

10. The Court may not assist parties with drafting their pleadings, but must ensure that they are within the Rules and fulfil the functions for which they exist. They must also ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent and intelligible statement of its case: at [32]. His Honour then explained the Rules and authorities relevant to what arose to be determined: at [33]-[39].

11. His Honour then turned to consider the terms of the proposed amended statement of claim, concluding that they did not properly or meaningfully plead the material facts Ms Lin relied on. Nor did they properly or meaningfully set out the legal claims she sought to advance: at [40]. The reasons given for this included that:

1. section 22 of the Mental Health Act had nothing to do with what occurred on 28 April 2015, or at any time afterwards. Nor did the pleading seek to demonstrate the materiality of that section to what Ms Lin alleged occurred that day: at [43];

2. The claim advanced under s 45 of the Freedom of Information Act was abandoned by Ms Lin at the hearing. That Act having been repealed in 2010: at [44]; and

3. Nothing in the pleadings provided any particulars of Ms Lin’s tort or malpractice claims and the authorities she relied on were not relevant to those claims: at [45]-[46].

21. His Honour refused to strike out the proceedings. Despite entertaining some not inconsiderable doubt about this, he could not exclude the possibility that there was a claim that was capable of being advanced by Ms Lin. He concluded that the position was thus close to, but not quite at, the point where it might be open to conclude that there was no real prospect that she would be able to produce a better version of her pleading. The result was that it could not yet be concluded that it would be futile to grant her leave to file a further iteration: at [49].

22. Ms Lin was thus given a further opportunity to replead.

The requirements of the Act and the Rules

23. The Court’s undoubted power to permit pleading amendment is now regulated by s 64 of the Civil Procedure Act and the Rules. The circumstances in which a further opportunity to replead is sought must be considered, in order to resolve what lies in issue. Whether or not Ms Lin’s further amended statement of claim now complies as it must with requirements of the Rules, must also be considered. They apply to all litigants, including those like Ms Lin who are unrepresented, despite her referral for pro bono assistance.

24. Under s 64, subject to s 58, all necessary amendments must be allowed to be made to the pleadings for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings: s 64(2).

25. Section 58 requires the Court, in making such orders, to "seek to act in accordance with the dictates of justice". In determining what they are, s 58(2)(a) requires the Court to have regard to the provisions of ss 56 and 57. Section 58(2)(b) permits it also to have regard to the following, if considered relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

26. Section 56 also requires the Court and the parties to act in accordance with the overriding purpose of the Act, being the just, quick and cheap resolution of the real issues in the proceedings. Section 57(1) requires that for the purpose of furthering this overriding purpose, the proceedings must be managed having regard to the specified objects of:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

27. Leave to amend pleadings will thus not be granted unless the proposed amendment is proper as to both substance and form and not liable to be struck out. As Adamson J, as her Honour then was, concluded in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [43], in this case there is again a question about whether there is any real prospect of Ms Lin being able to improve her currently proposed pleading. I am satisfied that it does not adequately address the problems which led Chen J to dismiss her original pleading and refuse leave to file the amended statements of claim which she then pursued.

Why Ms Lin’s application must fail

28. Regrettably, Ms Lin did not receive the legal advice Campbell J referred her for. She has no doubt dedicated much time and energy to her various pleadings, including in order to rectify what Chen J explained about their failings. But the drafting she has adopted and the compliance of her proposed amended pleading with the requirements of the Rules does not depend on her application, energy, motivation or intentions.

29. What was required on repleading was the application of skills which Ms Lin understandably does not appear to have, to ensure that the applicable Rules are complied with.

30. I have concluded that despite Ms Lin’s strongly held and clearly articulated contrary view, the result is that I, too, must accept that the pleading she now seeks to be given leave to pursue, still does not adhere to applicable Rules. Nor does there appear to be any real prospect, without legal assistance, of her being able to improve her deficient pleading.

31. Ms Lin has not addressed the pleading deficiencies Chen J dealt with. They include her continued reliance on the Mental Health Act, Freedom of Information Act and authorities which his Honour found were irrelevant to her claims. The parties are bound by his Honour’s judgment, it not having been challenged on appeal. That being so, what is advanced in support of Ms Lin’s motion cannot seek to impugn his Honour’s decision.

32. But despite what his Honour has already decided about the irrelevance of this legislation and those authorities, in her proposed pleading Ms Lin still relies on them.

33. That pleading also still fails to comply with applicable Rules, including by not providing required particulars of various of her claims and her continued couching of those claims as partly a narrative and partly submissions. This must all result in her application being refused.

34. To understand this conclusion, it must be appreciated that the Rules not only require that Ms Lin’s statement of claim be brief. They also require that it must:

1. contain a summary of the material facts on which she relies, not the evidence by which those facts are to be proven: r 14.7;

2. state the effect of material documents and words spoken and not the precise terms of the document or spoken words, except so far as they are themselves material: r 14.9;

3. plead any matter which if not specifically pleaded, may take the State by surprise, including any facts which show illegality, including claimed fraud or deceit. They must also all be properly particularised, by specifying the acts involved and that they were done in a manner amounting to the illegality claimed: r 14.14;

4. give such particulars of all claims or other matters pleaded, as are necessary to enable the State to identify the case that the pleading requires be met: r 15.1;

5. when defamation is pursued, the claimed defamatory statements must be pleaded, as well as the defamatory imputations which are relied on and the publication which it is claimed has caused, or is likely to cause, serious harm to reputation: r 14.30;

6. defamation claims may not include any allegation that the publication was false, malicious or unlawful: r 14.30;

7. other specified particulars required to be given about defamation claims include any publication on which the plaintiff relies; any publication, circulation or distribution of the matter complained of relied on in respect of the question of damages; the part or parts of the matter complained of relied on in support of each pleaded imputation; as well as the serious harm it is claimed that the publication has caused, or is likely to cause, to the plaintiff’s reputation: r 15.19(1);

8. in the case of allegations of negligence, the particulars given must state the facts and circumstances relied on to establish the alleged negligence and if more than one negligent act or omission, the facts and circumstances on which Ms Lin relies in respect of each alleged negligent act or omission must be stated separately: r 15.5(1)(b);

9. when breach of statutory duty is pleaded, the facts and circumstances relied on as constituting the alleged breach must also be stated and if more than one such breach, they must be separately stated for each breach: r 15.5(2);

10. in the case of personal injury claims, specified documents must be served, as well as a statement giving particulars of claimed injuries: r 15.12.

35. These requirements all explain the conclusions Chen J arrived at, given Mr Lin’s failure to adhere to them. Despite this, while still failing to adhere to all of these requirements, Ms Lin contended that her current pleading rectified all such problems. But I am satisfied that cannot be accepted.

36. In her proposed fourth amended statement of claim, after the relief claimed, Ms Lin outlines what she briefly describes to be the “key facts in the application”, which she considers addressed the problems Chen J identified. It then moves to “particulars of injuries”, but none are provided there, or elsewhere. Nor are other required particulars.

37. Instead, definitions of malpractice and duty of care are there given. It is then stated that “Recording plaintiff as suffering from schizophrenia without medical certificates and without legislative permission is illegal and is a malpractice in Negligent Tort”.

38. There then follows a narrative about what Ms Lin claims occurred on 28 April 2015. That includes a quote from an annexure to Ms Lin’s 21 March 2023 affidavit, before what appear to be submissions about the case she wishes to advance, rather than particulars.

39. There it is contended, for example, that the police records in issue were not true and caused serious detriments to her rights and emotional turbulence. It is also claimed that police had confirmed that those records had been based on police officers’ observations and opinions. Part of a 9 November 2021 letter of Superintendent Scholz is then quoted. But it does not refer to “observations and opinions”, but rather to “observations and information”.

40. Parts of a 1 August 2022 letter from A/Superintendent Wyse are then quoted. But it also refers to “observations and opinions”, which it was believed officers obtained, and which it was considered had been lawfully and appropriately recorded.

41. Reference is then made to the Mental Health Act. The case advanced is that the police could not determine mental illness, there being no legislation which empowered them to do so.

42. There then follows a heading: “The records had serious detriment to plaintiff’s rights and resulted in huge damages to plaintiff’s mental wellbeing and physical wellbeing”.

43. A police report is then quoted and an explanation is given about how it is claimed police conducted themselves when attending Ms Lin’s home on one occasion, which led Ms Lin to lose trust in them. That was because, she claims, they treated her “with bias and unfairness”. But no particulars are given of this, or of other claimed “brutal” treatment. For example, such as when this treatment is claimed to have occurred, or the police officers claimed to have been involved. Nor are particulars given of her resulting claimed “emotional turbulence”.

44. Under the heading “Refusing to correct the illegal records is a malpractice”, the pleading then explains Ms Lin’s unsuccessful pursuit of correction of police records under the Freedom of Information Act, with the NSW Ombudsman, the Law Enforcement Conduct Commission and the police, even after provision of the medical records on which she relies. This is despite Chen J having concluded that the repeal of this Act had made it irrelevant, which Ms Lin had accepted at the hearing.

45. It is then claimed that the records the subject of her claims are “groundless and were created illegally”, are illegal and constitute a malpractice. But required particulars of these claims are also not given.

46. Under the heading “Conclusion of malpractice claim”, submissions are advanced about Ms Lin’s claims. Under the heading “Damages caused by the records are foreseeable”, s 6(1) of the Police Act is quoted and submissions are advanced about the claimed connection between the police records and the attitude of police officers towards her. But again no particulars are given.

47. Under the heading “Defendant owed a duty of care to plaintiff but breached it”, the pleading claims that her damages were foreseeable and that the police owed her a duty of care. Submissions are then advanced to explain that it would be concluded that there had been malpractice and that the police had breached its duty of care, which had resulted in both damages and “extreme injustice”. This warranted the Court ordering that a note be added to Ms Lin’s profile stating that she does not have mental health issues, as well as compensating her long-term losses and suffering. These claims are also not particularised.

48. Despite Chen J’s unchallenged judgment, reliance is also still placed on Reeves, as well as Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 and Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258.

49. Medlin was concerned with damages for loss of earning capacity in a negligence case. Caltex involved an appeal from the Dust Diseases Tribunal about an error of law in a negligence case, concerning the duty of care owed by a principal who had engaged an independent subcontractor to a third party. Neither have any apparent relevance to what Ms Lin is seeking to pursue.   

The leave sought must thus be refused

50. According to the case Ms Lin advanced, she has rectified all of the deficiencies in her earlier pleadings which Chen J identified. That, in fact, has not been achieved. The result is that the Rules are still not complied with as they must be and that the leave she seeks cannot justly be granted, especially given the requirements of s 56 of the Civil Procedure Act.

51. The proposed pleading does not disclose, as it must, the case the State has to meet, or allow the parties or the Court to identify the real issues it raises.

Should Ms Lin be given yet another opportunity to replead?

52. Given this conclusion and that Ms Lin did not seek to replead again, having indicated that if leave were refused, she would appeal, rather than repleading even if given another opportunity to do so, it appears to follow that there is no utility in permitting Ms Lin to make the guillotine order the State proposed.

53. The State, however, advanced this in fairness to her. Given that it must be accepted that she may not have fully understood Chen J’s decision, I have concluded that despite her stated attitude, she must be given a final opportunity to replead.

Should the proceedings be dismissed?

54. This needs to be considered in circumstances where Ms Lin resists the making of a guillotine order.

55. In Dickens, Adamson J, referring to Karam v Palmone Shoes Pty Ltd [2012] VSCA 97 at [36] and Knorr v CSIRO (No 3) [2012] VSC 529 at [27]-[29], dismissed those proceedings pursuant to rr 12.7 and 13.4(1)(c).

56. In Knorr, Beach J had accepted that giving that unrepresented plaintiff a further opportunity to plead their case would not result in compliance with basic and fundamental rules of pleading, or with law. Rather, the plaintiff would continue to deliver lengthy and impenetrable documents, upon which no trial could reasonably or fairly be conducted. Accordingly, consistent with the requirements of the Civil Procedure Act, the proceedings had to be dismissed: at [27]-[29].

57. In Karam, it was explained that a self-represented litigant cannot be allowed forever “to stand behind the shield of his own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the Court's already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices”: at [36].

58. To this point the ongoing pleading problems I have discussed have prevented the State filing a defence. I am satisfied that in Ms Lin’s case there is still a real prospect that, if granted another opportunity to replead, she would then produce yet another pleading which did not address the ongoing problems which Chen J and I have considered.

59. It is long settled that the Court’s dismissal power may be exercised when a claim is so deficient that it would not be appropriate to allow the proceedings to continue: Cox v Journeaux(No 2) (1935) 52 CLR 713; [1935] HCA 48. Or when the stringent test discussed in General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125 at 129-130; [1964] HCA 69 is satisfied. That is in exceptional circumstances where what is claimed is obviously untenable and where there is no reasonable cause of action disclosed.

60. Exercise of that power may be refused where there is a material dispute about a question of law, or where the pleading defects are curable by amendment.

61. But since the enactment of the Civil Procedure Act, it has been recognised that “[w]here a party has had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants”: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [94].

62. The result is that “[s]peed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account”: at [98].

63. Chen J struck out Ms Lin’s original pleading and refused her leave to file proposed further amended statements of claim. She has also served other further proposed amended statements of claim, none of which the State accepted she should have leave to file. Despite her referral for pro bono legal assistance, Ms Lin has still been unable to produce a pleading which rectifies the problems which Chen J explained.

64. That she may not have fully understood all that his Honour discussed should be accepted. As should the proposition that she does not understand all that the Rules require. Given this and the State’s consent to a guillotine order being made, which would allow her to take into account my reasons for refusing the leave she now seeks, I am satisfied that the dismissal of the proceedings cannot yet justly be ordered.

The guillotine order

65. I have thus accepted that a guillotine order must be made, unusually, despite Ms Lin’s objection.

66. The result will be that if Ms Lin does not avail herself of that opportunity, the proceedings will thereupon be dismissed: r 13.4(1). That rule permits a dismissal order to be made when the proceedings generally are frivolous or vexatious, disclose no reasonable cause of action, or are an abuse of the process of the Court.

67. If the only pleading Ms Lin wishes to pursue is her now proposed amended statement of claim, I am satisfied that justice does require the proceedings to be dismissed. She has had a fair opportunity to plead in accordance with the Rules. She refuses to accept the possibility that she has not done so, despite the reasons which Chen J gave. That cannot result in the leave she requires being obtained. Its pursuit is unquestionably an abuse of process.

68. That is because I am well satisfied that her currently proposed pleading does not adequately disclose her case, so as to give the State the fair opportunity the Rules require that parties be given, to meet the claims sought to be advanced against them.

69. The guillotine order will give Ms Lin a final opportunity to replead, having considered these reasons. If she does not avail herself of that, justice requires that the proceedings be dismissed. If any further pleading which she does seek to pursue still fails to adhere to the requirements of the Rules, justice also requires that the proceedings then be dismissed.

70. What parties must be given is a fair opportunity to advance their cases. The Court cannot force them to avail themselves of that opportunity. If they fail to do so, justice also having to be given to other parties, including the State, I am satisfied that these proceedings will then have to be dismissed.

Costs

71. The usual order under the Rules is that costs follow the event. In this case, given the refusal of the leave Ms Lin sought by her motion and the final indulgence that she is being given as the result of the case the State finally advanced at the hearing, that is an order that Ms Lin bear the State’s costs of her motion, as agreed or assessed.

72. If the proceedings are dismissed because Ms Lin does not avail herself of the further indulgence she has been given as a result of the guillotine order; namely, to seek leave in respect of a further proposed amended statement of claim which complies with the applicable Rules, the Court’s order will thus be that she bear the State’s costs of the proceedings, as agreed or assessed.

73. If Ms Lin does file a further motion seeking leave to amend her pleading within the time specified, the Court’s order will be that she bear the State’s costs of this motion.

74. In either case, within 14 days of either the expiry of the specified time, or the filing of a further motion within that time, if costs are not agreed, the parties should approach and file short written submissions about what is in dispute. The proceedings will then be dismissed when the Court resolves the costs dispute.

Orders

75. For the reasons given I order that:

1. The leave Ms Lin sought is refused.

2. Ms Lin has leave to file a further motion, seeking leave to file a further amended statement of claim, by 4pm on 1 March 2024.

3. If Ms Lin does not file such a motion before that time, the proceedings will be dismissed under r 13.4(1) of the UCPR, unless final costs have to be determined.

4. If there is no costs dispute, the Court’s order will then be that Ms Lin is to bear the State’s costs of the proceedings, as agreed or assessed.

5. If there is a costs dispute, the parties should approach to be heard before 4pm on 8 March 2024, with short written submissions addressing what is in issue about those costs.

6. In that event, the proceedings will be dismissed when the costs dispute has been heard and determined by the Court.

7. If Ms Lin does file a further motion on or before 4pm on 1 March 2024, unless the parties approach to be heard on costs, the Court’s order will then be that she is to bear the State’s costs of this motion, as agreed or assessed.

8. If there is a costs dispute, the parties should also approach to be heard by 4pm on 8 March 2024, together with short written submissions addressing what is in issue about the costs of the motion.

9. In that event, the proceedings will also be dismissed when the costs dispute has been heard and determined by the Court.

**********

Decision last updated: 09 February 2024