Marston v Anderson - [2003] NTSC 32

Marston v Anderson [2003] NTSC 32
PARTIES:MARSTON, KATHLEEN FRANCES

v
ANDERSON, WARREN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  TERRITORY JURISDICTION
FILE NO:No 150 of 1991 (9108160)
DELIVERED:  9 April 2003
HEARING DATES:  4 April 2003
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Plaintiff:No appearance
Defendant:M. Cvjeticanin
Solicitors:
Plaintiff:In person
Defendant:Ward Keller
Judgment category classification:    C
Judgment ID Number:  ril0316
Number of pages:  8

ril0316
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Marston v Anderson [2003] NTSC 32
No 150 of 1991 (9108160)

BETWEEN:
KATHLEEN FRANCES MARSTON

Plaintiff
AND:
WARREN ANDERSON

Defendant

CORAM: RILEY J
REASONS FOR DECISION
(Delivered 9 April 2003)

The writ of summons in these proceedings was issued in April 1991 and relates back to events that are said to have occurred in 1988. In the intervening period there have been numerous attempts made by or on behalf of the plaintiff to provide a properly pleaded statement of claim. The plaintiff now represents herself. Earlier in the proceedings she had legal representation, but that has not been the case for some time now.
On 6 March 2003 the plaintiff filed a document entitled “Re-pleading of Statement of Claim”. I am told this constitutes the sixth attempt to produce an acceptable statement of claim on her behalf. On that occasion she indicated to the court that she wished to rely upon the new document as constituting her statement of claim. The defendant advised that he would wish to challenge the pleading. The matter has proceeded on the basis that leave to amend the then existing statement of claim was granted to the plaintiff and that the re-pleaded document constituted her statement of claim in these proceedings. The defendant was at liberty to challenge the pleading and time was set aside on 4 April 2003 for the hearing of that challenge.
At the mention on 6 March 2003 the plaintiff was informed of the importance of the application made by the defendant and was advised that she should be prepared to meet the challenge of the defendant. To assist the plaintiff, I suggested that the defendant provide, in advance, written submissions setting out the basis upon which he challenged the statement of claim. This was done.
On 2 April 2003 the court received a facsimiled letter from the plaintiff in which she advised that she did not intend to appear on the return date. She specifically stated that she did not seek an adjournment of the matter but, rather, wanted the challenge of the defendant to the statement of claim to proceed. At the time of writing that letter she had been served with the defendant’s written outline of submissions.
When the matter came before the court on 4 April 2003 the plaintiff did not appear. In light of her letter I allowed the application of the defendant to proceed.
Unfortunately the re-pleaded statement of claim continues to be in an unsatisfactory and unacceptable form. It sets out in a discursive way a list of generalised grievances that the plaintiff claims against the defendant and others. It concludes with a series of consequences that the plaintiff says have been suffered by herself and her family as a result of the whole of the conduct of which she complains. She then seeks general and specific damages.
By reference to the re-pleaded statement of claim it can be seen that the grievances of the plaintiff arise from her employment by the Northern Territory Teaching Service on Tipperary Station. The station is said to have been leased by Owston Nominees No 2 Pty Ltd which is a company of which the defendant was said to be a director. The plaintiff commenced employment at the station on 26 January 1988. She was provided with accommodation on the station in buildings owned by Owston Nominees.
At an unspecified time the plaintiff says she had a falling-out with a person described as the “domestic supervisor” on the station. The domestic supervisor is said to have been employed by the defendant but it would seem more likely that she was employed by Owston Nominees. The statement of claim alleges that on 19 October 1988, the defendant attended the school with a “petition” which was shown to various people, including a Mr Hopkins, who is described as “the Superintendent of the Palmerston Rural Region of the Department”. I assume the reference to “the Department” is a reference to the Department of Education. In the statement of claim it is pleaded that the plaintiff assumed that the petition included a demand that she leave the station. Without further foundation the statement of claim concludes:
“Mr Anderson in arbitrarily changing his mind to provide accommodation to Ms Marston and her family interfered in contractual arrangements between the Department and Ms Marston and caused harm to Ms Marston and her young family.”
It is then alleged that Mr Hopkins thereafter informed the defendant that the school would be closed indefinitely “as the safety of departmental staff was at stake”. Whether there was any connection between the petition and the decision of Mr Hopkins is not addressed. The plaintiff left the station. It seems (although it is not clearly stated) that the school reopened with other staff a short time later.
The statement of claim goes on to allege that in 1989 the plaintiff was granted worker’s compensation although the basis for that grant is not identified. In March 1993, some four to five years later, the plaintiff was “involuntarily medically retired from the department”.
In the course of the narrative it is further alleged in the statement of claim that, on an unidentified occasion, the defendant said to the plaintiff in the presence of others, “All the problems at Tipperary Station are your fault. You are rooting all the men on the station”.
It is far from clear from the statement of claim just what are the causes of action upon which the plaintiff relies. In his written submission, counsel for the defendant speculated that there may be causes of action based in defamation, inducing breach of contract and, if there be such a cause of action, unlawful interference with economic interest.
If it was intended to include in the statement of claim a claim for inducing a breach of contract the statement of claim is deficient. The only contract which could be said to have been breached would be that of the plaintiff with the Northern Territory Teaching Service. However, nowhere in the statement of claim is there any allegation that the contract was in fact breached. The information provided in the pleading is to the opposite effect in that it asserts that the plaintiff continued in her employment until she was retired in 1993. It is not alleged that either party to the contract was in breach of any term of the contract.
In relation to the suggestion that the statement of claim may plead an unlawful interference with economic relations I am not asked, at this time, to determine whether such a cause of action is available in Australia. Assuming for present purposes that such a cause of action exists, the necessary basis for such a claim has not been pleaded. No relevant interference with any specified relationship is identified.
The final suggested cause of action is one of defamation. In the absence of more, one would expect that the allegation would be based upon the words referred to above at paragraph 11. Unfortunately there is no pleading that isolates that allegation from a whole range of matters pleaded by the plaintiff which she seems to say combined to bring her “unwanted publicity, public ridicule and humiliation”. There is no pleading to which the defendant can sensibly respond.
I have undertaken the above exercise in order to determine whether or not there is the basis of a cause of action pleaded in the statement of claim. In so doing I have had to make assumptions and pick through a substantial amount of irrelevant and embarrassing material contained in the statement of claim. The pleading is littered with allegations that are either irrelevant or vague or so unsupported by particularity as to make them embarrassing and beyond any prospect of a sensible pleading in response.
I am not asked to dismiss the action of the plaintiff. The application by the defendant is to strike out the whole of the statement of claim. In Turner v Bulletin Co Pty Ltd (1973) 131 CLR 69 at 97 Jacobs J said:
“In my opinion there is no power to dismiss an action when a statement of claim which discloses a cause of action is struck out because of defects in the form of pleading. This cannot be done directly and it cannot be done indirectly by imposing conditions relating to the form of pleading, breach of which will result in dismissal of the action. Where the form of pleading is defective the Court can certainly strike it out entirely and is not bound to reframe it for the plaintiff’s benefit. But when it does so, leave to remake it must be given, if leave is necessary. In Cashin v Cradock, Bacon VC said:
“It is not for me to point out to the plaintiff how he might frame his statement of claim if he has any cause of complaint against the defendants. If he does not take advice, he must run the risk of acting upon his own judgment. But it is my plain duty not to permit the practice of this Court to be made an instrument of oppression, and I think that I should oppress the defendants grievously if I suffered them to be called upon to answer such a statement as this. The statement is unintelligible, and inexcusable in many respects; it is incoherent; there are inconsistencies between asking for a specific performance of the contract, and the enforcement of the consequences of the non-execution of a decree in which that contract was involved. It would be impossible to deal with such a case as the plaintiff states. It is a mercy to him not to permit such a statement to remain upon record. The consequence of its remaining would most likely be utter defeat to the plaintiff, even if he has any right claim. All that I can do is to direct this statement to be struck off the records of the Court. At the same time, I cannot withdraw from the plaintiff, and I will not withdraw from him the right to make another statement if he has cause of complaint.”
Those remarks and particularly the remarks of Bacon VC are apposite to the present pleadings. It is not for the court to trawl through the material provided by the plaintiff in the statement of claim to endeavour to identify a cause of action and then advise the plaintiff on how that should be correctly pleaded. In my view this statement of claim is confused and the causes of action sought to be relied upon are incapable of identification. The whole of the pleading must be disallowed.
The statement of claim is struck out.
This is the sixth attempt on behalf of the plaintiff to plead her statement of claim in these proceedings. The defendant has been put to substantial cost and inconvenience in dealing with the various statements of claim over a period of time. On this occasion the statement of claim that was delivered followed earlier criticism from the defendant. When the matter came before the court, the plaintiff chose to rely upon the document notwithstanding the problems with it identified in the written submission. In my view the circumstances are such that the defendant is entitled to his costs of and incidental to this application. Those costs are to be taxed or agreed and payable forthwith. I certify for counsel.

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