Mervyn Thomas Mills v John Perras - [2011] NSWSC 581

Supreme Court

New South Wales

Medium Neutral Citation: Mervyn Thomas Mills v John Perras & Ors [2011] NSWSC 581
Hearing dates: 27 May 2011
Decision date: 03 June 2011
Before: McCallum J
Decision:
Proceedings dismissed

Catchwords: PLEADINGS - whether any reasonable cause of action disclosed - claim arising out of unsuccessful private prosecution in the Local Court - no rational connection revealed between conduct complained of and relief sought - proceedings dismissed
Legislation Cited: Constitution Act 1902
Inclosed Lands Protection Act 1901
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Mills v Perras [2005] NSWSC 1184
Category: Interlocutory applications
Parties: Mr Mervyn Thomas Mills (Plaintiff)
Mr John Perras (First Defendant)
Mr John Gaitanas (First Defendant)
The Crown in right of the State of New South Wales (Third Defendant)
Representation: Counsel
No appearance entered for First Defendant
A Haslam (Second Defendant)
L Boyd (Third Defendant)
Solicitors
Gilchrist Connell (Second Defendant)
Crown Solicitor's Office (Third Defendant)

File Number(s): 2011/95471
Publication restriction: None

Judgment

Before the court are applications by two of the defendants to have the plaintiff's pleadings struck out and the proceedings dismissed.

The proceedings were commenced by summons filed on 24 March 2011. The summons names three defendants, Mr John Perras as first defendant, Mr John Gaitanis as second defendant and the Crown in right of the State of New South Wales as third defendant. However, I was informed at the hearing of the applications that Mr Perras has not been served with any originating process. A solicitor attended as a courtesy to inform the court of that circumstance, but has not entered an appearance.

The summons describes the plaintiff's claims as claims in deceit, negligence and for breach of the Constitution Act 1902 and the Supreme Court Act 1970 . The proceedings ought accordingly to have been commenced by statement of claim: see rule 6.3 of the Uniform Civil Procedure Rules 2005 (UCPR).

On 8 April 2011 the solicitor for the State of New South Wales wrote to the plaintiff, Mr Mills, informing him of that requirement and alleging other deficiencies in the form of the summons. When the matter first came before the court, an order was duly made directing Mr Mills to serve a proposed statement of claim. The Registrar made directions on that occasion calculated to affording the second and third defendants an opportunity to respond to that document before it was filed. Contrary to the apparent intention of those directions, a statement of claim was filed in the registry on 2 May 2011. The relief now sought by the defendants is directed both to that pleading and to the original summons.

The two notices of motion were referred to me as Duty Judge on 23 May 2011. There was no appearance by Mr Mills on that date. The second defendant's notice of motion had been duly served on Mr Mills but the third defendant's had not. Accordingly, I directed that the notice of motion and affidavit be served by being left at…

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.

Continue reading Mervyn Thomas Mills v John Perras

Details

AGLC: Mervyn Thomas Mills v John Perras [2011] NSWSC 581
Case: [2011] NSWSC 581
Decision Date: 03 June 2011

CaseChat Overview and Summary

In the case of Mervyn Thomas Mills v John Perras, the plaintiff, Mills, brought a civil claim against the defendant, Perras, following an unsuccessful private prosecution in the Local Court. Mills sought to recover damages for an alleged breach of his privacy and defamation caused by Perras. The case was heard in the Supreme Court of New South Wales, which was tasked with determining whether the plaintiff's statement of claim disclosed a reasonable cause of action. The court found that the claim did not reveal any rational connection between the conduct complained of and the relief sought, leading to the dismissal of the proceedings.

The primary legal issue for the court was whether the plaintiff's statement of claim disclosed any reasonable cause of action. The court had to examine whether there was a rational connection between the alleged conduct of the defendant and the relief sought by the plaintiff. The court considered the nature of the allegations and the remedies being sought by Mills to determine if there was a logical link between the two.

The court found that the statement of claim did not establish a rational connection between the conduct complained of and the relief sought. The plaintiff had brought a civil claim arising out of an unsuccessful private prosecution, and the court determined that this was not a rational basis for the civil claim. The court concluded that the claim was not founded on a reasonable cause of action and dismissed the proceedings. The court's reasoning was based on the lack of a logical link between the conduct complained of and the relief sought by the plaintiff, which was not sufficient to establish a reasonable cause of action in the civil claim.

No further orders were made by the court, as the proceedings were dismissed based on the lack of a reasonable cause of action. The dismissal of the proceedings effectively ended the case, with the court finding that the plaintiff had not established a rational connection between the conduct complained of and the relief sought in the civil claim.

Orders