MJL -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 348
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 348 | |
| Case No: | CIV:1180/2013 | 30 MARCH 2015 | |
| Coram: | ALLANSON J | 22/09/15 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend writ refused Statement of claim struck out Plaintiff have leave to re-plead | ||
| B | |||
| PDF Version |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Pleadings - Inadequate indorsement of claim on proposed amended writ - Proposed statement of claim struck out - Whether plaintiff should have leave to re-plead - Whether judgment should be entered for defendant
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 20
Children and Community Services Act 2004 (WA), s 6, s 7, s 8, s 8(1), s 8(2), s 9, s 28(2), s 32, s 32(2), s 37, s 37(2), s 38, s 38(2), s 38(4A), s 38(4), s 38(4)(b), s 38(5), s 39(3B), s 48(2), s 147
Rules of the Supreme Court 1971 (WA), O 6 r 1, O 6 r 1(1), O 7, O 20 r 2(3), O 20 r 7(2), O 20 r 8(1), O 20 r 19(5)
Result:
Leave to amend writ refused
Statement of claim struck out
Plaintiff have leave to re-plead
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : Ms K E McDonald
Solicitors:
Plaintiff : In person
Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 334
Chief Executive Officer of the Department for Child Protection v MJL [2009] WACC 5
DM Drainage and Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170
Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486
Glendinning v Cuzens [2009] WASCA 21
Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998)
JT v Chief Executive Officer, Department for Child Protection & Family Support [2014] WASC 200
Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553
MJL v Chief Executive Office of the Department for Child Protection [2010] WASCA 69
Moder v Commonwealth of Australia [2012] QCA 92; (2012) 261 FLR 396
Neil v Nott [1994] HCA 23; (1994) 121 ALR 148
Neilson v City of Swan [2006] WASCA 94
Norris v Gittos [2011] WASC 295
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330
Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Stone v Braun [2015] WASCA 103
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
1 ALLANSON J: The plaintiff commenced this action by writ in February 2013. The plaintiff is self-represented and has had continuing difficulty in formulating a claim. There is still no final version of the writ of summons, and no statement of claim.
2 The plaintiff has filed a proposed amended writ and minute of proposed statement of claim. He requires leave to amend the writ because he has previously amended it, and because the proposed amendment would add a new cause of action. The defendant objects to the plaintiff having leave to file the amended writ and to the proposed statement of claim. The defendant seeks orders that the action be dismissed and judgment be entered for it, on the basis that the further amended writ and proposed statement of claim:
i. reveal no reasonable cause of action against the defendant;
ii. are scandalous, frivolous and vexatious;
iii. may prejudice, embarrass or delay the fair trial of the action;
iv. are otherwise an abuse of process of the court.
3 For the reasons which follow, I am satisfied that the writ, as amended, fails to comply with O 6 r 1 of the Rules of the Supreme Court 1971 (WA), and that the statement of claim should be struck out. The more difficult question has been whether the plaintiff should be given leave to file a further amended writ and pleading, or whether judgment should now be entered against him.
Procedural Background
4 The proceedings were commenced on 5 February 2013, naming the Department to Child Protection as the defendant. The Department is not constituted as a body corporate under the Act. The State of Western Australia was subsequently named as the defendant.
5 The writ was not served within 12 months. The validity of the writ was extended under O 7 of the Rules of the Supreme Court on two occasions: on 11 February 2014 and then on 1 May 2014. The writ was served on 25 June 2014.
6 On 9 September 2014, the matter was entered on to the Commercial and Managed Cases List, to be managed by Edelman J. His Honour ordered that the plaintiff file and serve any amended writ by 10 October 2014. On 10 October, the plaintiff filed an amended writ which added the State of Western Australia as the defendant.
7 On 17 December 2014, Edelman J ordered that the plaintiff file and serve any application to amend the amended writ and a minute of proposed statement of claim by 13 February 2015. On 16 February 2015, by consent, Edelman J extended the time for compliance with that order to 4 March 2015.
8 On 10 March 2015, the matter was transferred to my list and listed for a directions hearing on 20 March. At that time, the plaintiff had still not complied with the orders made by Edelman J in December 2014.
9 On 19 March 2015, the defendant lodged a minute of proposed orders to the effect that, unless the plaintiff file and serve any application to amend the writ and a minute of proposed statement of claim within seven days, the action be dismissed and judgment be entered for the defendant with costs. On the same day, the plaintiff filed an amended writ and proposed statement of claim.
10 At the directions hearing on 20 March, the defendant objected to the proposed writ and statement of claim standing as the writ and statement of claim. The application was adjourned to a special appointment on 30 March to hear the defendant's objection. On 23 March 2015, the defendant filed a minute of its objections and submissions in support.
11 These proceedings concern the plaintiff's daughter, who was at relevant times a child in care. In these reasons, I have not referred to the plaintiff or his daughter by name, or named other persons where that might identify the daughter. I have referred to the daughter as MML and, where necessary, other people have been identified by initials.
12 Unless otherwise indicated, references to sections of legislation are to the Children and Community Services Act 2004 (WA). References to the CEO and to the department are to the CEO and the department which administer that Act.
The Children and Community Services Act
13 The plaintiff's claim must be considered in the context of the Children and Community Services Act.
14 The objects of the Act are set out in s 6:
The objects of this Act are -
(a) to promote the wellbeing of children, other individuals, families and communities; and
(b) to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c) to encourage and support parents, families and communities in carrying out that role; and
(d) to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care; and
(e) to protect children from exploitation in employment.
15 Part 2 div 2 deals with general principles relating to children and requires a person, court or tribunal performing a function or exercising a power under the Act in relation to a child to regard the best interests of the child as the paramount consideration: s 7. Section 8(1) prescribes factors which must be taken into account in determining what is in a child's best interests:
(a) the need to protect the child from harm;
(b) the capacity of the child's parents to protect the child from harm;
(c) the capacity of the child's parents, or of any other person, to provide for the child's needs;
(d) the nature of the child's relationship with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(e) the attitude to the child, and to parental responsibility, demonstrated by the child's parents;
(f) any wishes or views expressed by the child, having regard to the child's age and level of understanding in determining the weight to be given to those wishes or views;
(g) the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from -
(i) the child's parents; or
(ii) a sibling or other relative of the child; or
(iii) a carer or any other person (including a child) with whom the child is, or has recently been, living; or
(iv) any other person who is significant in the child's life;
(h) the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(i) the child's age, maturity, sex, sexuality, background and language;
(j) the child's cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders);
(k) the child's physical, emotional, intellectual, spiritual, developmental and educational needs;
(l) any other relevant characteristics of the child;
(m) the likely effect on the child of any change in the child's circumstances.
16 Section 8(1) does not limit the matters that may be taken into account: s 8(2).
17 Section 9 prescribes principles to be observed in the administration of the Act, including:
(a) the principle that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing;
(b) the principle that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child;
(c) the principle that every child should be cared for and protected from harm;
(d) the principle that every child should live in an environment free from violence;
(e) the principle that every child should have stable, secure and safe relationships and living arrangements;
(f) the principle that intervention action (as defined in section 32(2)) should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing;
(g) the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, the child should be given encouragement and support in maintaining contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;
(ha) the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, planning for the child's care should occur as soon as possible in order to ensure long term stability for the child;
(h) the principle that decisions about a child should be made promptly having regard to the age, characteristics, circumstances and needs of the child;
(i) the principle that decisions about a child should be consistent with cultural, ethnic and religious values and traditions relevant to the child;
(j) the principle that a child's parents and any other people who are significant in the child's life should be given an opportunity and assistance to participate in decision making processes under this Act that are likely to have a significant impact on the child's life;
(k) the principle that a child's parents and any other people who are significant in the child's life should be given adequate information, in a manner and language that they can understand, about -
(i) decision making processes under this Act that are likely to have a significant impact on the child's life; and
(ii) the outcome of any decision about the child, including an explanation of the reasons for the decision; and
(iii) any relevant complaint or review procedures;
(l) the principle set out in section 10(1).
18 Section 28(2) prescribes when a child is in need of protection for the purposes of pt 4 of the Act. Those circumstances include where:
(c) the child has suffered, or is likely to suffer, harm as a result of any one or more of the following -
(i) physical abuse;
(ii) sexual abuse;
(iii) emotional abuse;
(iv) psychological abuse;
(v) neglect,
and the child's parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind; or
(d) the child has suffered, or is likely to suffer, harm as a result of -
(i) the child's parents being unable to provide, or arrange the provision of, adequate care for the child; or
(ii) the child's parents being unable to provide, or arrange the provision of, effective medical, therapeutic or other remedial treatment for the child.
20 An authorised officer or a police officer may, without warrant, take a child into provisional protection and care if the officer 'suspects on reasonable grounds that there is an immediate and substantial risk to the child's wellbeing': s 37(2). A police officer must notify the CEO as soon as possible after taking a child into provisional protection and care under s 37. Section 38 prescribes the duties of the CEO when a child has been taken into provisional protection and care without warrant. It the child is not already the subject of protection proceedings, and the CEO decides not to make a protection application or other application under pt 4 in respect of the child, then, unless s 38(4A) applies, the CEO must ensure that, as soon as practicable after the child is taken into provisional protection and care, the child is returned to or placed in the care of:
(a) a parent of the child; or
(b) a person who was providing day to day care for the child at the time the child was taken into provisional protection and care; or
(c) with the consent of a parent of the child, any other person. (s 38(2))
21 By s 38(4):
If the CEO decides to make a protection application or other application under this Part in respect of the child, the CEO must make the application -
(a) if the child is taken into provisional protection and care in a prescribed area of the State, as soon as practicable after the child is taken into provisional protection and care; or
(b) otherwise, as soon as practicable, but in any event not more than 2 working days, after the child is taken into provisional protection and care.
22 Section 20 of the Children's Court of Western Australia Act 1988 (WA) confers exclusive jurisdiction to hear and determine all applications made under the Children and Community Services Act on the Children's Court.
23 The Children and Community Services Act prescribes relatively short time frames for action. The court must endeavour to ensure that the first listing date is not more than three working days after the application is made: s 38(5). If the CEO decides to make a protection application, the CEO must prepare and implement a provisional care plan. The provisional care plan must be prepared within seven working days after the child is taken into provisional protection and care: s 39(3B).
24 Part 5 provides for protection proceedings. Relevantly, it provides that each parent of a child is a party to the protection proceedings: s 147.
The indorsement on the writ
25 A writ must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action: Rules of the Supreme Court O 6 r 1(1). Failure to comply with O 6 r 1 does not render the writ a nullity. A plaintiff should ordinarily be allowed a reasonable opportunity to put it into a proper form, so long as that can be done without irremediable prejudice to the defendant: Glendinning v Cuzens [2009] WASCA 21 [34].
26 What will constitute an adequate indorsement on a writ is not something that can be reduced to hard and fast rules. 'Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole': ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [11].
27 But an indorsement serves three important functions:
1. it informs the defendant of the nature of the claim made and the relief sought so as to enable the defendant to determine whether he or she should enter an appearance and, if so, whether it should be a conditional or unconditional appearance;
2. it enables the determination, for the purposes of the relevant Limitation Act, of whether a cause of action is contained in the writ, as the Limitation Act is concerned with the date upon which an action is commenced. A cause of action in this context means a factual situation which will entitle a person to approach a court for relief: Morgan v Banning (1999) 20 WAR 474, 475; and
3. it sets out the metes and bounds within which the statement of claim must be framed; O 20 r 2(2) provides that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.
- See ABB Service Pty Ltd v Hetherington [7] - [10]; Glendinning v Cuzens [26] - [29].
28 The indorsement of claim on the proposed amended writ sets out the following claims:
1. Damages against the Defendant for the negligence of its employees in their duties as public officers. In failing to comply with and in their treatment and lack of proper care of the Plaintiff's Daughter MLL pursuant to the Children's and Community Services 'Act' 2004 and in connection with the prosecution of proceedings under the Act for the period October 2006 to 18 June 2009 relating to the custody and placement of MML, and costs.
2. Damages by reason of the misfeasance of the defendants in their public office, in connection with the purported discharge of their duties as public officers under the Children's and Community services (Act) 2004 and in connection with the prosecution of proceedings under the Act concerning one MML (a child) on and about 6 February 2009 and prior.
3. Damages including exemplary damages for deceit. For fraudulent misrepresentations, misrepresentations relied on to commence and continue proceedings and until presently. In connection with the prosecution of the proceedings and to the matters connected. Having made application on 4 and 6 October 2006, misled the court on 6 February 2007 to further detain MML my child, causing me to remain engaged in proceedings with my civil rights infringed upon, misrepresentations on 19 July 2007 further causing the matter to continue, misrepresentations at the final hearing on 29 April 2009, in connection presently. Separately including the defence to the proceedings.
4. Damages including exemplary damages for Negligence, refusal by Public Officer to Perform Duty (Criminal Compilation Act WA 1913). In connection with the proceedings, the prosecution of proceedings under the Children and Community Services (Act) 2004 relating to myself and MML (a child). From 29 Sept 2006 and the proceedings commenced on 4 October and 6 October 2006, failure to hand the child over to the parent, or adhere to section 38(2) on 6 February 2007 or to put to me and the court a legal cause to detain MML (my child), from me, including 25 June 2007, 19 July 2007, misrepresentations to the court at the final hearing on 29 April 2009 to escape liability for costs.
5. Breach of contract. Damages for breaching an undertaking made between myself and the Chief Executive Officer of the Department for Child Protection & Family Support (formerly known as the Department for Child Protection) in August 2007
(a) conclude proceedings expeditiously, or
(b) to remove certain staff, or
(c) to move the case to a different office.
6. Damages, exemplary, and or consequential damages and or aggravated damages for Unlawful detainment, Deprivation of Liberty. (Criminal Compilation Act 1913 Western Australia.) Relating to detaining MML (a child) from 29 Sept 2006 until 25 July 2007 from a parent of the child (myself) compelling me a person not too far removed a parent, to engage in proceedings, causing loss and or detriment, under threat that my child would be in further contact with unsafe person or persons, and to remain engaged in the proceedings until at the earliest 28 Oct 2008 24 November 2008 to prevent our civil rights from being infringed upon.
7. March 2015 added.
Collateral abuse of process and or abuse of process and or malicious or abuse of process. From September of 2006 until July 200. From there until June of 2009 and perhaps forward. Un[d]er s 38(2) the DCP should have handed my child over to me.
The DCP made application for an ulterior purpose.
What was put to the court to be granted the interim order was not the reason for making application. By admission.
This was an abuse of process: the legal process of a court is being abused when it is used to exert pressure or to effect an object not within the scope of the process; or where it is used for a purpose other than that for which the proceedings are properly designed and exist; or where the plaintiff in those proceedings is seeking a collateral advantage beyond what the law offers.
In this matter in April 2009 the DCP allege they made application to assist KF, which was dismissed. It could not be legislatively upheld. [KF is the child's mother]
There was an intention to use a protection order to give access to a person or persons.
Again this would not have been supported by Court as the Court's view was it is not in the child's best interest to have further contact with one of the persons.
There were other issues that were outside the law. On 6 February 2007 DCP continued the proceedings for an ulterior purpose. On 21 June and on 25 July, 18 September 2007 and other times. The purpose also to cost me or cause me a loss.
The DCP acted with malice.
8. Compensation
29 The indorsement thus contains a statement of multiple causes of action including negligence, breach of duty, misfeasance in public office, deceit, breach of (contractual) undertaking, and deprivation of liberty. The proposed amended indorsement includes, expressly, the tort of collateral abuse of process. It was not argued whether a plea in that cause of action would be available but for the proposed amendment.
30 Reading the indorsement as favourably as I can for the plaintiff, it does not comply with O 6. Some of the allegations are repetitive, and many are difficult to follow. The indorsement does not identify with any clarity when matters are alleged to have occurred, and it is not possible to say with any certainty when the various causes of action arose.
31 The failure to properly endorse the claim on the writ is an irregularity: Glendinning v Cuzens [27]. Here the plaintiff has pleaded a statement of claim. If the statement of claim is within the causes of action mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned, the irregularity in the writ should occasion no prejudice to the defendant. The statement of claim may 'alter, modify or extend' the claims made in the indorsement on the writ without amending that indorsement: O 20 r 2(3). A defective indorsement may be remedied by a statement of claim. It is to the statement of claim that regard should be had in determining what are the claims which the plaintiff wishes to litigate: Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 596 - 597, 609.
32 Leave may also be given to amend the indorsement, although limitation issues may arise.
33 In the present case, the failure of the statement of claim to properly plead a claim makes it fruitless to further consider whether the indorsement may be remedied in this way.
The statement of claim
34 Every pleading must, if necessary, be divided into paragraphs numbered consecutively, each allegation being so far as convenient contained in a separate paragraph: Rules of the Supreme Court O 20 r 7(2). The basic requirement of any pleading is that it 'contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits': O 20 r 8(1).
35 The proposed statement of claim is not in the correct form and does not comply with O 20 r 7 or r 8. This is not an arid formal complaint. The proposed statement of claim runs for 63 pages and 195 numbered paragraphs. Several of those numbered 'paragraphs' are, in fact, a collection of paragraphs. Some extend over several pages: for example, par 7 is just short of 4 pages; and par 66 is about 12 pages long.
36 The plea contains no clear narrative of the events and facts upon which the plaintiff relies. It is largely a succession of assertions of wrongdoing, not in chronological (or any) order, and frequently repeated. Many of the allegations cannot be followed, staying within the confines of the statement of claim, because the facts upon which they are based are not stated. For example, in part of 'paragraph 7' the plaintiff states:
When the DCP refused to hand my child to me the DCP made a false statement that they were aware was false, they relied on it I relied on it, I had reason to trust the CEO of DCP as they were public officers, they didn't have the statutory power to detain my child from me, she was unlawfully detained, demands were made, I wasn't able to do what I would have done, for her to be placed with [PH] in a parental role or even contact with him was a significant threat, detriment caused, a person did and would have attained a benefit they would not have otherwise had, we suffered damages. They are ongoing.
- That is one of 39 separate paragraphs that are within par 7. The plaintiff does not identify the statement which he says was false, or the demands that were made; what he would have done but was not able to do; the benefit that was obtained, or who obtained that benefit.
37 Paragraph 7 also contains allegations that:
1. when the DCP made the application to the court, they were aware they had refused to adhere to legislative processes;
2. the DCP was aware that it had fraudulently misrepresented matters to the court;
3. the DCP withheld information from the court;
4. 'Some fabrications were made and relied on';
5. false or misleading statements were put to the court;
6. a reasonable person with a duty to the child 'would not have done that, they would not have then continued the detriment caused there was a special relationship. They breached or failed the duty, there was a duty not to do what they did'.
38 Paragraph 7 is not an isolated example but is illustrative of the general style of the plea.
39 The statement of claim also contains allegations that are difficult to comprehend. For example, the plaintiff pleads, discrimination against 'the paternal family was precluded as a group or a race by a government official' [26]. He alleges that 'the DCP relies on a Judgment from a judicial officer of whom owned the negligence in that court' [57].
40 Pleadings ensure a basic requirement of procedural fairness, and, to do so, must state the case sufficiently clearly to allow the other party a fair opportunity to meet it: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 286 - 287; Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490, 517; Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 [26]. Pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action:
because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general.
- See Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998) 8 - 9; DM Drainage and Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170 [34]. In this case, that ground is sufficient reason to strike out the whole of the proposed statement of claim. The defendant could not, reasonably, be expected to plead a defence to allegations expressed in this way. The matter could not proceed to trial, or to basic interlocutory processes in preparation for trial, on this statement of the plaintiff's case.
41 It is not useful to further consider whether the plaintiff has pleaded a reasonable cause of action for any of the multiple causes raised in the proposed statement of claim. The form of the proposed plea does not enable a proper consideration of what are said to be the material facts, and whether the facts pleaded conceivably give rise to the relief claimed.
42 The existing statement of claim cannot be permitted to stand. The critical issue is whether the plaintiff should be permitted to re-plead the claim.
Leave to re-plead
43 The plaintiff commenced this action in 2013. He has not, since then, been able to put forward an acceptable statement of claim.
44 As the plaintiff is unrepresented, it is necessary to see if it is possible to discern the substance of what he is alleging. In Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 334 [57], Beech J summarised two principles which guide the court in an application of this nature involving a litigant in person. First, on an application for summary disposal, 'the court should be astute to ensure that, in a poorly expressed or unstructured document setting out the claim, there is no viable cause of action which, with appropriate amendment, could be put into proper form'. Second, the court should be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy', a phrase used by the High Court in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150.
45 More recently, in Stone v Braun [2015] WASCA 103 [62] - [69] Beech J (Buss JA & Mazza JA agreeing) set out the legal principles and the challenges facing a trial judge where one of the litigants is not legally represented. As his Honour said, there is:
the dilemma and delicate balance created by the need to diminish the disadvantages suffered by a self-represented litigant while maintaining the court's neutrality [64].
46 I have attempted to identify the elements of the plaintiff's complaint. To enable a fair consideration of the causes of action the plaintiff is attempting to set out in the statement of claim, I have had regard to a decision in the Children's Court of Western Australia in 2009. On 18 June 2009, the President of the Children's Court published reasons in Chief Executive Officer of the Department for Child Protection v MJL [2009] WACC 5 (MJL is the present plaintiff). Both parties referred to those proceedings and the decision of the President in the application before me. The defendant relied on it in its submission that the plaintiff's action should be dismissed as an abuse of process.
47 From those reasons, it is possible to obtain the following chronological summary:
1. MML was born on 21 August 2005, and was approaching 1 year and 2 months of age when the protection application was made.
2. KF is MML's mother. The plaintiff and KF met in about late 1995. The plaintiff and KF commenced a de facto relationship which continued for about 10 years. During that time they separated and reconciled on a number of occasions. One of the reasons for those separations was KF's drug use. KF was imprisoned for drug offences on at least two occasions during that period.
3. During that relationship MML was conceived.
4. The plaintiff and KF co-parented MML for about 10 months, perhaps less, until KF left the relationship and moved to Karratha to live.
5. MML was taken into protection and care on about 21 September 2006. MML was not then living with the plaintiff and had not been actually parented by him for at least the preceding three months.
6. While KF was living in Karratha, she was in a relationship with PH. The relationship was characterised by substance abuse and domestic violence.
7. The Department had been working with KF for some time.
8. On 18 September 2006, an officer of the Department met KF at a refuge in Karratha after she had left PH. KF told the officer that she wanted to return to Perth with MML. Arrangements were made for KF and MML to return to Perth, and KF agreed to stay at the refuge with MML until then.
9. On 20 September 2006, KF left the refuge without contacting the Department and returned to the home where she had been living with PH. She was told by the Department that she had exposed MML to an unacceptable risk of harm and that the Department was taking MML into its care.
10. KF did not return to the refuge and stayed with friends, and the following morning travelled with MML to Perth.
11. The Department's initial plan was to support KF with MML at a refuge in Perth. Because she had breached the earlier agreement with the Department by returning to live with PH in Karratha, it was later decided to actually remove MML, place her in foster care, and support KF on a short-term basis in a motel.
12. Soon afterwards, KF left the motel and went to live with a friend. That arrangement also broke down.
13. MML was taken into provisional protection and care pursuant to s 37, without warrant, on either 20 or 21 September 2006 - on the documents available I cannot be sure on which date. The precise date is not critical.
48 Once MML was taken into provisional protection and care, the proceedings in the Children's Court were as follows:
1. The protection application was made on 4 October 2006. The plaintiff was not, initially, a party to that application.
2. On 27 October 2006, the plaintiff was joined as second respondent.
3. At a pre-hearing conference on 7 December 2006, the matter was listed for a four day hearing in March 2007.
4. On 6 February 2007, the court refused an application to dismiss the protection application. An application by the CEO to adjourn the hearing listed in March was also refused.
5. At another pre-hearing conference on 20 March 2007, the CEO indicated that he was seeking a parenting assessment of the plaintiff and that, if it was favourable, the CEO would possibly agree to a re-unification between MML and the plaintiff. The hearing was vacated and the proceedings adjourned to 28 May 2007 for the parenting assessment to be conducted.
6. On 28 May 2007, the proceedings were further adjourned to 25 June 2007 because the parenting assessment was not completed.
7. On or about 21 June 2007, the plaintiff applied for orders including the dismissal of the protection application and costs in his favour.
8. On 25 June 2007, the parenting assessment was still not completed and the proceedings were adjourned for a pre-hearing conference on 27 August, and a four day hearing to commence on 24 September 2007.
9. The plaintiff applied to dismiss the protection application. On 19 July 2007, the plaintiff's application came before the court. The court decided it was not appropriate to finally resolve all of the issues between the parties on that application but rather after the final hearing. The court indicated to the plaintiff that the appropriate course for him to take, if he wished to be reunited with MML, was to apply for interim placement pending the hearing. The plaintiff adopted that course and the proceedings were adjourned to 25 July 2007 for the interim placement to be argued.
10. On 25 July 2007, despite opposition on behalf of the CEO and KF, the court ordered interim placement of MML to the plaintiff. The court also ordered that a child representative be appointed to represent MML, and a report be prepared pursuant to s 139 by an expert.
11. On 27 August 2007, the hearing listed to commence in September was vacated on the basis that the expert report was going to be prepared.
12. On 3 September 2007, the child representative applied for the report to be on terms of reference attached to the application.
13. On 18 September 2007, the plaintiff responded to that application, opposing the appointment of a child representative and seeking orders that he have permanent custody of MML, that the protection application be dismissed, that the CEO pay his costs, and that he be awarded damages to be assessed.
14. On 18 September 2007, the court ordered that the report be prepared on the terms of reference annexed to the application. The hearing that was due to commence on 24 September was vacated.
15. The matter came back before the court for mention on a number of occasions, awaiting the preparation of the report. There was a relatively long delay in the preparation of the report. On 28 April 2008, the proceedings were adjourned to another pre-hearing conference on 26 June 2008, and another final hearing was listed for two days to commence on 31 July 2008.
16. On 26 June 2008, the final hearing was vacated and the proceedings were adjourned to 19 August 2008.
17. On 19 August 2008, the proceedings were further adjourned to enable the plaintiff to commence proceedings in the Family Court for an order that MML reside with him.
18. The proceedings came back before the court for mention on 30 September 2008, 28 October 2008, and 24 November 2008.
19. On 24 November 2008, the court made an interim order pursuant to s 133(2)(a) that MML remain with the plaintiff. Otherwise the proceedings were adjourned to 23 February 2009, in anticipation of an order being made in the Family Court. The CEO foreshadowed that if an order was made in favour of the plaintiff, the CEO would withdraw the protection application.
20. The Family Court made an order made in in favour of the plaintiff on 26 November 2008
21. On 6 February 2009, the proceedings came back before the court at the request of the CEO, on notice to the other parties, for the protection application to be withdrawn. The plaintiff appeared in person and opposed the withdrawal, and sought a declaration pursuant to s 155(1) that the proceedings were frivolous or vexatious and that they should be dismissed and that he should be awarded costs.
49 It was that application that the President heard on 29 April 2009. In the course of his reasons, his Honour made findings that are relevant to the complaints now made by the plaintiff.
50 First, his Honour found that the protection application was made two weeks after MML was taken into provisional protection and care, and not within the two working days required under s 38(4)(b). In that regard, there was a failure to comply with the Act.
51 Second, he found that, in the circumstances, the CEO would have been authorised by the Act to place MML with the plaintiff as one of her parents. The Act did not require the CEO to file a protection application 'thereby giving the respondent mother a forum to be heard': [47]. If KF required a forum, it would have been open to her to pursue proceedings in the Family Court.
52 Third, the President found that the protection application was appropriate because there were arguable protection issues:
The CEO would still need to satisfy his or her duty of care to the child under the CCS Act. That would necessarily involve some investigation of the parent seeking to have the child placed with him or her and that decision would have to be made having regard to the relevant objects and principles and the provisions of s 28 of the CCS Act [50].
53 Fourth, the plaintiff was not named as a respondent when the protection application was made. There was an issue between the Department and the plaintiff regarding why he had not been named, and a factual dispute about whether the plaintiff had told the Department that he was the father. While the President said that he did not need to decide that issue in order to determine the application, he also found:
It is simply not open to conclude that when the Department made the Protection Application it deliberately omitted the respondent father as a respondent to exclude him from the proceedings and to in any way limits his rights as a parent [28].
54 In a later passage, his Honour found that, even if the plaintiff did tell an officer of the Department that he was MML's father, there was a reasonable basis for the Department to be uncertain about who was the father, including that MML's birth had not been registered, so there was no official public record of the identity of her father. Conclusive evidence of the plaintiff's paternity was only provided on 24 May 2007.
55 His Honour concluded that the application by the CEO was not frivolous or vexatious at the time it was made: [54]. He found that there was a child protection issue that warranted the protection application proceedings being kept alive until the Family Court orders were made: [83]. He referred to evidence, which it is unnecessary to detail here, which clearly gave rise to a protection issue until orders had been made in favour of the plaintiff which protected his position and also, importantly, the position of the child. As a result, his Honour found that it could not properly be concluded that at any time the proceedings were frivolous or vexatious.
56 His Honour ordered:
1. The application by the [plaintiff] be dismissed, and
2. The [Department] has leave to withdraw the Protection Application and it is hereby withdrawn.
57 The plaintiff sought leave to appeal to the Court of Appeal. The notice of appeal contained 372 grounds. The court found that none of them had any reasonable prospect of success, particularly when there had been no cross examination of the Department's officers in the hearing below. In his reasons, Murphy JA said (MJL v Chief Executive Office of the Department for Child Protection [2010] WASCA 69 [35]):
In any event, the judge made findings of fact concerning whether the application was frivolous or vexatious when it was commenced: reasons [52] - [53]. It is not clear whether these specific findings of fact are challenged, but if and to the extent that they are, there is nothing in the grounds or submissions which would indicate that this point has any reasonable prospect of succeeding.
58 The application for leave to appeal was refused.
59 In a later, unrelated, decision on the Act, Commissioner Sleight considered the position where an application is made outside the two working days limited by s 38(2): JT v Chief Executive Officer, Department for Child Protection & Family Support [2014] WASC 200. His Honour said:
In my opinion the intention of the legislature is that where a child is taken into provisional protection and care the CEO is under an obligation to bring the matter before the court almost immediately so as to provide the court with jurisdiction to review the actions of the CEO by either hearing an application for a protection order or by providing the parent an opportunity to seek an interim order for return of the child. It is significant that in the absence of the CEO making an application for a protection order, there is no procedure in the legislation which enables a parent to challenge or seek a review of the CEO's decision to take a child into provisional protection and care pursuant to s 37. In my opinion, for this reason the combined effect of s 29(3) and s 38(2) and (4) of the CCS Act is that if the CEO does not make an application within two working days as required then he is to be taken, as at that time, to have decided not to make an application and therefore is required under s 38(2) to return the child taken to the parent. In the alternative, in this case the only reasonable inference that can be drawn is that during the two day working day period the CEO had decided not to make an application at that time which gave rise to an obligation to return the child. What s 38 prevents is the CEO postponing an application to make an application to a later time. This interpretation does not prevent the CEO from at some stage in the future applying for a protection order if the circumstances warrant such an application and seeking an interim order for provisional protection and care. However, what the CEO is not permitted to do, as the CEO did in this case, is to retain the child in the CEO's care without making an application within the time limits prescribed by the legislation [49].
60 The plaintiff relies on this decision as the foundation for his claim that the CEO unlawfully detained MML after the two day period from when she was taken into provisional protective care had elapsed.
61 With that background, it is possible to better understand the allegations the plaintiff attempts to plead in the proposed statement of claim, although the plea still falls far short of a coherent statement of the plaintiff's case.
Misfeasance in public office
62 The central allegation appears to be that the Department owed a duty to the plaintiff under s 37 and 38 to hand MML over to him (or to his sister, with his consent as the parent), or to explain to the court within two working days of her removal from KF: [10]. As a result, the child was not in the lawful care of the CEO: [10]. The CEO was aware of or reckless as to his lack of the power to detain MML, and made the protection application in bad faith and with malice, and for an ulterior purpose: [6].
63 As issues related to that allegation, the plaintiff asserts that MML was not in need of protection; and that, on 29 September 2006, the CEO refused to hand over MML to him when there was then no order in place, and the CEO was aware that he was a parent: [6]. The plaintiff also asserts that he should have been a party to the application under s 147, and there was a denial of natural justice in not initially notifying him of the protection application proceedings: [29] - [34].
Negligence
64 The indorsement on the writ simply sets out a claim for:
negligence of [the State's] employees in their duties as public officers. In failing to comply with and in their treatment and lack of proper care of the Plaintiff's Daughter MLL pursuant to the Children's and Community Services 'Act' 2004 and in connection with the prosecution of proceedings.
65 The statement of claim contains several allegations of negligence or breach of duty, although it is not always clear whether the alleged breaches of duty are said to be negligent. The plaintiff alleges that the Department did not investigate abuse or neglect of MML after being advised on 24 July 2007 that she had broken her arm [7]; and that MML suffered harm due to delay in treating her for the broken arm [51].
66 The plaintiff alleges negligence by senior departmental staff 'in that they permitted the matter to continue when they were aware MML was not in need of protection from me and ulterior purposes were sought by the [Department] staff' [48].
67 He also asserts breach of a duty of care:
when the [Department] made a false statement to me and when they made a fraudulent misrepresentation to the court to be granted the interim order one week later and later to escape liability… There was a duty to me and [to] the court to notify me I am not too far removed from to claim damages, there was a duty to notify under the applicable rules of the court the duty was to me, and to the court, there was a duty not to fraudulently detain a child and make demands or cause detriments or give an advantage to a party or a benefit, it was a significant threat that my child would be placed with [PH], it was also a threat to me and my child that she be placed with [the mother of KF] [69].
68 The statement of claim asserts that the Department 'was negligent in that they did not check the case facts and the transcripts to see what was stated and what the evidence was previously' [112]. This appears to be an allegation regarding evidence that the plaintiff was the father of MML.
69 The plaintiff alleges other breaches of duty. The current pleading does not clearly show whether they are claims in negligence. As the above extracts show, claims in negligence meld with claims of ulterior purpose, fraud, and malice.
Collateral abuse of process
70 This claim is expressly included in the indorsement only in the proposed amendment in March 2015. The plaintiff alleges that the care and protection proceedings in the Children's Court were brought for a collateral or ulterior purpose and were an abuse of process, and were continued between 2006 and 2009.
71 He alleges the collateral purposes of giving KF, as the child's mother, an opportunity to be heard after MML was removed from her care: [2] - [7]; enabling KF and PH, or the maternal grandmother, to parent MML [22]; an intent to use a court order to place MML back with KF and her partner, PH, and to permit PH further contact with MML: [7]; and an ulterior objective of assisting the maternal grandparents to have further contact with MML: [7], [19].
Breach of contract
72 In the indorsement, the plaintiff asserts breach of an undertaking by the CEO to conclude proceedings expeditiously, to remove certain staff, and to move the case to a different office.
73 In the statement of claim, the plaintiff alleges an undertaking by a Ms Barnett 'to conclude the proceedings expeditiously to prevent me having to sell my home, to remove certain staff from the matter, to move the matter to the Mirrabooka office' [48]. The proceedings were not conducted expeditiously as required by the Act: [92], [105]. The plaintiff says that, if the Department had adhered to the undertaking, the matter would have concluded earlier, he could have returned to fly-in fly-out work, and saved his finances. His damages would have been less: [190].
Fraudulent misrepresentations and other frauds
74 The statement of claim contains many allegations that the Department made fraudulent misrepresentations to the court, and withheld evidence in the court, and relied on fabricated evidence in the proceedings: [6], [7]. This includes an allegation that the Department falsely told the court that the plaintiff had denied paternity, and its reliance on a criminal history and incident reports that were untrue and fabricated: [9], [35], [46]. The plaintiff refers specifically to false information being put before the court on 25 July 2007 (the occasion when an order was made placing MML with him): [54].
75 The indorsement and the proposed statement of claim also contain allegations of criminal acts. It is not clear how those allegations relate to the plaintiff's claim for damages.
76 Following the hearing on 30 March 2015, the plaintiff forwarded to the court another approximately 50 pages of submissions to which he attached transcript from various proceedings. These documents contain material that may be evidence, but did not contain a statement of the case that was any clearer.
Should there be leave to re-plead?
77 I am not here concerned with particular defects in the plea, and whether it discloses a reasonable cause of action. Clearly it does not. But the power to summarily terminate a proceeding must be exercised with great care, and only when it is clear that there is no real question to be tried: see Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [24]. This is the first attempt by the plaintiff to plead his claim. While it is two years after the action was commenced, the writ was not immediately served. The defendant has not been confronted by multiple inadequate pleas.
78 It may be possible for the plaintiff to present a plea that discloses one or more causes of action. There are obstacles in the plaintiff's way.
79 First, the defendant generally submits that the validity of the care and protection proceedings has already been tested, both in the Children's Court, and then on appeal. To that extent, it submits that these proceedings are an abuse of process.
80 In considering the earlier proceedings, however, it is necessary to recognise the limited issues before the court. The relief sought in the proceedings had been overtaken by the order for MML to be in the plaintiff's care, and, later, the orders made in the Family Court. The CEO then applied to withdraw the protection application. As a result, the court was concerned only with whether those proceedings should be dismissed as frivolous or vexatious, rather than withdrawn, and the plaintiff's application under s 155. Because of the limited issue before the court, it is not apparent from the reasons of the learned President on what grounds the CEO had made the protection application: see s 48(2) and s 28(2) (defining when a child is in need of protection). The court made no finding on any of those grounds. The order permitting the proceedings to be withdrawn was an interlocutory decision, and there was no actual or even deemed dismissal of the protection application, and no final determination on the merits: see MJL v Chief Executive Officer of the Department of Child Protection [15].
81 There may be matters that can be regarded as resolved in the earlier proceedings, but it is not possible to deal with the abuse issue by a broad brush approach. I am not satisfied that I can, at this stage, find that the plaintiff's action, if properly formulated, would necessarily be an abuse of process.
82 Second, there are potential limitation issues. It is not possible to consider them further because of the deficiencies in the indorsement on the writ, and because the claim has not been sufficiently pleaded. The defendant has not yet filed a defence raising limitation as an issue.
83 Third, the plaintiff faces obvious and substantial difficulties in establishing the causes of action on which he relies.
84 The defendant made submissions about the claims set out in the indorsement which, it submits, show the plaintiff has not revealed a reasonable cause of action. The defendant grounds this argument, to a substantial degree, in the inadequacy of the indorsement, including inadequate particularisation of both claims and damage. An indorsement, however, should not be read narrowly: Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233, 239. It is not intended to be in the nature of a pleading, Renowden v McMullin:
[It] should not be construed as such, but read for what it is, namely, a notice of the nature of the plaintiff's claim, of the cause thereof and of the relief sought in the action. It suffices if it conveys that information generally and without particularity save where and to the extent to which particularity is indispensable to notify the required elements of the indorsement (595).
85 An adequate statement of claim, within the terms of the indorsement (or an indorsement amended by leave), could cure the defects identified.
86 I am satisfied that the plaintiff identifies, although he does not sufficiently plead, a cause of action for misfeasance in public office. The precise limits of the tort remain undefined, but the essential elements have been identified in several cases: see Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 345; Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 [124]; Neilson v City of Swan [2006] WASCA 94 [31]; Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 [99].
87 While the plea apparently addresses the elements of a claim in this cause of action, it is largely by way of statements of conclusion, without the pleading of the necessary material facts. The statement of claim also does not sufficiently set out which public officer or officers acted outside power and with malice. The tort cannot be established on the basis of the 'composite of the conduct of a number of individual officers, let alone a department or a statutory tribunal': Moder v Commonwealth of Australia [2012] QCA 92; (2012) 261 FLR 396 [73].
88 Those matters might, however, be corrected in a properly formulated plea.
89 The defendant also generally submits that no duty of care was owed to the plaintiff. The plaintiff alleges breach of a duty of care by a person in whom the Act reposes statutory powers or discretions that are to be exercised in the context of a detailed statutory scheme. The scheme includes the principles and factors set out in pt 2 of the Act, and which are set out above. In considering whether there is a duty of care, the court must have regard to the need to preserve the coherence of the scheme. In particular, it must have regard to the statutory mandate in s 7 that, in performing a function or exercising a power under the Act in relation to a child, a person must regard the best interests of the child as the paramount consideration. Many and varying factors must be taken into account under s 8 in determining what is in a child's best interests. Different factors may support different outcomes.
90 The defendant submits that the imposition of a duty of care to one of the parents is inconsistent with the statutory scheme and the particular duties and considerations it prescribes: see Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562; Norris v Gittos [2011] WASC 295.
91 Despite the force of the defendant's submission, I am not satisfied that the question of a duty can be resolved other than on specific factual allegations. The present statement of the plaintiff's claim does not permit a proper analysis of whether a duty might arise, in identified circumstances, and whether it has been breached.
Conclusion
92 I will give the plaintiff leave to re-plead generally. Under O 20 r 19(5) I will require the plaintiff to file and serve an application to amend the statement of claim accompanied by a minute of the proposed amendment. If the plaintiff wishes to apply for leave to amend the writ, he must file and serve an application accompanied by a minute of the proposed amendment. I will hear the parties regarding the time for those applications to be made, and any consequential orders.
- AGLC
- MJL v The State of Western Australia [2015] WASC 348
- Case
- [2015] WASC 348
- Decision Date
CaseChat Overview and Summary
The court considered whether the plaintiff's proposed amended writ sufficiently indorsed the claim. The court noted that the plaintiff's proposed amended writ failed to adequately address the issues raised by the defendant's defence and cross-claim. The court held that the plaintiff's proposed amended writ was inadequate and did not provide sufficient detail to enable the defendant to properly respond. The court further held that the plaintiff had not demonstrated a sufficient basis for granting leave to re-plead. The court found that the plaintiff's proposed amended writ did not disclose a reasonable cause of action and that the plaintiff had not shown any excuse for the delay in amending the writ.
The court refused the plaintiff leave to amend the writ and struck out the statement of claim. However, the court granted the plaintiff leave to re-plead, noting that the plaintiff had demonstrated a reasonable prospect of success on the merits. The court held that it was in the interests of justice to grant the plaintiff leave to re-plead, as the plaintiff had not had an opportunity to fully plead their case and the defendant had not suffered any prejudice. The court noted that the defendant had been fully aware of the issues in the case and had had an opportunity to respond to the plaintiff's claims. The court held that it was appropriate to grant the plaintiff leave to re-plead, but that the plaintiff would need to file an amended writ within a specified timeframe.
Orders
Orders of the court
Leave to amend writ refused
Statement of claim struck out
Plaintiff have leave to re-plead
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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