Munnings v Australian Government Solicitor

[1994] HCA 12

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, AND TOOHEY JJ

CLYDE FRANCIS MUNNINGS v. AUSTRALIAN GOVERNMENT SOLICITOR AND ORS

(1994) 68 ALJR 429

20 April 1994

Orders

Appeal allowed in part.

Vary the order of Dawson J of 21 January 1994 by omitting that part of the order which reads: "IT IS ORDERED that the endorsement to the writ dated 24 August 1992 and
the

Amended Statement of Claim dated 17 August 1993 be struck out AND IT IS FURTHER ORDERED that this action be permanently stayed".

In lieu thereof, substitute the following: "IT IS ORDERED that the amended statement of claim dated 17 August 1993
be struck out as against the first defendant, the Australian Government Solicitor, and that the name of the Australian Government Solicitor as a defendant be struck out".

Appeal otherwise dismissed.

The appellant to pay the costs of the Australian Government Solicitor, otherwise no order as to costs.

Decision

MASON CJ, BRENNAN AND TOOHEY JJ This is an appeal from a judgment of Dawson J in which his Honour ordered that the endorsement to the appellant's writ and the statement of claim as amended be struck out and that the appellant's action be permanently stayed.

2. The appellant's writ named as defendants the Australian Government Solicitor ("the AGS") and other persons who were involved in proceedings in the Federal Court as counsel or solicitor for either the appellant or for the members of a Disciplinary Appeal Board ("the Board") constituted pursuant to the Telecommunications Act 1975 (Cth). The proceedings were brought by the appellant in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth), seeking a review of a decision of the Board to which the appellant had unsuccessfully appealed against his dismissal from his employment with the Australian Telecommunications Commission ("Telecom"). Everett J dismissed the appellant's application for review ((1) Munnings v. Smith (1986) 20 IR 264.) and his Honour's judgment was upheld on appeal to the Full Court of the Federal Court ( (2) Munnings v. Smith (1987) 22 IR 254.).

3. The appellant then brought an action in this Court, seeking damages from the persons who are respondents to the present appeal. In view of matters raised by the Court during the hearing of the appeal, it is necessary to refer in some detail to what took place on the hearing of the AGS summons which led to the making of the orders by Dawson J And to understand what did take place, it is also necessary to point out how the appellant's action is constituted.

4. The appellant sued the AGS, Dr Flick SC and Mr Cunningham who were counsel for the AGS in the Federal Court proceedings, Mr Slicer and Mr Docking who were his own counsel in those proceedings, and Jennings Elliott, the law firm to which Mr Docking belonged and which was the appellant's solicitor in those proceedings. It does not appear that Dr Flick and Mr Cunningham were ever served with the writ; certainly they have played no part in the relevant events.

5. Solicitors for Mr Slicer and solicitors for Mr Docking and Jennings Elliott each took out a summons for an order that service of the writ upon their respective clients be set aside. Those summonses have not been dealt with. They were listed to be heard by Dawson J but, at the request of those defendants, the summonses were adjourned. The reason for the adjournment, it appears, was a proposal by the AGS to make a strike-out application. That application was duly made and its disposition has given rise to the present appeal. The application, in its original form, claimed the following relief:

"1. An order striking out the name of the Australian Government Solicitor as a Defendant herein on the ground that the writ does not disclose a reasonable
cause of action against the said Australian Government
Solicitor.
2. An order that the Plaintiff not be given leave to renew
the Writ herein. 3. Such other orders as are appropriate.
4. An order for costs."

6. The AGS summons came on for hearing before Dawson J on 23 November 1993. The appellant was served with the summons. He did not appear but filed written submissions in opposition to the orders sought. The other defendants (excluding Dr Flick and Mr Cunningham) were served by the AGS with the summons and appeared by counsel. At the hearing the AGS obtained leave to amend the summons by adding to par.1 the words "and is frivolous and vexatious".

7. In his judgment upholding the application, Dawson J said that he thought it was possible to discern only three causes of action which the appellant was, or could have been, attempting to invoke against the AGS. The first was a cause of action of the kind envisaged in
Beaudesert Shire Council v. Smith ((3) (1966) 120 CLR 145.), namely, for loss suffered as the inevitable consequence of the unlawful, intentional and positive acts of another. The second was the tort of conspiracy. The third cause of action was that of deceit. The statement of claim gave no particulars which might have given substance to any of these causes of action or which might have shown that there was a "real and genuine" controversy ((4) cf. Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 at 92.). It was a pleading that invited an application to strike it out. Nothing in the argument which the appellant presented on appeal has detracted from the force of Dawson J's reasons for upholding the application. In particular, the appellant's reliance in his grounds of appeal upon a notice to admit facts relating to the authority of a Telecom officer to give certain directions that were under consideration in the judicial review proceedings reveals Mr Munnings' misunderstanding of the case he had to plead and prove. It is clear, as Dawson J pointed out, that no admissions made by counsel for the appellant played any part in the decision reached by Everett J who held that Mr Griggs, a chief manager at Telecom, had implied authority to give the relevant direction stemming from his position in Telecom with State-wide authority in
respect of personnel matters. This conclusion was reached independently of any admission and of the notice to admit and what happened under it.

8. Dawson J was right in acceding to the application. Moreover, although a plaintiff is often granted leave to replead if a statement of claim is struck out, there are some cases where the plaintiff so misconceives the cause of action that the action ought to be brought
to an end ((5) For example, Robertson v. The Commonwealth of Australia, unreported, High Court of Australia, 3 September 1985.). Dawson J thought this was such a case and that view was confirmed by Mr Munnings' argument on appeal.

9. However, there are two problems arising from the form of the order made by his Honour. The relevant part of the order reads:

"IT IS ORDERED that the endorsement to the writ dated 24 August 1992 and the Amended Statement of Claim dated 17 August 1993 be struck out AND IT IS FURTHER ORDERED that this action be permanently stayed".

The order strikes out the endorsement to the writ and the amended statement of claim, not only against the AGS but generally. No doubt this followed from the adoption of the argument of counsel for the AGS by counsel appearing for the other defendants. But the other defendants were not parties to the AGS application and there was no independent application for relief by the other defendants. It is by no means clear what they hoped to gain by their participation in the AGS application.

10. Secondly, the order made by his Honour went beyond the relief sought in the summons served on the plaintiff. The relief sought in par.2 of the summons was not pursued on the hearing before Dawson J Although the order made by Dawson J is supportable by his Honour's reasoning, the order which could properly be made having regard to the terms of the summons and the parties to the application then before him was limited by the terms of par.1 of the summons. In particular, the summons did not seek a permanent stay of the action. Nor, so it was said, was that relief asked for.

11. It follows that the order of 21 January 1994 cited above should
be varied to read:

"IT IS ORDERED that the amended statement of claim dated 17 August 1993 be struck out as against the first defendant, the Australian Government Solicitor, and that the name of the Australian Government Solicitor as a defendant be struck out."

Otherwise the appeal should be dismissed. In all the circumstances the appellant should pay the costs of the AGS; as to the other
respondents, there should be no order as to costs.