Murphy v The Walt Disney Company (Australia) Pty Limited

[2013] NSWLC 13

Local Court

New South Wales

Medium Neutral Citation:

Murphy v The Walt Disney Company (Australia) Pty Limited [2013] NSWLC 13

Hearing dates:

25/09/2013

Decision date:

25 September 2013

Jurisdiction:

Civil

Before:

Magistrate Schurr

Decision:

Proceedings summarily dismissed.

Plaintiff to pay the Defendant's costs in the case on the ordinary basis, as agreed or assessed.

Catchwords:

PRACTICE & PROCEDURE - civil proceedings - application for dismissal of proceedings - application for striking out of Statement of Claim - no reasonable cause of action disclosed
COSTS - application for indemnity costs - indemnity costs compensatory not punitive - absence of evidence of deliberate delay, falsehood or other aggravating features

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hamod v State of NSW (2002) 188 ALR 659
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Category:

Interlocutory applications

Parties:

David Gregory Murphy (Plaintiff/Respondent)
The Walt Disney Company (Australia) Pty Limited (Defendant/Applicant)

Representation:

Plaintiff/Respondent in person
Mr Lum for the Defendant/Applicant

File Number(s):

2013/00076376

Judgment

Reasons for Decision

1. Mr Murphy commenced proceedings on 13 March 2013 for the sum of $36,750 plus interest, initially against "The Walt Disney Company" and then, with leave, against Walt Disney Company (Australia) Pty Limited.

1. On 11 June 2011 the default judgment entered on 23 April 2013 was set aside, and the name of the Defendant was amended. The Defendant claimed that the Statement of Claim was not served upon them, and that the only Walt Disney entity in Australia was the Walt Disney Company (Australia) Pty Ltd. A timetable was set.

1. On 5 August 2013 the Defendant foreshadowed a Notice of Motion to strike out the proceedings. The hearing of that Notice of Motion was held on 25 September 2013.

The evidence on the Notice of Motion

1. I read the following material from the Plaintiff/Respondent:

(a)   Plaintiff's submissions in reply to Notice of Motion of 26 August 2013

(b)   Affidavit of Service of David Murphy, 24.9.13 and annexures

(c)   Third Affidavit of Service of David Gregory Murphy 23.6.13

(d)   Affidavit of Service of David Murphy, 23.6.13

(e)   Affidavit of Service of David Gregory Murphy, 4.6.13

(f)   Liquidated Statement of Claim, 13 March 2013

1. I read the following material from the Respondent/Applicant:

(a)   Notice of Motion, filed 14.8.13

(b)   Defendant's submissions on Motion listed 26 August 2013

(c)   Affidavit of James O'Sullivan, 9.8.13

(d)   Affidavit of Bruce Lum, 30.7.13

(e)   Defence, 30.7.13

1. At court on 25 September Mr Murphy expressed the wish to cross-examine Mr O'Sullivan. He had not requested the attendance of Mr O'Sullivan either in writing or orally. I admitted Mr O'Sullivan's Affidavit on the basis that there had been no request for him to attend for cross-examination.

1. I heard short oral submissions and then adjourned to consider the application on the written material filed.

THE PLEADINGS

Statement of Claim

1. The Statement of Claim refers to:

a sale on 18.8.12 of 21 names and contact details of members of the Plaintiff's singles dinner club

1. Under the heading of Pleadings and Particulars paragraph 1 states:

There took place on 18.8.12 a sale of sought after names and contact details of new members of the Plaintiff's singles dinner club pursuant to the Sale of Goods Act 1923 to the defendant, secured on 29.6.12 by the operation of an undercover agent Turi McKinley retained by the defendant or its agents who sought names and contact details to contact them under the pretext of hosting a dinner party for new members as a ruse which names could be sold and converted to memberships in an introduction agency admitted to be owned by the defendant or its associate to cover costs.

1. The Statement of Claim refers to a "Club Penguin" which the Plaintiff intended to establish for singles (para (3)). The Statement of Claim refers to the Plaintiff's offers to settle the matter for $10,000 (paragraphs (5)-(6)). The Statement of Claim foreshadows that the Plaintiff may make claims for the legal work he himself has undertaken, "at KC, King's Council, rates of at this stage $1,000 per hour" (paragraph (4)).

The Defence

1. The Defendant denies being indebted to the Plaintiff at all, and denies ever having had contact with "Turi McKinley": Defence, 30.7.13.

The Evidence to Date

1. The Plaintiff's method of evidence gathering appears to have been to issue Notices to Admit Facts to a large number of people and to treat any failure to respond as an admission. On 24 June 2013 a Local Court magistrate made orders that any admissions made to the Notices to Admit Facts dated 6 October 2012, 9 December 2012, 13 March 2013 and 30 April 2013 were to be withdrawn and the Notices to Admit Facts were set aside.

1. In his Affidavit of 9 August 2013 Mr James O'Sullivan, Associate Principal Counsel for Walt Disney Company (Australia) Pty Limited, affirmed that he could find no evidence that Turi McKinley had been engaged by the Defendant or the Walt Disney Company, and denied that the Defendant had any agreement with the Plaintiff.

1. In his Affidavit of 30 July 2013 Mr Lum, employed solicitor for the Defendant, set out correspondence with the Defendant in June 2013.

PART 1 - APPLICATION THAT THE PROCEEDINGS BE DISMISSED (UCPR 13.4)

1. The Applicant/Defendant sought an order under UCPR 13.4 that the proceedings be struck out. The UCPR 13.4 provides:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

1. In the written submissions in support, the Applicant/Defendant acknowledged that summary dismissal was an action that was to be "sparingly employed" (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). The test is (ibid):

lack of cause of action is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed", "manifestly groundless", "so manifestly faulty that it does not admit argument", "discloses a case which the Court is satisfied cannot succeed".

1. I note that to date the Plaintiff has not provided any evidence in support of his claim that Turi McKinley did what the Statement of Claim alleges she did - that is, took from him a list of twenty-one names and addresses at the behest of and as an "undercover agent" for the Defendant, thereby causing loss of $36,750 to the Plaintiff.

1. All Mr Murphy's affidavits relate to the issue of sending Notices to Admit and other correspondence by email.

1. In his Submissions In Reply to Motion of 26 August 2013, Mr Murphy appears to retreat from some of his claims in that:

(a)   he appears to express doubt as to the identity of the alleged principal:

"it is clear that Turi was certainly acting for someone": paragraph (7)

(b)   he appears to express doubt that the named defendant is the correct defendant:

"If your client is not acting on behalf of the parent company and is saying it knows nothing after I have briefed it fully then I request that your client withdraw and you give me the service details in Australia of the parent company as presumably the parent company has instructed other legal firms to act for it in the past and I shall direct my pleadings to one of them": paragraph [10]

(c)   he qualifies the factual basis of claim under the Sale of Goods Act:

"As to paragraph 10, I say Turi did not approach me to purchase names of members. Rather it is the case that I sold them to her by way of a sale pursuant to the Sale of Goods Act. I made no allegations and there is no evidence that Turi approached me to purchase names. I sold them to her after she managed to get them out of me by artifice as is my right after the fact to close a sale and set a price..."

1. Further, in his Submissions In Reply to Motion of 26 August 2013, Mr Murphy:

(a)   refers to himself as the "Messiah" thirteen times (paragraphs 10, 13, 14, 17, 19, 20, 22, 25, 26, 27, 28, 29, 34);

(b)   refers to himself as now being the owner of the Disney Company nine times (paragraphs 11, 13, 16, 17, 19, 21, 25, 28, 34); and

(c) claimed: "You or someone is treating me disrespectfully and to someone in your client's advantage due to the well attested fact that I am the Messiah, as has been proven and admitted in accordance with the rules, and because I am the Messiah you are seeking to relieve me of my moneys. My lien and foreclosure proceeds nevertheless": paragraph [26].

Conclusion

1. The Plaintiff claims that a woman took 21 names and addresses of members of his club in August 2012 and that not only was the Defendant responsible but that the Defendant's actions have caused the Plaintiff to suffer $36,750 damages. There is no evidence linking the actions together or explaining the amount of damages. The Plaintiff's submissions appear to retreat from the claim as filed in relation to who is the appropriate defendant. Further, the Plaintiff has claimed that he is being treated disrespectfully because he is the Messiah. When I consider the exercise of the power to strike out under UCPR 13.4 and apply the test set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, I am satisfied that these proceedings are manifestly groundless in that no reasonable cause of action is disclosed against the Defendant.

1. I order that the proceedings, being claim 2013/00076376, be dismissed.

PART 2 - APPLICATION THAT THE PLAINTIFF'S STATEMENT OF CLAIM BE STRUCK OUT (UCPR 14.28)

1. The Applicant/Defendant sought relief in the alternative that the pleadings be struck out: UCPR 14.28:

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

1. If I am wrong in concluding under UCPR 13.4 that the proceedings should be struck out, I am satisfied that a case has been made for the Statement of Claim in these proceedings be struck out for failing to disclose a reasonable cause of action. The pleadings set out a claim of a conspiracy and of an "undercover agent" with no rational evidence in support. The Defendant is unable to determine the case against it.

1. I strike out the pleadings of the Plaintiff.

COSTS

1. The Defendant sought costs on an indemnity basis. The power to award indemnity costs is discretionary.

1. Indemnity costs are compensatory, not punitive: Hamod v State of NSW (2002) 188 ALR 659.

1. The Defendant submitted that Mr Murphy has shown a wilful regard for the facts or law. I note that Mr Murphy is unrepresented, and he appears to have conducted the case to the best of his ability, sending out Notices to Admit Facts in order to achieve success in his case.

1. I look to see if there has been any delay caused by Mr Murphy, who is unrepresented. The case is still at a preliminary stage and there is no evidence that Mr Murphy has delayed it by reason of failing to meet deadlines, even if the material he has filed may not have been helpful.

1. I note that the fact that a case is without merit does not, by itself, provide grounds for making an award of indemnity costs: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. In the absence of evidence of deliberate delay, falsehood or other aggravating features in this short-lived case, I am not satisfied that it is appropriate to exercise my discretion to award indemnity cost.

1. I order that the Plaintiff pay the Defendant's costs on the ordinary basis as agreed or assessed.

ORDERS

(1) Proceedings summarily dismissed: UCPR 13.4.

(2)   In the alternative, the Statement of Claim is struck out.

(3)   Plaintiff to pay the Defendant's costs in the case on the ordinary basis, as agreed or assessed.

Magistrate B Schurr

Burwood Local Court

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Decision last updated: 01 November 2013