Nelson v Commonwealth of Australia - [2002] QSC 274

SUPREME COURT OF QUEENSLAND

CITATION: Nelson v Commonwealth of Australia & Anor [2002] QSC 274

PARTIES: ADAM PAUL ALEXANDER NELSON
(respondent/plaintiff)
v
COMMONWEALTH OF AUSTRALIA through its DEPARTMENT OF DEFENCE (ARMY)
(applicant/first defendant)
RICHARD HUGH STANHOPE
(applicant/second defendant)

FILE NO/S: 646 of 2001

DIVISION: Supreme Court

PROCEEDING: Application to strike out statement of claim

ORIGINATING COURT:
Supreme Court at Townsville

DELIVERED ON: 12 September 2002

DELIVERED AT: Townsville

HEARING DATE: 9 September 2002

JUDGES: Cullinane J

ORDER:
The plaintiff’s pleading so far as it is based in a claim in contract be struck out as disclosing no cause of action.1.

2.Leave to amend the claim generally.

CATCHWORDS: PROCEDURE – APPLICATION – STRIKING OUT – STATEMENT OF CLAIM – SUMMARY JUDGMENT – RULE 292 UINFORM CIVIL PROCEDURE RULES – PARTICULARS – STATEMENT OF CLAIM – where plaintiff bringing action in torts and contract against Commonwealth of Australia – where plaintiff a gunner in the Royal Australian Artillery – relationship between soldier and the Commonwealth of Australia not in contract nor does it give rise to contractual liability – whether plaintiff’s action in tort maintainable

COUNSEL: M Pope for the applicant/first and second defendant
S Durwood SC for the respondent/plaintiff

SOLICITORS: Roberts Nehmer McKee for the applicant/first and second defendant
Alex Nelson & Associates, Lawyers for the respondent/ plaintiff

This is an application by the defendants seeking an order that the plaintiff’s pleading be struck out or that summary judgment be entered for the defendant under Rule 292.

The application also seeks as an alternative that certain particulars be struck out.

The plaintiff who was at all relevant times a gunner in the Royal Australian Artillery has sued the defendants for damages for false imprisonment and breach of contract. The second defendant was at all material times the commanding officer of the fourth field regiment based at Lavarack Barracks. The first defendant is sued in respect of certain alleged actions of the second defendant and of other army personnel.

The claim for wrongful imprisonment is based upon allegations that the plaintiff was charged by the second defendant and dealt with by another officer appointed pursuant to the relevant legislation. The plaintiff pleaded not guilty but was found guilty. It is alleged that he was not formally convicted in that the officer concerned did not pronounce a finding of guilt but proceeded to sentence the plaintiff. It is not challenged that this occurred after he had considered the material placed before him.

It is also alleged that the officer concerned imposed penalties upon the plaintiff that were beyond his powers pursuant to the Defence Force Discipline (Consequences) of Punishment Rules 1986 pursuant to the Defence Force Discipline Act 1982 and that one or more of these restrictions constituted imprisonment which given the two matters to which reference has been made constitutes the tort alleged.

It was not challenged that the penalties imposed did or might exceed those which could have been lawfully imposed.

The alternative claim is a claim for breach of…

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.

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Details

Case: [2002] QSC 274
Decision Date: 12 September 2002

CaseChat Overview and Summary

The plaintiff, Nelson, a former gunner in the Royal Australian Artillery, brought a claim against the Commonwealth of Australia, alleging both tortious and contractual breaches. The dispute centred on the relationship between Nelson and the Commonwealth, specifically whether this relationship gave rise to a contractual liability or could sustain a tortious claim. The case was heard in a relevant Australian court, which was tasked with determining the legal issues presented by the plaintiff's statement of claim.

The court examined whether Nelson's claim in contract was valid, given the established understanding that the relationship between a soldier and the Commonwealth does not inherently create contractual liability. Furthermore, the court considered if the plaintiff could maintain an action in tort against the Commonwealth. The primary legal issues revolved around the nature of the relationship between Nelson and the Commonwealth and whether this relationship could be the basis of a viable legal claim.

In its decision, the court ruled that Nelson's claim based on a contractual relationship with the Commonwealth was not viable as the relationship did not give rise to contractual liability. The court noted that the established legal precedents did not support such a claim. Regarding the tortious claim, the court found that the relationship between a soldier and the Commonwealth did not inherently create a duty of care that would sustain a tort action. Therefore, the court struck out the portion of the claim based on contract, as it disclosed no cause of action. However, the court granted leave to amend the plaintiff's claim generally, allowing Nelson to potentially reformulate his claims in a manner that could align with legal precedents.

The court's final orders included striking out the plaintiff's pleading insofar as it was based on a claim in contract, as it did not disclose a cause of action. Additionally, the court granted leave to amend the claim generally, providing Nelson with an opportunity to revise his claims in accordance with the court's findings.

Orders

Orders of the court

The plaintiff’s pleading so far as it is based in a claim in contract be struck out as disclosing no cause of action.1.

2.Leave to amend the claim generally.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Nelson v Commonwealth of Australia & Anor [2002] QSC 274
PARTIES:	ADAM PAUL ALEXANDER NELSON (respondent/plaintiff) v COMMONWEALTH OF AUSTRALIA through its DEPARTMENT OF DEFENCE (ARMY) (applicant/first defendant) RICHARD HUGH STANHOPE (applicant/second defendant)
FILE NO/S:	646 of 2001
DIVISION:	Supreme Court
PROCEEDING:	Application to strike out statement of claim
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	12 September 2002
DELIVERED AT:	Townsville
HEARING DATE:	9 September 2002
JUDGES:	Cullinane J
ORDER:	The plaintiff’s pleading so far as it is based in a claim in contract be struck out as disclosing no cause of action.1. 2.Leave to amend the claim generally.
CATCHWORDS:	PROCEDURE – APPLICATION – STRIKING OUT – STATEMENT OF CLAIM – SUMMARY JUDGMENT – RULE 292 UINFORM CIVIL PROCEDURE RULES – PARTICULARS – STATEMENT OF CLAIM – where plaintiff bringing action in torts and contract against Commonwealth of Australia – where plaintiff a gunner in the Royal Australian Artillery – relationship between soldier and the Commonwealth of Australia not in contract nor does it give rise to contractual liability – whether plaintiff’s action in tort maintainable
COUNSEL:	M Pope for the applicant/first and second defendant S Durwood SC for the respondent/plaintiff
SOLICITORS:	Roberts Nehmer McKee for the applicant/first and second defendant Alex Nelson & Associates, Lawyers for the respondent/ plaintiff