Nyoni v Patterson - [2012] WASCA 171

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: NYONI -v- PATTERSON [2012] WASCA 171

CORAM: PULLIN JA
BUSS JA
MURPHY JA

HEARD: ON THE PAPERS

DELIVERED : 28 AUGUST 2012

FILE NO/S: CACV 88 of 2011

BETWEEN: EMSON NYONI
Appellant
AND
MURRAY PATTERSON
First Respondent
ROBERT BATEMAN
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 2610 of 2010

Catchwords:

Practice and procedure - Pleading - Appeal against decision to strike out statement of claim and dismiss action - Whether facts pleaded support an arguable cause of action

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Leave to appeal granted
Appeal allowed in part

Category: B

Representation:

Counsel:

Appellant:     No appearance
First Respondent           :     No appearance
Second Respondent      :     No appearance

Solicitors:

Appellant:     In person
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32
Opperman v The State of Western Australia [2011] WASC 25
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

PULLIN JA: This is an application for leave to appeal against interlocutory orders made by Master Sanderson on 26 July 2011 which struck out the appellant's statement of claim and dismissed the action with costs.

The appellant commences proceedings

The proceedings were commenced by the appellant by originating summons which in unorthodox fashion set out in narrative form what the appellant was complaining about. The quotation of a few paragraphs from it reveals what set off the litigation and reveals also that the appellant was acting in person:
I am aggrieved by actions taken by the defendants in relation to their attempts to destroy my career which nevertheless has left my personal life and business in disarray ... This is due to a chronology of persecutory measures on me which commenced on or around the middle of 2007, when the Chief Pharmacist in the Department of Health Western Australia, Mr Murray Patterson, dispatched Mr Robert Bateman, a senior investigating officer, to come to my pharmacy and investigate 'rumours' about my apparent malpractice of pharmacy. According to Mr Bateman, reports had been forwarded to the Department by a number of people especially senior staff at the Kellerberrin Hospital and Dryandra Nursing Home both of which had been previous clients of my pharmacy ...
On the first day when Mr Bateman turned up at my pharmacy, he introduced himself and said he was to investigate reports or complaints that I, the pharmacist at Kellerberrin Pharmacy, was badly practising pharmacy and making dispensing errors. He showed me his card and asked if he could come into the back of the pharmacy where he immediately started rummaging through everything ...
I protested repeatedly that I had done nothing wrong and was prepared to fight to 'death' to protect my innocence, no matter how many people were involved ...
Having introduced himself as a legitimate government inspector, many of those members in the community actually believed him, sparking a new wave of disinformation and innuendo in the community that the pharmacy was being closed down ...
Kellerberrin, being a small insular community, such rumours were devastating to the business ...
[Mr Bateman] turned to the dangerous drug register, and I quickly pointed out to him that entries in the book were not up to date. I could see him getting excited and focused as if that was what he had originally come to investigate. Over the next hour or so, he went through the register to conform [sic] entries that were not up to date and he also did a drug count of the safe dangerous drugs. That was the beginning of a nightmare that saw me go through the most horrendous harassment and repeated persecution which I would like the court to ensure that it is never repeated on anyone else, ever.
The originating summons continued by reciting the fact that on unspecified dates, Mr Bateman attended again at his premises, that he continued to do so until March 2010 and that on one unspecified occasion:
[Mr Bateman] ... proceeded to the pharmacy shelf to do a drug count of each of those drugs that contain codeine or are sedating or likely to be abused ... The first drug to be counted was temazepam a sleep agent with abuse and suicidal potential. The man was tense as he pulled out from his briefcase a printout, apparently prepared at head office before he came, containing all quantities and dates of products I had purchased from wholesalers ... At the end of his first count of temazepam, he apparently found that on comparison quantities purchased did not match with dispensed quantities, and what was left on the shelf, suggesting that some other consumption of those medications had taken place, and insinuating that the pharmacist is a suspect for black market disposal. I was shocked ... I managed to look at his figures and discovered that he had made an error in counting the tablets versus number of containers ...
The conduct of Mr Bateman on the authority of the Chief Pharmacist was excruciating to say the least, and has left permanent scars on my psyche and untold damage to my business ...
I have stood as firm as I can throughout but because the corruption outlined here gives rise to several causes of action I am asking the court to address and redress the situation with appropriate compensation.
The originating summons then stated that he claimed damages for malicious prosecution, defamation, misfeasance in public office, negligence, emotional pain and suffering, breach of privacy, loss of earnings, loss of reputation and breach of confidentiality.
On 2 December 2010, the Principal Registrar ordered the appellant to file and serve a statement of claim on or before 21 January 2011.

The appellant files his first statement of claim

The appellant filed a statement of claim on 21 January 2011. It identified 2 October 2007 as the date when Mr Bateman first visited the appellant's pharmacy. The statement of claim asserted that on 1 May 2008, the Kellerberrin Hospital terminated an arrangement with the pharmacy for the supply of medicines to its hospitalised patients and recited the fact that various complaints were received, including allegations of wrongful dispensing of medicines. The statement of claim asserted that Medicare wrote demanding an explanation about allegations concerning the opening and closing hours at the pharmacy and alleged that on 25 March 2010, Mr Bateman arrived in company with an inspector from the Pharmaceutical Council and that they spent time 'downloading and uploading stuff from my computers without permission'. The statement of claim ended with a claim for damages on a number of bases.
First, it claimed damages for malicious prosecution based on the 'unsolicited invasion of my pharmacy on 2 October 2007 and on several other occasions by Mr Robert Bateman on the direction of the Chief Pharmacist Mr Murray Patterson' and on the actions of Mr Bateman on the direction of Mr Patterson, which 'were intentional and malicious in instituting and pursuing actions without cause'.
Secondly, it claimed damages for misfeasance in public office, said to be based on 'entry on 2 October 2007 and subsequent entries into my pharmacy by the defendants, and other actions listed in the chronology of events, were acts of wanton vandalism and harassment, and an abuse of power'. He included in the statement of claim submissions about the appellant's view of misfeasance in a public office and referred to the Constitution and the Migration Litigation Reform Act 2005 (Cth).
Thirdly, it claimed damages for defamation, this being based on an allegation that 'on or about 2 October 2007, the defendants spread harmful reports about the plaintiff, among the community in Kellerberrin, under the false guise of investigation in the public interest'. This was followed by a reference to legislation including legislation of other States and Territories such as the Fair Trading Act 1987 (NSW) and the Wrongs Act 1958 (Vic).
Fourthly, it claimed damages for negligence, this being based upon his allegation that 'on and about 2 October 2007 and on several other occasions thereafter, defendants engaged in conduct that is culpable because it fell short of what a reasonable person would do to protect another individual from foreseeable risks of harm'. This was followed by a quote from 'Fletcher v Rylands'.
Finally, it claimed damages for 'emotional pain and suffering', 'breach of privacy' and 'loss of reputation'.
In the particulars to his claim for damages for 'loss in [sic] earnings' he stated:
Plaintiff seeks total damages of $20,000,000 for loss of earnings and future earnings. Damage to a life long carrer [sic] has far reaching dimensions ... A nominal figure of $20,000,000 will never restore the career of the plaintiff to where it should have been, nor bring back happiness, in place of the miserable years spent fighting deliberate fraudulent, vexations and frivolous cases generated by taxpayer funded officers.

The respondents complain about the first statement of claim

On 4 February 2011, a letter was sent to the appellant by the solicitor for the respondent advising the statement of claim was noncompliant with the Rules of the Supreme Court 1971 (WA) on the basis of defects listed in the letter. On 10 February 2011, a registrar adjourned a status conference for four weeks to allow the appellant to seek legal advice.
On 10 March 2011, at a further status conference, the appellant was then represented by lawyers and the hearing was adjourned until 14 April 2011 to allow the appellant to file an amended or substituted statement of claim.
On 23 March 2011, the appellant filed a notice of intention to act in person. On 14 April 2011, a registrar ordered that the appellant file and serve a statement of claim by 28 April 2011.

The appellant files a second statement of claim

On 29 April 2011, the appellant filed a new statement of claim. The flavour of most of this document is revealed by quoting some portions from it. It claimed $10,000,000 'only'. It again alleged in par 4.1, that action was taken by Mr Bateman on 2 October 2007. Paragraph 4.1 read:
It was on 2nd of October 2007, when the defendant No 1 hastily and without any application of prudent or judicious mind, believed the persistent criticisms from the hospital staff against the plaintiff and assumed them veracious, and allegedly appointed the defendant No 2 as a senior officer to investigate the frivolous and pseudo complaints against him.
This statement of claim alleged that 'defendant No 2 shockingly started coercing and criminally intimidating the people to make a formal complaint against the plaintiff'. It asserted that 'defendant No 2 made innumerable visits to the pharmacy premises which continued up to March 2010 and every time he used to portend and [sic] threaten the plaintiff that the defendant No 1 and defendant No 2 are in the process and course of ordering the shutdown of the plaintiff's pharmacy'. He complained of 'severe and unadorned defamation' (par 4.5). Under the heading 'Damages claimed' the statement of claim read:
The plaintiff has suffered substantive and hefty losses in his business, which he has not been able to refurbish till date. Being a citizen of Australia, a country of free democracy, where human rights are highly observed, where the Australian Constitution, the Equal Opportunity Commission and other statutory elements hold the highest notable position, a country which can be termed to be one of the best models of harmony among different ethnic groups who form the profile of this great nation, a country where a vast majority of people are immigrants, the plaintiff has been made a victim of racial discrimination.
Some other more important paragraphs in this statement of claim are referred to below.
On 2 May 2011, a registrar granted the respondents leave to apply to strike out the appellant's statement of claim.

The respondents' application to strike out the statement of claim

On 31 May 2011, the respondents filed an application to strike out the statement of claim.
On 21 June 2011, Master Sanderson made an order striking out the appellant's second statement of claim, granted the appellant leave to file and serve a minute of proposed substituted statement of claim by 19 July 2011 and otherwise adjourned the application until 26 July 2011.

The appellant files a proposed substituted statement of claim

On 19 July 2011, the plaintiff filed his proposed statement of claim. This statement of claim had now grown to over 70 pages in length. It claimed damages under 17 heads, including damages for trespass to the person, trespass to land, trespass to chattels, conversion, detinue, negligence, breach of duty, defamation, malicious prosecution, injurious falsehood, misuse of the authority in a public office, emotional pain and suffering, breach of privacy, loss in earnings, loss of reputation and breach of confidentiality.
This statement of claim again referred to 2 October 2007 and alleged that 'defendant No 2 under the delegation of defendant No 1 was sent to the premises of the pharmacy who after unusually entering on that very first day went on a rampage marking the beginning of a failed attempt to destroy the plaintiff'. The statement of claim pleaded that a number of complaints were made by persons about wrong dispensation of drugs which he asserted were complaints 'intentionally crafted and connived' or that the complainants were 'instigated marionette[s]'. The statement of claim then referred to meetings the appellant had with the St George Bank who were 'threatening to bankrupt' the appellant. The statement of claim asserted without any supporting material facts, that the 'bank was also working under the instructions of the respondents in order to oust the applicant out of his business'. The statement of claim contained submissions about the Pharmacy Act 1964 and set out long quotes from judgments in other cases and a description by the appellant of what he considered a cause of action in negligence consisted of. This statement of claim also concluded with a claim for $10,000,000 'only' from the respondents. Some further material paragraphs are referred to below.

The hearing on 26 July 2011

The question about whether the proposed substituted statement of claim should stand as the appellant's statement of claim came on for hearing before Master Sanderson on 26 July 2011. The master made the following orders:
(1)The plaintiff's statement of claim be struck out and the plaintiff's action be dismissed.
(2)The plaintiff pay the first and second defendants' costs of the action including reserved costs.
The master evidently overlooked that he had earlier struck out the statement of claim on 21 June 2011.

The master's reasons

The master said that it was not possible from the existing statement of claim (ie the one filed on 29 April 2011) to ascertain with any clarity what was alleged against the defendants. The master then referred to the proposed statement of claim, noted its length and stated that it was objectionable in its terms because it contained irrelevant matters including quotes from the cases and statements which the master assumed were taken from the facts of those cases. The master pointed out that none of that material should have been pleaded, but said:
I think it is fair to say [that] when the plaintiff is self‑represented a good deal of latitude must be granted to allow any claims properly made to be put before the court.
The master then added:
The difficulty with the proposed statement of claim is that I cannot ascertain what it is that is being alleged against the defendants. It would seem [from the claims] that in some way the defendants in their professional capacity acted in such a way as to damage the plaintiff in his profession.
The master concluded that:
The present proposed statement of claim refers to all sorts of causes of action ... but so far as I can see, there are no material facts pleaded which could in any way give rise to a cause of action against these two defendants which could succeed.
The master said that in reaching his conclusion, he had extended every possible indulgence to the appellant. He also observed that there had been a number of case management hearings before a registrar and observed that the registrar had gone to some lengths to explain to the appellant what was necessary. The master said that he mentioned that simply to indicate that every indulgence had been extended to the appellant. These were the master's reasons for the orders made on 26 July 2011.

The appellant appeals

The appellant filed an appeal notice on 8 August 2011. The decision appealed against is the judgment of Master Sanderson dated 26 July 2011 but the appeal must also be taken to be against the order dated 21 June 2011 striking out the statement of claim. Leave is required to appeal against those decisions and that requires a consideration of the merits of the proposed appeal.
Five of the appellant's six grounds of appeal allege that the master erred in striking out the statement of claim, and a sixth alleges 'actual and apprehended bias' on the part of the master.

Principles governing the application to strike out the statement of claim and to dismiss the action

A number of relevant considerations affect the approach which has to be taken in relation to this type of appeal.
First, the remedy of summary disposal of a claim by the striking out of the statement of claim is to be used with caution and only in the clearest of cases: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 ‑ 130, 138.
Secondly, the decision under review is a discretion in a matter of practice or procedure. As drastic and final as the consequence may be for the party affected, it is important for an appeal court to limit its intervention to cases where it is shown that the primary decision maker has fallen into some error of principle in the exercise of his discretion: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536.
Thirdly, because the appellant is a litigant in person, care must be taken to ensure that this significant disadvantage does not deprive him of the opportunity to have his claim, if any, determined according to law. Courts should approach the peremptory determination of litigation by an in person litigant with special care, to ensure that within the possibly ill-expressed and unstructured statement of claim, there is no viable cause of action: Wentworth v Rogers (No 5) (536).
Fourthly, after allowing for the disadvantage an in person litigant suffers, it is still necessary, out of fairness to defendants, that the statement of claim is drawn so that when the opponent pleads to it, the pleadings will define with clarity and precision the issues or questions which are in dispute between the parties and fall to be determined by the court. A statement of claim must state all material facts to support the claim to relief so that fair and proper notice is given to the defendants to enable them to frame and prepare their own case for trial. Such clarity and precision is also necessary to inform the court about the precise matters in issue between the parties which are to be determined by the court and which set the limits of the action.
Fifthly, clear and precise pleadings are necessary because they form a permanent record of the issues and questions raised in the action and decided so as to prevent future litigation upon matters already adjudicated upon between the litigants: Opperman v The State of Western Australia [2011] WASC 25 [38] (EM Heenan J). Certain Rules of the Supreme Court are concerned with the content of pleadings. Order 20 requires a statement only of the material facts upon which the party relies and not the evidence by which the facts are to be proved (O 20 r 8(1)) and which will avoid the opponent being taken by surprise (O 20 r 9(1)(b)).

Sixthly, the court ought not to grant leave to amend a pleading into a form which ought to be struck out due to defective amendment: Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32, 38.

Disposition of the appeal

The proposed statement of claim is ill‑expressed and unstructured. It is prolix, repetitive and argumentative. It contains commentary which should not be included in a statement of claim. It also contains a number of unnecessary and scandalous allegations that there has been criminal or wrongful or unethical conduct by persons who are not parties and some against the respondents which are unparticularised.
It is necessary to consider whether the master erred in striking out the statement of claim which had been filed on 29 April 2011 and which was on foot when the matter was heard by him on 21 June 2011 and also, whether the master erred in refusing leave to amend the statement of claim in accordance with the proposed statement of claim which had been filed on 19 July 2011.
Through the mass of irrelevant material, there are just a few material facts pleaded which do support two causes of action against the second respondent. They are causes of action in trespass against land and conversion of goods.
To establish a cause of action of trespass against land, it is necessary for a plaintiff to plead that he was entitled to possession of land and that the defendant entered the land without the consent of the plaintiff. To establish the cause of action in conversion, it is necessary for the plaintiff to establish that the defendant dealt with the plaintiff's goods in a manner inconsistent with the rights of the plaintiff who must be shown to be the person in actual possession of the goods or entitled to immediate possession of the goods.
Shearing the statement of claim of the great quantity of irrelevant and objectionable material, the following appears (the paragraph numbers are the paragraph numbers in the statement of claim):
1.The plaintiff is a pharmacist in the Kellerberrin Pharmacy.
1.5... [T]he plaintiff [has had possession of the] pharmacy since 2003 in ... Kellerberrin.
2.The defendant No 1 holds [the] post as the Chief Pharmacist of the Department of Health in Western Australia and is responsible for managing all activities of the Pharmaceutical Services Branch ... Defendant No 1 ... is responsible for providing expert advice on matters relating to poisons, drugs ... and pharmaceutical services.
4.1... on 2nd October 2007 ... the defendant No 1 ... appointed the defendant No 2 as a senior officer to investigate ... complaints against [the plaintiff].
4.2... defendant No 2 on the abovementioned date came to the pharmacy of the plaintiff and ... after introducing himself as a senior officer of the Health Department entered the premises of the pharmacy by forcefully pushing the plaintiff aside ...
4.3The defendant [No 2] after his ... unauthorised entry into the premises directed the plaintiff to come to the back portion of the pharmacy. Once there he started rummaging and delving through everything lying there ...
4.16... defendant No 2 again made a visit to the pharmacy of the plaintiff.
In par 1.5, it has been necessary to insert the words in square brackets alleging that the appellant had possession of the premises. It may be inferred from the statement of claim read as a whole that it is alleged that he did have such possession.
The paragraphs set out above plead material facts supporting a cause of action of trespass to land against the second respondent.
Other paragraphs in the statement of claim read:
4.17Defendant No 2 ... took hold of the ... drug register ... of the pharmacy.
4.20The act of ... defendant No 2 to forcefully confiscate the drug register was not under any authority or command of the law.
8.... The plaintiff claims [damages].
Those paragraphs disclose a cause of action for conversion of goods against the second respondent.
The word 'forcefully' in pars 4.2 and 4.20 may be read as implying a lack of consent by the appellant.
The rest of the statement of claim disclosed no material facts supporting causes of action for 'malicious prosecution', 'defamation', 'misfeasance in public office', 'negligence', 'emotional pain and suffering', 'breach of privacy', 'loss of earnings' or 'loss of reputation and breach of confidentiality' or any other cause of action.
It is now necessary to turn to the proposed statement of claim.
In this document there are attempts to plead out causes of action under headings. Thus, for example under the heading 'Negligence', the allegation is that 'defendant No 1 and defendant No 2 knew, or ought to have known that the applicant is an innocent pharmacist, and they should have shown proper, reasonable and prudent exercise of their powers while investigating the alleged complaints'. The statement of claim continues by asserting that the defendants failed to undertake any or adequate 'due diligence' to investigate the characteristics of the complaints against the appellant and asserts that the complaints which were made to the respondents were 'frivolous and false complaints'. None of those assertions support a claim for damages for negligence.
Under the heading 'Defamation' the appellant claims that 'defamatory words' were uttered by the respondents as set out in 'paragraphs 4(I) through 4(IV)' and that these were 'calculated to and caused economic losses to the plaintiff and his business'. The words which were said to have been uttered, the persons to whom they were uttered or the date on which words were uttered are not pleaded.
Under the heading 'Assault, nuisance, trespass and violation of privacy' the statement of claim asserts that 'on several occasion [the respondents] threatened to "shut down" the pharmacy of the plaintiff and to assault him, employing a tone and inflection from which they could reasonably infer, and did in fact infer, that the defendant intended to incite [the] customers of the pharmacy to lodge frivolous complaints against the plaintiff, disturbing the peace, or to inflict physical business and economic harm upon the plaintiff'. The allegations of assault are entirely unsupported by the pleading of any material fact.
Another part of the proposed statement of claim alleges that the appellant was a victim of racial discrimination because he was of Zimbabwean black African background. There are no material facts supporting this allegation and in any event they are irrelevant to any cause of action nominated by the appellant.
However, the proposed statement of claim proposes a plea in par 4.4 under the heading 'Damages for detinue'. To establish a cause of action in detinue, it is necessary to prove the refusal or failure by the defendant in possession to give the goods up to the person entitled to possession of those goods. This is usually proved by the defendant's refusal to deliver up upon demand being made.
Paragraph 4.4 reads:
Following confiscation and retention of [the] plaintiff's drug register ... by defendant No 2 ... and several oral demands for its return there was at best misleading responses ... equivalent to refusal [to deliver up the drug register].
This passage in par 4.4 read with the portions of the statement of claim dated 29 April 2011, would support a claim for detinue in relation to the drug register as against the second respondent.
None of the causes of action in trespass to land, conversion of the drug register or detinue in relation to the drug register can be sustained against the first respondent. The only role of the first respondent according to the statement of claim and the proposed statement of claim, was in the appointment of the second respondent to investigate complaints against the appellant. There are no material facts pleaded suggesting that the first respondent was involved in the alleged trespass, the alleged conversion or the alleged detinue. It is nowhere pleaded that the first defendant took possession of the drug register. The master did not err in making the orders striking out the statement of claim and the master did not err in refusing leave to amend in accordance with the proposed statement of claim in relation to the claim against the first respondent.
The result is that a few paragraphs of the statement of claim of 29 April 2011 and the proposed statement of claim plead out material facts supporting three causes of action against the second respondent. As to the rest of the statement of claim, the master was right to strike it out. Likewise, as to the rest of the proposed statement of claim he was right to refuse leave to amend in accordance with it. Neither document disclosed any other material facts supporting other causes of action against either respondent.
Thus, the master erred in striking out (as against the second respondent) the material facts pleaded in support of the claims for trespass to land and conversion and erred in refusing to grant leave to plead (as against the second respondent) the material facts to support the cause of action in detinue in relation to the drug register. For the same reasons, the master erred in summarily dismissing the action against the second respondent.
There is no evidence of bias or apprehended bias by the master. Those allegations are based on the fact that the master erred in his decision and recorded submissions made by the respondents. Those facts do not give any foundation for a claim of bias or apprehended bias. That ground of appeal is dismissed.

The result is that leave to appeal should be granted, the orders made by the master on 21 June 2011 and 26 July 2011 should be set aside and in lieu, there should be orders that:
1.As against the first respondent:
(a)the plaintiff's statement of claim be struck out and the plaintiff's action be dismissed;
(b)the plaintiff pay the first defendant's costs of the action including reserved costs.
2.As to the second respondent:
(a)the statement of claim should be struck out;
(b)the plaintiff have leave to amend his statement of claim in accordance with these reasons.
Although some paragraphs in the statement of claim are salvageable, it is better to strike out the existing statement of claim and require the appellant to bring in a short statement of claim against the second respondent prepared in accordance with these reasons.
The appellant and second respondent should be heard in relation to the costs of the application before the master and the costs of the appeal.
BUSS JA: I agree with Pullin JA.
MURPHY JA: I agree with Pullin JA.