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 RespondentROBERT 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…
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- AGLC
- Nyoni v Patterson [2012] WASCA 171
- Case
- [2012] WASCA 171
- Decision Date
CaseChat Overview and Summary
The court considered whether the plaintiff had established a cause of action in trespass against land and conversion of goods. The court found that the plaintiff had pleaded sufficient facts to support a cause of action in trespass against land and conversion of goods. However, the court also found that the statement of claim was ill-expressed, unstructured, prolix, repetitive, argumentative, and contained commentary which should not be included in a statement of claim. The court further found that the statement of claim contained a number of unnecessary and scandalous allegations that there had been criminal or wrongful or unethical conduct by persons who were not parties and some against the respondents which were unparticularised.
The court held that the master had not erred in striking out the statement of claim and in refusing leave to amend the statement of claim in accordance with the proposed statement of claim. The court held that the proposed statement of claim was also ill-expressed, unstructured, prolix, repetitive, argumentative, and contained commentary which should not be included in a statement of claim. The court also held that the proposed statement of claim contained a number of unnecessary and scandalous allegations that there had been criminal or wrongful or unethical conduct by persons who were not parties and some against the respondents which were unparticularised. The court held that the proposed statement of claim did not remedy the defects of the original statement of claim.
The court dismissed the plaintiff's appeal and upheld the decision of the master to strike out the statement of claim and to refuse leave to amend the statement of claim.
Orders
Orders of the court
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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
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. 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.