Pal, L.G.G v Druschowitz, M

[1993] FCA 33

IN THE FEDERAL COURT OF AUSTRALIA )

1

Y	)	N	)	No. NG 917 of 1992
)

GENERAL DIVISION

BETWEEN:	LEONARD JOHANN GERHARD PAL Applicant
AND	MANFRED Respondent

Beaumont J.

FEB 1993

4 February 1993 COURT OF

AUSTRALIA

EX TEMPORE REASONS FOR JUDGMENT

These are proceedings commenced by a litigant in person by application filed on 14 December 1992. The applicant claims damages in the sum of $215,000 and an injunction, both interim and permanent, restraining the respondent from disposing of certain real estate at Avoca Beach in New South Wales.

as a statement of claim.

The document filed in support of the application is ambiguous as a matter of form. It is a typed document of eleven pages 'and is typed up as a statement of claim. However, there has been added to the typed document handwriting which purports to be in the form of an affidavit sworn by the applicant on 14 December 1992. There is further handwriting which in form, if not in substance, purports to incorporate in an affidavit, what had previously been typed up

There is before the court today a notice of motion filed on behalf of the respondent seeking orders that the statement of claim be struck out and in the alternative, that the statement of claim be stayed pending the provision by the applicant of the sum of $10,000 by way of security for costs.

In support of the respondent's notice of motion, there is evidence from the solicitor for the respondent, annexing a search in the bankruptcy registry of this court in which particulars are given indicating that the applicant was made bankrupt on 10 December 1984. There is a statement that

S . 149 of the Bankruptcv Act 1966 ("the Act") may apply,

however, the solicitor now appearing for the respondent has indicated that it is not clear whether the applicant has been discharged from his bankruptcy by operation of law. There have been recent amendments made to the Act in this connection and this matter will need to be explored further at a later date.

The statement of claim incorporated within the applicant's affidavit is a complicated document. It appears that the applicant's complaint is that the respondent has engaged in conduct which is said by the applicant, to constitute misleading and deceptive conduct. There is also a suggestion in the document that the respondent has obtained unlawfully from the applicant access to information which the applicant claims is confidential.

The information is said to relate to the design of a crank shaft in respect of which the applicant alleges he has carried out certain scientific and engineering research pursuant to what is said by the applicant to have been at least an understanding arrived at between himself and the respondent.

I have endeavoured to summarise the essence of the claim made in what is said to be the pleading, but I do so without any real confidence that a reading of that document can reveal to the reader any clear statement of the facts relied up by the applicant, let alone the legal principles and the cause of action relied upon by the applicant. As I have

, said the applicant appears in person and has a background in

engineering and not in legal practice.

On behalf of the respondent it is said, with matter of form and as substance, as an attempt to lead	justification, that if the affidavit is treated both as a
evidence to be relied upon at the final hearing of the present matter, then much of it is in a form which is not admissible evidence on a final hearing.

I accept this submission. It is apparent from a

brief reading of the document that the allegations made in it are expressed not only in general terms but in many instances

in inflammatory language. In particular, no attempt is made in the affidavit to prove conversations in direct speech as would be required in order to make the material admissible on d final hearing.

In the circumstances, I order that the affidavit of the applicant sworn on 14 December 1992 and the statement of claim purportedly incorporated within that affidavit itself be struck out as vexatious.

I have raised with the parties the possibility of directing that in lieu of the ordinary method of proceeding in a matter such as this, that is say an application supported by affidavit evidence on the one hand, or the filing of pleadings and the giving of oral evidence on the other, there should be adopted the procedure which for instance this court directs in income appeals. Under that procedure the court's usual direction is that the parties file in lieu of pleadings, a

statement of facts, issues and contentions.

Where, as here, we have litigation which on any view is complex, both factually and in terms of the legal questions which appear to arise, it seems to me to be an impossible task to impose upon a litigant in person to direct either the filing of a statement of claim, or the filing of affidavit evidence in a form which would be admissible at a final

hearing. Either of those directions would, in my view, in the

present case, be an exercise in futility.

I have therefore raised with the parties, and I

understand there is no serious objection to this course, the possibility of directing a statement along the lines I have indicated. I propose so to order and to add to that statement, in each case, a direction that each of the parties file as well a chronology of events from his point of view.

The parties will appreciate that in line with the practice of the court in income tax appeals, a statement of the kind I have already mentioned need only deal with the matter from the point of view, or perception, of the party concerned. In the case of the applicant his statement will consist of the facts, issues and contentions which in his perception are relevant. On the other hand, the respondent's statement will deal with an address of the facts, issues and	contentions which from the point of view of the respondent	appear to be material. It will follow that the documents
filed by the parties will not necessarily coincide in terms of their respective perceptions, even of the issues. Nonetheless, it has been the experience of the court that the filing of such documents, even though expressed to be from the point of view of one of the litigants only, does assist in the crystallisation of the issues.
I would envisage that once those documents are filed, certainly the parties and hopefully the court, will be better informed in terms of knowing what the real questions in issue at the trial will be. That is the purpose of the direction and I propose to give it accordingly.
I direct that within twenty-eight days the applicant file and serve a statement of facts, issues and contentions together with his chronology of relevant events. I further direct that within another twenty-eight days the respondent file and serve his statement of facts, issues and contentions and his chronology of relevant events.
As I have previously said, the respondent further seeks a stay on the basis that security for costs should be provided by the applicant. I propose as already indicated to the parties, to stand that application over until the position, as so far as concerns the bankruptcy of the
applicant, is clarified.
In the circumstances, I will stand the whole matter over for mention at a later date and reserve to either party liberty to apply should this become necessary. The matter is stood over until 9.15 am on 2 April, I reserve liberty to apply on three days notice.
I order that the respondent's costs of the application to strike out the affidavit of the applicant and the statement of claim be paid by the applicant. Costs follow the event.

I certify that this and the preceding five

(5)) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont.

B/ Associate @fd-@A&~&

/ Dated: 4 February 1993