Rodgerson v State of Victoria
[2025] VSC 77
•7 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2024 03949
| PAUL RODGERSON | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | Goulden AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 February 2025 |
DATE OF RULING: | 7 March 2025 |
CASE MAY BE CITED AS: | Rodgerson v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2025] VSC 77 |
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PRACTICE AND PROCEDURE —Application pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to strike out the Statement of Claim —Whether the plaintiff’s claim fails to disclose a cause of action, is scandalous, frivolous or vexatious, may embarrass or delay a fair trial or is otherwise an abuse of process — Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic)— Whether the plaintiff’s claims have no real prospect of success.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the Defendant | Ms C Sluiter of counsel | Victorian Government Solicitors Office |
HER HONOUR:
The plaintiff, Mr Rodgerson, is currently incarcerated at HM Middleton Prison. He represents himself. In this proceeding, he seeks damages for personal injuries he alleges he suffered by reason of the inadequacy of the food provided to him in the period between April 2024 and September 2024, when he was incarcerated at HM Loddon Prison. The inadequacies alleged are, broadly, that:
(a) the food provided was not ‘kosher’ in accordance with his religious dietary requirements;
(b) there was no variety; and
(c) the nutritional value of the food did not meet the minimum dietary requirements for an adult.
For the reasons that follow, I will strike out the plaintiff’s statement of claim in its entirety. I will grant the plaintiff leave to replead his claim in negligence, and to replead any claim for breach of statutory duty in respect of s 47(1) of the Corrections Act 1986 (Vic) (‘Corrections Act’). I will not grant the plaintiff leave to re-plead any claim for breach of statutory duty in respect of s 83 of the Wrongs Act1958 (Vic) (‘Wrongs Act’) or s 8(1) of the Racial and Religious Tolerance Act 2001 (Vic) (‘RRTA’) on the basis that I am satisfied such claims do not enjoy any real prospect of success.
Background
The plaintiff commenced the proceeding by writ and statement of claim filed 31 July 2024. Originally the claim was made against three defendants. Only the State of Victoria remains a defendant.
Not long after the plaintiff served his originating process, the defendant, represented by the Victorian Government Solicitors Office, wrote to him stating that the statement of claim:
(a) failed to disclose a cause of action in negligence because it did not plead the material facts relevant to establishing the elements of that cause of action;
(b) identified and attached the evidence relevant to the claim rather than pleading the material facts in support of it;
(c) failed to comply in numerous ways with the rules relating to pleadings as contained in Order 13 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’); and
(d) named two defendants who were not proper defendants.
The defendant invited the plaintiff to amend his claim and recommended he seek legal advice. The defendant foreshadowed making application to strike out the statement of claim, or alternatively, seeking summary dismissal of it, if the plaintiff failed to fix the identified deficiencies.
On 25 October 2024, the defendant filed this application by summons seeking orders that:
(a) the statement of claim be struck out pursuant to r 23.02 of the Rules on the basis that it fails to disclose a cause of action, is likely to embarrass or delay the fair trial of the proceeding or is otherwise an abuse of process;
(b) there be summary judgement for the defendant pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) and r 22.22 of the Rules on the grounds that the plaintiff’s claims have no real prospect of success.
The defendant seeks its costs of the proceeding and the application.
On 25 November 2024, the plaintiff filed an amended writ and statement of claim. At the directions’ hearing on 27 November 2024, orders were made permitting the defendant’s summons to be amended to be in relation to the plaintiff’s amended statement of claim.
The defendant again wrote to the plaintiff by letter dated 12 December 2024. That letter informed the plaintiff that the defendant considered the statement of claim remained deficient despite his amendments. The letter addressed in detail the alleged deficiencies in respect of the plaintiff’s claim in negligence, including the failure to sufficiently identify the basis for the existence of a duty of care, the scope and content of the alleged duty, the injuries allegedly suffered by the plaintiff, in particular, that it was a ‘significant injury’.[1] The letter also referred more generally to the failure of the amended statement of claim to comply with Order 13 of the Rules, including because of its failure to allege the material facts relevant to the causes of action pleaded. The letter again invited the plaintiff to consider whether he wished to proceed with his claim in that form and recommended he seek legal assistance.
[1]Affidavit of Anthony Michael Sergi sworn on 13 December 2024, Exhibit AS-2, 45–48.
The amended statement of claim
Paragraphs 1 to 12 of the plaintiff’s amended statement of claim, which appear under a heading ‘material facts’, sets out a chronology of the complaints made, and responses received, by the plaintiff about the food he received in the period from April 2024 to September 2024. The pleading also refers to some of the symptoms the plaintiff asserts he was experiencing as a result of the inadequate food such as weight-loss, insomnia and exacerbated anxiety and mood. None of these paragraphs identify any cause of action to which the stated facts are said to relate.
In paragraph 13 of the amended statement of claim, the plaintiff alleges ‘[t]he injuries claimed by [the plaintiff] were caused by the negligence and/or breach of duty by the defendant.’ By paragraph 15, it is alleged that the duty is owed by the defendant at common law and pursuant to s 83 of the Wrongs Act.
In paragraphs 16 to 26 of the amended statement of claim, under a heading ‘Particulars of Negligence and Breach of Statutory Duty’, the plaintiff sets out various alleged breaches and failures, such as the failure to provide food that meets the plaintiff’s religious requirements, providing food past its use by date, and breaches of ss 47(1)(b) and (1)(c) of the Corrections Act, s 8(1) of the RRTA and s 84 of the Wrongs Act.
The plaintiff particularises his injuries as ‘malnutrition and associated symptoms’, and ‘psychiatric injury’.[2] The plaintiff claims damages, including exemplary damages.
[2]Amended Writ and Statement of Claim filed on 25 November 2024, [27]–[28].
Strike out application
Under r 23.02 of the Rules, the Court’s power to strike out a pleading may be exercised where the pleading fails to disclose a cause of action or where its contents are such that it is scandalous, frivolous or vexatious, or may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process.
I will not set out all the rules of pleading under Order 13 of the Rules, however, I mention the following principles extracted from the helpful summary provided by J Dixon J in Wheelahan v City of Casey (No 12),[3] to provide context for the grounds on which the defendant seeks to impugn the sufficiency of the plaintiff’s amended statement of claim. Relevantly:
[3][2013] VSC 316, [25] (‘Wheelahan’) as approved by the Court of Appeal in Uber Australia Pty Ltd v Adrianakis (2020) 61 VR 580, [50].
(a) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the Court may conduct a fair trial;
(b) a pleading must state all the material facts to establish a reasonable cause of action (or defence), but not the evidence by which the facts are to be proved;
(c) the pleading must be presented in an intelligible form, that is, it must not be vague, ambiguous or inconsistent, so as to enable the opposite party to understand the case against it and respond;
(d) a pleading that contains irrelevant allegations may be embarrassing; and
(e) it is not sufficient to simply plead a conclusion from unstated facts and a pleading which does so is usually embarrassing.
Here, the plaintiff fails to plead the material facts necessary to establish his actions for negligence or breach of statutory duty.
The amended statement of claim does not contain material facts by which the plaintiff identifies the basis for, scope or contents of, the duty of care he alleges is owed by the defendant to the plaintiff in order to establish a claim in negligence. Paragraphs 1 to 12 merely narrate the plaintiff’s complaints about the food he received; the paragraphs do not identify the defendant’s duty to provide him with kosher food or food of a particular nutritional value as part of a duty of care it owes to him.
Paragraphs 16 to 21 contain an attempt to identify the alleged breaches, but they are insufficiently particularised to enable any real understanding of how the plaintiff says the duty of care was breached by the defendant. The paragraphs do not identify what food was provided, nor do they identify, by reference to the scope and contents of the duty of care alleged, the material facts based upon which the plaintiff contends the food did not meet the kosher or nutritional requirements consistently with that duty.
Paragraph 13 pleads a conclusion from unstated facts, that is, the plaintiff suffered injuries from breaches by the defendant of its duty of care or another unspecified duty.
Although the plaintiff identifies several statutory provisions in his amended pleading, and uses a heading in the amended pleading, ‘breach of statutory duty’, the plaintiff does not identify any relevant statutory duty. To bring an action for breach of statutory duty, the plaintiff must identify a duty within legislation in respect of which the legislature intended to confer a private right of action in the event of its breach. The amended statement of claim does not contain any statement of the material facts upon which it is alleged that a statutory duty arises, how it has been breached, and how the plaintiff has suffered loss and damage as a result.
By reason of the deficiencies identified above, which are the same as the deficiencies identified by the defendant in its correspondence to the plaintiff before and after issuing its application, the amended statement of claim fails to disclose any cause of action, is embarrassing and will likely prejudice or delay the fair trial of the proceeding. The deficiencies are such that the defendant does not know the case that the plaintiff brings, and could not plead a defence. The amended statement of claim will be struck out in its entirety under r 23.02 of the Rules.
Leave to replead
Whether leave will be given to replead is closely related to the other question for determination on this application, that is, whether summary judgment should be given on the whole or parts of the claim in favour of the defendant under s 63 of the CPA.[4] My reasons in respect of the summary judgement application upon which the question of leave to replead turns are as follows.
[4]Mandie v Memart Nominees Pty Ltd [2016] VSCA 4, [42]–[43], [46] (Kyrou, Ferguson and McLeish JJA).
Summary judgment in favour of the defendant
The defendant makes application under s 62 of the CPA for summary judgment on the ground that the plaintiff’s claims have no real prospect of success. The Court can give summary judgment under s 63 of the CPA if it is so satisfied.
The test under s 63 of the CPA is whether the plaintiff’s claim has a ‘real’ as opposed to a ‘fanciful’ chance of success.[5] When exercising the power to terminate a proceeding summarily, regard must be given to the overarching purpose under the CPA since, in consequence, the plaintiff against whom summary judgment is given will be deprived of the chance to pursue their claim. Courts should only exercise the power where it is clear there is no real question to be tried.[6]
[5]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 39 [29] (Warren CJ and Nettle JA) (‘Lysaght’).
[6]Lysaght 40 [35] (Warren CJ and Nettle JA).
Claim in Negligence
Albeit the pleading is deficient and will be struck out, it is to be recalled that the plaintiff is self-represented and does not have any legal qualifications or training. The Court is not satisfied, in the absence of a proper articulation of his claim by reference to the elements of the cause of action in negligence, that it can be said that the plaintiff’s claim is fanciful and enjoys no real prospect of success. Amongst the plaintiff’s allegations is the very serious allegation that, during his incarceration at HM Loddon prison, he was not provided with food of sufficient nutritional value to meet the daily dietary requirements of an adult. It must be at least arguable that the duty owed by prison authorities to prisoners[7] includes in its scope the obligation to provide prisoners with food sufficient to meet nutritional requirements. That duty may also encompass meeting religious requirements and other matters – all of which is for the plaintiff to plead.
[7]Rowson v Secretary, Department Of Justice And Others (2020) 60 VR 410, [92]; New South Wales v Bujdoso (2005) 222 ALR 663, [44]–[48].
Of course, if the plaintiff can establish that such a duty exists, to succeed in his claim he must also establish that it has been breached and that he has suffered injury as a result. It may be arguable that the injuries the plaintiff alleges he sustained, but does not particularise, are sufficient to satisfy the threshold requirements in Part VBA of the Wrongs Act. The defendant asks the Court to assume the injuries would not be sufficient to meet the threshold because of the short period of time during which the plaintiff alleges he suffered the injury (a period of approximately five months) and because he says his health and well-being have been restored upon his transfer to HM Middleton Prison. The Court cannot make that assumption and so determine, on a summary basis, that the claim has no reasonable prospect of success. The plaintiff should be given an opportunity to plead the material facts relevant to the injuries he alleges he suffered.
For these reasons, I am not satisfied that the plaintiff’s negligence claim enjoys no real prospect of success, and he will therefore be granted leave to re-plead in relation to the negligence claim.
Breach of statutory duty
The plaintiff alleges that he is owed a duty pursuant to s 83 of the Wrongs Act. I accept the defendant’s submissions that the section forms part of a series of provisions which provide guidance on the principles to be considered in determining whether a public authority has a duty of care, or whether one has been breached. This section of the Wrongs Act does not itself create a duty, or give rise to any private right of action for breach of the section. In so far as the plaintiff seeks to bring a claim for breach of statutory duty based on breach of s 83 of the Wrongs Act, the claim is bad in law and so enjoys no real prospect of success. The claim would be liable to be dismissed summarily if re-pleaded, and accordingly, there is no leave to re-plead a claim for breach of statutory duty arising under s 83 of the Wrongs Act.
The plaintiff does not, in his pleading, allege that the defendant owed him a duty under any other statutory provision other than s 83 of the Wrongs Act. However, he does particularise his negligence and breach of statutory duty claims by reference to alleged breaches of:
(a) ss 47(1)(b) and 47(1)(c) of the Corrections Act; and
(b) s 8(1) of the RRTA.[8]
[8]The plaintiff referred to breach of the Corrections Victoria Commissioners’ Requirements – Religion and Spirituality in Prison CR 4.41 but conceded in his submissions filed 31 January 2025 at [43] that this does not create any legal obligation on the defendant.
Corrections Act – s 47
Section 47 of the Corrections Act enumerates a number of statutory rights accorded to ‘every prisoner’ that are in addition to any other rights a prisoner has under any other Act or at common law.[9] Under s 47(1), relevantly, a prisoner has:
…
(b)the right to be provided with food that is adequate to maintain the health and well-being of the prisoner;
(c)the right to be provided with special dietary food where the Governor is satisfied that such food is necessary for medical reasons or on account of the prisoner's religious beliefs or because the prisoner is a vegetarian;
[9]Corrections Act s 47(2).
The defendant submits that, construing the statute, there is no private right of action to seek damages for breaches of the section. Principally, the defendant relies on the preservation of any other rights the prisoner has under the Corrections Act, another Act or the common law under s 47(2) as evidence that there was no intention on the part of the Parliament to confer a private right of action for damages for breach of the section. Further, it is submitted that the stated purpose of the Corrections Act to provide for the welfare of offenders does not contradict that assertion. Quite reasonably given the state of the amended statement of claim, which does not plead any of the elements necessary to establish a breach of statutory duty, the defendant deals very briefly in its written submissions with the question of whether or not s 47(1) imposes a statutory duty of care, and does so without reference to any authorities concerning the principles which usually attend that analysis.
The plaintiff submits that a private right of action for damages is confirmed by ss 104O, 104P, 104S, 104T and 104U of the Corrections Act. I do not accept the submission. Those sections are housed in Part 9C of the Corrections Act, which Part relates to the handling of damages found or agreed to be payable by the State to a prisoner. Section 104O provides definitions used in the Part, while s 104P describes the application of the Part. Sections 104S, 104T and 104U respectively provide that:
(a) settlement agreements for the payment of damages by the State to a prisoner are subject to Court approval;
(b) any such settlement agreement must state the amount paid by way of legal costs and existing and future medical costs; and
(c) in the absence of agreement on the amounts in (b), the Court will determine such amounts.
None of these sections are in any way relevant to the question of whether tort is available to provide a prisoner with a remedy for breaches of s 47(1).
In circumstances where I am satisfied that the amended statement of claim fails to disclose a cause of action for breach of statutory duty that is even amenable to summary dismissal, and given the limited material the defendant has put before me on the question as to whether such a claim would even be arguable, I do not intend to order summary dismissal in respect of an action for breach of statutory duty under s 47(1) of the Corrections Act. That is not to say that I consider such claim to be a viable one, I simply cannot reach any conclusion. Given the plaintiff will have leave to replead his negligence case, it is unlikely for there to be additional cost or inefficiency to the defendant to allow the plaintiff to make amendments to his pleading in order to properly articulate a cause of action for breach of statutory duty in relation to this section of the Corrections Act, should he wish to do so. The defendant may renew its application for summary dismissal and/or to strike out that claim depending on the pleading that is put forward.
RRTA – s 8(1)
Section 8(1) of the RRTA states that a person must not, on the ground of religious belief or activity of another person, engage in conduct that incites hatred against, or serious contempt for, or revulsion or severe ridicule of, that other person. A contravention of s 8 does not create any civil liability other than to the extent expressly provided by that Act.
There is nothing in the amended statement of claim which alleges that the defendant has, by its conduct, incited hatred, serious contempt for, revulsion or severe ridicule of, the plaintiff. The plaintiff does not complain that anyone else has treated him with hatred, contempt, revulsion or ridicule because of the defendant’s alleged failure to supply kosher food. Rather, he says that the defendant’s alleged failures have caused him to suffer injury in the form of weight loss, unstable mood and anxiety.
Whilst I do not consider that the plaintiff raises a claim for breach of statutory duty in respect of s 8(1) of the RRTA in the amended statement of claim, nevertheless, on the facts pleaded and established in the supporting material that has been filed, I am satisfied that such a claim would have no reasonable prospect of success, and should be summarily dismissed. Leave will not be granted to the plaintiff to re-plead such claim.
Disposition
For the foregoing reasons, I will make orders as follows:
(a) the amended statement of claim will be struck out in its entirety under r 23.02 of the Rules; and
(b) the plaintiff will have leave to replead his claim in negligence and any claim for breach of statutory duty in respect of s 47(1) of the Corrections Act.
Given the defendant’s substantial success on the application, I will order that the plaintiff pay the defendant’s costs of the application.
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