Rogers v Rogers

[2005] NSWSC 807

CITATION:	Rogers v Rogers [2005] NSWSC 807
HEARING DATE(S):	5/8/05
JUDGMENT DATE :	5 August 2005
JUDGMENT OF:	Bell J at 1
DECISION:	Proceedings dismissed generally, pursuant to the provisions of Part 13 rule 5.

LEGISLATION CITED:	Limitation Act 1969 Supreme Court Rules 1970
CASES CITED:	General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Hahn v Conley (1971) 126 CLR 276 Hillbrand v Penrith Council [2000] NSWSC 1058
PARTIES:	Grahame Andrew Rogers (Plaintiff) Edward-Barrington Rogers (Defendant)
FILE NUMBER(S):	SC 20343/04
COUNSEL:	In person (Plaintiff) No appearance (Defendant)
SOLICITORS:	In person (Plaintiff) Marsdens Law Group (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 5 August 2005

20343/04 Grahame Andrew Rogers v Edward-Barrington Rogers

JUDGMENT

1 BELL J: These proceedings were commenced by statement of claim forwarded by post and received in the Registry on 27 September 2004. By this claim, the plaintiff asserted that between 1957 and 1973 the defendant, who is his father, had physically and psychologically abused him and that, as a result of this abuse, he had become a criminal, rather than a law-abiding citizen. He claimed $250,000 in damages.

2 By motion filed on 24 May 2005 the defendant sought orders, including that the plaintiff's claim be summarily dismissed. The motion came on for hearing before Studdert J. His Honour struck out the statement of claim on 22 April 2005. His Honour observed, at paragraph 16:

“Not without some hesitation I have concluded that the plaintiff should be given a further opportunity to replead his statement of claim and at the same time be given an opportunity to apply to the Court for an extension of time under the Limitation Act . Any such application would have to be supported by an affidavit addressing the gateway provisions to the grant of an extension of time. The plaintiff would have the extremely formidable task of establishing that this Court should now extend the time for bringing proceedings where the cause of action, if there be one, arose so many years ago.”

3 The orders that his Honour made included that the plaintiff have leave to file a further statement of claim within a period of twenty-eight days from 22 April 2005 and that any application pursuant to the Limitation Act 1969 and supporting affidavits be filed and served within twenty-eight days from that date. The motion was adjourned to 3 June 2005.

4 On 10 May 2005 the plaintiff filed a statement of claim pursuant to the grant of leave to which I have referred. He also filed a document titled "Application pursuant to the Limitation Act". In an affidavit he requested leave to bring a claim against his father, as set out in his statement of claim. He stated:

“It's true it has taken me some 30 years past the proper time for bringing my claim and I ask that the Court consider the circumstances set out here:

(1) because of my criminal upbringing I have been bound by mislaid loyalties not to inform.

(2) I have always loved my father and desperately wanted to please him.
Despite matters set out in the attached affidavit and statement of claim it has taken me until this time to come to terms with what the truth really is.

(3) I have been in prison for all but approximately two years since 1981 and it has taken me until this time to realise that it is possible to make this claim.”

5 The matter came before me on 3 June 2005. On that occasion there was no appearance on behalf of the defendant.

6 I was informed on 3 June that the statement of claim filed on 10 May 2005 had not been served on the defendant. The matter was stood over to today's date for further directions. The plaintiff informs me that the statement of claim has not been served.

7 On 3 June 2005 I drew to the plaintiff's attention that there were a number of deficiencies in the pleading and suggested that he may seek legal advice from an agency such as the Prisoners' Legal Service provided by Legal Aid New South Wales.

8 The plaintiff has today informed me that he has not been able to obtain legal advice. He sought to “withdraw” the statement of claim filed on 10 May 2005 in circumstances that did not involve the dismissal of his claim.

9 The statement of claim does not conform to the requirements of Part 15 rule 7 of the Supreme Court Rules 1970 (the SCR).

10 In the statement of claim filed on 10 May 2005, the plaintiff pleads that, from as far back as he can recall, when he was aged approximately four years, until when he was aged approximately twenty-six years, he suffered physical and psychological abuse from his father (paragraph 3).

11 He pleads that he was born on 22 March 1953. The matters the subject of the causes of action the subject of the claim thus, are said to have occurred between 1957 and 1979. This somewhat enlarges the period that is the subject of the claim from that which was considered by Studdert J.

12 A defence was filed to the pleading filed in September 2004 raising the Limitation Act. At the latest, the limitation period in respect of the cause of action sought to be propounded in the earlier pleading expired in 1978. On the present pleading the limitation period expired in respect of the last episode of abuse relied upon around 1985.

13 Part 13 rule 5 of the SCR provides:

“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) no reasonable cause of action is disclosed,
(b) the proceedings are frivolous or vexatious, or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).”

14 The effect of an order under Part 13 rule 5 is to bring the proceedings to an end at an interlocutory stage. Such an order may only be made where the plaintiff's claim is so manifestly untenable that it cannot succeed: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129 per Barwick CJ.

15 By the present pleading the plaintiff contends that he has suffered a great deal of emotional and psychological damage, and that he has lost all chance of becoming a well-rounded, emotionally sound, ordinary citizen. He pleads that his father failed to provide a proper "abuse and tension free education and family environment" and that he has lost all chance of becoming a decent family man, husband and father. As a result of the defendant's abuse, directions and behaviour, the plaintiff pleads that he has become a criminal, rather than a law abiding citizen, and he claims damages.

16 The statement of claim cannot be permitted to go forward in its present state. I understand the plaintiff to acknowledge so much from the stance that he has taken this morning. He seeks that I deal with the matter pursuant to the provisions of Part 15 rule 26, and that I strike it out, giving him leave to replead. This is the course that Studdert J took on the last occasion.

17 I am mindful that the plaintiff is in custody and that he faces the difficulty of seeking to articulate his claim without the benefit of legal advice.

18 To the extent that the plaintiff pleads a cause of action arising out of his father’s failure to provide him with a sound upbringing, to my mind the claim is manifestly not tenable.

19 In Hahn v Conley (1971) 126 CLR 276, Barwick CJ observed:

“I think that the view for which there is most judicial support and the view which commends itself to me is that the moral duties of conscientious parenthood do not, as such, provide the child with any cause of action when they are not or badly performed or neglected.”

20 To the extent that the plaintiff pleads a cause of action in trespass to the person, he makes unparticularised allegations of physical chastisement by his father from when he was a small child until when he was aged fourteen or fifteen years. Any claim of excessive physical chastisement amounting to trespass to the person is brought well outside the limitation period provided in the Limitation Act.

21 In Hillbrand v Penrith Council [2000] NSWSC 1058, Austin J said, at paragraph 27:

“There is an obvious distinction between the pleading of a cause of action and the application of a limitation period which means the cause of action is not maintainable. It is arguable that the words 'no reasonable cause of action' in the two rules” (a reference by his Honour to Pt 13 r 5 and Pt 15 r 26) “have no application where the defect relied upon is the expiry of a limitation period. However, in my opinion the better view is that, in an appropriate case, if a cause of action is clearly statute-barred, the Court may conclude that the cause of action is not reasonable for the purpose of these two rules and may act under the appropriate rule accordingly. The precondition to that conclusion is that on the pleadings, and without reference to any disputed question of fact, the limitation period clearly applies and has expired. Although counsel have been unable to refer me to any case in which either of the rules has been applied because of the expiration of the limitation period, in principle it seems to me, having regard to the underlying policies of the rules, as well as their wording, that they should be available in a very clear case."

22 This seems to me to be a very clear case.

23 To the extent that the claim that is propounded is one that the plaintiff has been schooled into a life of crime, I am of the view that it is manifestly untenable.

24 The plaintiff has been given an opportunity to replead his case. The claim filed in response to that leave suffers from the same defects as the pleading which Studdert J struck out. The plaintiff has still failed to identify a viable cause of action.

25 I have concluded that the appropriate course is for the proceedings to be dismissed generally, pursuant to the provisions of Pt 13 r 5, and I so order.

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