Sittrop v State of Victoria (Ruling No 3)
[2025] VCC 667
•2 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-04212
| MIRJAM SITTROP | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HER HONOUR MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2025 | |
DATE OF RULING: | 2 June 2025 | |
CASE MAY BE CITED AS: | Sittrop v State of Victoria (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 667 | |
RULING
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Subject:APPLICATION FOR PERMANENT STAY OR STRIKEOUT OF PLEADINGS
Catchwords: Ten statements of claim pleading existing and novel duty, four of which have been struck out with leave to re-plead ꟷ employment relationship alleged ꟷ failure to accommodate previous rulings ꟷ statement of claim widened the period in which negligence is alleged beyond the period in which consent to bring proceedings was granted
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013; Victoria Police Act 2013; Civil Procedure Act 2010; County Court Civil Procedure Rules2018 (Vic);
Cases Cited:Sittrop v State of Victoria (Ruling) [2024] VCC 448; Sittrop v State of Victoria (Ruling No 2) [2024] VCC 1525; Konrad v Victoria Police (1988) 152 ALR 132; Caridi v State of Victoria (Ruling) [2023] VCC 1708; Smith v State of Victoria (2018) 56 VR 332; Walsh v State of New South Wales [2018] NSWSC 1480; Contribution Fund of Australia v Hunt (1982) 44 ALR 365; Wheelahan & Anor v City of Casey and Ors (No 12) [2013] VSC 316; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260; UBS AG v Tyne (2018) 265 CLR 77; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Tomlinson v Ramsay Food Processing Pty Limited (2015) 256 CLR 507; Trau v University of Sydney (1989) 34 IRR 466; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Matthews v SPI Electricity Pty Ltd and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 2) (2011) 34 VR 584; MacFadyen & Ellis v Bank of Queensland (No 2P) 2014 VSC 653; Attorney-General New South Wales v Perpetual Trustees Company (Limited) (1955) 92 CLR 113
Ruling: Permanent stay granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Ms S Bayley | Mr Woolf Legal |
| For the Defendant | Mr J Rush KC Ms L Burke | Wisewould Mahoney |
HER HONOUR:
1This is an application by the defendant for a permanent stay to the proceeding; or in the alternative, a strikeout of the plaintiff’s statement of claim dated 3 December 2024 and an order made for the plaintiff to re-plead her cause of action and particularise the claim.
2The application was supported by two affidavits of Nicholas Lavender, the first sworn on 3 March 2025 and the second on 27 March 2025.
3The defendant also relied on, and spoke to, written submissions provided to the Court and the plaintiff’s counsel during the hearing.[1]
[1]Defendant’s submissions dated 3 December 2024
4This proceeding has been listed for trial three times.
5The first listing was for 30 January 2024, which date was vacated to enable the plaintiff to re-plead her case. The second listing was for 12 September 2024, which date was also vacated to enable the plaintiff to re-plead her case. The third listing is for 14 August 2025.
Previous strikeout applications
6In this proceeding, the defendant has made four applications to strikeout the plaintiff’s pleadings, all of which have been granted. The plaintiff was represented by the same Senior and Junior Counsel each time.
7The plaintiff has not appealed any of the strikeout orders.
8The first strikeout application was heard by Judge Robertson, on 24 January 2024. That application related to the Further Amended Statement of Claim dated 20 January 2024, which her Honour described as “the third proposed version”. Ultimately, the plaintiff was granted leave to file a further amended statement of claim by 26 February 2024.[2] The proceeding was re-listed for hearing on 12 September 2024.
[2] Orders of her Honour Judge Robertson dated 24 January 2024
9The second strikeout application was heard before Judge Robertson on 25 March 2024. That application related to the “further amended statement of claim dated 5 February 2024”.[3] Her Honour struck out a number of paragraphs and granted the plaintiff leave to file and serve a further amended statement of claim, suggesting the plaintiff consider formulating an entirely fresh pleading.[4]
[3] Sittrop v State of Victoria (Ruling) [2024] VCC 448
[4]Orders of her Honour Judge Robertson dated 23 April 2023 in respect of which no ruling has been published
10The third strikeout application was heard before his Honour Judge Pillay on 12 September 2024 (the second date listed for trial) in respect of the Further Amended Statement of Claim dated 21 May 2024. His Honour ordered that the plaintiff provide a proposed amended statement of claim by the following morning and adjourned the hearing of the trial to17 September 2024.[5]
[5] Orders of his Honour Judge Pillay dated 12 September 2024
11The plaintiff prepared a “third further amended statement of claim” dated 16 September 2024, which was the subject of the fourth application for strikeout.
12The fourth strikeout application was heard before Judge Pillay on 17 September.[6] His Honour refused to accept the Further Amended Statement of Claim on the basis that it was embarrassing, and granted leave to the plaintiff to file and serve a further amended statement of claim.[7]
[6] Sittrop v State of Victoria (Ruling No 2) [2024] VCC 1525
[7]Ibid
13The plaintiff filed that document, which is dated 3 December 2024. It is the tenth version and is the subject of the application before me.[8]
[8] Orders of His Honour Judge Pillay dated 14 October 2024
14This ruling should be read together with the published rulings of Judge Robertson and Judge Pillay.[9] Where relevant to my analysis, I will reproduce portions of those rulings below.
[9]Sittrop v State of Victoria (Ruling) [2024] VCC 448 - - ; Sittrop v State of Victoria (Ruling No 2) [2024] VCC 1525 - -
Background and brief procedural history
15The plaintiff is a former police officer. In 2011, after completing a Diploma of Policing, the plaintiff joined the police force and was initially stationed at Carrum Downs and Mornington police stations.
16Between July 2014 and September 2018, when she ceased work, the plaintiff was stationed at the Rosebud and Sorrento police stations.
17On 4 August 2021, the plaintiff lodged a serious injury application supported by affidavit. In that affidavit, the plaintiff deposed that:
(a) between 2016 to 2018, she was exposed to multiple traumatic incidents, including injury or death, overdoses and drownings, and health incidents, such as a heart attack (“traumatic incidents”);
(b) in March 2016, she consulted a doctor and reported to Police Welfare that she was experiencing symptoms, and they agreed to fund her attendance at counselling sessions;
(c) in 2017, after attending a traumatic incident, “neither management”, “or Police Welfare” approached her to enquire about her wellbeing;
(d) in 2018, she informed Senior Sergeant Wood that she was struggling to cope, no questions were asked about her welfare and no support was offered, but her request to attend a psychologist every Tuesday morning was granted;
(e) she applied to Senior Sergeant Wood for a transfer, as she felt under pressure at Rosebud Police Station, and her request was approved, but she heard nothing further about it;
(f) in mid-2018, she expressed interest in working at “an outstation”, but the position was offered to another member of staff, leaving her feeling unsupported;
(g) in late 2018, she transferred to Sorrento Police Station. While there, she attended a welfare check on a person who had police warnings for violence. She requested backup and after this, two sergeants, (Drew and Bradley) complained that she was refusing to attend jobs without backup, which made her upset and disappointed;
(h) on her return from leave in August 2018, Sergeant Drew criticised her about her accent and ignored her. She eventually became very distressed and suicidal at the thought of having to work with Sergeant Drew;
(i) she was an inpatient for suicidal ideation between 1 and 12 April 2019 and discharged home with medication. Some months after her discharge, she made an attempt on her life with a prescription drug overdose.[10]
[10]Affidavit of Mirjam Sittrop sworn 4 August 2021, attached to the affidavit of Nicholas Lavender sworn 3 March 2025 at page 183, paragraph [41]
18Accompanying the serious injury affidavit was a proposed draft statement of claim,[11] which, in summary, pleaded that:
(a) the plaintiff was employed as a police officer by the State of Victoria and acting within the scope of her employment;
(b) the State of Victoria was vicariously liable for the acts or omissions of its employees, servants and agents towards the plaintiff;
(c) the State of Victoria owed the plaintiff a non-delegable duty to ensure that reasonable care was taken to avoid the risk of foreseeable injury to the plaintiff;
(d) the plaintiff suffered psychiatric injury during the course of her employment from in or about February 2016 to September 2018, as a result of being exposed to multiple critical incidents, being overworked due to understaffing, and a stressful working environment, and being subjected to repeated unreasonable behaviour by servants and/or agents of the State of Victoria;
(e) the State of Victoria knew, or ought to have known, of the risk to the plaintiff’s health and safety and failed to act upon evident signs of psychiatric injury, including complaints from officers and the plaintiff in regards to understaffing.
[11](Ibid) at 169
19On 1 December 2021, the Victorian Workcover Authority consented to the plaintiff bringing proceedings for pain and suffering and pecuniary loss “in respect of an application under section 328 of the Workplace Injury Rehabilitation and Compensation Act 2013 dated 4 August 2021” (“the serious injury certificate”).
20Following the provision of the serious injury certificate, the plaintiff filed a writ and statement of claim dated 13 April 2022 in the Supreme Court. Further and Better Particulars of that statement of claim were sought and filed on 20 January 2023.
21On 14 September 2022, an order was made by the Supreme Court transferring the proceedings to this court.
22Thereafter, the plaintiff has filed and served a further nine versions[12] of the Statement of Claim in this proceeding, the last one of which is dated 3 December 2024, and is the subject of this application.
[12]The second version is dated 20 January 2023, the third version is dated 28 February 2023, the fourth version is dated 23 January 2024, the fifth version is dated 5 February 2024, the sixth version is dated 21 May 2024, the seventh version is dated 13 September 2024, the eighth version is also dated 13 September 2024 and contained minor amendments to the previous document, the ninth version is dated 16 September 2024.
Tenth proposed Statement of Claim
23The proposed Statement of Claim dated 3 December 2024 is the plaintiff’s tenth attempt. It is the subject of the defendant’s application for permanent stay and/or strikeout.
24In summary, paragraphs 1 to 16 of the tenth proposed Statement of Claim pleads the following:
(a) between April 2012 and September 2018 “the period” the plaintiff was a sworn member of the Victoria police force and a deemed worker for the purposes of clause 14(1)(h) of Schedule 1, Part 1 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) (paragraph 6);
(b) during the period, the plaintiff was exposed to multiple traumatic incidents, including on 13 February 2016, when she was required to attend a fatality in which the victim died in the plaintiff’s arms at the scene of the accident;
(c) the Chief Commissioner, pursuant to s16 of the WIRC Act, occupies various positions and is responsible for:
(i)implementing the policing policy and priorities of the Government;
(ii)providing advice and information to the Minister on the operations of Victoria Police and policing matters;
(iii)the general conduct, performance and operations of Victoria Police;
(d) pursuant to s60 of the WIRC Act, the Chief Commissioner had power to issue, amend and revoke instructions for the general administration of Victoria Police and the efficient and effective conduct of their operations;
(e) notwithstanding sworn duties, pursuant to s61 of the Act, the plaintiff and all police officers were, and are, at all relevant times required to comply with the instructions of the Chief Commissioner. Failure to comply constitutes a breach of discipline pursuant to the provisions of the WIRC Act;
(f) the Chief Commissioner was, or ought to have been, aware that officers under his instructions:
“… were, or could be, exposed to traumatic incidents including human tragedy, injury or death, extreme stress and/or serious danger when carrying out their sworn duties and that there was a consequent risk to officers suffering psychiatric damage or injury by reason of carrying out their sworn duties.”;[13]
[13]See paragraph [15] of the tenth proposed Statement of Claim, dated 3 December 2024 at page 149 of the affidavit of Nicholas Lavender sworn 3 March 2025.
(g) the particulars of this knowledge was said to be by reason of various named documents and publications, some of which purport to emanate from the Chief Commissioner’s office;
(h) the Chief Commissioner was, or ought to have been, aware that a high number of officers were incapacitated for further duties by reason of psychological injuries suffered in the course of their employment, as there were “multiple accepted Workcover and ESSS claims”;[14]
[14](Ibid) at paragraph [16], page 150
25Paragraphs 17, 18, and 19, of the pleading have been reproduced below:
“17.By reason of the matters alleged at paragraphs 12-16 herein, the Chief Commissioner owed a duty to officers of Victoria Police (“officers”):
a. to devise, adopt, maintain and/or enforce a system to ensure that they are appropriately protected from mental injury which could result from exposure to the kind of human tragedies to which they are exposed in the course of performing their sworn duties;
b. to devise, adopt, maintain and/or enforce a framework in which officers could carry out, and continue to carry out, their sworn duties;
c. not to expose officers to unnecessary risk of injury;
d. to safeguard the health and safety of the officers under his instructions insofar as possible having regard to their sworn duties;
e. to provide adequate training and instruction, or take appropriate steps to avoid the psychological stress brought about by over work which could be an additional psychological stressor;
f. to devise, adopt, maintain and/or enforce a system in which an officer has sufficient time for psychological recovery;
g. to devise, adopt, maintain and/or enforce a system whereby an officer’s attendances at traumatic incidents including human tragedy, injury or death, extreme stress, and/or serious danger to her life or person or serious danger to a member or members of the public that may be capable of causing psychological harm are identified, recording that incident, and providing advice to an officer about the signs and symptoms of psychological stress or psychiatric injury so they are better educated to seek help if they need it;
h. to identify and record traumatic incidents including injury or death, extreme stress, and/or serious danger to her life or person or serious danger to a member or members of the public so as to provide a baseline for psychological assessment;
i. to respond to complaints or disclosures of ill health that may be consistent with psychological or psychiatric injury brought about by the nature and conditions of the officer’s duties given the obvious exposure to trauma;
j. to ensure Quarterly WellChecks (being one on one assessments with a psychologist) were implemented;
k. to ensure that an officer was compulsorily debriefed after being involved in or attending upon any traumatic incidents including human tragedy, injury or death, extreme stress, and/or serious danger to her life or person or serious danger to a member or members of the public;
l. to ensure that there was a regular and compulsory rotation of duties assigned to an officer for their psychological wellbeing;
m. to ensure that staffing levels were maintained to allow rotation in officer’s duties;
n. to ensure that staffing levels were maintained in accordance with staffing allocation models, the Demand Allocation Model, and the Staff Allocation Model (as applicable at the relevant times);
o. to have an effective strategic workforce plan in place to ensure that the staffing needs of Victoria Police are met;
p. to ensure that the shift allocations enabled an officer to complete his or her allocated duties in the allocated time;
q. to devise, adopt, maintain and/or enforce a system which provided that upon notice being given to a senior officer that an officer may be experiencing poor mental health, ensuring that officer was medically examined to identify what supports could be provided to ensure that the work environment was as safe as practicable;
r. to devise, adopt, and deliver training to officers and in particular supervising officers, to ensure that they knew how to identify signs of dysfunction or symptoms consistent with psychological or psychiatric injury in personnel regularly exposed to traumatic incidents including human tragedy, injury or death, extreme stress, and/or serious danger to her life or person or serious danger to a member or members of the public so that referral could be made for clinical psychological assessment and treatment and relevant adjustments made to their rosters;
s. ensuring that relevant officers and, in particular, senior ranking officers were instructed and required to maintain appropriate supervision and intervention in respect of officers who were subject to or exposed to traumatic incidents including human tragedy, injury or death, extreme stress, and/or serious danger to her life or person or serious danger to a member or members of the public;
t. to devise, adopt, maintain and/or enforce a system whereby complaints of bullying were adequately responded to by ensuring complaints were investigated and, if substantiated, that appropriate steps be taken to ensure the bullying was prevented; and/or
u. to devise, adopt, maintain and/or enforce a system in which the effects of a potentially traumatic episode were monitored.
18.In the alternative, the relationship of Chief Commission (sic) and police officer is either one of employer and employee or closely analogous to that of employer and employee in that the Chief Commissioner is responsible for the management and control of officers, and the officers are required to comply with the Chief Commissioner’s instructions, and by reason of the matters alleged in paragraph 6 herein.
19.By reason of paragraph 17 the Chief Commission owed a duty to provide a safe system of work for police officers to ensure that they are appropriately protected from mental injury which could result from exposure to the kind of human tragedies to which they are exposed in the course of performing their sworn duties.
20. Further, by reason of the matters alleged in paragraphs 12-16 the Chief Commissioner owed a non-delegable duty of care to officers including the Plaintiff.”[15]
[15](Ibid) at pages 151-153
26Paragraphs 21 to 35, in summary, plead that:
(a) the Chief Commissioner was, or ought to have been, aware of the risk of psychiatric injury to the plaintiff, as it was foreseeable that if no sufficient measures were taken to safeguard the mental health of officers exposed to traumatic incidents, the officer could suffer from psychological harm;
(b) the Chief Commissioner failed to devise, maintain or enforce:
(i)a system of mandatory debriefing after exposure to traumatic incidents (which failures are particularised by reference to traumatic incidents on 13 February 2016, 3 November 2016 and 20 June 2017);
(ii)a system which made allowance for an officer to “have sufficient time for psychological recovery” (particularised as requiring the plaintiff to attend to her usual duties after the 13 February 2016 incident);
(iii)a system in which the potentially-traumatic episodes were monitored, identified and recorded so the Chief Commissioner could respond “to the knowledge that the Plaintiff had accumulated exposure to multiple potentially traumatic incidents within the period”;
(iv)a system which provided adequate response to complaints or disclosures made by an officer of ill [psychological] health (particularised by reference to the 13 February incident and March 2018 and 8 June 2018 notifications by the plaintiff to her senior sergeant that she was struggling to cope mentally);
(v)a system in which officers reporting poor mental health were medically examined (particularising the 8 June 2018 notification);
(vi)a system in which officers suffering from psychological injuries were prevented from continuing to attend further traumatic incidents (particularising attendance on traumatic incidents on 10, 17 and 22 August 2018);
(vii)a system in which duties were regularly rotated (particularised by reference to rostering and insufficient shifts to perform administrative work);
(viii)a system in which senior officers were trained to take appropriate steps following a notification that an officer was suffering poor mental health (including supervision and intervention of the plaintiff after she was exposed to traumatic incidents);
(ix)a system in which officers underwent quarterly “WellChecks”;
(x)a system in which staffing levels at Rosebud Police Station were maintained in accordance with the Demand Allocation Model and the Staff Allocation Model;
(c) the Chief Commissioner failed to ensure complaints of bullying were responded to and investigated;
(d) the alleged breaches each constituted a police tort for which the State of Victoria was liable pursuant to s74 of the Act.
27Named officers – Wood, Drew and Bradley are said to have breached their duty to the plaintiff. The pleadings are couched in terms of “seniority over the Plaintiff” and a duty to the plaintiff to:
(a) not expose the plaintiff to unnecessary risk of injury (Wood);
(b) exercise reasonable care to someone under his command (all three officers);
(c) ensure officers have sufficient time for psychological recovery when needed (Wood);
(d) respond to disclosures of ill health, ensuring officers attend quarterly “WellChecks”, ensuring compulsory debriefing after traumatic incidents, ensuring rotation of duties, ensuring shift allocations enable officers to complete their duties in the allocated time, looking out for signs and symptoms of psychiatric injury, maintaining supervision of officers exposed to traumatic incidents, and ensuring complaints of bullying were adequately responded to (Wood);
(e) comply with the Victoria Police Code of Conduct and show respect, and accept diversity and tolerance (Wood, Drew);
(f) safeguard the health and safety of the officers under the command as far as possible, having regard to their sworn duties (Bradley);
(g) ensure complaints of bullying were adequately investigated and responded to.
Relevant Legal Principles
Victoria Police Act 2013 (“the VP Act”)
28Section 51 of the VP Act provides:
“Duties and powers of police officers
A police officer who has taken and subscribed the oath or made and subscribed the affirmation under section 50 has—
(a) the duties and powers of a constable at common law; and
(b) any duties and powers imposed or conferred on a police officer by or under this or any other Act or by or under any subordinate instrument.”
29Section 72 of the VP Act (relevantly) provides:
“What is a Police tort?
(1) For the purposes of this Act, a police tort is a tort committed by a police officer or protective services officer in the performance or purported performance of the officer's duties.
(2) For the purposes of subsection (1), a tort includes—
(a) detrimental action (within the meaning of the Public Interest Disclosures Act 2012) ….; and
(b) any other prescribed action or conduct.
(3) To avoid doubt, subsection (2) does not limit what is a tort for the purposes of subsection (1).
(4) For the purposes of subsection (1), it is irrelevant whether the tort is committed by the police officer or protective services officer alone or jointly or severally with any other person.”
30Section 73 of the VP Act provides:
“What is a police tort claim?
(1) For the purposes of this Act, a police tort claim is a claim for damages or other relief in respect of an alleged police tort.
(2) A police tort claim includes—
(a) an action for damages under Part III of the Wrongs Act 1958 in respect of an alleged police tort; and
(b) a counterclaim for damages or other relief in respect of an alleged police tort committed by a police officer or protective services officer that is made by a person in a legal proceeding brought by the officer against that person; and
(c) any other prescribed action, claim or proceeding in respect of an alleged police tort.
(3) To avoid doubt, subsection (2) does not limit what is a police tort claim.”
31Section 74 of the VP Act provides:
“Liability of the State for police torts
(1) Subject to this section, the State is liable for a police tort.
(2) Subject to subsection (5), the State is not liable for a police tort if the State establishes on a police tort claim that the conduct giving rise to the police tort was serious and wilful misconduct by the police officer or protective services officer who committed the police tort.
(3) If a police officer or protective services officer commits a police tort for which the State is liable, the officer—
(a) is not liable to any person for the police tort; and
(b) is not liable to indemnify, or to pay any contribution to, the State in respect of the liability incurred by the State.
(4) Subject to subsection (5), the State is not liable for a tort committed by a police officer or protective services officer that is not a police tort.
(5) Subsections (2) and (4) do not apply to a claim brought in reliance on Part XIII of the Wrongs Act 1958.”
Are police employees?
32In Konrad v Victoria Police,[16] the Federal Court considered whether a probationary constable in the Victoria Police force was an employee for the purposes of industrial law and unlawful termination of employment.
[16](1998) 152 ALR 132 (“Konrad”)
33Marshall J said, in respect of police duties:
“…
‘neither changes in organisation nor the imposition of ever-increasing statutory duties have altered the fundamental character of the constable’s office. Today as in the past he is in common parlance described in terms which aptly define his legal position as a “police officer”, “an officer of justice”, “an officer of the peace.” … .’
…
‘… There is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. … .’
The decision of the Privy Council in Perpetual Trustees unambiguously provides that a member of a police force is not an employee of the Crown. In the High Court of Australia … the majority of six justices sitting expressed views inconsistent with the proposition that police constables are employees of the Crown or State.
… Kitto J said:
‘The matter may be summed up by saying that a member of the police force is under an obligation to perform duties of which some are statutory, some derive from the common law, and all are of a public character; and although a member of the police force is bound to obey the lawful orders of his superiors …, neither they nor the Crown itself can lawfully require him to abstain from performing the duties which the law imposes upon him with respect to the preservation of the peace and the apprehension of offenders, or can lawfully direct the detailed manner in which he shall perform those duties, and neither they nor the Crown itself … can be held liable for acts done by a constable in relation to the duties of his office. These considerations seem to me sufficient in themselves to negative the existence of a master and servant relationship. … .’
…
Therefore it follows that in Perpetual Trustees a majority of the High Court held that members of the police force are not employees. That view was affirmed on appeal by the Privy Council as referred to above.
There being no material legal distinction between the nature of ‘service’ of a police officer in New South Wales in the 1950s and a police officer in Victoria in the late 1990s I consider that I am bound to hold that Mr Konrad was not an employee of the Crown in right of the State of Victoria when holding office as a probationary constable in the Victoria Police Force. I do so despite what in my view is the compelling logic to the contrary contained in the judgment of Dixon J at 252 in Perpetual Trustees and cited above. However, on the view I take of what was there decided, that is a matter which can only be redressed in the High Court. Borrowing from the language of Fullagar J in Perpetual Trustees, I should adhere to Perpetual Trustees unless and until the High Court or a Full Court of this court requires me to adopt a different view.”[17]
(Emphasis added.)
[17]Konrad at 140-143
Non-delegable duties
34In Caridi v State of Victoria (Ruling),[18] Judge Purcell considered a pleading by a plaintiff who had been a police officer and who pleaded that the State of Victoria owed a non-delegable duty equivalent to that owed by an employer to an employee.
[18][2023] VCC 1708 (“Caridi”)
35His Honour said:
“As Fahy makes clear, any duty owed by police to other police officers must be considered by reference to the applicable statute. Further, I consider that Fahy also supports the conclusion that the engagement in service as a police officer does not create the same broad common law duty of care that employers owe to their employees. For example, concepts such as the traditional non-delegable duty of care that an employer owes to employees has no role to play in service as a police officer who may need to devise and implement a response to criminal conduct to advance the overall safety of the community, and often at risk to her or his own safety.
I also consider that the authorities support the conclusion that, in exceptional circumstances, the State may owe a duty of care for acts or omissions by police officers. In my view, the authorities support a conclusion that an exceptional circumstance may be created during the performance of police duties by police to other police officers.”[19]
[19]Caridi at paragraphs [95]-[96]
Novel duties
36In Smith v State of Victoria,[20] John Dixon J considered whether police can be said to owe a duty to members of the public, in particular, the affected family members of a man who was subject to an intervention order, to ensure compliance with the terms of the Intervention Order.
[20](2018) 56 VR 332 (“Smith”)
37In relation to novel duties, his Honour said:
“The approach of the common law of Australia to proceedings that postulated a novel duty of care was unsettled over decades by the search for unifying principle or a general test. In Brookfield Multiplex Ltd v Owners - Strata Plan No 61288, French CJ stated:
This Court in Sullivan v Moody eschewed any attempt at formulating a general test for determining the existence or non-existence of a duty of care for the purposes of the law of negligence. As the Court said, different classes of case raise different problems, requiring “a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle”. The development of the law of negligence had revealed “the difficulty of identifying unifying principles that would allow ready solution of novel problems”.
As the existence of a novel duty of care is here alleged, the court must apply the salient features approach articulated in Crimmins, and applied and explained in cases such as Sullivan v Moody, Graham Barclay Oysters, and Tame. In both Gesah] and Richards the courts adopted this approach to the issue of police liability in negligence.
It is now established that to test whether a duty of care exists the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to the salient features or facts affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.”[21]
(Footnotes omitted.)
(Emphasis added.)
[21]Smith at paragraphs [89]-[91]
38In Walsh v State of New South Wales,[22] Harrison AsJ considered an application for summary judgment in respect of a statement of claim which, in part, pleaded novel duties.
[22][2018] NSWSC 1480
39Her Honour cited Contribution Fund of Australia v Hunt[23] as follows:
“...It is not by any means rare in the history of the development of the common law that a high appellate court, in enunciating a novel development in the law, albeit one avowedly based on a miscellany of old cases, has chosen to use general words of imprecise limits in meaning to facilitate the arrival, in later cases, of the final form of the development without the need to overrule what earlier had been stated. That being so I am of opinion that a court at first instance should be particularly astute not to risk stifling that development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie. The risk of injustice to the plaintiff, which summary termination of his claim would entail, is real. One cannot predict, with firm assurance, what the future holds as the final formulation of the new development.”[24]
(Emphasis added.)
[23](1982) 44 ALR 365 (“Hunt”)
[24]Hunt at paragraph [23]
Rules and principles of pleadings
40In Wheelahan & Anor v City of Casey and Ors (No 12),[25] John Dixon J said:
[25][2013] VSC 316 (“Wheelahan”)
“Casey contended that three recent decisions of this court, SMEC Australia Pty Ltd & Anor v McConnell Dowell Constructors (Aust) Pty Ltd & Ors (No 2), Environinvest Ltd v Pescott & Ors; Environinvest Ltd v Blackburne Pty Ltd & Ors, and Clarke & Ors v Great Southern Finance Pty Ltd & Ors identify the relevant principles that govern its application. Frankston took no issue in written or oral submissions with Casey’s contention as to the applicable principles. Relevantly:
(a) Order 13 of the Rules set out the relevant requirements of a sufficient pleading, while r 23.02 provides the grounds on which the sufficiency of a pleading may be impugned;
(b) 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;
(c) the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression ‘material facts’ is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;
(d) as a corollary, the pleading must be presented in an intelligible form – it must not be vague or ambiguous or inconsistent. Thus a pleading is ‘embarrassing’ within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;
(e) the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;
(f) pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 Vic);
(g) a pleading which contains unnecessary or irrelevant allegations may be embarrassing – for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;
(h) it is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;
(i) every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));
(j) the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or the conversation must not be pleaded unless the words are themselves material (r 13.03);
(k) particulars are not intended to fill gaps in a deficient pleading. Rather, they are intended to meet a separate requirement – namely, to fill in the picture of the plaintiff’s cause of action (or defendant’s defence) with information sufficiently detailed to put the other party on guard as to the case that must be met. An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried;
(l) a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;
(m) extensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible;
(n) in an application under r 23.02, the court will only look at the pleading itself and the documents referred to in the pleading;
(o) the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown; and
(p) if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.”[26]
(Footnotes omitted.)
[26]Wheelahan at paragraph [25]
Pleadings beyond the serious injury certificate
41In Kruisselbrink v Nationwide Maintenance Services Pty Ltd,[27] J Forrest J considered an application to amend a statement of claim which was opposed on the basis that it introduced a new or separate claim beyond the ambit of the serious injury certificate.
[27][2010] VSC 260 (“Kruisselbrink”)
42His Honour considered the authorities and said:
“I think it possible to draw the threads of these authorities together in the following way:
(1) By the grant of a certificate a worker will have established that he or she has sustained compensable injury and that such injury is a serious injury. The existence of a serious injury permits the court to entertain the worker’s common law claim for damages;
(2) The determination of the Authority that an injury is serious, relates to the injury alone; the circumstances giving rise to the injury, at this stage, are relevant only in determining that the injury is compensable and arises out of employment occurring on or after 20 October 1999;
(3) A worker can only, in the common law claim, in establishing liability on the part of an employer rely upon those circumstances of his or her employment which are related to the serious injury;
(4) Where an issue at an interlocutory stage arises concerning the effect of a certificate and the ability of the worker to maintain his or her common law claim or a suggested limit on the ambit of that claim then in determining whether part or all of the claim is competent, a court is entitled to look at the material provided to the Authority as part of the s134AB application;
(5) An interlocutory application relevant to the ability of the worker to maintain his or her claim (either in the form of a summary judgment or striking out part or all of the statement of claim; or in considering whether to permit an amendment of the claim) is just that – interlocutory, not final. An order striking out part or all of a worker’s common law claim (or for summary judgment) at this stage should only be made if it is clear beyond argument, that the alleged employment circumstances have no relationship to the serious injury itself. Similarly, in the case of amendment, absent some other consideration (such as set out in Aon Risk Services Australia Ltd v Australian National University), unless a Court is satisfied that the amendment is futile, it would normally be granted so that the issues can be properly agitated before the jury or judge at the damages trial.”[28]
(Footnotes omitted.)
(Emphasis added.)
[28]Kruisselbrink at paragraph [63]
Power to permanently stay a proceeding
43The Civil Procedure Act 2010 (“The CPA”) regulates practice and procedure in civil proceedings.
44Section 7 of the CPA provides that:
“Overarching purpose
(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
(2) Without limiting how the overarching purpose is achieved, it may be achieved by—
(a) the determination of the proceeding by the court;
(b) agreement between the parties;
(c) any appropriate dispute resolution process—
(i) …
(ii) … .”
45Section 24 of the CPA provides:
“Overarching obligation to ensure costs are reasonable and proportionate
A person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to—
(a)the complexity or importance of the issues in dispute; and
(b)the amount in dispute.”
46Section 29 of the CPA (relevantly) provides:
“Court may make certain orders
(1) If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice including, but not limited to—
(a) …
(b) …
(c) …
(d) …
(e) an order that the person not be permitted to take specified steps in the civil proceeding;
(f) any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.
(2) An order under this section may be made—
(a)on the application of—
(i) any party to the civil proceeding; or
(ii) any other person who, in the opinion of the court, has a sufficient interest in the proceeding; or
(b) on the court's own motion.
(3) This section does not limit any other power of a court to make any order, including any order as to costs.”
47Section 47 of the CPA (relevantly) provides:
“Judicial powers of case management—overarching purpose and active case management
(1) Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made—
(a) in the interests of the administration of justice; or
(b) in the public interest.
(2) A direction given or an order made under subsection (1) may include, but is not limited to, imposing any reasonable limits, restrictions or conditions in respect of—
(a) the management and conduct of any aspect of a civil proceeding; or
(b) the conduct of any party.
(3) Without limiting subsection (1) or (2), a court may actively case manage civil proceedings by—
(a) …
(b) …
(c) …
(i) …
(ii) …
(d) …
(i) …
(ii) …
(iii) …
(e) …
(i) …
(ii) …
(iii) …
(iv) …
(f)…
(i) …
(ii) …
(iii) …
(g) considering whether the likely benefits of taking a particular step in a civil proceeding justify the cost of taking it.”
48The power of the Court to permanently stay a proceeding is found in Rule 23.01 of the County Court Civil Procedure Rules 2018 (Vic), which provides:
“(1) Where a proceeding generally or any claim in a proceeding—
(a) is scandalous, frivolous or vexatious; or
(b) is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.”
49In UBS AG v Tyne,[29] Keifel CJ, Bell and Keane J said:
[29](2018) 265 CLR 77 (“Tyne”)
“This appeal is concerned with the power to permanently stay proceedings as an abuse of the process of the court. The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. … .
…
Whether conduct of this description rises to the level of an abuse of the processes of the court is a determination that requires consideration of all the circumstances. As Lord Bingham of Cornhill explained, that consideration requires the court to make:
‘a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.’
…
Batistatos v Roads and Traffic Authority (NSW) makes clear that the just resolution of a controversy may be the permanent stay of the proceeding notwithstanding that the plaintiff is not at fault and that the merits of his or her claim have not been decided …. .’”[30]
(Footnotes omitted.)
[30]Tyne at 83, 85 and 94, paragraphs [1], [7] and [40]
50In the same case, Gordon J said:
“The power to grant a stay of proceedings exists to enable a court to ‘protect itself from abuse of its process thereby safeguarding the administration of justice’. The doctrine of abuse of process is not limited to defined and closed categories of conduct. It is capable of being applied to ‘any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute’. If a proceeding would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party, the proceeding should be stayed or dismissed. Or, put another way, where ‘the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness’, a proceeding should be stayed or dismissed.
…
The onus of satisfying the court that a proceeding is an abuse of process is ‘a heavy one’. Although the power to grant a permanent stay is one to be exercised ‘only in the most exceptional circumstances’, the exercise of the power can be justified by considerations which may include finality, fairness, and the maintenance of public confidence in the administration of justice.”[31]
(Footnotes omitted.)
[31]Tyne at 125 and 127, paragraphs [126] and [136]
51In Batistatos v Roads and Traffic Authority of New South Wales,[32] the High Court[33] said:
“… The plaintiff certainly has a ‘right’ to institute a proceeding. But the defendant also has ‘rights’. One is to plead in defence an available limitation defence. Another distinct ‘right’ is to seek the exercise of the power of the court to stay its processes in certain circumstances. On its part, the court has an obligation owed to both sides to quell their controversy according to law.
…
The ‘right’ of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.
…
[32](2006) 226 CLR 256 (“Batistatos”)
[33]Consisting of Gleeson CJ, Gummow Hayne and Crennan JJ
… It is not necessary for a party seeking relief against what it claims is an abuse of process, to show misconduct of some kind on the part of the plaintiff. … .”[34]
[34]Batistatos at 280 and 299, paragraphs [63], [65] and [138]
52In Tomlinson v Ramsay Food Processing Pty Limited,[35] the High Court[36] said:
“To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.”[37]
(Footnotes omitted.)
(Emphasis added.)
[35](2015) 256 CLR 507 (“Tomlinson”)
[36]Consisting of French CJ, Bell, Gageler and Keane and Netttle JJ
[37](2015) 256 CLR 507 at 518-9, paragraphs [24]-[26]
53In Trau v University of Sydney,[38] the Supreme Court of New South Wales Court of Appeal (consisting of Gleeson CJ, Mahoney, Priestely JJA) said:
“Even under the modern system of pleading, considerations of form and substance are often closely intertwined. If one sees that a plaintiff’s lawyers are experiencing extreme difficulty in formulating with clarity and particularity their client’s cause of action then it is often a very good indication that there is no cause of action …. .”[39]
(Emphasis added.)
[38](1989) 34 IRR 466 (“Trau”)
[39]Trau at 475
54In Aon Risk Services Australia Limited v Australian National University,[40] French CJ said:
“… [the judge] should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. … .”[41]
[40](2009) 239 CLR 175 (“Aon”)
[41]Aon at 182, paragraph [5]
55In Matthews v SPI Electricity Pty Ltd and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 2),[42] J Forrest J set out the principles relevant to an application for summary judgment as follows:
“…
1. If a court determines that a particular cause of action is hopeless or bound to fail, then it should be dismissed;
2. A court may also dismiss a claim where it determines that it has no real prospect of success in the sense that such prospects are fanciful rather than realistic;
3. The less complex the issue in a case then the easier it is for a court to take the view that such a proceeding is capable of being determined on summary judgment; and
4. Whatever the test to be applied, the power to order summary dismissal of a claim must be exercised with care. This is particularly so where a case may involve issues of contested fact, or where its consequences may affect a large number of persons.”[43]
[42](2011) 34 VR 584 (“Matthews”)
[43]Matthews at 590, paragraph [22]
56In MacFadyen & Ellis v Bank of Queensland (No 2),[44] Sifris J permanently stayed a proceeding in circumstances where the plaintiffs had made seven attempts and failed to properly plead the elements of misleading and deceptive conduct and unconscionable conduct. His Honour referred to the authorities and said:
“In my opinion it is in the interests of justice that the proceeding be dismissed. The PFASC is as defective as its multiple predecessors. The fact that it is considerably shorter has not improved the clarity and precision required in all pleadings but in particular a pleading claiming misleading or deceptive conduct and unconscionable conduct. It is not enough to expose unfairness or general and wide ranging conduct. Rather, each element of the causes of action needs to be properly pleaded and particularised. Despite several attempts this has not happened.
The Bank has been put to great expense over the year in dealing with inadequate version after version of the statement of claim. In my view anything beyond seven versions over the period of a year is unreasonable and unfair and accordingly not in the interests of justice. I have gone back and perused all the different versions. All are fundamentally flawed and it is clear enough that the Plaintiffs are unable to plead a cause of action. Although version six did address some of the concerns apparent in version seven, it was deficient in other major respects and it is not surprising that leave to amend was not sought in relation to this version.
The right to seek relief from a Court is not an absolute right. It carries with it a responsibility, now directly enshrined in legislation, namely the Civil Procedure Act 2010 (Vic) (‘CPA’). The Plaintiffs have not discharged this responsibility. Given this history, the Court cannot be confident that the Plaintiffs will ever be able to articulate their claim. They should not be permitted to continue. To permit the Plaintiffs to have yet ‘another go’ would not be in the interests of justice and would not be consistent with the overarching purpose set out in s 7 of the CPA which requires ‘the just, efficient, timely and cost effective resolution of the real issues in dispute’.”[45]
[44]2014 VSC 653 (“MacFadyen”)
[45]MacFadyen at paragraphs [44]-[46]
Submissions of the parties
Defendant’s submissions
57The defendant submitted (orally and in writing) that:
Permanent stay
(a) the cumulative effect of the ten proposed statements of claim, the four successful strikeout applications, two trial adjournments and many months of wasted time, (of the Court and the defendant), allows a finding of breach of the overarching obligations and a finding of an abuse of process. The defendant outlined the following reasons:
(i)exchanging ten proposed pleadings is contrary to the plaintiff’s overarching obligations under the CPA to ensure costs are reasonable and proportionate (s24), to minimise delay (s25), to narrow the issues in dispute (s23), to use reasonable endeavours to resolve the dispute (s22) and to cooperate in the conduct of civil proceedings (s20);
(ii)failing to adequately plead her case. The tenth proposed Statement of Claim is, in effect, just a regurgitation of previous pleadings, particularly as it concerns the elements of duty of care;
(iii)continuing to plead matters with the same defects as previously struck out pleadings, including missing material facts and making bold conclusions of law;[46] This occasions unjustifiable oppression to the defendant and serves to bring the administration of justice into disrepute;[47]
(iv)delay and wasted court time and resources. The Court is a publicly-funded resource and inefficiencies in the use of that resource are to be taken into account. So, too, is the need to maintain public confidence in the judicial system;[48]
(v)the prejudice to the defendant in continuing to answer pleadings which duplicate previous problems, cannot be overcome by more awards of costs;
(vi)Enough is enough, the proceeding should be permanently stayed in the context of all the circumstances that have brought the defendant back to court for a fifth time.[49]
[46]The defendant relied on Trau
[47]The defendant relied on Tyne
[48]The defendant relied on Aon
[49]Transcript (“T”) of the hearing dated 28 March 2025 at T2
Pleadings and strikeout
58If the Court were not minded to grant a permanent stay, the defendant submitted the entirety of the plaintiff’s pleading ought to be struck out. There was significant overlap in relation to the reasons for striking out pleadings and a permanent stay. For example, the defendant submitted that:
(a) the defects present in the current pleadings have already been ruled on. They are simply a regurgitation of previous pleadings;
(b) insofar as the Chief Commissioner’s duty is said to be that of employer and employee and non-delegable, it fails to take into account the previous rulings of Judge Robertson and Judge Pillay. Further, Mr Tobin SC for the plaintiff has previously conceded that police officers are not employees, nevertheless, in this pleading, reverted back to the plaintiff’s original position that the relationship between the Chief Commissioner and the plaintiff was one of employer and employee;[50]
(c) the precise duty of care alleged against the Chief Commissioner has still not been properly pleaded. Despite Judge Robertson’s[51] and Judge Pillay’s rulings clearly outlining the importance of the need to distinguish between operational and non-operational matters,[52] the current pleading is still silent on this aspect;
(d) the Chief Commissioner’s duty as pleaded is so broad as to make it meaningless. The scope of the putative duties of care of the superior officers has not been pleaded;
(e) the plaintiff previously abandoned her pleadings against named officers Ward, Drew, and Bradley in September 2024. She should not now be permitted to re-enliven her claim. In the alternative, the pleadings in relation to these officers suffer from the same defects, including failure to outline why the duties are owed, failure to outline the precise duty owed and failure to outline how it is that Wood is said to have breached it.
[50]Paragraph [18] of the tenth Statement of Claim
[51]Sittrop v State of Victoria [2024] VCC 448 at paragraph [91]
[52]Sittrop v State of Victoria (Ruling No 2) [2024] VCC 1525 at paragraph [21]
Novel duties of care
59The proceeding is put partly on the basis of ss72 to 74 of the VP Act, but the plaintiff has not adequately pleaded what constitutes the police torts alleged.
60The salient features test has not been addressed, the plaintiff has not substantiated the basis for the novel duties alleged to be owed with respect to each tortfeasor identified in her pleading. It is not enough for the plaintiff to plead that a duty exists.
61The plaintiff has pleaded a non-delegable duty of care. No such duty of care exists at law.
Pleadings beyond the serious injury certificate
62The defendant consented to the plaintiff bringing proceedings for damages based on a draft statement of claim dated 4 June 2021. In that document, the plaintiff pleaded that she suffered injury by way of gradual onset “from in or about February 2016 to September 2018”.
63To the extent that the pleading relies upon a cause of action arising before February 2016, it goes beyond the grant of the serious injury certificate and should be struck out.[53]
[53]In support of this proposition the defendant relied on Kruisselbrink.
Plaintiff’s submissions
64Despite being afforded the opportunity of time to read and respond to the defendant’s written submissions (which outlined the basis for the permanent stay application), Mr Tobin SC indicated that was not necessary, and that he had “flicked through them” and they were a question of principle.[54]
[54]T22
65Mr Tobin SC submitted that the claim had been adequately pleaded.
66In response to the defendant’s argument that the pleadings were beyond the scope of the serious injury certificate, Mr Tobin SC submitted that the plaintiff was relying on what occurred in the course of her employment up to the “[p]rincipally pleaded 2016-2018” period.[55] The plaintiff was not now limited to the time period in the Draft Statement of Claim, because “the psychiatric concept is always that the totality of the exposure may be an exposure which leads to the injury. It doesn’t have to be within the time when the injury occurs”.[56]
[55]T22, L28-30
[56]T25, L5-8
67In the alternative, Mr Tobin SC submitted that, if the Court accepted the defendant’s argument, that would not be a matter for striking out the Statement of Claim, it would be a matter for limiting the period in the claim.[57]
[57]T25 ꟷ T26
68Mr Tobin SC conceded that the plaintiff, in her role as a police officer, was not an employee,[58] however argued that a duty was owed because in her role, the plaintiff had been exposed to traumas, superior officers were aware of that, and this awareness gave rise to foreseeability and a duty to act.[59]
[58]T29 ꟷ T30
[59]T29
69Written material emanating from Victoria Police demonstrates awareness that an officer may develop a psychiatric injury in the course of their duties. This gives rise to foreseeability and a duty to respond.
70The duties pleaded, are non-operational duties which were subservient to the officers’ sworn duty.[60] While it is accepted that police are not employees, that only applies to their operational duties. When they are non-operational, their position was said to be akin to employees. No authority was relied on for this proposition.
[60]T33
71The Chief Commissioner’s duty arises by virtue of his role, position of power and ability to direct officers to act. The duty was defined as “ a duty to take reasonable care for the welfare of police officers”,[61] which duty was said to be limited to non-operational matters.[62]
[61]T44
[62]T47
72The duty pleaded was not novel, it was an existing duty. Mr Tobin SC described that duty as a duty [of senior officers] to take reasonable care for the welfare of [junior] officers which was subservient to the officer’s sworn duty.[63]
[63]T36
73Ultimately, Mr Tobin SC conceded that “the law is settled at this stage, police officers are sworn and they are not employees” and the plaintiff would accept the strikeout of paragraph 18, which pleads the employer/employee relationship.[64]
[64]T49
Defendant’s response to the Plaintiff’s submissions
74The concession that the Court could strike out the employer/employee portion of the pleading underscores the problem from the defendant’s perspective.
75Despite numerous attempts and previous clarification in court, the pleading still does not distinguish between operational and non-operational duties. It is not appropriate for these matters to be addressed with the Court in argument on a strikeout, it should be apparent from the pleadings.[65]
[65]T50
76The plaintiff has not addressed the matters raised in the judgment of her Honour Judge Robertson, citing Dixon J in Smith. In particular, the pleadings still do not address the salient features test, coherence of the law, control, foreseeability, degree of harm or vulnerability and legal policy, which considerations arise from the salient features test and are not properly identified in the pleading.[66]
[66]T51 ꟷ T52
Analysis – can the pleadings be further amended?
Pleadings beyond the serious injury certificate
77The issue which is easiest to dispose of is the Kruisselbrink point.
78In short, Mr Rush KC submitted that the serious injury certificate was granted on the basis of a serious injury which was said to arise in the course of employment with date parameters of February 2016 to September 2018. As such, it is impermissible for the plaintiff to seek to widen her claim beyond these dates.
79I do not accept the plaintiff’s submission that the presence of a psychiatric injury entitles her to widen her claim beyond the scope of the grant of the certificate. Mr Tobin SC did not refer the Court to any authority which supports this proposition. The certificate was granted on the basis of an affidavit and proposed statement of claim which clearly set out the relevant date parameters.
80Had the plaintiff been seeking to cover “the totality of exposure”, it would have been simple enough to widen the dates in her application. There may be forensic reasons why this was not done. There may have been reasons relevant to the granting of the certificate by the Authority which turned on the date parameters provided.
81However, that is not a basis for granting a permanent stay. I accept Mr Tobin’s concession that the period of the claim can, and should be, limited to the date parameters in the serious injury application. In accordance with the principles in Kruisselbrink, it is not a matter for striking out the entire pleading.
Has the Plaintiff pleaded the “novel” or “existing” duty in accordance with the rules and principles of pleadings?
82Mr Rush KC submitted that:
(a) paragraph 17, which pleads the alleged duty, provides no understanding of the foundation on which the duty is said to arise and what its content is, in circumstances where the authorities clearly provide that there is no employer/employee relationship in the case of police members;[67]
(b) while the pleading has sought to establish a basis for action in the Chief Commissioner’s power to issue instructions and directions, the pleading does not outline what the instruction should be;
(c) paragraph 17, is repetition of previous similar paragraphs which seek to adopt the language of employer/employee duties into a relationship which is a totally different and novel relationship;
(d) the duties alleged to be owed by the superior officers are founded in their rank as superiors and their ability to issue orders to the plaintiff, however they fail to grapple with the need to properly outline the basis of the duty and the circumstances in which it is owed;
(e) ultimately, paragraph 17 fails to provide a basis for duty and conflates breach with duty.
[67]T17
83Mr Tobin SC submitted the duty is adequately outlined in paragraph 17 of the subject pleading and described it in this way:
“Failure to take reasonable care for the welfare of your officers and in exercising that duty for the welfare of your officers it's a situation where you can compel officers, command officers to do things in accordance with their sworn duties but when it's not doing that, when it's not that particular task that you - so when they are at a scene they have got autonomy to a large degree unless it's exceptional circumstances.”[68]
[68]T36, L2-9
84I reject Mr Tobin SC’s argument that paragraph 17 adequately deals with the duty, for the reasons outlined by the defendant. In particular, I find:
(a) while the pleading attempts to provide a basis for the Chief Commissioner to issue instructions, it fails to outline what those instructions ought to have been;
(b) paragraph 17 does not outline duties, it contains a list of alleged breaches (for instance failing to “ensure that shift allocations enabled an officer” to complete their administrative work). Had duties been properly outlined, then failing to do the actions enumerated in subparagraphs (a) to (u) of paragraph 17 would show that the duty had been allegedly breached by the Chief Commissioner;
(c) the duties alleged are novel (this is addressed below). Had they been existing duties, perhaps it might have been easier for the plaintiff to articulate them.
Do the pleadings comply with the rules and principles of pleadings?
85I accept the submissions of the defendant that significant aspects of the pleadings are so vague as to be meaningless or embarrassing.
86The defendant’s submissions outlined many examples, too numerous to outline here. Some are provided below:
(a) Paragraph 19 pleads that the Chief Commissioner:
“… owed a duty to provide a safe system of work for police officers to ensure that they are appropriately protected from mental injury which could result from exposure to the kind of human tragedies to which they are exposed in the course of performing their sworn duties.”’;[69]
(b) Paragraph 22 pleads the Chief Commissioner failed to discharge his duty to the plaintiff in failing to devise or maintain a system:
(i)“whereby an officer was subject to mandatory debriefing after exposure to traumatic incidents including injury or death, extreme stress, and/or serious danger to her life or person or serious danger to a member or members of the public”.[70] The “particulars” of this breach include “the Plaintiff was not debriefed after the 13 February 2016 incident”, was required to attend a murder/suicide incident on 3 November 2016 and was not debriefed on 20 June 2017 and was required to attend three separate fatalities in one day and not debriefed;
(ii)with a “strategic workforce plan”, which failure caused Rosebud Police Station to be understaffed;
(iii)of “regular and compulsory rotation of duties”;
(iv)in which senior-ranking officers were “instructed and required to maintain appropriate supervision and intervention in respect of the Plaintiff after she was exposed to traumatic incidents”.[71]
[69]Tenth proposed Statement of Claim, dated 3 December 2024, at page 153 of the affidavit of Mr Lavender, dated 3 March 2025.
[70](Ibid) at page 154
[71](Ibid) at page 158
87I accept the defendant’s submissions that the pleadings contain no attempt at defining concepts such as “human tragedies”, “extreme stress” and “rotation of duties”. The tenth proposed Statement of Claim is replete with such examples, or vague and embarrassing pleadings. I consider they fail to meet the most fundamental function of pleadings, which is to alert the opposite party of the case they need to meet and to define the precise issues for determination.
88Neither the duty itself, nor the scope of the duty, has been pleaded in accordance with the rules of pleadings, it is unclear how the plaintiff is putting the case against the six individual superior officers and the State.
89In its written outline, the defendant raised the issue of causation. On the face of the pleading, it appears that the plaintiff’s psychiatric injury was primarily driven by her involvement in various traumatic incidents associated with her role as a police officer.
90It is not clear on the pleading how the various alleged breaches alleged were (if at all) causative of injury. If the breaches were not causative, then it is not clear why they have been pleaded. Some examples include:
(a) the plaintiff being required to work with inadequate shifts being assigned for administrative work;
(b) the plaintiff’s duties not being “rotated”.
91For the reasons advanced, the pleading continues to be substantially defective, despite numerous attempts to re-plead.
Decision – permanent stay
92In support of its application for a permanent stay, the defendant relied on abuse of process and breach of the overarching obligations.
93Importantly, the defendant also relied on the use of the Court’s procedures by the plaintiff, which was said to occasion unjustifiable oppression. I accept that submission.
94The power to permanently stay a proceeding is enlivened where the use of the Court’s procedures occasions unjustifiable oppression to a party.[72] In this case, the defendant has been required to consider and address nine proposed statements of claim, five of which have been made the subject of applications for strikeout. The matter has been listed for, and the defendant has prepared for, trial twice, with two previous trial dates being vacated on account of the insufficiency of pleading. All this involves considerable time and cost, which cannot always be compensated for with costs orders. As the High Court said in Aon, it is necessary to take into account that, whatever costs are ordered, there is an “irreparable element of unfair prejudice in unnecessarily delaying proceedings”.[73]
[72]See Tyne
[73]Aon at 182, paragraph [5] (per French CJ)
95Court time is valuable and limited. The processes and procedures of the Court exist to administer justice with fairness and impartiality to all parties in all cases before it. The rights of those parties must also be considered. Numerous listings for one case means that the hearing of other cases is delayed.
96While the plaintiff has a right to institute proceedings to have her claim heard, that right is not unfettered. It is subject to the entirety of the procedural and substantive law, and to the defendant’s right to raise objection to inadequate pleadings and to seek finality.
97Given the history of the matter, the numerous proposed statements of claim, appearances at court and associated costs, there is a very real possibility of breach by the plaintiff of the obligation to ensure that legal and other costs incurred are proportionate to the amount in dispute .
98The defendant submitted, and I accept, that the prejudice to the defendant in continuing to answer pleadings which duplicate or reproduce previous problems is an abuse of process and cannot be overcome with more awards for costs. I consider this to be the most persuasive of all the defendant’s arguments in support of a permanent stay.
99The centrepiece of the defendant’s argument was its submission that the plaintiff continued to plead matters with the same defects as previous pleadings which had been struck out by previous judges of this court and the current pleadings again fail to accommodate the comments made by those judges.
100While the defendant relied on many examples of this failure, in my view there are two significant aspects which go to the heart of the question whether a duty has been pleaded at all, and if so what is its scope. These are as follows:
(a) the pleading continues to refer to the plaintiff’s relationship with the Chief Commissioner as one of employment, or “closely analogous to that of employer and employee”.[74] It also refers to the plaintiff as a “deemed to be a worker”[75] and the Chief Commissioner’s duties as “non-delegable”;[76]
(b) the distinction between “operational” and non-operational” raised by both Judge Robertson and Judge Pillay has not been accommodated in any of the pleadings. I note that all pleadings after Judge Robertson’s ruling, including the tenth proposed Statement of Claim, have failed to make any, or adequate, distinction between operational and non-operational duties;
[74]Tenth proposed Statement of Claim, dated 3 December 2024, paragraph [18] at page 153 of the affidavit of Mr Lavender dated 3 March 2025.
[75](Ibid) at paragraph [6], page 148
[76](Ibid) at paragraph [20], page 153
101Mr Rush KC referred the Court to the following paragraphs from Judge Robertson’s Ruling,[77] which he submitted had not been properly addressed in the subject pleading:
[77]Sittrop v State of Victoria [2024] VCC 448
“….If a duty of care were to arise which required one police officer to take reasonable care for another, it would be imposed because of the relationship between the parties and an analysis of the salient features of their relationship. This would include an examination of the obligations between the parties and any applicable statutory provisions, such as the VPA and the PRA, coherence of the law, control, foreseeability, degree of harm, vulnerability, and legal policy. The assessment requires consideration of the facts bearing on the relationship between the plaintiff, the other superior police officers and the Chief Commissioner, and analysis of the salient features of those relationships.
…
These matters, and the totality of the legislative scheme governing relations between police officers, is important to determine the likelihood of the imposition of a duty of care.
Similarly, other salient features of the relationship between the plaintiff, the Chief Commissioner and the six superior officers will be relevant, including coherence of the law, control, foreseeability, degree of harm, vulnerability and legal policy.[78]
(Footnotes omitted.)
(Emphasis added.)
[78](Ibid) at paragraphs [76] and [80]–[81]
102I accept the defendant’s submission that despite numerous attempts, the current pleading falls short of addressing the salient features test outlined above. While an attempt has been made to address control, foreseeability and vulnerability, the alleged duty outlined in paragraph 17 fails to adequately address the elements required for novel duties, including the salient features test, coherence of the law, legal policy and conformity with other duties or obligations.
103Mr Tobin SC accepted, in the hearing before me, that police were not employees, but sworn officers, saying:
“No, they are never employees but because of the relationship that exists - because they are a sworn officer. When they are exercising their role as a sworn officer, where they had command of what they were doing, the duty owed to them is very different to when they are in, if I could use the term, a passive state in relation to their employment not actively engaged in an operational activity.”[79]
[79]T39, L27 ꟷ T40, L3
104This matter is not addressed in the pleadings. Judge Robertson’s observations about the coherence of the law, the salient features test and the statutory obligations of the parties, have not been accommodated at all.
105No attempt has been made to address the possible inconsistency between duties owed by the State or by superior officers, while the plaintiff is performing non-operational as opposed to operational duties. For example, is it a breach of the alleged duty to provide a rostered day for administrative work, or adequate staffing levels if the plaintiff is required on that day, to perform her sworn duty to attend a critical incident instead? How is it said to be a breach? What about the plaintiff’s duties as a sworn officer? How is it possible to exercise the two sets of duties if by the exercise of one of them, the other is breached?
106While the pleadings set out in the alleged failures to comply with what the plaintiff asserts were various duties to investigate psychological injuries, to provide time off for psychological recovery, to include quarterly “WellChecks”, or to have police medically examined, it is still not clear what the named police are said to have done in the performance of their duties that gave rise to a police tort under the VP Act.
107The defendant also complains that the plaintiff continues to plead her relationship was one of employment, or was analogous to employment. For instance, the reference to “deemed to be a worker”[80] and the reference to a relationship of employment or analogous to employment.[81]
[80]Tenth proposed Statement of Claim, dated 3 December 2024, paragraph [6] at page 148 of the affidavit of Mr Lavender, dated 3 March 2025.
[81](Ibid), paragraph [17] at page 151
108This has been addressed previously in the rulings of both Judge Robertson and Judge Pillay.
109For instance, Judge Robertson said:
“The plaintiff initially submitted that a duty of care arises automatically as an incident of the relationship between the plaintiff and the other police officers. It was contended it was a duty which is akin to the duty between employer and employee. At the hearing on 24 January 2024, however, Mr Tobin SC accepted that police officers are not employees. Rather, they are sworn members of the police force and as such, no employment relationship arises. Consequently, there is no established category of relationship between one police officer and another, which has traditionally been held by the courts to contain features which give rise to a duty of care.”[82]
(Emphasis added.)
[82]Sittrop v State of Victoria [2024] VCC 448 at paragraph [70]
110And further, she stated:
“It remains unclear how the Chief Commissioner is said to be vicariously liable. The pleading is unclear about who the tortfeasor was for whom the Chief Commissioner is said to be vicariously liable, and what it was they did in the course of performance of their duties that gave rise to the alleged tortious conduct or vicarious liability of the Chief Commissioner. If the six superior officers were acting in the performance of their duties, how is vicarious liability relevant? If they were not acting in the performance of their duties, no police tort would arise and there would be no basis for imposition of liability on the part of the State. The State can only be liable for the conduct of a police officer when it is not serious and wilful misconduct, and it is a police tort. How, in those circumstances, is it alleged the Chief Commissioner is vicariously liable? How does liability to the State follow? If, as the plaintiff contended in argument, the decisions made in this case were not operational decisions, or decisions made in the performance of the police officers’ duties, such that a duty of care might potentially arise, in what capacity were the six superior officers acting? How does the plaintiff maintain that the State can nevertheless still be liable?”[83]
(Emphasis added.)
[83](Ibid) at paragraph [91]
111Before me, Mr Tobin SC also conceded that police were not employees, however argued that, for non-operational purposes, police were in a position akin to employment.[84] Mr Tobin SC also said:
“We say the relationship is either one of employer and employee - we're happy with that to be struck out if necessary but closely analogous to that of employer and employee.”[85]
[84]T39 ꟷ T40
[85]T49, L6-9
112On the one hand, the pleading provides that the plaintiff was “deemed a worker” and an “employee” and on the other hand, the plaintiff accepts, through her counsel, that she was not an employee and that this portion of her proposed statement of claim can now be excised. Given this position, it is not difficult to appreciate the defendant’s continued frustration.
113I pause to note that the pleading alleging the plaintiff was an employee, or was in a position akin to an employee, has permeated all nine proposed statements of claim.[86] In particular, such a pleading was also incorporated in the two sets of pleadings considered and struck out by Judge Pillay.
[86]First Proposed Statement of Claim dated 13 April 2022 pleaded “employment” and non-delegable duty owed by reason of employment or a contract of employment. Second Proposed Statement of Claim dated 20 January 2023 pleaded that the plaintiff was an employee. Third Proposed Statement of Claim dated 28 February 2023 pleaded that the plaintiff was a sworn police officer AND an employee. The fourth proposed Statement of Claim dated 23 January 2024, the fifth proposed Statement of Claim dated 5 February 2024 and the sixth proposed Statement of Claim dated 21 May 2024 all pleaded the plaintiff was a sworn police officer and omitted the word employment, but otherwise pleaded duties as though they arose in employment. The seventh proposed Statement of Claim dated 21 May 2024 re-introduced the notion of employment or a relationship akin to employment, which notions were carried through to the eighth proposed Statement of Claim dated 13 September 2024 and the ninth proposed Statement of Claim dated 16 September 2024.
114The question of non-delegable duty also remains in the tenth proposed Statement of Claim and has been included in previous pleadings. Mr Tobin SC, who has consistently appeared for Ms Sittrop, also appeared for the plaintiff before Judge Purcell in Caridi. Judge Purcell’s comments about non-delegable duties apply equally to this case. Unfortunately, the current pleadings do not bear out these observations.
Judge Pillay’s second ruling
115In his second ruling,[87] his Honour considered the case law and said:
[87]Sittrop v State of Victoria (Ruling No 2) [2024] VCC 1525
“… it is useful to repeat the reference the defendant took the Court to in its submissions as to why paragraph 7 is wrong in law. Marshall J in Konrad v Victoria Police, referred to Viscount Simonds’ judgment in Attorney-General New South Wales v Perpetual Trustee Company (Limited), who stated, in respect of what police duties are:
‘… neither changes in organisation nor the imposition of ever-increasing statutory duties have altered the fundamental character of the constable’s office. Today as in the past he is in common parlance described in terms which aptly define his legal position as ‘a police officer’, ‘an officer of justice’, ‘an officer of the peace’.
…
‘… there is a fundamental difference between the domestic relationship of servant and master and that of the holder of public office and the State which he is said to serve.’
…
Marshall J said these matters showed:
‘The decision of the Privy Council in Perpetual Trustees unambiguously provides that a member of a police force is not an employee of the Crown. In the High Court of Australia … the majority of the six justices sitting expressed views inconsistent with the proposition that police constables are employees of the Crown or State.’
The plaintiff’s bland pleading that the duty owed is “akin” to that of an employer does not grapple with these issues.
…
In argument, it seems clear that the plaintiff is seeking to complain only in respect of what could be termed as ‘non-operational matters’. Yet this distinction, which may be critical in defining the duty of care, is not clearly expressed.
... It can be seen immediately that the pleading makes no distinction between the operational and non-operational duties the plaintiff performed. To draw in both types of work (operational and non-operational) requires the plaintiff to attempt to resolve the tension exposed in the decision of their Honours Gummow and Hayne JJ in Fahy. The pleading makes no such attempt. It similarly suffers from the same issues as identified above at paragraph 16 of this ruling.”[88]
[88](Ibid) at paragraphs [14]-[21]
116Before me, Mr Tobin SC argued that police were not employees, they were sworn officers, yet the pleading continues to allege duties arising from employment or akin to employment, now by reference to the deemed worker provisions in the WIRC Act.[89]
[89]Clause 14 provides that “This Act applies to a person who … is a member of Victoria Police personnel within the meaning of the Victoria Police Act 2013” and “is taken to be a worker”.
117I consider such vacillation is an assertion of a right, or the raising of an issue of fact or law in a manner which constitutes an abuse of process in accordance with the principles in Tomlinson. In particular, the repeated making of a claim (that she was an employee, that non-delegable duties were owed) is raising an issue which was made or raised and determined in earlier applications before Judge Pillay and Judge Robertson.
118Paragraph 18 of the tenth proposed Statement of Claim fails to deal with the contents in paragraph 14 of Judge Pillay’s ruling. There, his Honour refers to Konrad, wherein Marshall J cites Viscount Simonds in Attorney-General New South Wales v Perpetual Trustees Company (Limited),[90] who said that the “fundamental difference between the domestic relationship of servant and master and that of the holder of public office and the State which he is said to serve”. Rather than recognise this fundamental difference and accommodate it, the pleading provides that the duties are those of employer/employee or “closely analogous” to employer/employee duties.
[90](1955) 92 CLR 113
119Despite the submissions that that the duties alleged in this tenth proposed Statement of Claim relate to “non-operational duties”,[91] no such distinction is made in the pleading. Nor does it does it attempt to place the alleged breaches of duty by the superior officers in this context.
[91]T49, L6-9
120Judge Pillay, in his ruling of 7 October 2024,[92] observed:
“In argument, it seems clear that the plaintiff is seeking to complain only in respect of what could be termed as ‘non-operational matters’. Yet this distinction, which may be critical in defining the duty of care, is not clearly expressed.”[93]
[92]Sittrop v State of Victoria(Ruling No 2) [2024] VCC 1525
[93](Ibid) at paragraph [20]
121I observe that the distinction continues to be “not clearly expressed” or not expressed at all. The same concessions were made by Mr Tobin SC before me, as had been made before Judge Pillay.
Conclusion – permanent stay
122I am acutely aware that in cases where novel duties are asserted:
“… a court at first instance should be particularly astute not to risk stifling that development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie.”[94]
[94]See Hunt
123However, I consider, given the history of this matter and the numerous attempts at pleading, I have no confidence that another chance to re-plead will yield a different result to the ones hitherto demonstrated. Like the appellant’s claims in Trau, the various attempts at pleading in this case:
“… resemble the Hydra, and an undertaking of the Second Labour of Hercules might well be a worthwhile exercise in the interests of all concerned”.[95]
[95]Trau at 477
124In my view, the permanent stay sought by the defendant is in the interests of justice. The inability of the plaintiff to articulate her case in line with the rules of pleading suggests very strongly that the plaintiff is unable to plead a cause of action.
125In my view, to allow the proceedings to remain on foot and to permit the plaintiff to re-plead for the eleventh time, would inflict manifest unfairness on the defendant and bring the administration of justice into disrepute for the following reasons:
(a) there is now significant delay between the accrual of the cause of action and the time any trial may be heard, given the plaintiff is no closer to formulating a pleading which outlines a cause of action;
(b) the delay has an impact on the quality of justice as the memory of witnesses fades, which reduces the likelihood that a fair and just outcome can be obtained by either party;
(c) the costs of the various applications are likely to be significant, given there have been five interlocutory applications, ten proposed pleadings and the plaintiff is no closer to articulating her claim;
(d) in all the above circumstances, to grant yet another opportunity to re-plead would itself bring the system of justice into disrepute.
Disposition
126Permanent stay granted.
127I will hear the parties with respect to costs.
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