Terry Elvey v Phillip McLennan

District Court

New South Wales

Medium Neutral Citation:

Terry Elvey v Phillip McLennan [2020] NSWDC 773

Hearing dates:

16 December 2020

Date of orders:

17 December 2020

Decision date:

17 December 2020

Jurisdiction:

Civil

Before:

Priestley SC, DCJ

Decision:

See [23]

Catchwords:

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — Form and content

Legislation Cited:

Uniform Civil Procedure Rules UCPR

Motor Accidents Compensation Act 1999 (NSW)

Civil Liability Act 2002 (NSW)

Cases Cited:

Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231

AAI Ltd v Feng [2019] NSWSC 535

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Terry Elvey (Plaintiff)
Phillip McLennan (Defendant)

Representation:

Mr Elvey in person;
Mr Williams for the defendant/applicant:

File Number(s):

2020/00157429

Publication restriction:

Unrestricted

Judgment

1. There is before the Court a notice of motion filed on 2 October 2020 on behalf of the defendant seeking orders that the plaintiff’s statement of claim be struck out for non-compliance with the Uniform Civil Procedure Rules as to pleadings and also an order that the proceedings be dismissed for being in breach of section 108 of the Motor Accidents Compensation Act 1999 (“the Act”). Consequential orders are also sought.

2. When the matter was first before the court it was adjourned at the court’s suggestion for clarification as to whether the prohibition in section 108 extended to intentional torts. It was also suggested to the plaintiff that he may wish to amend his statement of claim so as to accord with the requirements of pleading.

3. The plaintiff alleges that he was assaulted on 4 July 2017 by the defendant. The statement of claim under the heading “Pleadings and particulars” reads as follows:

4/07/2017-assault & battery causing grievous bodily harm after unprovoked hostile and aggressive attack using a 20T excavator dangerous use of a motor vehicle.

4. The plaintiff did file an amended statement of claim which does not improve his position. It reads in full as follows:

1. See affidavit in support.

2. On 4 July 2017 Philip McLennan assaulted and battered me during his attack with a 20 T excavator.

   5. In addition to the initial and amended statement of claim the plaintiff provided a statutory declaration describing the events. At paragraph 15 of that document he refers to his employment of a solicitor who did a year’s worth of work and refers to $75,000 for “barristers etc”. Although irrelevant to the present application, it cannot be said that the pleadings in question have emerged in the absence of any advice on the plaintiff’s claim.

   6. The plaintiff has made clear in his oral submissions that he does not wish to bring a claim under the Act. He maintains that he seeks to make a claim against Mr McLennan for assault. The position of the defendant is that such claims do fall within the Act and that the requirements of making a claim and having the claim either assessed or exempt from assessment applies to this claim. There is no dispute that prior to 4 July 2020 when the…