Toth v State of NSW

[2019] NSWDC 148

District Court

New South Wales

Medium Neutral Citation:	Toth v State of NSW [2019] NSWDC 148
Hearing dates:	11 April 2019
Date of orders:	29 April 2019
Decision date:	29 April 2019
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [64] for orders.
Catchwords:	CIVIL PROCEDURE – notice of motion by applicant defendant seeking to dismiss the applicant plaintiff’s proceedings pursuant to UCPR r 13.4, or alternatively, to strike out the respondent plaintiff’s amended statement of claim pursuant to UCPR r 14.28 – amended statement of claim struck out in part – case management directions for re-pleading of a further amended statement of claim and for evidence-in-chief to be by way of signed statements and document bundles – order for mediation
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 26, s 56, s 57, s 58, s 61, s 63, s 67 Crimes Act 1900 (NSW), s 91L Crimes (Administration of Sentences) Act 1999 (NSW), s 2A Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, s 10 Crown Proceedings Act 1988 (NSW), s 5 Law Reform (Vicarious Liability) Act 1983 (NSW), s 8(1) Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005, r 13.4, r 14.28, Pt 15, r 15, r 15.5, r 31.4
Cases Cited:	Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Cleary v Jeans [2006] NSWCA 9 Cox v Journeaux (1935) 52 CLR 713; [1935] HCA 48 Dey v Victorian Railways Commissioner (1949) 78 CLR 62; [1949] HCA 1 Dickens (a pseudonym) v State of New South Wales [2018] NSWCA 222 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Karam v Palmone Shoes Pty Ltd [2012] VSCA 97 Mohareb v Kelso [2017] NSWCA 98 Obeid v Lockley [2018] NSWCA 71 Paramasivam v Flynn (1998) FCR 489 Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344
Category:	Procedural and other rulings
Parties:	Andrew Toth (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Plaintiff in person Mr G Bateman (Defendant)   Solicitors: Plaintiff in person James Lonsdale, Acting Crown Solicitor (Defendant)
File Number(s):	2018/334165
Publication restriction:	None

Judgment

Table of Contents

Notice of motion	[1]
The substantive proceedings	[2] – [3]
Factual background underpinning the proceedings	[4] – [7]
Respondent plaintiff’s grievances	[8] – [12]
Evidence relied upon at the hearing of the motion	[13]
Submissions of the applicant defendant	[14] – [17]
Submissions of the respondent plaintiff	[18] – [27]
Legal principles concerning summary dismissal	[28] – [33]
Legal principles concerning defective pleadings	[34] – [37]
Legislation	[38] – [39]
Determination	[40] – [58]
Consideration of the pleadings	[41] – [43]
Consideration in terms of UCPR r 13.4	[44] – [46]
Consideration in terms of UCPR r 14.28	[47] – [49]
Case management considerations	[50] – [58]
Disposition	[59]
Costs	[60] – [63]
Orders	[64]

Notice of motion

1. By a notice of motion filed by the applicant defendant on 15 February 2019, the State of New South Wales, seeks to have the respondent plaintiff’s proceedings dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (“UCPR”). Alternatively, the applicant defendant seeks to strike out the respondent plaintiff’s amended statement of claim pursuant to UCPR r 14.28, and any other orders deemed appropriate to the circumstances of the case.

The substantive proceedings

2. In the substantive proceedings, on 22 January 2019, the respondent plaintiff, who is self-represented, filed an amended statement of claim by which he has raised multiple claims against named employees of the State of New South Wales. The wide-ranging nature of those claims varies from alleged misfeasance of public office, breach of a duty of care owed to him, negligence, mal-administration of public office, acting in bad faith, acting without power, and with malice, knowing that the actions in question would cause him to suffer harm. On the basis of those allegations the respondent plaintiff claims damages, including exemplary damages. The applicant defendant contests all such allegations.

3. Section 5 of the Crown Proceedings Act 1988 (NSW) and s 8(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW), and the case management provisions of the Civil Procedure Act 2005 (NSW) apply to these proceedings.

Factual background underpinning the proceedings

4. In order to understand the issues calling for determination in this notice of motion it is necessary to review relevant aspects of prior criminal proceedings involving the respondent plaintiff. He has been the subject of two sets of criminal proceedings where, at first instance, he has been found guilty. Consequent upon those findings, he claims that he has been wrongfully characterised as a sex offender.

5. The first of those cases is founded upon events that occurred on 23 October 2010. That case arose out of circumstances where the respondent plaintiff used a pen camera to record a private conversation that occurred in the course of a medical examination. The respondent plaintiff was convicted in the Local Court with the result that he was given an 18 month bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). On appeal to the District Court that finding of guilt was confirmed, but without proceeding to a conviction, he was given a s 10 bond pursuant to the Crimes (Sentencing Procedure) Act. The respondent plaintiff’s application for judicial review from that decision was dismissed: Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133. In that decision, at [1], the factual basis of that first case was summarised as follows:

“On 23 February 2010 the applicant, Mr Andrew Toth, visited a [female] general practitioner in [redacted]. He complained of a possible hernia in his groin. Using a concealed video recorder in the shape of a pen he recorded the examination undertaken by the doctor and the conversation with her. He was later charged with an offence under s 7(1)(b) of the Surveillance Devices Act 2007 (NSW), namely that he used a listening device to record a "private conversation" to which he was a party. The term "private conversation" is defined to mean "any words spoken by one person to another person ... in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only ... by themselves... but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else": s 4(1), private conversation.”

6. The second of those cases arose out of events that occurred on 1 March 2015. That case involved a filming offence that has come to be known as “upskirting”. The respondent plaintiff was found to have been using a pen camera that he placed below the hemline of a woman’s skirt to film her private parts, contrary to s 91L(2) of the Crimes Act 1900 (NSW). In the Local Court, the respondent plaintiff was convicted and placed on a bond to be of good behaviour for 18 months from 30 May 2016. On 22 March 2017, an appeal from that decision was dismissed by a Judge of the District Court. That decision was quashed in judicial review proceedings and the matter was remitted to the District Court as differently constituted to be dealt with according to law: Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344. It is not relevant to further describe the subsequent course of those proceedings.

7. The respondent plaintiff has completed all aspects of his sentences for those matters and he is no longer the subject of any supervision orders. However, he is seeking, as he puts it, to set the record straight concerning his classification as a sex offender.

Respondent plaintiff’s grievances

8. The respondent plaintiff remains aggrieved by the effect of the orders that were made in the second case described above. This is because as a result of those proceedings and the orders made in them, he has been treated as a sex offender by the criminal justice system.

9. Essentially, the respondent plaintiff complains that seven named employees of the State of NSW who had responsibility to oversee his compliance with the terms of the bond that related to the second conviction, including as to his rehabilitation, allegedly failed in their duties in that regard. He claims that after he was categorised as a sex offender he incurred harm and had limitations imposed on his freedom.

10. On those premises, the respondent plaintiff claims that those employees of the State of New South Wales acted beyond their power or remit. He further claims that they acted against him with malice and bad faith. As a result, he claims damages, including exemplary damages, for loss of family, loss of reputation, loss of freedom, alleged illegal “alteration” of his sentence, loss of teeth, and other matters. He has quantified his claim for damages in the total sum of $475,000.

11. The respondent plaintiff’s statement of claim contains a number of embarrassing claims in that he seeks prerogative relief in the nature of mandamus and declaratory relief against the Corrections Service of NSW. It is unnecessary to further analyse those matters in the course of these reasons as they are plainly beyond the statutory jurisdiction of this Court: Amended statement of claim filed on 22 January 2019, paragraphs 5 – 11.

12. The remainder of the respondent plaintiff’s amended statement of claim purports to plead material facts (second mentioned paragraph 11 – paragraph 20) and purports to particularise the conduct complained of in relation to seven named individuals represented by the defendant, variously alleging against them, that they acted invalidly, that they acted with deliberate malice and bad faith towards the respondent plaintiff in various respects (paragraphs 21 – 22), and that they were in alleged breach of a claimed duty of care and relevant statutory provisions (s 312, s 319, s 317 (sic), s 337 of the Crimes Act 1900 (NSW), s 2A of the Crimes (Administration of Sentences) Act 1999 (NSW) and in alleged breach of related regulatory provisions, as set out in paragraph 28 of the amended statement of claim. The respondent plaintiff also alleges breaches of Corrective Services Codes, case management guidelines, provisions relating to the supervision of offenders, pre-sentence assessment codes and ethical guidelines: Amended statement of claim, paragraphs 29 – 32.

Evidence relied upon at the hearing of the motion

13. The applicant defendant relied upon two affidavits respectively affirmed by Ms Amy Simpson, solicitor, on 14 and 27 February 2019. Those affidavits annexed relevant correspondence that has passed between the Crown Solicitor’s Office and the respondent plaintiff. Those affidavits also annexed other and as yet unfiled iterations of the respondent plaintiff’s amended statement of claim. Those further versions are not the subject of the present notice of motion. No oral evidence was called by the respondent plaintiff concerning the issues raised. This position arose because it appears that he was under the misapprehension that his written submissions may have constituted evidence.

Submissions of the applicant defendant

14. The applicant defendant’s written submissions succinctly focussed on the provisions of s 67 of the Civil Procedure Act that provides the Court with a broad discretion to permanently stay proceedings as an abuse of process, as well as the strike out or dismissal remedies provided by UCPR r 13.4 and r 14.28: MFI “1”.

15. In those written submissions the applicant defendant argued that the respondent plaintiff’s pleading disclosed no reasonable cause of action, also describing the claims made as vague, lacking in particularity, and containing embarrassing and frivolous assertions that do not comply with the particularisation provisions of UCPR r 15.5(2) requiring a statement of the material facts and circumstances which constitute each alleged breach. Those submissions also assert the plaintiff’s pleading is in conflict with the overriding purpose referred to in s 56 of the Civil Procedure Act.

16. Accordingly, the applicant defendant submitted that the proceedings should be dismissed pursuant to UCPR r 13.4(1), or alternatively, that the proceedings should be struck out pursuant to UCPR r 14.28.

17. In argument, counsel for the applicant defendant conceded that in the event of a finding that the plaintiff could identify a glimmer of a justiciable cause of action in his pleading then the remedy of a strike out would be inappropriate: T13.47 – T14.5.

Submissions of the respondent plaintiff

18. The respondent plaintiff’s extensive and complicated written submissions comprised 36 pages: MFI “2”. In those submissions he acknowledged that some misnumbering had appeared in his filed amended statement of claim. There has been correspondence between the parties about this, and other matters. The respondent plaintiff did not seek to tender the material he relies upon for the purpose of argument. The only matters tendered by him were various statutory provisions and references to other decided cases.

19. The respondent plaintiff complains that the brevity of his amended statement of claim occurred as a result of the solicitor for the applicant defendant encouraging him to take that approach. He states that irrespective of those matters, the State of New South Wales has been on notice of his complaints for a considerable period of time. Be that as it may, he now seeks the opportunity to re-plead his claim, arguing that the interests of justice would not be served if his claim were to be struck out at this stage.

20. The respondent plaintiff’s written submissions comprised multiple parts: Part A, an Introduction, Part B purports to respond to the written submissions relied upon by the State of New South Wales, Part C outlines that the respondent plaintiff intends to prove a series of alleged instances of misfeasance of public office, including “targeted” malice, on the part of named persons employed in the public service of the Crown, allegedly causing high levels of distress, psychological evidence of which was said to be “available on request”, Part D seeks to raise a claim of negligence and breach of statutory duty by various persons employed by the Crown. In his responses, he made arguments that responded to the individually numbered paragraphs of the applicant defendant’s written submissions that comprised MFI “1”.

21. The respondent plaintiff’s lengthy responses indicate that he does not understand the requirement that he must properly plead material facts and the related need to provide proper particulars. Other parts of his written submissions which seek to rely on a “Constitutional basis of writs of mandamus” indicate that he does not understand the jurisdictional limitations that preclude the availability of prerogative relief of the kind he seeks in this Court.

22. Many of the submissions made by the respondent plaintiff have a misconceived legal basis, particularly on questions concerning which party bears a relevant onus of proof on various issues.

23. Other submissions made by the respondent plaintiff which make allegations about misfeasance concerning public officers proceed on erroneous assumptions, and fail to distinguish between who should be considered to be a “public officer” and someone employed by the Crown, thereby apparently misinterpreting a relevant authority on that question: Obeid v Lockley [2018] NSWCA 71, at [103], [114]-[115], [206], [208].

24. In my view, for present purposes, it is unnecessary and unreasonable to engage in a more detailed analysis of all of the respondent plaintiff’s misguided and irrelevant statements that appear in MFI “2” concerning alleged misfeasance and malice on the part of the persons named in his pleading.

25. The respondent plaintiff’s submissions end with the following statement:

“In other words, the Court must ask: did the officers have good reason for making the many breaches that they did. If not, then their actions were, literally, unreasonable, and they breached their duty of care and acted negligently, with the foreseeable and abovementioned harm.”

[MFI “2”, p 34]

26. A submission along those lines might conceivably arise at a trial if justifiable, following the closure of evidence. However, the respondent plaintiff’s submissions reveal patent misunderstandings as to the function of pleadings, particulars, evidence and matters involving the onus of proof on various issues. At this interlocutory stage a level of abstract analysis is required to seek to ascertain whether the respondent plaintiff has identified a justiciable cause of action.

27. In oral argument the respondent plaintiff sequentially addressed the descriptors of vexatiousness, frivolity, embarrassing, and an abuse of process, and whether he had reasonable causes of action to plead, and he argued the proceedings should not be disposed of summarily on account of those factors: T25.35 – T30.25.

Legal principles concerning summary dismissal

28. A party is not to be denied the opportunity of litigating a case unless it can be clearly demonstrated that there is no justiciable cause of action: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, at pp 129-130.

29. In considering whether summary dismissal of proceedings is warranted, the absence of a real question of fact or law to be tried must be very clearly demonstrated: Dey v Victorian Railways Commissioner (1949) 78 CLR 62; [1949] HCA 1.

30. A pleading of a purported claim must be evaluated so as to ensure that if a slender foundation is established for the claim made, that claim should not be summarily dismissed: Cox v Journeaux (1935) 52 CLR 713; [1935] HCA 48, p 720.

31. The prima facie position must be that a litigant is entitled to have a claimed cause of action go to trial. A summary dismissal of a claim must only occur in the clearest of cases: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937, p 944.

32. Although at times courts have given some latitude to self-represented litigants regarding incomplete compliance with procedural rules, there must be limits to such latitude: Dickens (a pseudonym) v State of New South Wales [2018] NSWCA 222.

33. In cases which seek to plead novel or unusual causes of action, some allowance must be made for the possibility that some elements of the claims sought to be made might succeed, in which case a plaintiff should not be denied the opportunity to pursue them: Cleary v Jeans [2006] NSWCA 9, at [41]; Paramasivam v Flynn (1998) FCR 489, at 70; Mohareb v Kelso [2017] NSWCA 98, at [33].

Legal principles concerning defective pleadings

34. The primary position must be that a pleaded claim must disclose a cause of action and comply with the procedural rules concerning pleadings and particulars: UCPR r 15. In cases of patently deficient pleadings, a party in default must be given a reasonable opportunity to rectify a deficient pleading by filing an appropriately amended document, but such opportunities must have limits: Dickens (a pseudonym) v State of New South Wales [2018] NSWCA 222, at [11].

35. In Dickens (a pseudonym), at [10], the Court of Appeal cited a convenient statement by Tamberlin J as to what constituted an embarrassing pleading: Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393, at [18] as follows:

“‘Embarrassment’ in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense.”

36. Also in Dickens (a pseudonym), at [11], the Court of Appeal cited the following observations of Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd [2012] VSCA 97, at [36] as follows:

“[A] self-represented litigant cannot be allowed forever to stand behind the shield of his own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the court’s already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices …”

37. I will take guidance from those authoritative statements in determining the issues raised in the present notice of motion.

Legislation

38. The relevant legislative provisions are as follows:

1. Section 56 of the Civil Procedure Act, which identifies the overriding purpose of the Act and the rules of court as being to facilitate the just, quick and cheap resolution of the real issues in dispute;

2. Section 57 of the Civil Procedure Act identified the guiding case management principles for the management of civil proceedings;

3. Section 58 of the Civil Procedure Act identifies the dictates of justice as the guiding principle for applying the Act and the rules in deciding matters of a procedural nature;

4. UCPR r 13.4 provides for summary dismissal of proceedings;

5. UCPR r 14.28 provides for strike out of proceedings;

39. I now turn to consider the issues calling for determination in this notice of motion.

Determination

40. The required determination involves consideration of the deficiency of the respondent plaintiff’s amended statement of claim, the application of UCPR r 13.4 and r 14.28, and some case management consideration as contemplated by s 61 and s 63 of the Civil Procedure Act.

Consideration of the pleadings

41. At the outset, it must be recognised that the amended statement of claim, in its present form, is in substantial part, an afflicted document. That description also applies to the presently identified proposed further iterations of it that have been the subject of correspondence between the parties. It contains inadequately particularised assertions decorated with expressions framed in legalese citing some statutory provisions.

42. That said, it must also be recognised that the proceedings are at this point at a very early stage, and the respondent plaintiff is self-represented. In my view, the procedural point has not yet been reached in these proceedings which might otherwise attract the application of the following statement cited at [12] in Dickens (a pseudonym):

“… By repeatedly filing pleadings which do not comply with the UCPR, the plaintiff is abusing the processes of the Court. In effect, the plaintiff is demanding that the Court and the defendant work out his causes of action for him and endeavouring to cast an onus on the defendant to prove that there is nothing in the morass of inconsistent allegations that might ground a cause of action which might afford him no relief. It is no part of the Court’s function to provide a litigant with legal advice. Nor is the Court to ‘settle’ a defective pleading so as to remove the dross to expose and craft the allegations which might amount to a reasonable cause of action. In effect, the plaintiff is seeking to have the Court require the first defendant to plead to a claim which, because of its form, is not susceptible of a proper response in a defence.”

43. In my assessment, taking into account the dictates of justice as is required by s 58 of the Civil Procedure Act, the respondent plaintiff should be given the opportunity to re-plead his claimed causes of action in proper form in compliance with the applicable procedural rules. Other than to strongly encourage him to seek appropriate legal assistance with that task, it would be inappropriate and outwith the remit of the Court to advise him any further in that regard.

Consideration in terms of UCPR r 13.4

44. Paragraphs 5 – 11 of the respondent plaintiff’s amended statement of claim must be struck out as they raise matters that are outwith the jurisdiction of this Court and they cannot be maintained. They amount to an abuse of the process of the Court: UCPR r 13.4(1)(c). Only the Supreme Court has the power to grant the prerogative relief of the kind sought by the respondent plaintiff in those paragraphs: s 69 of the Supreme Court Act 1970 (NSW).

45. The remainder of the respondent plaintiff’s amended statement of claim in its present form has identified the heads of claim of alleged negligence, alleged breach of statutory duty, alleged malicious infliction of harm and alleged misfeasance of public office. At this stage, the evidence in support of those allegations is scant. However, on the material available, it cannot be reasonably said that the claims should be seen to be entirely bereft of prospects of success and so clearly hopeless as to warrant dismissal of the proceedings pursuant to UCPR r 13.4; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69; Dey v Victorian Railways Commissioner (1949) 78 CLR 62; [1949] HCA 1.

46. Consequently, the respondent plaintiff should be allowed the further opportunity of properly re-pleading the remainder of his claimed causes of action that are not struck out so as to identify the pleaded material facts, the specific duty of care claimed and the alleged breaches, including proper compliance with the requirement to provide proper particulars as required by Part 15 of the Uniform Civil Procedure Rules.

Consideration in terms of UCPR r 14.28

47. At this point it cannot be said that the proceedings are frivolous, vexatious, not disclosing of a cause of action, or otherwise an abuse of the process of the Court, save for the jurisdictional conclusion stated at [44] above.

48. As already identified, at [44] above, paragraphs 5 – 11 of the amended statement of claim must be struck out in their entirety. That is because the claim for that prerogative relief in this Court is embarrassing and abuse of the process of the Court: UCPR r 14.28(1); Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393, at [18].

49. It follows that the remaining elements of the respondent plaintiff’s amended statement of claim survive for the time being pending re-pleading. Accordingly, the relief sought by the applicant defendant pursuant to UCPR r 14.28 to strike out the proceedings should be refused.

Case management considerations

50. This Court is frequently tasked with considering claims brought by self-represented litigants. Whilst the respondent plaintiff seems content and able to articulate his legal arguments according to his level of understanding of such matters, the need for proper pleadings requires a greater degree of legal skill than that which has been applied in formulating the amended statement of claim either as filed or as redrafted in the form that is in evidence as an annexure to the affidavit of Ms Simpson.

51. The evidence does not reveal the respondent plaintiff’s means or a lack of means. I encourage him to seek some focussed legal assistance, whether paid, or legally aided, or pro-bono, to review the evidence on which he relies in order to enable a rules compliant further amended statement to be pleaded. The working draft that he apparently intends to rely upon is not in a competent form, and if filed, would only invite a further strike out application.

52. In the circumstances, the proceedings should be the subject of a case management review by the Judicial Registrar about 8 months hence to examine the then current state of the pleadings and to determine what if any further directions should be made, other than that which now follows.

53. Within 90 days the respondent plaintiff should file and serve witness statements containing subject headings and sequentially numbered paragraphs in compliance with UCPR r 31.4, to identify the evidence-in-chief he intends to adduce from himself and from any other witnesses to be called in the proceedings. Those statements should be cross-referenced to any documents that he seeks to tender in evidence at a hearing.

54. At the same time of serving such witness statements, the respondent plaintiff should also serve a paginated and tabbed indexed bundle of copies of any documents he intends to tender into evidence at a trial of the proceedings.

55. The applicant defendant will then have the opportunity of determining whether any further interlocutory relief should be sought, or whether instead, to take the matter to a trial on the disclosed material.

56. If the applicant defendant chooses to take the latter course, it too should file and serve its evidence-in-chief, if any, in the form of witness statements, within 60 days of receipt of evidence in the form of witness statements sought to be relied upon by the respondent plaintiff. At the time the applicant defendant serves those witness statements, the applicant defendant should also serve a paginated, tabbed and indexed bundle containing copies of any documents it intends to tender into evidence at a trial of the proceedings.

57. Given the complex nature of this case, and the potential for it to require significant allocation of court resources, in the interest of facilitating a just, quick and cheap resolution of the matters in dispute, I consider that the dictates of justice require that the parties should be compelled to proceed to a formal mediation: s 26, s 56 and s 58 of the Civil Procedure Act.

58. Given the imbalance of resources between the parties, in the orders that I will make, I propose to take a practical course regarding that mediation, and that course will be reflected in my orders.

Disposition

59. Paragraphs 5 – 11 of the plaintiff’s amended statement of claim filed on 22 January 2019 should be struck out. The balance of the applicant defendant’s notice of motion filed on 15 February 2019 should be dismissed. The plaintiff should be granted leave to file a further amended statement of claim that is compliant with the pleading and particularisation requirements of the Uniform Civil Procedure Rules 2005. The evidence-in-chief of any witnesses should be by way of signed witness statements, either on oath or affirmed, cross-referenced to appropriately organised bundles of any documentary evidence. The parties are required to proceed to a mediation of the matters of dispute between them as raised in these proceedings.

Costs

60. The applicant defendant was justified in bringing this notice of motion because of compliance deficiencies evident in the respondent plaintiff’s amended statement of claim. This has resulted in the applicant defendant justifiably incurring legal costs which ought not have been otherwise incurred if the respondent plaintiff had complied with the fundamentals of the rules for pleadings and particularisation.

61. In this context, there is no scope for excusing the respondent plaintiff from liability to pay those incurred costs because his pleadings are deficient and non-compliant with relevant rules for pleadings and particulars. Those rules have multiple functions, including defining the boundaries of litigation in the interests of justice between the parties, as well as ensuring efficient use of court time, which is a limited public resource.

62. On account of those factors, I consider that the applicant defendant’s legal costs of this notice of motion should be paid by the respondent plaintiff on the ordinary basis unless a party is able to demonstrate a basis for some other costs order.

63. As to the costs of a mediation, the parties should bear that cost equally, but in the interim, given the apparent imbalance of resources between the parties, pending resolution of the proceedings, the applicant defendant should pay those costs in their entirety subject to later reimbursement by the respondent plaintiff as to half of those costs.

Orders

64. I make the following orders:

1. Pursuant to UCPR r 13.4 and r 14.28, paragraphs 5 – 11 of the respondent plaintiff’s amended statement of claim filed on 22 January 2019 are struck out;

2. The remainder of the applicant defendant’s notice of motion filed on 15 February 2019 is dismissed;

3. The respondent plaintiff is to file and serve a further amended statement of claim within 60 days of today’s date and in a form that complies with the pleading and particularisation requirements of the Uniform Civil Procedure Rules 2005;

4. The respondent plaintiff is to pay the applicant defendant’s costs of the notice of motion filed on 15 February 2019 on the ordinary basis unless otherwise ordered;

5. The exhibits and affidavits read, and the documents marked for identification in this interlocutory application, are to be retained in the court file;

6. Pursuant to UCPR r 31.4, within 90 days of today’s date, the respondent plaintiff is to file and serve all evidence-in-chief upon which he intends to rely at trial, in the form of signed witness statements that are set out in sequentially numbered paragraphs with subject headings, cross-referenced to a tabbed and indexed bundle of copies of any documents which he intends to tender at the hearing, such documents to be served at the same time as the witness statements;

7. Pursuant to UCPR r 31.4, within 60 days of the applicant defendant being served with the witness statements and documents the subject of Order (4) above, the applicant defendant is to file and serve all evidence-in-chief upon which it intends to rely at trial, in the form of signed witness statements that are set out in sequentially numbered paragraphs with subject headings, cross-referenced to a tabbed and indexed bundle of copies of any documents which it intends to tender at the hearing, such documents to be served at the same time as the witness statements;

8. Pursuant to s 26 of the Civil Procedure Act 2005, within 30 days of the completion of the tasks required by Orders (6) and (7) above, the parties are to agree upon the appointment of a named mediator and attend at a mediation of these proceedings at a time that is mutually convenient to the parties and the appointed mediator, and they are to comply with the reasonable directions of that mediator, and make bona fide attempts to seek a consensual resolution of these proceedings, and in that regard, should it be thought necessary, the mediator may approach the Court for appropriate directions to facilitate these orders;

9. Pursuant to s 26 of the Civil Procedure Act 2005:

1. The parties are to bear the cost of the mediator and the cost of the mediation equally, but in the event the proceedings remain unresolved at the conclusion of the mediation, and subject to any other agreement that may be reached between the parties, those costs are to become costs in the cause at the time when the proceedings are finalised;

2. Until the finalisation of the proceedings, in the interests of seeking a just, quick and cheap resolution of the proceedings, the applicant defendant is to pay the costs of the mediator in the interim;

3. If the parties are unable to agree on the appointment of a mediator the matter should be listed by arrangement with my Associate for the purpose of the Court appointing a mediator;

10. Pursuant to s 61 and s 63 of the of the Civil Procedure Act 2005, if within 60 days of the completion of the matters required by Orders (6) and (7) above, the parties have not agreed upon the appointment of a mediator and a date for mediation in accordance with Order (8) above, the parties are to each nominate two mediators and the Judicial Registrar is to be approached to choose a mediator from those nominated persons;

11. In the event of any non-compliance with these orders, within 14 days of such non-compliance, the applicant defendant is to notify the Court of such circumstances and seek the appointment of a directions hearing to review and remedy any such non-compliance;

12. Liberty to apply on 7 days notice if further or other orders are required.

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Decision last updated: 29 April 2019