| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : VAN LIESHOUT -v- PUBLIC ADVOCATE WA [2013] WADC 92 CORAM : FENBURY DCJ HEARD : 20 MAY 2013 DELIVERED : 12 JUNE 2013 FILE NO/S : CIVO 199 of 2012 BETWEEN : TERESA VAN LIESHOUT Plaintiff
AND
PUBLIC ADVOCATE WA
Defendant
Catchwords: Civil procedure - Strike out and summary judgment application - Turns on own facts Legislation: Defamation Act 2005 s 27
Public Interest Disclosure Act 2003
Restraining Orders Act 1997 s 25 Result: Judgment for the defendant
(Page 2) Representation: Counsel:
Plaintiff : No appearance
Defendant : Ms R Young (instructed by Paxman & Paxman)
Solicitors:
Plaintiff : Not applicable
Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Seven Network Ltd v News Ltd (4) (2005) 214 ALR 686
(Page 3)
1 FENBURY DCJ: The Public Advocate has filed a chambers summons dated 2 April 2013 seeking a number of orders relating to an originating summons filed by Ms van Lieshout dated 19 November 2012.
2 The orders sought were that: (1) The defendant have leave to bring a strike out application and a summary judgment application. (2) The originating summons dated 19 November 2012 be struck out pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) on the grounds that the claim: (3) Alternatively, the originating summons dated 19 November 2012 be summarily dismissed pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) on the grounds that: (4) The plaintiff's claim be dismissed. (5) The plaintiff pay the defendant's cost of the action 3 The hearing of the chambers summons was set down for 10.30 am on Monday 20 May 2013, as a special appointment. 4 Ms van Lieshout failed to appear at the hearing. 5 The court was advised by counsel for the Public Advocate that Ms van Lieshout knew of her hearing date and had left a message at the Public Advocate's reception on the morning of the hearing that she was unable to attend. Having regard to the nature of the application, the history of the matter, previous correspondence from Ms van Lieshout, the events at previous hearings and the contents of the O 59(9) memorandum, the court decided it was expedient to proceed with the hearing in her absence (ts 69, 70; O 58 r 22(1)). 6 It is noted that after the hearing had concluded and the court adjourned reserving its decision an email was received from Ms van Lieshout seeking that the hearing be adjourned to another day. (Page 4)
7 The originating summons was filed and issued on 19 November 2012 by Ms van Lieshout personally. Simultaneously a document was filed described as 'Application to cancel VRO Order, Application to transfer case PE677/12 to District Court, WA'. The applications contained in this last mentioned document have already been determined by Scott DCJ on 19 December 2012. His Honour dismissed both applications with costs. That event was followed by a torrent of personal abuse in correspondence from Ms van Lieshout. 8 The originating summons contains five paragraphs which are in the following terms: 1. The defendant, and their supporters, are engaging intentionally in cruelty, torture, malice, injustice, and defamation against the plaintiff, and plaintiff's brother David, and the plaintiff's family, as outlined in attached application. 2. The case PE677/12 requires transferring to a superior court, under section 39, Magistrates Court (Civil Proceedings) Act 2004, for the plaintiff to apply for DAMAGES, is outside the Magistrates Courts jurisdiction, and should be dealt with by the superior court because of its complexity, and because of law involved [sic]. 3. The defendant and their supporters are subjecting the plaintiff to acts of victimisation, under sections 14 and 15, Public Interest Disclosure Act 2003. 4. The defendant's summary of evidence in PE677/12 Vinnie Hoe, is full of fraud, defamation, and cruelty. The defendants and their supports [sic] have engaged in ongoing cruelty against the plaintiff since December 2011. 5. As the psychiatrist drugging my brother David to death with chemical compounds is a foreign psychiatrist, Vinnie Hoe (witness in PE 677/12), it is possible she is in breach of the Health Practitioner Regulation National Law (WA) Act 2010, and the Poisons Regulations 1965, by continuing to administer drugs. Helen Morton (current Minister Mental Health), Liliana Ravlich (opposition Minister Mental Health) and the State Solicitor's Office of WA have confirmed, only specialist psychiatrists registered by the Medical Board of Australia, can lawfully practice. Helen Morton confirmed, the State Solicitor's Office advised overseas qualified psychiatrists have not been properly registered, mean they have no power to detain people in voluntary or supervised community treatment orders. Morton also conceded this left foreign psychiatrists exposed as individuals to accusations of assault or deprivation of liberty. (Page 5)
9 It can be seen that Ms van Lieshout sets out in the pages supporting her 'application' to cancel the VRO order and transfer the action to the District Court, various matters that relate to issues raised in the originating summons. Before dealing further with the matter I have some concerns whether it is appropriate for these proceedings to be initiated by originating summons at all. Order 58 of the Rules of the Supreme Court 1971 at r 1 states: Subject to the provisions of any Act and of these rules, civil proceedings between parties, which may be heard in chambers, must be commenced by originating summons. 10 As identified by counsel for the defendant, upon the basis that Ms van Lieshout is seeking to make a claim for damages for defamation and, apparently, in the alternative, damages for some form or assault or physical mistreatment, or perhaps fraud, then it would seem such proceedings could not be heard in chambers and must be commenced by writ. This point was not taken during the hearing. 11 I do not think a detailed analysis of this matter is required. 12 In short the basis of Ms van Lieshout's claim for damages and defamation, at its highest, arises out of an application for the making of a violence restraining order against her in the Magistrates Court. 13 Ms van Lieshout is incensed by some of the material provided to the magistrate who heard the application, granted it and made the order. 14 Section 25(2) of the Restraining Orders Act 1997 states: 15 That was the situation in this case. The person to be protected was Ms van Lieshout's brother David van Lieshout. The person bringing the application is the Public Advocate WA who is David van Lieshout's guardian. 16 It is to be noted that the application is brought before the Magistrates Court which is, obviously, an Australian court. (Page 6)
17 Section 27(1) of the Defamation Act 2005 states: It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege. 18 Section 27(2) says: 19 Clearly therefore Ms van Lieshout's claim for damages as a result of alleged defamation of her in the violence restraining order proceedings is expressly dealt with in the Defamation Act. She has no reasonable cause of action and cannot succeed. 20 So far as the other claims are concerned there is a theme running through Ms van Lieshout's statement of claim that she alleges her brother David is the subject of 'cruelty, torture, malice, victimisation, drugging' and so on. 21 David van Lieshout is a person for whom a guardianship order has been made as I have mentioned. It is therefore incompetent for Ms van Lieshout to purport to or seek to bring an action on his behalf. Only his guardian can do that. Similarly, the claim discloses no reasonable cause of action. 22 The allegations Ms van Lieshout makes in her claim about mistreatment of her brother are ill-conceived and she cannot succeed in this action. (Page 7)
23 It is also apparent that Ms van Lieshout alleges that the defendant has engaged 'intentionally in cruelty, torture, malice, injustice etc,' of herself. It is very unclear what she meant. Perhaps it is suggested Ms van Lieshout was unlawfully assaulted personally by some person involved in the care of her brother. If that is what Ms van Lieshout means there is no material in the papers upon which to ponder such an assertion. Ms van Lieshout's focus throughout the materials filed is upon alleged mistreatment of her brother. 24 In my view the allegation discloses no reasonable cause of action and cannot succeed and as part of the claim should be dismissed. If there were any substance at all in a claim for damages for unlawful assault such an action must be commenced by writ. 25 Ms van Lieshout also alleges some lack of compliance with the Public Interest Disclosure Act 2003 in par 3 of the originating summons. I agree with counsel's submission that Ms van Lieshout has misconstrued the ambit of the statute. Counsel pointed out that there was a test of reasonableness required in the Act that must be applied to Ms van Lieshout's belief as to the information allegedly being disclosed. But in any event counsel submits that there is no basis upon which a court could find that Ms van Lieshout would have reasonable grounds upon which she could then bring a claim under the Public Interest Disclosure Act. There is a test of appropriateness and a test of reasonable grounds and I agree with counsel that those tests are not satisfied on the documentation. 26 It follows that I do not think there is any substance nor any reasonable cause of action in the matters raised by Ms van Lieshout in these proceedings. The power to order summary judgment in the circumstances is to be exercised with great care, I realise, and should not be exercised unless it is clear that there is no real question to be tried. It is only in a very clear case that the summary intervention of the court will be justified because litigants are not to be deprived of the right to submit genuine controversies for determination. See for example Seven Network Ltd v News Ltd (4) (2005) 214 ALR 686 [14], Sackville J. 27 In my view however the circumstances of this case justifies granting the application and making an order for summary judgment in favour of the defendant because in my view this is a clear case that the intervention of the court is justified. 28 I refer to the orders sought in the chamber summons. (Page 8)
29 By reference to par 1, I order that: 1. The defendant have leave to bring the strike out application and summary judgment. 2. The originating summons dated 19 November 2012 be struck out pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 on the grounds that the claim discloses no reasonable cause of action. 3. The plaintiff's claim is dismissed. 4. The plaintiff pay the defendant's costs of the action to be taxed if not agreed.
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