Watiwat v Dixon

[2017] NSWSC 360

Supreme Court

New South Wales

Medium Neutral Citation:	Watiwat v Dixon [2017] NSWSC 360
Hearing dates:	29 March 2017
Date of orders:	29 March 2017
Decision date:	07 April 2017
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1. The Amended Statement of Claim filed 10 February 2017 be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). 2. Plaintiff have leave to file a Further Amended Statement of Claim that complies with the rules in the UCPR as to pleading on or before 10 May 2017. 3.   Order Plaintiff to pay Defendant’s costs of the Amended Notice of Motion filed 9 February 2017. 4.   Re-list the matter in the Equity Registrar’s List for further directions on 11 May 2017.
Catchwords:	PRACTICE AND PROCEDURE – pleading – striking out – whether pleading discloses no reasonable cause of action, has a tendency to cause prejudice or embarrassment, or is otherwise an abuse of process –pleadings struck out with leave to replead
Legislation Cited:	Australian Consumer Law, ss 20, 21, 236, 224, 225 Bankruptcy Act 1966 (Cth), ss 58, 73, 263A, 263B Competition and Consumer Act 2010 (Cth), Sch 2 Conveyancing Act 1919 (NSW), s 66G Criminal Procedure Act 1986 (NSW), ss 14, 49, 174 Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited:	Arthur Young v Tieco International (1999) 182 LSJS 367 Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475 Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81 Bruce v Odhams Press Ltd [1936] 1 KB 697 Collier v Country Women’s Association of New South Wales [2016] NSWSC 1631 Collier v Country Women’s Association of New South Wales [2017] NSWCA 22 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Eliezer v The Owners – Strata Plan No 51682 [2017] NSWSC 278 Gunns Ltd v Marr [2005] VSC 251 Ingot Equity Capital Markets Pty Ltd v Macquarie Equity Capital Investments Ltd [2004] NSWSC 1136 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206 Little v Law Institute of Victoria (No 3) [1990] VR 257 Northam v Favell Favco Holdings Pty Ltd (Supreme Court (NSW) 7 March 1995 unrep) Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 Shelton v National Roads and Motorist Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 Thorp v Holdsworth [1876] 3 Ch D 637 Willers v Joyce [2016] UKSC 43 Wilson, in the matter of Wilson v Official Trustee in Bankruptcy [2000] FCA 1251
Category:	Procedural and other rulings
Parties:	Bienvenido S Watiwat (Plaintiff) Steven Robert Dixon (First Defendant) Winie Leung (Second Defendant) Carlos Vincenzo (Third Defendant) Lion Finance Pty Ltd (Fourth Defendant)
Representation:	Counsel: Plaintiff – self-represented R A Parsons (First, Second, Third and Fourth Defendants)   Solicitors: CLH Lawyers (First, Second, Third and Fourth Defendants)
File Number(s):	2016/00310747
Publication restriction:	Nil

Judgment

1. HER HONOUR: By amended notice of motion filed 9 February 2017, the defendants have sought an order that the proceedings commenced by the plaintiff (Mr Watiwat) be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on the basis that the amended statement of claim discloses no reasonable cause of action, has a tendency to cause prejudice or embarrassment, and is an abuse of process of the Court. It was made plain by Counsel for the defendants that they were not seeking dismissal of the proceedings, simply the striking out of the amended statement of claim and would not oppose the grant of leave to replead.

2. I heard the application on 29 March 2017 and made orders on that day striking out the amended statement of claim filed 10 February 2017 by Mr Watiwat but granting leave to Mr Watiwat to file, on or before 10 May 2017, a further amended statement of claim that complied with the UCPR as to pleadings. I indicated that I would provide written reasons for that decision. These are those reasons.

Background

3. The background to the present application may be gleaned from the amended statement of claim and from affidavits affirmed by the first defendant (Mr Stephen Dixon) in support of the strike-out application, an affidavit sworn by the corporate’s solicitor for the fourth defendant (Mr Justin Flaherty), and affidavits affirmed by Mr Watiwat on 17 November 2016 and 1 December 2016 which were filed by him in opposing the strike-out application.

4. The underlying dispute relates to the steps taken in relation to the bankruptcy of the plaintiff’s wife (Ms Bernardita Watiwat) in 2010. Mr Dixon was appointed trustee of Ms Watiwat’s bankrupt estate. The second and third defendants are individuals involved in the administration of Ms Watiwat’s bankrupt estate.

5. The fourth defendant, Lion Finance Pty Ltd (Lion Finance) was the petitioning creditor which applied for the making of sequestration orders in relation to Ms Watiwat based on a default judgment obtained by it in the sum of $12,750.54. Its business includes the purchase of book debts including defaulted credit card debts (see affidavit of Mr Justin Flaherty sworn 30 January 2017 at [2]). In addition to the default judgment sum, Lion Finance claimed the sum of $754.54 in post-judgment statutory interest on the debt (Mr Dixon’s affidavit at [22(d)]). Lion Finance was awarded fixed costs of $4,752.10 on the sequestration application (Mr Dixon’s affidavit at [22(e)]).

6. Subsequently, Lion Finance lodged three further proofs of debt (Mr Dixon’s affidavit at [25]). In all, it claimed $28,559.00 in those proofs of debt. The debts purchased by Lion Finance and claimed in the proofs of debt were debts claimed to be owing variously to Westpac Banking Corporation, American Express, ANZ Bank and GE Finance (see Mr Flaherty’s affidavit at [3]).

7. Ultimately, orders were made for the sale of the Watiwat family home under a statutory power of sale.

8. Mr Flaherty has deposed that Lion Finance did not receive any dividend as an unsecured creditor of Ms Watiwat’s bankrupt estate and wrote off each of the debts (Mr Flaherty’s affidavit at [8]) but that it did receive the sum of $4,752.10 in satisfaction of the order for payment of its costs as petitioning creditor (Mr Flaherty’s affidavit at [7]).

9. Ms Watiwat was later discharged from bankruptcy in June 2014. The present proceedings were commenced by Mr Watiwat in 2016.

Plaintiff’s claims

10. In an affidavit affirmed 10 February 2017 by Mr Watiwat, he identified the following issues as those on which judgment is sought by him in these proceedings:

(a)   Unconscionable Conduct of Lion Finance Pty Ltd – Targeting A Person of special Disadvantage;

(b)   Unconscionable Conduct of the Bankruptcy Trustees – Abuse of fiduciary duties;

(c)   Malicious Prosecution to Obtain a Sale of Property;

(d) Bankruptcy Law Violations involving Section 73 and Section 58;

(e)   Criminal Law Violation – Theft of Monies in Trust;

(f)   Ethics violations by the Trustee and Associates per APS 12 and GPD 14.

11. The amended statement of claim, in the section headed Pleadings and Particulars, contains three headings: “Unconscionable Conduct - Targeting a Person of Special Disadvantage”; “Abuse of Power/Unconscionable Conduct - Bankruptcy Trustee and Associates”; and “Malicious Prosecution”. I will return to the allegations set out under those headings shortly.

12. At [14] of the amended statement of claim, the relief claimed by Mr Watiwat is quantified as follows:

Replacement Property current market est. average    $1,7000,000.00 [sic]

Interest (01Dec2016 – 09Feb2017) See schedule    40,503.01

Court fees (Suspended Fee)    1,078.00

Damages:

Forced Bankruptcy – Plaintiff   $500,000.00

Forced Bankruptcy – Wife   500,000.00

Loss of income – plaintiff   500,000.00

Loss of Co. Plaintiff   500,000.00

$2,000,000

Total claim    $3,741,581.01

13. On page two of the amended statement of claim, under the heading Relief Claimed, Mr Watiwat also identifies the following relief:

3   The defendant company pay the Government the penalty for    Unconscionable conduct

4   The defendants (individuals) each pay the Government the penalty for    Unconscionable conduct.

14. The complaint made by the defendants is, in substance, that the amended statement of claim fails to plead the material facts on which any reasonable cause of action is disclosed. The defendants have also raised a potential jurisdictional issue that may arise if Mr Watiwat’s claim (if properly pleaded) were to extend to a claim for orders in relation to the supervision of the conduct of the bankruptcy trustee. That need not here be addressed.

Relevant legal principles

15. Before addressing what is presently pleaded, I set out the relevant legal principles.

16. In Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Mason CJ and Gaudron J noted (at [18]) that the function of pleadings is:

… to state with sufficient clarity the case that must be met … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.

17. That passage was cited with approval by Ipp JA in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206 at [422]. Much earlier, Jessel MR, in Thorp v Holdsworth [1876] 3 Ch D 637 had said (at 639):

The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules … was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.

18. In Arthur Young v Tieco International (1999) 182 LSJS 367 (which was approved by McDougall J at first instance in Ingot Equity Capital Markets Pty Ltd v Macquarie Equity Capital Investments Ltd [2004] NSWSC 1136 at [46]), Lander J said (at 670) that a Court ought to approach a consideration of the adequacy of a pleading by seeking to answer the ultimate question whether the pleading gives fair notice of the case to be made against the other party at trial, thus minimising the risk of injustice resulting from surprise.

19. What is required of a statement of claim under the UCPR is that it state all material facts, those being the facts which are necessary for the purpose of formulating a complete cause of action (see Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713). The requirement that all material facts constituting the cause of action be plainly stated in the pleading has been described as one of the plainest and most fundamental of all the rules of pleading (Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 at 75-76).

20. Rule 14.8 of the UCPR requires a pleading to be as brief as the nature of the case allows. Nevertheless it must be clear from the pleading what the cause of action is and the material facts upon which that cause of action is based.

21. Insofar as Mr Watiwat maintains that he has submitted all the documentary evidence for his claims (see T4.25), I note that in Northam v Favell Favco Holdings Pty Ltd (Supreme Court (NSW) 7 March 1995 unrep) Bryson J explained the unfairness to a defendant if the defendant is required “to flesh out general expressions or indirect allusions by piecing together information in other documents such as affidavits or experts’ reports”. It was essentially for that reason that leave was refused in Collier v Country Women’s Association of New South Wales [2016] NSWSC 1631 on an application to amend a statement of claim by the incorporation of a lengthy affidavit (an application for leave to appeal from which decision was refused in Collier v Country Women’s Association of New South Wales [2017] NSWCA 22).

22. What is meant by an embarrassing pleading, in the context of an application such as the present, relates to whether the pleading can serve the function of a pleading under the rules; i.e., whether it puts the defendant properly on notice of the real substance of the claim made against it and enables the defendant to know what case it is that the defendant has to meet. A pleading is embarrassing if it is unintelligible, ambiguous or imprecise in its identification of material factual allegations so as to deprive the opposing party of proper notice of the real substance of the claim or defence (Gunns Ltd v Marr [2005] VSC 251 at [14]-[15]) or if it contains inconsistent, confusing or irrelevant allegations (Shelton v National Roads and Motorist Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 at [18]).

23. With the above in mind, I turn to the manner in which the allegations are pleaded in the present case.

Unconscionable Conduct – Targeting a Person of Special Disadvantage

24. What is set out under the first heading in the body of the pleading is the following:

1.   Parramatta Magistrate Court Case number 110/10 General Division Ref. BEFR 46006223451 – Lion Finance Pty Ltd as Plaintiff. Case forced wife, Ms Watiwat into bankruptcy.

2.   Judgement amount on this proceeding was $12,750.54 – Virgin Credit Card Debt.

3.   Parramatta Magistrate Court Case Ref Number 511/10 – Amex credit card account bought in 2009 added to the court file via “Special Amendment” for $3,867.24.

4.   After forced bankruptcy, Lion Finance Pty Ltd bought another 2 debts; Ausie Credit (ANZ) and GE Money and claimed $7,000.00 and $4,500.00 respectively.

5.   Debts Purchased:

Before Bankruptcy Proceedings:   Virgin Credit Card   2007

American Express   2009

After Bankruptcy Proceedings:   ANZ (Ausie Credit)   2010

GE Finance      2011

25. The heading to this part of the pleading indicates that Mr Watiwat is seeking to maintain a claim of unconscionable conduct referable to the fact that Ms Watiwat was made bankrupt (“forced … into bankruptcy”) and, as part of that claim or in addition to that claim, the pleading refers to the purchase of debts by the petitioning creditor (some of which occurring after the bankruptcy proceedings).

26. Mr Watiwat does not identify whether this is a claim for breach of one or more of the statutory prohibitions on unconscionable conduct under ss 20 and 21 of the Australian Consumer Law (contained in Sch 2 of the Competition and Consumer Act 2010 (Cth)) or whether it is a claim based on the concept of unconscionable conduct under the equitable principles recognised by the courts (see, for example Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14). He does not identify who it is alleged is the person of “special disadvantage” (presumably it is he or his wife) nor what is alleged to be the special disadvantage (see, for example, Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81 at [9]). There is no pleading of what is alleged to have constituted any victimisation of the person alleged to have been under a special disadvantage (see Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 at [117]; [161]), assuming that is what Mr Watiwat means by the reference in his heading of this section of the pleading to “targeting” a person of special disadvantage. It should also be noted that whatever the circumstances of the transactions giving rise to the debts the subject of the proofs of debt lodged by Lion Finance in Ms Watiwat’s bankruptcy must presumably occurred prior to the involvement of Lion Finance (and the remaining defendants), since it acquired existing credit card debts.

27. Among other things, the failure to plead with precision the facts, matters and circumstances giving rise to the allegation that there was unconscionable conduct leads to the difficulty that it is not clear which one or more of the defendants is alleged to have engaged in the alleged unconscionable conduct – whether it is Lion Finance, which petitioned for Ms Watiwat to be made bankrupt and purchased the debts that were the subject of the proofs of debt lodged by it in her bankruptcy; Mr Dixon, who consented to be appointed as trustee in bankruptcy of her bankrupt estate; or the individuals who performed functions in relation to the administration of the bankrupt estate.

28. Furthermore, it is not apparent from the pleading how it is alleged that unconscionable conduct in relation to Ms Watiwat’s bankruptcy sounds in a claim for damages in favour of Mr Watiwat; nor how he has standing to bring any claim for damages on her behalf. (I note in this regard that s 236 of the Australian Consumer Law clearly envisions that the claimant is the person who has suffered loss or damage as a consequence of the impugned conduct. Unconscionable conduct engaged in towards Ms Watiwat would not give rise to a claim for damages under the Australian Consumer Law in favour of her husband.)

29. Paragraphs [1]-[5] thus do not plead with clarity the material facts necessary to sustain a claim for unconscionable conduct whether under statute or otherwise.

Abuse of Power / Unconscionable Conduct – Bankruptcy Trustee and Associates

30. Under the second main heading in the body of the pleading, it is alleged that:

6.   Bankruptcy trustee demanded $62,093.40 plus estimated costs. SOA total debt is $40,200.00. The $62,093.40 was attained by a couple of misrepresentations double counting Amex and GE accounts.

7.   Bank of Queensland credit card for $11,000.00 on the SOA was paid in August 2011 to Citibank when offered a substantially reduced amount. This was communicated with the Bankruptcy Trustees in September 2011 during negotiations for a payout.

8.   Bankruptcy Trustees ignored the Parramatta Magistrate Court judgement on Parramatta Magistrate Court Case 110/10 for $12,750.54 and replaced same using Case 511/10 to demand the amount of $18,257.75 for the Virgin Credit Card Debt. Parramatta Magistrate Court Case 511/10 is Amex debt added by way of “Special Amendment”.

9.   Effect transmission of 748A Property while negotiation by plaintiff to pay the debt is being carried out.

10. Breached Section 73 of the Bankruptcy Act when a dividend proposal was initiated by the plaintiff. This effectively breached s 58 when property was sold.

11.   Bankruptcy trustee took plaintiff to court aided by misrepresentations of the debts.

12.   Bankruptcy Trustees did not pay a single creditor from proceed of sale of [the property] claiming the remaining amount is for their share of court costs. This is “Theft of Monies in Trust” and is a criminal offence.

31. A number of potential issues appear to be raised by the above paragraphs of the pleading. Insofar as they involve any complaint of unconscionable conduct in these paragraphs, the same difficulty as to the pleading of such a claim arises as was the case in relation to the claim sought to be made under the first heading. As to the other issues raised, I note as follows.

32. First, there is reference to misrepresentation (at [6] in the context of alleged double counting of the Amex and GE accounts and at [11] in the allegation that the bankruptcy trustee took the plaintiff to court “aided by misrepresentations of the debts”). It is unclear whether Mr Watiwat is seeking to claim damages for negligent or false misrepresentation under common law principles or is contemplating an action for damages for breach of a statutory prohibition on misleading and deceptive or unconscionable conduct.

33. If any such claim based on misrepresentation is to be made then it is necessary to plead the content of the misrepresentation and to provide proper particulars of the person or persons by whom the misrepresentation(s) was (or were) made, when and to whom. So, for example, the alleged misrepresentation relating to “double counting” needs to be particularised. As to the reference (at [11]) to the plaintiff being taken to court, presumably relates to the application for a statutory sale of the family home but again this needs to be clearly identified. Furthermore, insofar as there appears to be an allegation (at [11]) that the bankruptcy trustee misled the Court, that is a serious allegation and must be pleaded with particularity rather than (as here) as a general assertion or conclusion.

31. Second, complaint appears to be made as to matters relating to a compromise of a Bank of Queensland credit card debt, which is alleged to have been communicated to the bankruptcy trustee in September 2011 “during negotiations for a payout” ([7]). It is not clear how it is alleged that the compromise of a credit card debt with another creditor gives rise to any claim for unconscionable conduct or abuse of power on the part of the bankruptcy trustee or his associates.

32. Third, there appears to be complaint as to the fact that proofs of debt were lodged and/or accepted for amounts over and above the amount of the default judgment on the basis of which Lion Finance had initially petitioned for the bankruptcy of Ms Watiwat (see [8]). Again, it is not made clear how this allegedly amounts to abuse of power or unconscionable conduct on the part of the bankruptcy trustee (or, if this allegation extends to them, on the part of his associates).

33. Fourth, there is a complaint (at [9]) as to the “transmission” of the family home while there were negotiations on foot for the payment of the debt. If it is alleged that this amounts to unconscionable conduct or abuse of power, then it must be made clear on what the plaintiff relies for that allegation. Is it alleged, for example, that there was some representation made in the course of the negotiations that the bankruptcy trustee would refrain from taking steps for the sale of the family home on which reliance was placed to Mr Watiwat’s detriment?

34. As to [10], the allegation that there was a breach of ss 73 and 58 of the Bankruptcy Act 1966 (Cth) is not explained other than by reference to the initiation (at some unstated time) of a dividend proposal by the plaintiff.

35. Section 73 of the Bankruptcy Act provides as follows:

Composition or arrangement

(1)   Where a bankrupt desires to make a proposal to his or her creditors for:

(a)   a composition in satisfaction of his or her debts; or

(b)   a scheme of arrangement of his or her affairs;

he or she may lodge with the trustee a proposal in writing signed by him or her setting out the terms of the proposed composition or scheme of arrangement and particulars of any sureties or securities forming part of the proposal.

(1A)   The trustee must, within 2 business days after receiving the proposal, give a copy of the proposal to the Official Receiver.

Penalty:   5 penalty units.

Note:   See also section 277B (about infringement notices).

1(C)   Subsection (1A) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

39. Section 58 of the Bankruptcy Act sets out the general rule applicable as to the vesting of property upon bankruptcy.

40. The making of an allegation as to criminal conduct is very serious and should be accompanied by full particulars of the conduct alleged – such as details of the dividend proposal; when and to whom it was made; and as to the alleged failure of the bankruptcy trustee to give a copy of the proposal to the Official Receiver as required (assuming that is the allegation). Whether the section applies to a dividend proposal made by someone other than the bankrupt may or may not give rise to a difficulty if the proposal here was made by Mr Watiwat. I express no view on that issue.

41. Finally, there is another allegation of criminal conduct (at [12]). This appears to be an allegation of misappropriation of trust moneys, being the proceeds of sale of the family home. Again this is a very serious allegation and should be properly pleaded and particularised by reference to the material facts giving rise to the allegation. There is no particularisation, for example, of what were the net proceeds of sale of the family home. In that regard, I note that at [27] of his affidavit of 9 February 2017 Mr Watiwat refers to selling a property with equity close to $300,000 as being “simply just abuse of power of fiduciary and is unconscionable”. However, it is not for the defendants to be required to trawl through the affidavit material in order to attempt to ascertain what is alleged against them.

42. Furthermore, there is no delineation between the particular defendants in relation to much of the pleading. This causes a difficulty insofar as it is not clear how much of the claim relates solely to the fourth to third defendants as opposed to the claim against the fourth defendant and vice versa.

Malicious prosecution

43. The final part of the pleading appears to relate to the eviction of Mr Watiwat and his family from the family home. At [13], Mr Watiwat pleads:

13.   The Plaintiff hereby established the following:

1.   Supreme Court Case Number 2012/34301 Stephen Dixon v Bienvenido Watiwat.

2.   The defendant was evicted from [the Property] together with family and property was sold.

3.   Refer to Unconscionable Conducts above.

4.   Refer to Unconscionable Conducts above.

44. The case to which reference is made (at [13(1)]) is the proceeding taken for the appointment of trustees under s 66G of the Conveyancing Act 1919 (NSW) for the sale of the family home under a statutory power for sale, as a consequence of which the property was sold and its occupants were required to give vacant possession.

45. The elements of the tort of malicious prosecution were stated (at [1]) by the High Court in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 as follows:

For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

(1)   that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2)   that the proceedings terminated in favour of the plaintiff;

(3)   that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4)   that the defendant acted without reasonable and probable cause.

46. As recently noted by N Adams J in Eliezer v The Owners – Strata Plan No 51682 [2017] NSWSC 278 (at [75]), it is not settled law in Australia that the tort of malicious prosecution extends to civil actions (see Little v Law Institute of Victoria (No 3) [1990] VR 257; cf Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475) though the Supreme Court of the United Kingdom recently held by majority that the tort of malicious prosecution does extend to civil proceedings (Willers v Joyce [2016] UKSC 43).

47. Even assuming that the tort of malicious prosecution extends to the commencement of civil proceedings, such as an application by a bankruptcy trustee for the appointment of trustees for sale under s 66G of the Conveyancing Act, those proceedings were not terminated in the plaintiff’s favour. And even if that were not an insuperable difficulty for the plaintiff in the present case, which it is, the amended statement of claim makes no allegation as to the third and fourth elements of the cause of action (as set out above). Mere reference to the (themselves inadequately) pleaded unconscionable conduct claims is insufficient to put the defendants on notice of the basis on which a claim of malicious prosecution is apparently sought to be made against them. Further, the same problem arises as to lack of identification of the particular defendant(s) to which this claim is addressed.

Damages claim

48. Insofar as the claim for damages relates to a claim on behalf of Ms Watiwat, she is not a plaintiff. Similarly insofar as there appears to be a claim for loss of a company, there is nothing in the pleading to indicate on what this is based. The sums sought by way of damages seem to be ambit claims. It is not made clear the particular heads of damage under which those sums are sought or how it is alleged that loss in this amount was sustained as a result of the conduct of which complaint is made.

Claim for payment of penalty

49. Finally, insofar as the relief sought to be claimed includes orders that there be payment to the government of a penalty for unconscionable conduct, if what is there intended is a claim for imposition of a penalty of the kind for which provision is made for contravention of s 21 of the Australian Consumer Law (see ss 224 and 225 of the Australian Consumer Law), the defendants argue that such relief is not available to a private litigant.

50. It is not clear whether, by prayers 3 and 4 of his amended statement of claim, Mr Watiwat is seeking to bring a private prosecution for a criminal (statutory) offence (under the Australian Consumer Law or perhaps the Bankruptcy Act).

51. Section 14 of the Criminal Procedure Act 1986 (NSW) provides as follows:

14 Common informer

(cf Fines and Penalties Act 1901 sec 4)

A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.

52. It would be necessary therefore to consider whether, in respect of any statutory criminal offence that Mr Watiwat was seeking to prosecute, the legislation expressly conferred the right to institute such a prosecution or proceeding on a specified person or class of persons.

53. Emmett J, as his Honour then was, noted (at [14]) in Wilson, in the matter of Wilson v Official Trustee in Bankruptcy [2000] FCA 1251 (involving a complaint that a trustee had contravened ss 263A and 263B of the Bankruptcy Act) that:

The machinery of the law with respect to prosecutions for criminal offences has changed markedly over the last 100 years or so. Prosecutions for criminal proceedings are now invariably brought by statutory authorities or government agencies established for that purpose. Private prosecutions for criminal offences are rare. Private citizens of course should lend their aid to prosecuting authorities by telling them that offences have been committed and by giving evidence or otherwise by way of assistance in the prosecution: see Re PT Garuda Indonesia Ltd; Ex parteGrellman [1994] FCA 913; (1994) 120 ALR 641 at 654.

54. In any event, assuming for present purposes that Mr Watiwat could bring proceedings seeking to compel the payment to the government of a penalty for unconscionable conduct in breach of the Australian Consumer Law (which appears to be what he is seeking), the Criminal Procedure Act sets out the procedures by which such a prosecution or proceedings for an offence would need to be commenced (see ss 49 and 174). No such procedure has been followed in the present case.

Conclusion

55. For the reasons set out above, when the motion to strike out was heard I had no doubt that the amended statement of claim should be struck out and made orders accordingly, with leave to replead. I should note that Mr Watiwat made complaint as to the fact that an outline of the defendants’ submissions had only been provided to him (as it was to the Court) at the commencement of the hearing of the defendants’ amended motion to strike out the pleading. I allowed a short adjournment for Mr Watiwat to read the defendants’ outline of submissions. Had it appeared to me that Mr Watiwat could have raised, in response to the submissions, matters that would have assisted him to resist the application to strike out the pleading, I would have allowed a further adjournment for Mr Watiwat to put on any further submissions which he wished to make. However, in my opinion the pleading was in such a state that there could not have been anything said by way of submission to sustain it. Hence the orders that I made.

56. I also note that I encouraged Mr Watiwat to seek legal advice as to the claims he wishes to bring, given that he may have difficulty as a self-represented litigant in understanding the complexities of pleading and the difficulties attendant upon maintaining a cause of action in respect of various of his grievances. However, given the scarce resources of the pro bono referral scheme, and the fact that Mr Watiwat informed me that he has already obtained advice as to his proposed claim (which I infer he has not been prepared to accept) I do not consider it appropriate (of the Court’s own motion) to make a referral of the matter under that scheme.

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Decision last updated: 07 April 2017