Burke v Hampton[2011] QDC 95

Statement of claim of self-represented plaintiff struck out - impossibility of understanding his case - rules of pleadings ought to be complied with to a greater extent - leave to replead HIS HONOUR:  The court orders:

1. That the statement of claim filed on the 1st of November 2010 and the amended statement of claimed filed on the 26th of November 2010 be struck out pursuant to rule 171.

2. That the plaintiff have leave to replead consistently with rules 146 and following on or before 30th of June 2011.

3. That the plaintiff pay the defendants' costs of their application to strike out to be assessed if not agreed.

4. That the title of the proceeding be changed to show the second defendant as the Commonwealth of Australia through the Department of Agriculture, Fisheries and Forestry.

The plaintiff is aggrieved on account of the termination of his employment as a baggage inspector at Brisbane Airport.  The circumstances of the termination are contentious.  He takes the line that departmental investigations for practical purposes cleared him and that his termination was based on a psychiatrist's or psychologist's report which, in turn, was founded on untrue and defamatory statements made by the first defendant in particular about him.

The defendants complained about the original statement of claim and in consequence of that Mr Burke voluntarily produced a document amended "under rule 378 UCPR" which added additional material to the original, for example, by adding to the complaints about information that Ms Hampton supplied to the psychiatrist that it was provided negligently.  It's also suggested now that the Department was negligent and breached its statutory duty in actions regarding him "as they thought they were above the law."

New paragraphs were added complaining of harassment "through actual offensive language and shouting by Rick Hawe and supported by Cheryl Valerious."  Those persons named are not parties.  The new complaints extend to others such as an officer in Canberra described as their protector.  There are new complaints of conspiracy.

Mr Merrell appearing for the applicant has provided a comprehensive and helpful outline of argument which, by citation of authorities, amply establishes that notwithstanding the indulgence that one would expect to be granted to self-represented litigants like Mr Burke in respect of rather technical tasks such as pleading, the other parties are entitled to the advantages which the rules are there to provide for them in the form of a pleading which can feasibly be responded to.  See du Boulay v Ivor Worrell [2009] QCA 63 at paragraphs 69 and 72.

Reference is also made to decisions of White J making the point that the defendant cannot be expected to intuit what a plaintiff intends to convey in pleadings - see Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209 at paragraph 38 and Mohareb v Lambert and Rehbein (SEQ) Pty Ltd [2009] QSC 324 at paragraph 14.

It's unnecessary to enumerate the specific defects identified in the outline of argument beyond noting some examples.  The details of the allegedly defamatory publication are not given nor are the imputations or meanings to be ascribed to the words published or the allegations of damage.  There is a claim of trespass, which doesn't identify what the trespass was to.

Mr Burke's attempts have produced a pleading which as a whole is so difficult to understand and plead to that all of it ought to be struck out - see Mathews v Morgan [2005] QSC 222 at paragraph 19.

There are other difficulties in Mr Burke's way which it's perhaps useful to have drawn to his attention at this stage by Mr Merrell's outline, which I earnestly suggest to Mr Burke that he ought to read carefully.  Those include that the defamation claim would appear to be statute barred by section 10AA of the Limitation of Actions Act 1974.

My associate has supplied to Mr Burke a copy of rules 145 to 160 of the UCPR in hopes of assisting him to come up with a pleading in support of his claim, the claim not being the subject of attack in today's application.

I have endeavoured to explain to him that although he has numbered paragraphs in his documents consecutively he has not complied with the other requirement of a pleading that each paragraph contain "as far as is practicable a separate allegation" as required by rule 146(f).  His paragraphs are enormously long and contain multiple allegations, the content of most of which is impossible to divine, all mixed up together.

Mr Burke has been advised to seek legal assistance.  He's impecunious and, indeed, was excused by the Registrar from having to pay filing fees for the proceeding.  My associate has my authority to supply Mr Burke with details of how he may contact the Queensland Public Interest Law Clearing House and Legal Aid to seek assistance.  He indicates that he's made inquiries of the latter, although not submitted an application, having been told that for his civil claim that would be pointless.

I might say that Mr Merrell has joined in today's attempts to smooth the way for all concerned in this proceeding by offering, for example, to provide Mr Burke with a copy of the relevant part of the Limitations Act.