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Tutos v Catholic Education Services Cairns QDC 57
DISTRICT COURT OF QUEENSLAND
Tutos v Catholic Education Services Cairns  QDC 57
MARIUS LUCIAN TUTOS
THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF CAIRNS trading as CATHOLIC EDUCATION SERVICES CAIRNS ABN 42 498 340 094
District Court at Cairns
18 April 2019
8, 11 February 2019
Further written submissions 22 February 2019, 1 March 2019
to be assessed on the standard basis.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKE OUT – where the plaintiff is self-represented and filed a claim and statement of claim - where the plaintiff applied to set down the proceeding for trial - where the defendant applied to strike out the claim and statement of claim - whether the statement of claim failed to disclose a reasonable cause of action such as to entitle the defendant to have it struck out - whether the statement of claim was embarrassing and tending to cause delay in the proceeding - whether the statement of claim was an abuse of process - whether the claim and statement of claim do not comply with the rules - whether the documents should be struck out or set aside
Public Service Act 2008 (Qld), s 126(5)
Uniform Civil Procedure Rules 1999 (Qld), r 5(3),
r 149(1)(a), r 149(1)(b), r 149(1)(c), r 155(1), r 155(4),
r 171(1)(a), r 171(1)(b), r 171(1)(e)
du Boulay v Worrell & Ors  QCA 63
Markan v Bar Association of Queensland  QSC 146
Robertson v Hollings & Ors  QCA 303
Ross v Hallam  QCA 92
The plaintiff appeared on his own behalf
EB Jesurasingham (solicitor) for the defendant
The plaintiff appeared on his own behalf
Miller Harris Lawyers for the defendant
- There are two applications before the court:
- the plaintiff’s application to set the matter down for trial; and
- the defendant’s application to strike out the plaintiff’s amended claim and amended statement of claim and for summary judgment.
- The plaintiff is a self represented litigant from a non-English speaking background.
Overview of the plaintiff’s allegations
- The plaintiff’s amended statement of claim makes the following allegations.
- In April 2017 he was employed by the defendant as a maths teacher at Good Counsel College in Innisfail, subject to a six month probationary period. The school principal did not follow the procedures required during his probationary period, including regular feedback and review meetings. His probationary period expired in October 2017 without his employment being formally confirmed or annulled. He did not receive any documents to suggest his performance was unsatisfactory. He continued working through 2017 and was allocated a full teaching load for 2018.
- There were problems in the school. Shortly before the end of the 2017 school year, the defendant removed the school executive (the principal and three deputy principals) from their positions and appointed a “transition team” to lead the school in 2018. The school engaged in practices alleged to be contrary to the requirements of the relevant regulatory authority. They included giving year 12 students identical exams from year to year, and giving year 11 students the previous year’s tests. The school was struggling to maintain enrolments. The effect of the repeat testing was that students’ scores were not a true reflection of their ability. The plaintiff did not agree, or cooperate, with this practice. He notified the authority. Parents complained about students’ results in maths.
- In the summer holidays the acting principal contacted the plaintiff and asked whether he would be returning to the school in 2018. At that point the plaintiff was still employed full time and had already been allocated classes for 2018. He was then told that he would no longer be teaching maths but instead, technology and design. The plaintiff did not agree with that decision.
- He alleges that the defendant had, by then, decided to remove him from his position and that it failed to follow the proper processes for managing unsatisfactory performance. The defendant advertised the plaintiff’s position.
- He further alleges that the defendant defamed him, including in an internal school publication dated 14 February 2018 published to the school community and parents.
- On 19 February 2018 the plaintiff was suspended from duty on full pay pending an investigation. The investigation continued without resolution for three months. During that time he was not permitted to return to work. In May 2018 the defendant ceased paying the plaintiff. The plaintiff had no option but to resign his employment as he needed a source of income. He did so on 31 May 2018.
- His amended claim seeks damages of $350,000 for “irreparable damage of my career, cessation of my employment, the impossibility to be offered another teaching job (permanent) for at least 3-4 years, the suppression of my dignity, humiliation, deterioration of my public image and forced physical isolation for an unlimited period of time, isolation that could lead to depression”.
- That is said to arise from “breach of clauses stipulated in my employment contract, duress, illegality, malice and ill will, negligence, undue influence and estoppel”.
- In the plaintiff’s written submissions filed on 7 February 2019 he essentially repeated the above allegations and attached documents relating to them. He also made further allegations of fact that went beyond what is currently pleaded in the amended statement of claim. For the purposes of this application, I have not considered those further allegations of fact.
Overview of the defendant’s position
- The defendant filed a defence to the original statement of claim.
- It admits that it employed the plaintiff as a maths teacher during the relevant period, that he was subject to a six month probationary period and that he continued in employment after the probationary period expired.
- It also admits that in November 2017 it directed the school’s senior leadership team to cease performing their duties.
- The defendant says that it lawfully suspended the plaintiff on full pay pending an investigation into the truth of pre-contractual representations he made about his qualifications and experience. It says that the workplace investigation has not been finalised because of the plaintiff’s delay in providing information requested and his refusal to comply with directions.
- It further says that, to the extent his claim is a claim for damages for an injury within the meaning of the Workers’ Compensation and Rehabilitation Act 2003, he has failed to comply with the statutory requirements for such a claim.
- To the extent the defendant was able to plead to the other allegations, it does not admit, or denies them.
- For completeness, I summarise the chronology of the proceedings to date.
- On 30 April 2018 the plaintiff filed a claim and statement of claim. On 28 May 2018 the defendant filed a notice of intention to defend and defence. On 5 June 2018 the plaintiff filed a document entitled “Response to the defence of defendant”. On 24 July 2018 the defendant filed an application to strike out the statement of claim and for summary judgment. On the same day the plaintiff filed an application to set the proceeding down for trial.
- Before those applications were heard and determined, on 4 October 2018 the plaintiff filed an amended claim and amended statement of claim. The pleadings were amended in response to issues raised at directions hearings and in the previous application.
- On 19 November 2018 the defendant filed a further application to strike out and for summary judgment. It is the plaintiff’s amended claim and amended statement of claim that are the subject of this application.
- Following directions, the applications were heard before me on 8 and 11 February 2019, with further written submissions provided by both parties after that date.
- The application to strike out is made pursuant to rules 171(1)(a), (b) and (e) Uniform Civil Procedure Rules 1999 (“UCPR”).
- The attitude of the courts to an application to strike out the pleading of a self-represented litigant is conveniently summarised in Ross v Hallam  QCA 92 where McMurdo P observed:
“ The judicial task of ensuring fairness to all parties where one party is self-represented, can be difficult. Judges must be cautious that, in ensuring fairness to self-represented litigants, they do not cause unfairness to represented litigants. Balancing these tensions can be challenging.”
- In the same case, Chesterman JA quoted Muir JA in du Boulay v Worrell & Ors  QCA 63:
“ It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court's duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.” (footnote omitted)
- Rules as to pleadings ensure the basic requirement of procedural fairness in civil litigation. Pleadings serve the values of fairness and rationality in adversarial litigation.It is for that reason that r 171 of the UCPR authorises a court to strike out a pleading which "has a tendency to prejudice or delay the fair trial of the proceeding".
- The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It may be unfortunate that a party does not have the benefit of competent legal advice and representation. But that does not license a party to proceed unconstrained by the rules according to which adversarial litigation is conducted.
- By virtue of r 5(3) of the UCPR, "[i]n a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way." The obligation impliedly undertaken by a party to litigation under the UCPR is not an obligation merely to use one's best endeavours however inadequate those efforts might be.
- If the requirements for pleading a proper cause of action have not been satisfied then the appropriate course is usually to strike out the pleading or part of the pleading, but with liberty to replead, usually with a time limitation, and in some cases, a self executing order.
- Striking out a claim is the end of the proceeding. The defendant must therefore demonstrate a “high degree of certainty” about the ultimate outcome of the proceeding.A pleading should only be struck out without liberty to replead if the proposition that there is some substance in the cause of action is really not arguable.
Defendant’s application to strike out amended claim
- The defendant applies to strike out the amended claim and the amended statement of claim filed 4 October 2018 on the grounds that they disclose no reasonable cause of action (r 171(1)(a)), or have a tendency to prejudice or delay the fair trial of the proceeding (r 171(1)(b)) or are otherwise an abuse of the process of the court (r 171(1)(e)).
- The defendant did not in its written submissions specifically challenge the amended claim itself.
Defendant’s application to strike out amended statement of claim
- The amended statement of claim attempts to plead to the existence and/or terms of a contract of employment between the plaintiff and the defendant. The plaintiff attempts to plead the alleged breaches of terms of the employment contract. The plaintiff attempts to plead the relief claimed in the form of damages, but does not plead the loss allegedly suffered by him in any ascertainable form, with no basis identified for the figure of $350,000 claimed for damages.
- The defendant challenged numerous paragraphs of the amended statement of claim on the grounds that they infringe the UCPR, specifically that they:
- are not as brief as the nature of the case permits, in breach of r 149(1)(a);
- fail to state, precisely, the material facts on which the plaintiff relies to constitute a cause of action, in breach of r 149(1)(b);
- fail to state specifically any matter that if not stated specifically may take another party by surprise, in breach of r 149(1)(c);
- fail to state the nature and amount of the damages claimed, in breach of r 155(1); and
- fail to specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise, in breach of r 155(4).
- I adopt the following summary of the disputed paragraphs and the grounds relied upon from the defendant’s outline of submissions.
Various unnumbered paragraphs and paragraphs (a)-(d) on pages 1 and 2
- The defendant submits that these paragraphs contain statements of religious belief, personal history and other irrelevant matters that do not constitute material facts to establish a cause of action against the defendant.
- Those submissions are correct.
- The defendant submits that the paragraphs do not plead the elements of a contract (or its terms), as required for the plaintiff’s claim for breach of employment contract.
- This is not entirely correct. The paragraphs do plead to the existence of an employment contract and certain terms of it, but not the documents said to constitute the contract nor the terms that the plaintiff alleges were breached.
Paragraphs 3-6 inclusive – alleged failure to follow probationary processes
- The plaintiff alleges that the school Principal did not follow procedures in place for a probationary review, thus breaching the law. The law is said to be:
- section 126(5) of the Public Service Act 2008;
- the Cairns Catholic Education Services – Principals’ Agreement 2016-2020; and
- certain policy documents referred to in paragraphs 3(d) and 3(e), being the “Catholic Education Services/Probationary Period Performance Plan” and the “Catholic Education Services/End of Probationary Period Checklist”.
- The defendant submits that the plaintiff’s reliance on each of those documents is misconceived for the reasons below.
- The Public Service Act 2008 does not applybecause:
- the defendant is not a public service entity, namely a Department or public service office;
- the plaintiff was not a public service officer or public service employee;
- the defendant is a corporation constituted by letters patent under the Religious Education and Charitable Institutions Act 1861; and
- the defendant operated Good Counsel College (at which the plaintiff was employed) as a school accredited by the Non-State Schools Accreditation Board.
- Those submissions appear to be made out on the evidence filed by the defendant.
- The Cairns Catholic Education Services – Principals’ Agreement 2016-2020 does not apply because it only applies (under clause 1.3 of that Agreement) to Principals employed by the defendant. The plaintiff was not engaged as a Principal, but as a teacher.
- The defendant concedes that the policy documents referred to by the plaintiff exist, but disputes that they were incorporated as terms of the plaintiff’s contract of employment. It submits that there are no facts pleaded to establish if the policies were terms of the employment contract.
- That submission is accepted. While the plaintiff does identify particular policies said to have been breached, it is unclear how those policies are said to be incorporated as terms of the plaintiff’s employment contract. For example, whether they are alleged to be express or implied terms.
- The crux of the plaintiff’s claim appears to be that the alleged failure by the defendant to conduct a formal probationary review (including feedback and documentation) resulted in:
- the plaintiff’s employment status being unconfirmed (or “in the twilight zone” as the plaintiff states in paragraph 4);
- there being no documentation to show that the plaintiff’s performance was unsatisfactory (paragraph 4);
- the plaintiff becoming a “scapegoat” for many mistakes; and
- the plaintiff being deprived of an opportunity to argue that the defendant was barred from raising poor teaching performance in his probationary period (paragraph 6).
- The plaintiff states that the alleged probationary failure constituted “breaches of laws stipulated in my contract, illegality and negligence”.
- The defendant submits that paragraphs 1-6 do not contain material facts supporting any cause of action against the defendant, but rather tracts of impermissible evidentiary narrative or conclusions not based on pleaded material facts.
- I accept that, to an extent, those paragraphs contain impermissible evidentiary narrative or conclusions.
Paragraphs 7-8 inclusive – alleged testing practices and effect of plaintiff’s teaching performance
- The plaintiff alleges that mathematics examinations for years 11 and 12 were identical to those administered in previous years, and that this affected his teaching performance.
- The plaintiff nominates “malice and ill-will”, “undue influence” and “estoppel” as the relevant causes of action. He also asserts that “Due to the serious violations of the law, the defendant is also accused of illegality and negligence.”
- The defendant submits that:
- “malice and ill-will” are not stand-alone causes of action, nor elements of any pleaded cause of action;
- undue influence is an equitable doctrine involving presumptive or non-presumptive relationships, and is generally invoked to vitiate transactions or inter vivos and testamentary gifts or dispositions. There are no allegations of material facts upon which this arises;
- estoppel is a species of equitable claim or defence, the elements of which usually start with a representation or encouragement of an assumption. That has not been made out here;
- illegality (in the context of alleged statutory illegality) may vitiate a contract, but does not give rise to an independent cause of action in its own right; and
- the plaintiff has failed to plead any facts establishing the elements of negligence, beginning with the existence of a duty of care.
- Those submissions are accepted.
Paragraphs 9-15 inclusive – the plaintiff’s complaint and alleged unfavourable treatment
- The plaintiff alleges that after he made a complaint about the alleged testing practices (referred to in paragraphs 7 and 8) he was subject to certain actions. He was not supported, he was harassed and denigrated, had his teaching load changed without consultation, was not given any documents that his teaching was unsatisfactory, and was defamed by the publication of a report to the Parents & Friends – Good Counsel College. The defendant had already pre-determined to terminate his employment, he continued to be harassed and intimidated by the transition team and was told that he was incompetent and had to leave.
- The plaintiff says the above matters constitute duress, illegality, malice and ill-will, undue influence and estoppel.
- Here, there are no material facts alleged that clearly constitute duress at common law or in equity. It may be that the plaintiff has used the expression to refer to feeling compelled by the defendant’s actions to resign his position.
- Otherwise, in respect of the alleged causes of action, no material facts establishing each element of the cause are pleaded, nor do the alleged causes of action appear relevant. Evidentiary narrative also pervades this suite of paragraphs.
- To the extent the plaintiff alleges defamation arising from a publication, he has not identified the specific defamatory matter complained of, the imputations said to arise, or the particulars of damages.
Paragraphs 16-19 inclusive – suspension of employment
- The plaintiff complains that his suspension from duty:
- should not have occurred without the defendant completing its unsatisfactory performance process;
- should not have compelled him to stay at home until further notice; and
- should not have extended to three months as it did.
- The plaintiff expressly states his claim is not for an injury within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (page 2).
- The plaintiff also says these matters constituted “duress, illegality, malice and ill-will, negligence and undue influence”. The plaintiff has not pleaded the material facts to establish each of the matters or causes of action. The pleading again is dogged by narrative, commentary and speculation.
Paragraphs 20, 22 and 24
- I accept the defendant’s submission that these paragraphs contain rhetorical questions directed to the Court, impermissible stream of consciousness narrative and matters for submission; all of which have no place in a pleading.
Paragraphs 21-24 inclusive – personal leave
- The crux of this suite of allegations seems to be the plaintiff’s understanding (based on unstated material facts) that he had an entitlement to be paid his salary in full during a workplace investigation, whether or not he was medically fit and able to participate in that investigation. Once the defendant ceased to pay him, he was forced to resign.
- These paragraphs also contain impermissible rhetorical questions, evidentiary narrative, inaccurate statements of law and conclusions based on unstated material facts.
- The plaintiff states that the causes of action relied upon are: duress, illegality, malice and ill-will, negligence, undue influence and estoppel.
- I accept the defendant’s submissions that there are no material facts pleaded to give rise to those matters or causes of action, and these paragraphs contain objectionable opinions and commentary.
Page 2 Claim – relief sought and quantum
- The relief sought in the claim is an indivisible lump sum described as “an order for damages, specifying monetary compensation of $350,000.00 in light of the following causes of action”.
- A pleading must state the nature and amount of damages claimed and any matter relating to the assessment of damages that, if not pleaded, may take the opposing party by surprise.
- There is no articulated basis for how the sum of $350,000 is calculated, based on the matters stated in the amended statement of claim.
- The amended statement of claim expressly states that the plaintiff does not claim damages for an injury within the meaning of the Workers’ Compensation and Rehabilitation Act 2003, including any physical or psychological injuries. He claims damages for “misconduct and breaches of law … which affected my career, public image and dignity”.
- I accept the defendant’s submissions that these provisions infringe r 155.
Conclusion on defendant’s application to strike out and for summary judgment
- For the reasons given above in respect of the failure to disclose a reasonable cause of action for some aspects of the pleading, I agree that the pleading, as presently constituted, has a tendency to prejudice or delay the fair trial of the proceeding, such as to enliven the court’s discretion under r 171 to strike it out.
- The objectionable matters are so closely intertwined with other matters that the pleading as a whole tends to embarrass the fair trial of the action.
- In my view, the whole pleading should be struck out even though a cause of action or causes of action may be discerned in the pleading as a whole.
- With respect to the defendant’s application for summary judgment, a case must be very clear to justify the summary intervention of the court to prevent a party from submitting its case for determination.
- This is not a case where there is no cause of action discernible on the pleading and the case is so hopeless that the claim ought be set aside and judgment entered for the defendant. The plaintiff has attempted to articulate claims for breach of employment contract and defamation, at least. He also raises allegations that the defendant has acted unlawfully during his employment contract. Subject to being properly pleaded, they are capable of disclosing reasonable causes of action. However on the current pleading, there is no reasonable cause of action disclosed for “duress, illegality, malice and ill will, negligence, undue influence and estoppel”.
- The plaintiff is entitled to some flexibility in the application of the court’s rules in order to meet the particular disadvantages suffered by him, because he is self-represented and English is not his first language.
- The amended claim and statement of claim should be struck out with liberty to replead, so that the plaintiff is given a final opportunity to put into a sensible form the claim(s) he alleges he has.
- The orders I propose to make will leave the plaintiff’s action on foot. They leave it up to the plaintiff to produce an amended pleading that conforms with the rules, if he can.
- The application to set the proceeding down for trial was premature because disclosure had not yet occurred and the defendant’s application to strike out and for summary judgment had not yet been heard. The matter was in no way ready for trial.
- The plaintiff’s application to set down the matter for trial should be dismissed.
- The defendant’s application to strike out the amended claim filed 4 October 2018 is adjourned.
- The amended statement of claim filed 4 October 2018 is struck out.
- The plaintiff has leave to file and serve an amended statement of claim by 4pm on 24 May 2019.
- The plaintiff’s application filed 24 July 2018 is dismissed.
- The proceeding is listed for review before me on 12 June 2019 at 9:00am.
- Unless the plaintiff or defendant files written submissions within 14 days as to why such an order should not be made, I will order that the plaintiff pay the defendant’s costs of:
- the plaintiff’s application filed 24 July 2018; and
- the defendant’s applications filed 24 July 2018; and
- the defendant’s application filed 19 November 2018;
to be assessed on the standard basis.
 with whom Atkinson J agreed.
 Robertson v Hollings & Ors  QCA 303 per Keane JA at .
 Robertson at .
 Robertson at .
 Markan v Bar Association of Queensland  QSC 146 at -.
 Affidavit of Neil David Muir filed 13 December 2018; affidavit of William George Dixon filed 24 July 2018; affidavit of William George Dixon filed 5 February 2019.
 Unnumbered paragraph (subparagraphs (a)-(d) inclusive) at start of amended statement of claim.
- Published Case Name:
Tutos v Catholic Education Services Cairns
- Shortened Case Name:
Tutos v Catholic Education Services Cairns
 QDC 57
18 Apr 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QDC 57||18 Apr 2019||Defendant's application to strike out the amended claim adjourned; defendant's application to strike out the amended statement of claim granted (with leave to replied): Fantin DCJ.|
|Primary Judgment|| QDC 261||18 Dec 2019||Defendants' application to strike out the amended claim and amended statement of claim granted; defendants' application for summary judgment pursuant to r.293 of the Uniform Civil Procedure Rules 1999 granted; judgment for the defendant: Fantin DCJ.|
|Appeal Determined (QCA)|| QCA 171||18 Aug 2020||Application for an extension of time in which to appeal granted: Sofronoff P and Fraser and Morrison JJA.|
|Special Leave Refused (HCA)|| HCASL 237||12 Nov 2020||Special leave refused: Keane and Edelman JJ.|