Robertson v Bettina Hollings (Imagination Television Ltd)
[2010] QSC 474
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- Unreported Judgment
- Appeal Determined (QCA)
- Robertson v Bettina Hollings (Imagination Television Ltd)[2010] QSC 474
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Robertson v Bettina Hollings (Imagination Television Ltd)[2010] QSC 474
Robertson v Bettina Hollings (Imagination Television Ltd)[2010] QSC 474
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 17 December 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 December 2010 |
JUDGE: | A Lyons J |
ORDER: | |
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE –QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – where the plaintiff seeks to file an amended statement of claim and join a fourth defendant in the proceeding– where no statement of claim currently exists – where the plaintiff is self-represented and has attempted on multiple occasions to file a statement of claim that is in accordance with the Uniform Civil Procedure Rules 1999 (Qld) – whether the plaintiff should be granted leave to file the proposed statement of claim. PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – whether plaintiff has any real prospect of succeeding against the first, second and third defendants – whether judgment should be entered in favour of the defendants against the plaintiff. Animal Care and Protection Act 2001(Qld) Uniform Civil Procedure Rules 1999 (Qld) Agar v Hyde (2000) 201 CLR 522 Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Dey v Victorian Railway Commissioners (1948) 78 CLR 62 Leigh Diane Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260 Robertson v DogzOnline Pty Ltd & Anor - Unreported No 13010 of 2008 11 January 2008 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 |
COUNSEL: | Plaintiff appeared on her own behalf J Ward for the first defendant R Fryberg for the second defendant E Longbottom for the third defendant M Johnston for the proposed fourth defendant |
SOLICITORS: | North Law as town agents for Buddle Findlay for the first defendant Clayton Utz for the second defendant Crown law for the third defendant Thynne & Macartney for the proposed fourth defendant |
Ann LYONS J:
Background
[1] In January and February 2008, the Royal Society for the Prevention of Cruelty to Animals Queensland Incorporated (RSPCA) seized 105 dogs from the plaintiff’s premises at Buccan in Queensland. The plaintiff was breeding and selling poodle dogs on a large scale from those premises and also ran a boarding facility for dogs and cats. The animals seized were subsequently forfeited pursuant to the Animal Care and Protection Act 2001 (Qld) by order of the Magistrates Court.
[2] Mrs Robertson subsequently appealed that decision in the District Court and also commenced numerous proceedings in the Supreme Court against a variety of defendants, including the RSPCA, the State of Queensland, the Minister for Primary Industries, the Poodle Club of Queensland and Bettina Hollings (Imagination Television Limited).
[3] Mrs Robertson is self-represented and has consistently experienced great difficulty in delivering statements of claim, which plead her various cases, in conformity with the requirements of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). In relation to this proceeding, BS2263 of 2009, the adequacy of the pleadings has been before the court on at least six occasions and this would appear to be the ninth attempt at drafting a statement of claim.
[4] On 6 April 2009, Dutney J heard the plaintiff’s application for leave to amend an originating application by substituting it with a claim and statement of claim. The claim included as parties the Chief Executive, Department of Primary Industries and Fisheries and Timothy Mulherin (Queensland Minister for Primary Industries and Fisheries). Those claims were dismissed and the plaintiff was given leave to join the State as a defendant to the action. She was not given leave to make claims for defamation occurring prior to 6 April 2008, those claims being out of time. The plaintiff was given 28 days within which to file a statement of claim in support of the claim.
[5] On 4 June 2009, Byrne SJA on an application by the RSPCA made orders striking out the statement of claim filed 24 April 2009 and the further statement of claim filed on 5 June 2009. The RSPCA did not oppose the plaintiff being given leave to re-plead. The strike out application was adjourned to 7 July 2009.
[6] On 7 July 2009, Justice Douglas heard the adjourned strike out application. His Honour struck out the statement of claim and refused leave to re-plead. His Honour said of the pleading:
“When one analyses this pleading, it is apparent that it is a mishmash of allegations not coherently expressed in the form required to plead the possible causes of action that may arise.
It is difficult to tease from the document attacked in this case, what the precise causes of action now pleaded are, although they appear to include negligence and nuisance, trespass, defamation, breach of fiduciary duty, theft, misfeasance, perhaps of public office, invasion of privacy and assault. Unfortunately for the plaintiff, however, she has been unable to express the allegations she makes in a way that would be comprehensible either to the defendants or to a Court required to try the action.
It is a typical case which, in my view, meets the description of one where the plaintiff has been unable to formulate a sensible cause of action, and where I have no option but to strike out the pleadings in their entirety.”
[7] On 2 October 2009, the Court of Appeal heard applications filed by the RSPCA and the State of Queensland seeking to strike out the notice of appeal filed by the plaintiff against the orders made by Douglas J on 7 July 2009 and her application for leave to file an amended notice of appeal. Orders were made refusing leave to file an amended notice of appeal and striking out the notice of appeal.
[8] On 10 November 2010, the plaintiff’s application seeking leave to file an amended statement of claim and an application by the RSPCA seeking judgment in the proceedings came before Byrne SJA. It became apparent at the hearing of those applications that the sealed order of Douglas J made 7 July 2009 did not reflect his Honour's reasons in that it omitted to include an order that leave to re-plead was refused. An oral application by the RSPCA to correct the order was refused because it had not been brought on notice. Justice Byrne therefore dismissed the plaintiff’s application on the ground that she did not require leave to re-plead and adjourned the RSPCA's application for judgment.
[9] On 15 November 2010, Douglas J heard an application by the RSPCA seeking to correct the sealed orders made 7 July 2009 by including an order that leave to re-plead was refused. The application was successful.
[10] On 17 November 2010, the RSPCA wrote to the plaintiff indicating that unless she consented to judgment in terms of the adjourned application for judgment, they would re-list their adjourned application for judgment.
The present applications
[11] On 19 November 2010, the plaintiff filed an application that she be granted leave to file an amended statement of claim and that the fourth defendant, Queensland Newspapers Pty Ltd, be added as a defendant to the claim. It is clear that as there is currently no statement of claim it is in fact an application for leave to file a proposed statement of claim (PSOC) despite the order of Douglas J that she was not given leave to re-plead.
[12] On 25 November 2010, an application was filed by the first defendant for an order that the claim be struck out, that judgment be entered for the first defendant and that the plaintiff pay the costs of the application and the proceedings. On 25 November the third defendant also filed an application seeking orders that the claim be struck out and that judgment be entered for the third defendant and that the plaintiff pay the third defendant’s costs of and incidental to the application on the standard basis.
[13] On 23 November 2010, the second defendant re-listed its application for judgment against the plaintiff.
[14] These proceedings are therefore presently devoid of a statement of claim. The proposed statement of claim, which the plaintiff seeks leave to file, is approximately the ninth version of the pleading. Previous statements of claim have been filed on 3 April 2009, 24 April 2009, 5 June 2009, 1 July 2009, 6 July 2009, 24 August 2009, 15 September 2009. It is clear that the PSOC is still not in a form which complies with the UCPR.
The relevant principles
[15] The court has an inherent jurisdiction to strike out, stay or dismiss every action or pleading which is an abuse of process or is frivolous or vexatious or does not disclose a cause of action.
[16] The principles are set out in a number of decisions, including Dey v Victorian Railway Commissioners (1948) 78 CLR 62 and Agar v Hyde (2000) 201 CLR 522. It is clear that the court’s power is to be exercised with great caution to ensure that a plaintiff is not improperly deprived of the opportunity for trial under the guise of achieving finality. Usually the power will be exercised only in the clearest of cases where there is a high degree of certainty about the outcome of the proceeding if it were to go to trial. There are particular considerations which apply when the termination of a proceeding involves a litigant in person. It is clear that,
“Courts should approach the peremptory termination of the litigation with special care to ensure that, with the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put in proper form.”[1]
Difficulties with the proposed pleading
[17] The PSOC is 78 pages in length and contains some 15 Chapters much of which reads as if it is an amended statement of claim. Numerous pages appear to ‘strike through’ paragraphs of a previous version of the pleading as if the document is seeking to amend a previous pleading. It is clear however that no pleading currently exists as the previous version was struck out in its entirety by Douglas J. As I have indicated there is currently no statement of claim.
[18] It is also clear that there are firstly a number of structural, technical and drafting difficulties with the PSOC. The paragraphs are non-compliant and also confusing. The paragraphs are not consecutively numbered as the pleadings are grouped in ‘chapters’ but the paragraphs are not necessarily sequential. There is an inconsistent structure in the pleading which makes it extremely difficult to plead to. The plaintiff also seeks to cross link certain parts of the PSOC with other parts which is particularly perplexing. The language used is often vague and difficult to understand.
[19] Rule 149(1) of the UCPR deals with statements in pleadings and requires that each pleading must (a) be as brief as the nature of the case permits; and (b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved. Rule 149(2) also requires that in a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.
Deficiencies in the causes of action pleaded
Causes of action with respect to the first defendant
[20] The current PSOC alleges trespass and a breach of right to privacy against the first defendant, a small New Zealand based television production company. The purported breach of privacy appears to relate to the first defendant releasing video footage of the plaintiff and her dogs taken on her premises and at an RSPCA shelter. Regardless of whether a tort of invasion of privacy exists, no viable cause of action can be identified from this section of the PSOC as no elements are pleaded and no allegations of fact in support are made out. At the 2 December hearing the plaintiff argued in support of this cause of action stating[2]:
“I'm still getting abused, your Honour, but such is life, I guess, but it's got to stop. You see, and this continuing releasing of information and data which is not true, is terrible, but that's - and that was caused to a breach of my privacy, a breach of my right to privacy which is identified in Groves v. Pervis [sic].”
[21] This section of the PSOC is without a cause of action and not capable of being filed.
[22] In relation to trespass, the PSOC states that the second defendant invited the first defendant’s camera crew on to the plaintiff’s premises against her “expressed refusal” it alternatively appears to claim defamation in the same section. The plaintiff does not identify or set out the allegations of fact on which she intends to rely and the elements of the cause of action are not specified.
[23] The first defendant argues the PSOC fails to comply with the basic requirements of procedural fairness in civil litigation. They argue leave to re-plead should not be granted and that if leave was granted it would offend the philosophy of the UCPR as articulated in r 5, that is “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”.
Causes of action with respect to the second defendant
[24] As against the second defendant, the RSPCA, the PSOC alleges the following causes of action: breach of right to privacy; intentional infliction of emotional distress; negligence, misfeasance in public office; breach of fiduciary duty, detinue and humiliation. Following oral submissions at the 2 December 2010 hearing the plaintiff conceded that the cause of action in respect of humiliation should be struck out as well as para 3 on page 20; para 1 on page 25; para 44 on page 34 and para 73 on page 42[3] (those paragraphs attempted to cross link the PSOC with other parts).
[25] In relation to invasion of privacy by the second defendant, this is alleged in circumstances where it is acknowledged by the plaintiff that the second defendant entered the plaintiff’s premises pursuant to a warrant. At page 14 the PSOC asserts an actionable breach of ss 43(3) and 45 of the Invasion of Privacy Act 1971 (Qld) without identifying any factual basis. The section focuses on the RSPCA entering the plaintiff’s premises and the alleged subsequent release of videos or photos. No viable civil action is articulated.
[26] Page 20 asserts “intentional infliction of emotional distress” which at best could be characterised as a personal injuries claim. It is clear that the plaintiff has not complied with the provisions of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) and no waiver with compliance has been granted. The plaintiff is aware of the need to comply with PIPA as it was an issue in a previous proceeding.[4] At the 2 December hearing, the plaintiff argued that[5]:
“There was no personal injuries claim. They were just examples put there which are factual to reinforce the - the damage.”
[27] Without turning to further technical deficiencies in the pleading, it is clear the cause of action “intentional infliction of emotional distress” is not viable.
[28] The PSOC also claims negligence by the second defendant and although no breach has been pleaded by the plaintiff, at page 26 the duty of the RSPCA is identified as a duty to “respect the plaintiff's privacy, respect the plaintiff's right to deny the media entry onto her property, not expose the plaintiff to harm, hatred and violence from the public, and not vilify the plaintiff or cause the plaintiff to be vilified”. No facts are particularised to support this and the section refers to trespass and negligence. A viable civil cause of action is not made out.
[29] The assertions in relation to misfeasance in public office and breach of fiduciary duty are nonsensical and appear to be a repetition of the statements made in the other purported causes of action. No recognised fiduciary duty of the RSPCA is articulated and no breach is properly pleaded. In the particulars as to misfeasance the plaintiff lists statements made by the RSPCA in relation to her dogs and then lists around 30 “symptoms” that were suffered as a result including chronic post traumatic stress disorder, nauseous spells and clumsiness. The second defendant argues the PSOC is this respect is an abuse of process.
[30] In respect of the claim for detinue “and/or theft”, at pages 48 to 52 the PSOC claims, inter alia, the value of 48 dogs not receipted following their seizure by the RSPCA. Firstly, a claim for theft is not a civil action. Secondly, it is inconsistently pleaded that items were both stolen and seized pursuant to a warrant. Under the heading “PARTICULARS” the PSOC lists 16 items including antiques, cash, jewellery and “computer which has since been returned”. There are many irrelevant allegations of fact pleaded and the elements of the cause of action of detinue are not sufficiently identified. Without any facts in support, the PSOC states that the plaintiff’s common law rights and rights to natural justice have suffered. Furthermore, it is clear that the issues in relation to the seizure of the plaintiff’s dogs have been the subject of final judicial determination.
[31] In respect of damages the second defendant submits that the plaintiff fails to articulate damages corresponding to each cause of action; how damages have been caused or how they have been calculated. Counsel argues that it is not possible for the RSPCA to identify the case against them nor to plead to it.
[32] The second defendant ultimately argues that the PSOC is not presently in a form capable of being filed. They argue it can not be saved by striking out portions of it as too much is defective and it is so interlinked and cross referenced that it is interdependent upon itself. They submit that given the multiple opportunities afforded to the plaintiff, leave should not be granted to file the PSOC with changes to be made.
Causes of action with respect to the third defendant
[33] In relation to the third defendant, the state of Queensland, the PSOC claims liability under the Animal Care and Protection Act 2001 (Qld) (the ACPA) and in negligence. At page 4 it is asserted that the State is liable pursuant to s 215 of the ACPA. That section ascribes to the State, liability for certain acts or omissions of inspectors under that Act and would require an act or omission to be identified in the statement of claim. The third defendant argues that the claim is groundless; does not disclose a viable cause of action and does not comply with Chapter 6 of the UCPR. Furthermore, this part of the PSOC also appears to be an attempt to prosecute matters already litigated.
[34] The PSOC then alleges negligence against the third defendant on the grounds that there was a breach by failing to properly administer the ACPA and a contract between the State and the RSPCA. This appears to be a rehashing of claims of defamation, theft or detinue of the plaintiff’s dogs as well as claims under the ACPA. It is impossible to identify the elements of the cause of action and the allegations of fact are unclear and unsupportive of a claim in negligence.
Causes of action with respect to the proposed fourth defendant
[35] The plaintiff also seeks leave to add Queensland Newspapers Pty Ltd (QNP) as a fourth defendant and purports to plead causes of action in trespass, defamation, breach of right to privacy, negligence, nuisance and intention to cause injury or loss. QNP opposes the application. and argues the PSOC does not comply with the UCPR. They argue that if joined they would be unable to sensibly apprehend the case to be met.
[36] Turning to the claims against QNP, any purported action in defamation against QNP is clearly outside the 1 year limitation period as the material complained of is alleged to have been published on 13 January 2008. No application for an extension of time has been made. Earlier pleadings indicate the plaintiff was aware of publications in newspapers yet failed to bring an action in time.[6]
[37] In respect of the allegation of breach of right to privacy the plaintiff has failed to plead a civil cause of action and QNP argues her reliance on the Invasion of Privacy Act is misplaced. The PSOC fails to plead the alleged “private facts” which were disclosed or why they were private. Further, the PSOC links this allegation to the plaintiff’s claims for negligence, nuisance and intention to cause injury and loss. QNP argues that the pleading is so unintelligible and confusing it can not stand and it would be impossible to file a sensible defence to it. If the first, second and third defendants’ applications are successful then clearly there is little utility in joining QNP as a defendant in circumstances where there is no pleading on foot.
Should the plaintiff be granted leave to file the proposed statement of claim?
[38] This is not a case where there is an application to strike out a pleading but rather this is an application by the plaintiff for leave to file a pleading in circumstances where leave has previously been refused and where earlier versions of the pleading have been struck out. Therefore a significant burden rests with the plaintiff. The rules as to pleadings ensure procedural fairness in civil litigation. It is clear the plaintiff has been afforded the opportunity to be heard on several occasions; the plaintiff has had the benefit of a series of decisions; the plaintiff has been counselled on where the pleadings could be improved; and she has been directed to seek professional legal assistance.
[39] Despite the background, the PSOC is still manifestly flawed and mostly nonsensical. In my opinion there are no viable causes of action adequately pleaded in the PSOC. Neither is it the case that a viable cause of action is somewhere buried in the PSOC. The parts of the document that were not struck out at the 2 December 2010 hearing continue to present a mishmash of claims and statements without pleading elements of actions or material facts satisfactorily.
[40] For leave to be granted to the plaintiff the pleading must be capable of presently being filed and it is not. I do not consider, given that this is the ninth attempt, that there is any real prospect of the plaintiff framing a pleading that complies with the UCPR and adequately articulates viable causes of action against the defendants. It is not the case that the pleading can be saved by further amendment or omission. Leave to file the PSOC is refused.
Should QNP be added as a fourth defendant?
[41] Rule 69 (1) of the UCPR sets out the following:
69 Including, substituting or removing party
(1) The court may at any stage of a proceeding order that--
(a) a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or
(b) any of the following persons be included as a party--
(i) a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding;
(ii) a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.
[42] I am not satisfied that adding QNP as a fourth defendant in this proceeding satisfies either limb of r 69(1)(b). Based on the PSOC there does not appear to be any sufficiently pleaded viable causes of action before the Court. In my view the PSOC should not be filed, therefore there are no matters which are to be adjudicated and adding QNP as a fourth defendant is senseless.
Should Judgment be entered in favour of the defendants?
[43] Given the history, I am satisfied that there exists a high degree of certainty about the ultimate outcome of the proceeding if it were possible for it to proceed. I accept that the plaintiff has no prospect of success given her inability to frame a competent pleading. I consider judgment should be entered in favour of the first, second and third defendants.
[44] I therefore consider that,:
1. The plaintiff’s application for leave to file the proposed statement of claim should be refused;
2. The plaintiff’s application to join Queensland Newspapers Pty Ltd as a fourth defendant should be refused; and
3. Judgment should be entered in favour of the first, second and third defendants.
[45] I will hear from counsel in relation to the form of the Orders and as to costs.
Footnotes
[1] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534.
[2] Transcript Day 1 p 20 ll 29 to 34.
[3] Transcript Day 1 pp 23 to 25.
[4] Robertson v DogzOnline Pty Ltd & Anor No 13010 of 2008, QSC unreported 11 January 2010.
[5] Transcript Day 1 p 20 ll 42 – 43.
[6] Court Document 16 para 12, Court Document 30 para 12 and 30(c), Court Document 31 para 17