Twining v Curtis [2011] ACTSC 3 (31 January 2011)

Last Updated: 7 February 2011

ANTHONY ALBERT TWINING v JACQUELINE ANNE CURTIS

[2011] ACTSC 3 (31 January 2011)

PRACTICE AND PROCEDURE – pleading – application to amend statement of claim – tort – causes of action in misfeasance in public office and in injurious falsehood – pleading not capable of establishing misfeasance in public office – unrepresented plaintiff – leave granted to amend pleading of injurious falsehood counts

PRACTICE AND PROCEDURE – res judicata – estoppel – application for leave to file amended statement of claim having been heard and determined – application by plaintiff to reopen prior application – application refused

Court Procedures Rules 2006 (ACT)

Twining v Curtis [2008] ACTSC 3

Twining v Curtis [2009] ACTSC 106

Twining v Curtis [2010] ACTSC 115

No. SC 178 of 2007

Judge: Master Harper

Supreme Court of the ACT

Date: 31 January 2011

IN THE SUPREME COURT OF THE )

) No. SC 178 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANTHONY ALBERT TWINING

Plaintiff

AND: JACQUELINE ANNE CURTIS

Defendant

ORDER

Judge: Master Harper

Date: 31 January 2011

Place: Canberra

THE COURT ORDERS THAT:

1. The plaintiff’s application in proceeding dated 24 November 2010 be dismissed.
2. The plaintiff pay the defendant’s costs of that application.
3. The plaintiff is to file and serve within fourteen days the further amended statement of claim for which leave was granted on 22 October 2010.
4. The action be listed for directions on 28 February 2011.

1. I am required to determine an application in proceeding filed by the plaintiff, who is unrepresented, on 24 November 2010. I heard the application on 10 December 2010. The plaintiff appeared in person. The defendant was represented by Mr Crowe of senior counsel.

2. The application seeks an order that paragraphs 2 and 21 to 25 of the plaintiff’s further amended statement of claim be reinstated. The ground for the application is expressed in the document in the following terms:

The defendant’s objection to paragraphs 2 and 21 to 25 of the plaintiff’s further amended statement of claim, made without notice at hearing on 22 October 2010, was founded in falsehood and caused a miscarriage of justice i.e. Master Harper’s order that paragraphs 2 and 21 to 25 be excised.

3. The plaintiff commenced this action by originating claim in March 2007. The cause of action was in negligence. In August 2007 the defendant applied for an order that the statement of claim be struck out as disclosing no cause of action. Crispin J in September 2007 directed that the plaintiff file and serve any proposed amended statement of claim by 4 October 2007. It is evident that Crispin J contemplated that the court and the defendant should have an opportunity to examine the proposed statement of claim before it was permitted to be filed and served.

4. On 3 October 2007 the plaintiff filed an amended originating claim and an amended statement of claim. He did not obtain leave. Leave at that time was probably not required. The application to strike out the originating statement of claim remained undetermined, and came before me for hearing during November 2007. The hearing of the application at that time was conducted as an application to strike out the amended statement of claim for failing to disclose a cause of action.

5. For reasons published on 29 January 2008, I ordered that the amended statement of claim be struck out, noting that the plaintiff would require leave to file any further amended statement of claim: Twining v Curtis [2008] ACTSC 3.

6. The plaintiff appealed from my decision. The appeal was heard by Penfold J who published reasons allowing it in part on 2 September 2009: Twining v Curtis [2009] ACTSC 106. Her Honour identified errors in my reasons for decision but arrived at the same conclusion, that the amended statement of claim should be struck out, and that the plaintiff would require leave to file a further amended statement of claim.

7. The amended statement of claim pleaded a different cause of action, misfeasance in public office. The plaintiff’s case arises from the termination of his employment at the end of an extended probationary period with the Australian Public Service Commission during 2004. The defendant was a fellow employee, though at a more senior level. The plaintiff says that the defendant abused her power on three occasions, resulting in the termination of his employment.

8. Following the publication of Penfold J’s reasons, the plaintiff prepared a further amended statement of claim, and made application in October 2009 for leave to file it. The application was heard in February 2010. On 24 September 2010 I refused leave to file it but gave the plaintiff twenty-eight days to lodge and serve a further draft. I published my reasons for those orders: Twining v Curitis [2010] ACTSC 115.

9. The new proposed statement of claim contained two counts in injurious falsehood and one count in misfeasance in public office. I summarised the assertions of fact contained in the proposed statement of claim in my reasons. I concluded that, assuming that the plaintiff could satisfy the court that the defendant’s conduct had been actuated by malice and that her actions had caused him damage, he appeared to have an arguable cause of action for the tort of misfeasance in public office. The counts in injurious falsehood to some extent broke new ground but I concluded that, assuming that the plaintiff could prove malice and damage, he had a cause of action that he ought to be able to take to trial: that is to say, it was not so hopeless that it should be struck out at that point.

10. However, I found a number of drafting defects in the proposed amended statement of claim. As an example, many paragraphs in the statement of claim were prefaced with the words “to the best of the plaintiff’s knowledge, information and belief . . .”. I said that the document was not in its form at that point acceptable for filing and I gave the plaintiff twenty-eight days to produce a further draft for scrutiny prior to any formal grant of leave.

11. On 13 October 2010, the plaintiff filed a further application seeking leave to file a further amended statement of claim in the form attached to the application. This fresh application was heard on its return date, 22 October 2010. As previously, the plaintiff appeared in person and the defendant was represented by Mr Crowe SC.

12. After hearing argument from both sides, I came to the view that the tort of misfeasance in public office could not be made out on the draft pleading. The pleading contained a bare assertion that the defendant was the holder of a public office and was performing public duties in her dealings with the plaintiff, but no facts were pleaded which, if established, would have been capable of proving the assertion. I put this to Mr Twining during submissions. He accepted that he could not plead the facts in any more detail. He had never had access to the defendant’s duty statement and did not know the full nature of her duties. He accepted that he had pleaded the cause of action to the extent he could, and was not able to take it further. He said that he thought he had complied with what was required of him, and said “if that’s not the case, then there is really nothing I can do”.

13. I then granted leave to the plaintiff to file a further amended statement of claim in the form of the draft pleading attached to the application, subject to the removal of paragraphs 2 and 21 to 25 inclusive. I directed that the document be filed and served within fourteen days, set a date for the filing of a defence, and stood the matter over for further directions.

14. The plaintiff did not file a further amended statement of claim in accordance with the leave granted, within the time specified or subsequently. Instead, he made the present application, asking for an order that paragraphs 2 and 21 to 25 inclusive of the most recent draft be reinstated.

15. I heard the application on 10 December 2010. The plaintiff sought to persuade me that he had been taken by surprise on 22 October 2010, not having been given notice of the point taken by Mr Crowe SC. He sought to reargue the previous application.

16. The present application must fail. What the plaintiff is asking the court to do is to reopen and rehear the application of 13 October 2010. That application has been heard and determined. Orders have been made. What the plaintiff seeks to agitate goes far beyond an accidental slip or omission which might be able to be corrected under the slip rule. On 22 October 2010 I granted leave to the plaintiff to file and serve a further amended statement of claim in a specified form, and directed that it be done within fourteen days.

17. I remind myself of the exhortation in rule 21 of the Court Procedures Rules 2006 (ACT), that, amongst other things, civil proceedings are to be resolved with minimum delay, and that the rules are to be applied with the objective of achieving, inter alia, the timely disposal of the proceedings, and of all other proceedings in the court.

18. I recognise that the plaintiff is unrepresented and lacks the training and experience of a legal practitioner. That, however, is his choice and gives him no special advantage over other litigants. The plaintiff has been encouraged by judicial officers on a number of occasions to consider engaging legal representation to draft or settle his pleadings, initially by Crispin J in September 2007, by me in January 2008, and again by Penfold J in September 2009. It is now approaching four years since these proceedings were commenced, and we have not yet reached the stage where a statement of claim in satisfactory form has been filed.

19. I propose to allow the plaintiff fourteen days from the publication of these reasons to file and serve the further amended statement of claim for which leave was granted on 22 October 2010, and to list the action for further directions four weeks after the publication of reasons, with a view to fixing a timetable which will result in the action being heard in a timely fashion if it is to proceed to trial.

20. The application before me is misconceived and will be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 31 January 2011

Plaintiff: In person

Counsel for the defendant: Mr R L Crowe SC

Solicitors for the defendant: Australian Government Solicitor

Date of hearing: 10 December 2010

Date of judgment: 31 January 2011