Re Mark Bernard Everard Mccauley v Hamilton Island Enterprises Pty Limited (First Defendant); Keith Williams (Queensland) Pty Limited (Second Defendant); Great Barrier Reef Marine Park Authority (Third Defendant) and the Commonwealth of Australia (Fo [1987] FCA 189 (10 June 1987)

FEDERAL COURT OF AUSTRALIA

Re: MARK BERNARD EVERARD McCAULEY
And: HAMILTON ISLAND ENTERPRISES PTY. LIMITED (First defendant); KEITH
WILLIAMS (QUEENSLAND) PTY. LIMITED (Second defendant); GREAT BARRIER REEF
MARINE PARK AUTHORITY (Third defendant) and THE COMMONWEALTH OF AUSTRALIA
(Fourth defendant)
No. G5 of 1987
Practice (Pleading)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Practice (Pleading) - Application to strike out pleading as embarrassing because it pleads matters of law and not facts.

HEARING

SYDNEY
10:6:1987

Counsel and Solicitors for Plaintiff: Mr. A. B.Shand Q.C. with Mr. D. Cowan instructed by McGuren Allen & Holt

Counsel and Solicitors for Third Defendant: Mr. A. Abadee Q.C. with Mr. P. Jones instructed by Australian Government Solicitor

ORDER

The third defendant's motion to strike out paragraphs 15A to 150 (inclusive) of the plaintiff's further amended statement of claim is dismissed.

The third defendant is to pay the plaintiff's costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The background to this motion appears in the reasons given on the fourth defendant's application to strike out parts of the further amended statement of claim. The third defendant now moves to strike out paras.15A to 150 (inclusive) on the ground that they are embarrassing (O.11 r.16(b)). The pleading is in these terms:

"15A. Further or in the alternative, pursuant to
Regulation 13A(1) of the Great Barrier Reef
Marine Park Regulations subject to
Sub-Regulations (2), (3) and (4), a person shall
not carry on a prescribed activity in the
unzoned area without the permission in writing
of the Third Defendant.

15B. The Third Defendant was thereby under a duty not
to allow a prescribed activity to be carried on
in the unzoned area without the permission in
writing of the Third Defendant.

15C. Further or in the alternative, pursuant to
Regulation 13C(f) of the Great Barrier Reef
Marine Park Regulations the Third Defendant, in
considering an application for a permission to
carry on a prescribed activity in the unzoned
area shall have regard to the means of access to
and egress from the site of the prescribed
activity and the adequacy of provisions for
aircraft or vessel mooring, landing, parking,
loading or unloading.

15D. Pursuant to Regulation 13C(g) of the Great
Barrier Reef Marine Park Regulations the Third
Defendant, in considering an application for a
permission to carry on a prescribed activity in
the unzoned area shall have regard to health and
safety aspects in relation to the carrying on of
the prescribed activity.

15E. Pursuant to Regulation 13C(h) the Third
Defendant, in considering an application for a
permission to carry on a prescribed activity in
the unzoned area shall have regard to the
adequacy of the construction of the structures,
landing areas, farming facilities or vessels to
which the prescribed activity relates.

15F. Further or in the alternative, pursuant to
s.47(2) of the Great Barrier Reef Marine Park
Act, 1975 an inspector appointed by the Third
Defendant may seize any vessel or article that
he reasonably believes to have been used or
otherwise involved in the commission of an
offence against the said Act and may retain it
until the expiration of a period of sixty (60)
days after the seizure or, if a prosecution of
an offence against the said Act in the
commission of which it may have been used or
otherwise involved is instituted within that
period, until the prosecution is terminated.

15G. The Third Defendant was thereby under a duty to
seize and retain the pontoon in accordance with
the said prosecution.

15H. Further or in the alternative, pursuant to
s.66(2)(g) of the Great Barrier Reef Marine Park
Act, 1975 the Governor General may make
regulations providing for the removal from the
Park of persons unlawfully in the Park or
committing offences against the said Act in the
Park.

15I. Pursuant to s.66(2)(h) of the said Act the
Governor General may make regulations providing
for the safety of persons in the Park.

15J. Pursuant to s.66(2)(i) of the said Act the
Governor General may make regulations regulating
the conduct of persons in the Park.

15K. Pursuant to s.66(2)(j) of the said Act the said
Governor General may make regulations regulating
or prohibiting the carrying on of any trade or
commerce in the Park.

15L. Pursuant to s.66(2)(m) of the said Act the
Governor General may make regulations providing
for the removal of vessels from places in the
Park where they have been left in contravention
of the regulations or have been abandoned and
for the impounding of such vessels.

15M. Pursuant to s.66(2)(o) of the said Act the
Governor General may make regulations regulating
the use of vessels in, and the passage of
vessels through, the Park and the landing and
use of aircraft in, and the flying of aircraft
over, the Park.

15N. Pursuant to s.66(2)(v) of the said Act the
Governor General may make regulations providing
for any matter incidental to or connected with
any of the aforesaid.

150. The Third Defendant was thereby under a duty of
care to take all reasonable care for the
Plaintiff's safety whilst he was in the said
Great Barrier Reef Marine Park."

2. The plaintiff concedes that no private action for breach of statutory duty is available here. Rather, his claim is for breach of a common law duty of care. He says that the provisions of the Great Barrier Reef Marine Park Act 1975 ("the Act") and the Great Barrier Reef Marine Park Regulations ("the Regulations") play a part in the creation of a common law duty on the part of the third defendant to the plaintiff (cf. per Mason J. 69 ALR at p.274).

3. The present motion differs from the Commonwealth's motion in that it is not suggested here that the pleading does not allege a reasonable cause of action vis-a-vis the third defendant. The attack now made is purely a pleading point. It is said that the paragraphs in question are bad because they plead matters of law rather than material facts.

4. Pleadings are dealt with by O.11. A pleading shall contain and contain only, a statement in a summary form of the material facts on which a party relies, but not the evidence by which those facts are to be proved (r.2(a)). With certain exceptions, a party need not plead a fact if the fact is presumed by law to be true (r.5(a)). A party may by his pleading raise a point of law (r.9). With certain exceptions, an allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading (r.13(1)). Allegations of damage apart, every allegation of fact made in a statement of claim which the party on which it is served does not intend to admit must be specifically traversed by him (r.13(3)).

5. It is submitted on behalf of the third defendant that the subject paragraphs of the plaintiff's pleading are bad and embarrassing because they plead matters of law only and do not plead matters of fact. The third defendant relies on the general principle that the pleader "must plead facts and not law", so that "inferences of law to be drawn from the pleaded facts need not be stated in the pleading" (see The Supreme Court Practice 1982 Vol.1 at p.299). However, the learned authors there add:

"If the material facts are alleged it is not necessary
to plead the legal result, and if for convenience
this is pleaded, the party is not bound by, or
limited to, the legal result he has alleged but may
rely on any legal consequences of the pleaded facts
which may properly flow from them (Re Vandervell's
Trusts (No. 2), White v. Vandervell Trustees Ltd.
[1974] EWCA Civ 7; (1974) Ch 269; (1974) 3 WLR 256; (1974) 3 All
ER 205, C.A.)."

6. The third defendant relies upon the following passage in Bullen & Leake and Jacob's Precedents of Pleadings, 12th ed. at pp.685-6:

"Where the duty is founded on contract, or arises out
of a relation created by bailment or retainer, the
facts must be set out which created the duty. But
where the duty is one which all citizens owe to each
other, as, e.g. not to run over a man in the street,
the duty need not be specifically alleged. It is
enough to state the facts with a general allegation
that the defendant acted negligently. An express
allegation of duty on the part of the defendant is a
mere inference of law. If the facts stated do not
raise the duty, the express allegation will not
supply the defect; and if the facts sufficiently
show the duty, the express allegation is unnecessary,
and therefore ought not to be introduced (Cane v.
Chapman (1836) 5 Ad & E 647, referred to in Seymour
v. Maddox (1851) 16 QB 326; and see Hurdman v.
North Eastern Railway Co. (1878) 3 CPD 168, per
Cotton L.J. at p 173)."

7. The third defendant argues that the plaintiff's pleading is embarrassing because it does no more than allege the effect of the Regulations, a matter which the third defendant is not permitted to traverse since it is not a matter of fact.

8. In my opinion, the plaintiff's pleading does not have any tendency to embarrass. Fairly read, the allegations seek to maintain a common law duty of care arising out of the context of the Regulations. It is true that the plaintiff has pleaded, by paraphrase, the effect of the Regulations in some instances. But, of itself, this could not embarrass the third defendant. If the plaintiff has failed to state fully or adequately the effect of the Regulations, the third defendant could plead accordingly. Since it was necessary for the plaintiff to refer to the Regulations in order to state the nature of his claim, it was "convenient" (to adopt the phrase used by the authors of Bullen & Leake and Jacob in the additional passage quoted above) to allege that the provisions of the Regulations had a particular operation.

9. Put differently, this is not a case of a bare allegation of a proposition of law. If such an allegation had been made, it may have embarrassed the defendant. But here the plaintiff has alleged that the provisions of the Act and the Regulations play a part in the creation of a common law duty of care on the part of the third defendant to the plaintiff. It must follow that it was appropriate and proper for the pleader to not only refer to but also to explain the relevant operation of the provisions relied upon.

10. The third defendant's motion is dismissed with costs.