Gould v Alberici and Anor [1999] NSWSC 55 (15 February 1999)

Last Updated: 17 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Gould v Alberici & Anor [1999] NSWSC 55

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 10188/98

HEARING DATE{S): 4 February, 1999

JUDGDMENT DATE: 15/02/1999

PARTIES:

Stephen George Gould

v

(First Defendant): Emma Alberici

(Second Defendant): Annemarie Kitchen

JUDGMENT OF: Sperling J

LOWER COURT JURISDICTION: Supreme Court (Master)

LOWER COURT FILE NUMBER(S): 10188/98

LOWER COURT JUDICIAL OFFICER: Master Harrison

COUNSEL:

SOLICITORS:

(Plaintiff): In person

(First & Second Defendants): J Sleight

CATCHWORDS:

PRACTICE & PROCEDURE - dismiss proceedings or strike out statement of claim.

ACTS CITED:

DECISION:

Appeal allowed. Notice of Motion dismissed.

JUDGMENT:

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1 On 3 June 1998 Master Harrison struck out the plaintiff's statement of claim. On 27 July 1998 Greg James J upheld the Master's decision. On 3 November 1998 the Master held that an amended statement of claim filed by the plaintiff was defective and, on this occasion, dismissed the proceedings. There is an appeal from that determination.

2 There is also which, so far as is material, seeks the addition of two plaintiffs namely, Halisa-NSW Partnership (Halisa) and OIC EAIM Project Team (OIC).

3 The central theme of the Master's determination of 3 November 1998 was that the statement of claim is purportedly brought by the plaintiff on behalf of other entities which are not plaintiffs and which have not consented to be joined as plaintiffs.

4 I have to say that this is not correct. The amended statement of claim, as initially engrossed, specified three plaintiffs in the entitleture, namely, Mr Gould, Halisa and OIC. The plaintiff, Halisa and OIC were designated as the First, Second and Third plaintiffs. Halisa and OIC were struck through in the entitleture at the time of filing. The body of the amended statement of claim commenced, however, as follows:

"The plaintiffs (plural) plead their cause of action as follows:

A. At all material times the First Plaintiff was a Partner in a firm of Management Consultants.

B. At all material times the First Plaintiff was the Public Officer of an unincorporated association called the OPEN INTERCHANGE CONSORTIUM (OIC). The OIC is an organisation formed to raise awareness of Electronic Information Technology (EIT) issues like the Internet, Electronic Commerce and the Y2K issue.

C. At all material times the First Plaintiff was the Project Manager of the OIC Electronic Association Information Management (EAIM) project."

The damages claimed subsequently in the pleading are particularised as liquidated and unliquidated damages. I pass over the former. The claim for unliquidated damages includes the following:

"H. Unspecified damages for costs, damage to reputation and loss of earnings for the First Plaintiff."

This is followed by claims for unliquidated damages "for the Second Plaintiff" and "for the Third Plaintiff".

5 There is much that is unclear about the amended statement of claim but one thing that is clear is that the proceedings are brought on the plaintiff's' own behalf, as well as purportedly on behalf of a second and third plaintiffs (which are not identified in view of the words struck out in the entitleture).

6 The Master was thus in error in treating the amended statement of claim as not including a claim by the plaintiff on his own behalf. The determination by the Master must accordingly be set aside, and I am to exercise the discretion of the Court afresh on the defendant's application.

7 The amended statement of claim includes assertions under three headings, namely, False Misrepresentation, Breach of Contract and Management Negligence. As to the assertions made under the second and third headings, the statement of claim is defective. No reasonable cause of action is disclosed.

8 As to the assertions made under the heading, False Misrepresentation, the gravamen of the allegation appears to be that the defendants gained entry to a lunchtime lecture by deception, engaged the plaintiff in a filmed interview by deception (in which serious assertions were made and put to him), and falsely led the plaintiff to believe that he would have an opportunity to submit a response to those assertions before a television programme involving the interview went to air, with consequent damage to the plaintiff.

9 This segment of the amended statement of claim is also defective. It does not specify with sufficient clarity the facts relied upon to support a cause of action in deceit. Put another way, the defendants are not sufficiently apprised of a case they are required to meet.

10 It is a relevant consideration that the plaintiff has demonstrated an inability to plead a cause of action in a way that is acceptable. I do not believe that he has the capacity to do so. Few people would, without legal training. Left to his own devices, a further amended statement of claim would almost certainly be defective. However, assuming the plaintiff to be indigent (which appears to be the case), he might be able to secure legal assistance through the pro bono schemes of The Law Society of New South Wales or The New South Wales Bar Association. It is not a foregone conclusion, therefore, that a further amended statement of claim will necessarily be defective because of the plaintiff's lack of legal training.

11 The plaintiff may have a good cause of action for deceit. Notwithstanding that there have been two unsuccessful attempts to plead a cause of action satisfactorily, it seems to me that justice requires the plaintiff be given a further opportunity to do so in the circumstances of this case. Accordingly, the amended statement of claim should be struck out but leave should be given to file a further amended statement of claim limited to a cause of action for deceit.

12 As to the notice of motion seeking to join Halisa and OIC as plaintiffs, there is no satisfactory evidence of the existence of these organisations as legal entities and no satisfactory evidence of their consent to be joined as plaintiffs. Accordingly, the notice of motion should be dismissed.

13 I am informed from the bar table that the plaintiff has now commenced defamation proceedings against the television channel concerned and one of the present defendants. No order has been sought for consolidation. It may be that the best course for the plaintiff to follow would be to amend the statement of claim in the defamation proceedings by adding a claim in deceit rather than seek to maintain the two sets of proceedings allegedly arising out of the same events. It might also be that, if the plaintiff fails to take that course, the present defendants might apply to have these proceedings transferred to the defamation list with a view to consolidation with the defamation proceedings.

14 The orders I make are as follows:

(1) Decision of Master Harrison given on 3 November 1998 set aside.

(2) Amended statement of claim struck out.

(3) Leave to the plaintiff to file and serve a further amended statement of claim limited to a cause of action for deceit by 4.00 pm on 12 March 1999.

(4) Plaintiff to pay the defendants' costs of the appeal.

(5) Notice of motion filed on 7 December 1998 (for the addition of plaintiffs) dismissed.

(6) Plaintiff to pay the defendants' costs of the motion.

-oOo-

LAST UPDATED: 15/02/1999