Burke v Apel [2015] QDC 112

1 [2015] QDC 112 DISTRICT COURT OF QUEENSLAND CIVIL JURISDICTION JUDGE REID No 667 of 2015 DOMINIC BURKE Plaintiff and GREG APEL Defendant BRISBANE 9.37 AM, WEDNESDAY, 6 MAY 2015 JUDGMENT . -- 1 of 4 -- __________________________________________________________________________________ 2 JUDGMENT HIS HONOUR: The defendant is a psychiatrist. It appears that the plaintiff claimed to have been injured in his employment as a Commonwealth public servant and brought a claim for statutory benefits, and in that proceeding, the defendant was engaged to provide a psychiatric report to the appropriate compensatory body. 5 The plaintiff’s claim in proceedings in this Court is that the defendant’s misconduct, to use that term as a comprehensive summary of the plaintiff’s allegations, caused him loss. He is self-represented in these proceedings. The defendant has applied to set aside the claim pursuant to rule 16(e) of the Uniform 10 Civil Procedure Rules, or, alternatively, to have the statement of claim struck out pursuant to rule 171 and to stay the proceedings pursuant to rule 16(f) of the UCPR. He also seeks indemnity costs. The plaintiff filed an original statement of claim on the 19th of February 2015. It 15 appeared to contain allegations of personal injury, but there had been no compliance with the provisions of the Personal Injuries Proceedings Act. It also appeared to contain a claim for defamation, but was outside the time limit referred to in section 10AA of the Limitations of Actions Act with respect of such claims. There were other matters which the defendant asserted amounted to non-compliance with the the 20 UCPR. Subsequently, the defendant filed a conditional notice of intention to defend pursuant to rule 144 of the UCPR. The plaintiff filed an amended statement of claim on the 10th of April 2015. The defendant asserts this pleading is still grossly defective. He 25 asserts it fails to plead a reasonable cause of action, is scandalous and incoherent and is not in accordance with the rules. I’ve read the amended statement of claim. It appears that the plaintiff asserts that the appointment he had with the defendant was without his consent. He alleges that the 30 defendant ignored appropriate medical practices and was motivated by greed, bad faith, ill will and malice. He alleges that the defendant’s report went beyond the appropriate criteria for assessing the plaintiff and was a “fishing expedition.” He alleges the report that the defendant prepared included false and malicious accusations against the plaintiff and omitted factors in the plaintiff’s favour, which 35 “illustrated his conspiratorial actions.” He alleges the defendant relied on “collateral evidence” obtained from the plaintiff’s general practitioner and employer, the latter which was said to have been known by the defendant to be false and misleading. He pleads that “professional negligence is as clear as day as the defendant’s actions cannot be considered anything but a negligent omission or more likely a deliberate 40 omission.” He alleges the defendant’s failure to refer in his report to an alleged “involuntary mental health hospitalisation” was said to illustrate the defendant’s breach of medical practice. He alleges the defendant deliberately breached the plaintiff’s 45 privacy by providing the report to, inter alia, the plaintiff’s employer. The plaintiff also appears to assert that the defendant’s disclosure of his health -- 2 of 4 -- 3 JUDGMENT conditions, presumably psychiatrically related, was a breach of confidence and contrary to legislation and “the psychologist code.” The defendant is, of course, a psychiatrist and not a psychologist. He alleges the contents of the amended statement of claim is itself “unambiguous proof of the fact the appointment was a non-consensual and unethical”. The matters, of course, alleged in the pleading are 5 not proof of anything, but mere allegations. He refers to “the complete shambolic and biased nature of this forced unlawful appointment” which it is said the plaintiff attended because, as it is said the defendant knew, he was coerced to attend by fraudulent means. The means are not identified. He refers in the amended statement of claim to the “ill will and evil intent” of the defendant which, it is alleged, entitle 10 the plaintiff to recover damages. The nature of such damages are unspecified. He alleges that the “defendant knew the plaintiff was totally against participating in the appointment, and no consent was provided, but he still continued to undertake his money-making antics by assessing the plaintiff and asking intrusive an unnecessary questions.” He refers to breach of the plaintiff’s rights “under the Medical Practice 15 Act QLD.” No such Act exists. He alleges that he suffered loss and damage as a result of the defendant’s professional negligence, but, on my reading of the pleading, does not articulate what sort of loss that was or the extent of it and doesn’t identify in any sensible way the 20 alleged negligence. I do not propose to otherwise analyse the amended statement of claim other than to say that it does allege that the defendant’s report “has done damage to the plaintiff’s fame and reputation and his ability to gain employment.” Insofar as that might be 25 thought to be a claim of defamation, it is well beyond the limitation period referred to in section 10AA of the Limitation of Actions Act. It can readily be discerned that the amended statement of claim is in complete disregard of the rules with respect to pleadings. 30 It does not plead only material facts. The pleading is prolix and vexatious. It contains statements of opinion. It doesn’t enunciate the nature of the claim the plaintiff asserts and doesn’t contain any statement as to the nature of the plaintiff’s alleged loss or damage. Insofar as it alleges defamation, the plaintiff faces a 35 significant hurdle with respect to the limitation period. It is clear that the defendant could not be properly informed as to the case he has to meet. The pleading does not set out the facts which he must be able to prove to make good his claim. To allow the claim to proceed as currently formulated would 40 effectively deny the defendant procedural fairness. Consideration of the pleading causes me to conclude that it should be struck out and the action stayed unless and until the plaintiff obtains an order of the Court giving leave to file a further amended statement of claim. I shall further order that unless such order is obtained within a period of three months, then the plaintiff’s claim is dismissed. 45 The defendant’s counsel referred me to a number of helpful decisions. In Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd & Ors [2011] QCA 252 Philippides J, as her -- 3 of 4 -- 4 JUDGMENT Honour then was, in a judgment with which Chesterman JA and North J agreed, said at paragraphs 27 thereof, omitting references; The judge at first instance by wrongly applying Spencer’s case, failed to have sufficient regard to considerations pertinent to the task at hand when 5 considering deficient pleadings. Counsel for the appellant listed the well established principles that are relevant in determining whether a pleading will be regarded as being “deficient”. Considerations relevant in deciding if a pleading is deficient include whether it fails to fulfil the function of pleadings, which are “to state with sufficient clarity the case that must be met” and thus 10 define the issues for decision thereby ensuring procedural fairness. A pleading will lack sufficient clarity if it is “ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”. Likewise a pleading will be deficient if the pleader’s case is not “advanced in a comprehensible, concise form appropriate for consideration both by the court, 15 and for the purpose of the preparation of a response.” In my view, such considerations compel the conclusion I’ve reached that the amended statement of claim is grossly deficient. 20 In my view, considerations of the sort considered by Keane JA, as his Honour then was, at paragraph 23 of his decision in de Boulay v Worrell & Ors [2009] QCA 63 justify the order I’ve made as to the dismissal of the claim if the plaintiff does not obtain leave of the Court to file a fresh statement of claim within three months. Whilst the order I make is different to that made in that case, I have concluded, even 25 making allowance for the plaintiff’s difficulties as a self-represented litigant, that it is difficult to discern from the pleading that he has reasonable prospects that he will ever be able to properly plead a cause of action that could be successfully pursued. In so concluding I’m conscious that the plaintiff is not a novice litigator and has in 30 the past been referred to the Queensland Public Interest Clearing House and to the Legal Aid to seek assistance (see the decisions of Robin QC DCJ in Burke v Hampton [2011] QDC 95 and also Burke v Hampton & Anor [2012] QDC 316.) In the circumstances, I order: 35 (1) the amended statement of claim be struck out; (2) the plaintiff’s action be stayed unless and until the plaintiff obtains an order of the Court giving him leave to file a further amended statement of claim; (3) in the event that the plaintiff does not obtain such leave on or before the 6th of August 2015, the plaintiff’s action is dismissed, and the plaintiff ordered to 40 pay the defendant’s costs of an incidental to the action to be assessed; (4) the plaintiff pay the defendant’s costs of and incidental to this application to be assessed. ______________________ 45 -- 4 of 4 --