Burke v Hampton & Anor [2012] QDC 316

DISTRICT COURT OF QUEENSLAND CITATION: Burke v Hampton & Anor [2012] QDC 316 PARTIES: DOMINIC BURKE (Respondent/Plaintiff) V WENDY HAMPTON (Applicant/First defendant) And THE COMMONWEALTH OF AUSTRALIA THROUGH THE DEPARTMENT OF AGRICULTURE, FISHERIES AND FORESTRY (Applicant/Second defendant) FILE NO/S: 3153/10 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 17 October 2012 DELIVERED AT: Brisbane HEARING DATE: 16 October 2012 JUDGE: Robin QC DCJ ORDER: Statement of claim struck out and proceeding stayed CATCHWORDS: Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A, a 44, s 45 Uniform Civil Procedure Rules 1999 r 16(g), r 17 Plaintiff’s (4th) statement of claim struck out - 3rd order of this kind - claim commenced without giving prior written notice of claim as required by legislation - abuse of process. COUNSEL: Mr J. W. Merrell for the Applicants/Defendants SOLICITORS: Ashurst (Canberra) for the Applicants Mr D. Burke (Respondent/Plaintiff), self represented [1] This is an application by the defendants pursuant to Rule 16(g), filed on 19 August 2012 seeking to have the proceeding stayed, along with striking out of the Second -- 1 of 8 -- 2 Amended Statement of Claim filed 23 July 2012 under Rule 171. The plaintiff, Dominic Burke, has been self-represented throughout a series of attacks on his pleadings, except for one brief period when he engaged lawyers who drafted a statement of claim for him intended to overcome difficulties with predecessor pleadings established to my satisfaction on 19 May 2011: see Burke v Hampton [2011] QDC 095. The defendants complained of the inadequacy of the original statement of claim filed with the claim on 1 November 2010 and Mr Burke’s voluntary second attempt (following defence criticism of the first one) of 26 November 2010. I struck out both of those pleadings, granting leave to re-plead. [2] Another order striking out Mr Burke’s next attempt filed 6 July 2011 entitled “Statement of Claim (amended statement of claim)” was made by Judge McGill SC on 26 June 2012, when a solicitor, Mr Fitzgibbon, represented Mr Burke, but sought leave to withdraw, which was granted, consequent upon Mr Burke’s rejection of the document he produced. Its preparation was Mr Burke’s attempt to respond to the defendants’ objections communicated to him to the second amended statement of claim which was filed on 6 July 2011 after my order. Judge McGill SC struck out that filed statement of claim, granting leave to re-plead, so as to permit Mr Burke to consider a how he wished to adapt Mr Fitzgibbon’s document. A “Second Amended” Claim and Statement of Claim showing Jon Kent as solicitors, never formally filed, were sent to the defendants’ solicitors on 18 January 2012. They are in evidence, exhibited to an affidavit. [3] A further “Second Amended Statement of Claim”, pursuant to that leave was filed on 23 July 2012. The defendants take issue with it and submit the time has come to put an end to the proceeding. That time had arrived in Mohareb v Lambert & -- 2 of 8 -- 3 Rehbein (SEQ) Pty Ltd [2010] QSC 126, leading to White J making an order of the kind sought here. There are some similarities in the facts here. [4] Mr Merrell, for the defendants, asked for an order that the proceeding be “permanently stayed”, but “permanently” does not appear in the rule 16, nor did White J order a “permanent” stay, although asked to. It may be open to Mr Burke, given that a similar order will be made on the present application, to approach the court and seek to have the stay removed, as an exercise of discretion by a Judge. One would not expect that to occur unless a statement of claim in a form satisfactory to the court, perhaps accompanied by evidence that Mr Burke has a worthwhile cause of action, is produced. I do not say whether that possibility is open or not. Compare Rapson v Wright [1999] NSWSC 566, Brookfield v Davey Products Pty Ltd [2001] FCA 104 at [27] and Comptroller-General of Customs v Stephen Edward Parker [2003] NSWSC 489 at [15]. [5] The court should be careful not to shut out a would-be plaintiff who may have a good cause of action. The extent of indulgence offered to self-represented plaintiffs has its limits, as authorities mentioned by White J and in my reasons on the last occasion indicate. [6] While Mr Burke still fails to get his statement of claim into acceptable shape, even on the more easy level expected of a lay pleader (who, like any other pleader, must produce a coherent, understandable pleading capable of being responded to by the defendant), the broad thrust of the case Mr Burke wants to make can be appreciated. [7] He contends that at the outset of his employment as a baggage inspector working for customs at Brisbane Airport, he satisfactorily completed his trial and worked well -- 3 of 8 -- 4 for some years until bullying at the workplace (including by his superiors, who he alleges corruptly conspired against him) led to problems. He suggests there was an inappropriate investigation of complaints and a completely irregular referral of him to a psychiatrist which he ill-advisedly went along with. He says the consequences of that exercise led to the dissemination of highly embarrassing information in the workplace and his sacking. He complains of psychological injury and (what may be consequential) financial loss. I am satisfied that Mr Burke genuinely believes in his claim. It is clear that he has pursued it in one form or another by other avenues, in various other places and tribunals, all without success. He makes the complaint that he has been unable to get from the defendants access to documents which would support his claim. There have been other applications in this proceeding relating to such aspects; they play no part for present purposes. [8] The current pleading does differ from its predecessors. Mr Burke correctly says that the basis of it is the Jon Kent document. The claim, originally for $220,000 was raised by the solicitors to $303,000 then by Mr Burke to $450,000. Mr Burke, however, has added large amounts of material of his own, some re-hashing what the solicitors had attempted to take out. This includes assertions of bullying, targeting and harassment by management and management’s encouraging bullying and targeted harassment. There are allegations which strike me as scandalous, of bias and corruption; a professional person is condemned as a “grub”. The claim is, as presently formulated, based on failure to “take all reasonable steps to protect the health, safety and welfare of the plaintiff”, provide adequate supervision of the workplace, and like, and is shorn of earlier complaints about dismissal, which the solicitors had removed. There is the exception that Mr Burke has brought back in as part of the particulars of the lawyers’ assertion that the employment contract was in -- 4 of 8 -- 5 writing a reference to “August 2009 when the defendant (sic) was dismissed for reasons of which there is zero evidence to support the decision”. [9] On this occasion, Mr Merrell, counsel for the defendants, has got into the “merits” and presented argument (to which Mr Burke offered no answer), that the claim must fail. The key reason is found in ss 44 and 45 of the (Commonwealth) Safety, Rehabilitation and Compensation Act 1988: “44 Action for damages not to lie against Commonwealth etc. in certain cases (1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of: (a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or (b) the loss of, or damage to, property used by an employee resulting from such an injury; whether that injury, loss or damage occurred before or after the commencement of this section. (2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section. (3) If: (a) an employee has suffered an injury in the course of his or her employment; and (b) that injury results in that employee’s death; subsection (1) does not prevent a dependant of that employee bringing an action against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee in respect of the death of the first-mentioned employee. (4) Subsection (3) applies whether or not the deceased employee, before his or her death, had made an election under subsection 45(1). 45 Actions for damages—election by employees (1) Where: -- 5 of 8 -- 6 (a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and (b) the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non- economic loss suffered by the employee as a result of the injury; the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss. (2) Where an employee makes an election: (a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and (b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury. (3) An election is irrevocable. (4) In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee. (5) The election by an employee under this section to institute an action or proceeding against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee does not prevent the employee, before, or instead of, formally instituting such action or proceeding, doing any other thing that constitutes an action for non-economic loss.” Those provisions protect the first defendant as well as the Commonwealth. “Injury” includes mental injury: see s 5A. The way in which these provisions work is that s 44 stands in the way of the proceeding unless s 45 is satisfied. Section 45 requires a written election whether to claim compensation or sue in a court which has to be communicated to the defendant before the proceeding is commenced. I am bound by the majority view in the Court of Appeal in Grogan v Commonwealth [1999] 1 Qd R 30, who held that Ms Grogan’s proceedings “must be dismissed because no -- 6 of 8 -- 7 such election was made before they were instituted.” The majority disagreed with the primary Judge’s approach that instituting proceedings was a sufficient election, by the plaintiff’s solicitor signing a document. It was held at 34-35 that it was necessary to communicate the election in writing to the Commonwealth, that communication being “part of the election”. Mr Burke’s claim, as formulated, must fail in the same way as Ms Grogan’s did. [10] In the circumstances it is unnecessary to consider other difficulties Mr Merrell submitted arose, such as a possible limitations problem, given that the only date mentioned in the statement of claim was one more than three years before commencement of the proceeding. [11] The basis for the stay being sought is that the defendants still face a (fourth) statement of claim which doesn’t comply with the rules of pleading, contains objectionable material rendering the pleading as a whole difficult to understand and plead to, as well as making a claim that the Commonwealth Act says could not be made, on the Court of Appeal’s interpretation. There is no claim against the first defendant, Ms Hampton, at all. Mr Merrell argues that this being the third time the plaintiff’s statement of claim in its entirety has been struck out, the case becomes one of “continued use of the court’s procedures by the Plaintiff [being] unjustifiably oppressive to the defendants. This is a recognised category of an abuse of process.” In that regard, reference is made to Moti v R (2011) 283 ALR 393 at [10], which indicates that the categories of abuse of process are not closed. [12] Mr Burke read a long affidavit replete with allegations by him against many people that may be scandalous. The affidavit takes strong exception to the characterisation -- 7 of 8 -- 8 of claims by plaintiffs against the Commonwealth as “vexatious” by the Commonwealth. It is suggested that it repeatedly offends in this way when it wishes to gain an improper advantage by using its assumed or presumed good standing as a litigant to dignify the charge and add to its credibility. Mr Burke may have been distracted by the appearance of the term “vexatious” in Rule 171, other parts of which (abuse of process of the court, in particular) are relied on by the Commonwealth. Vexatiousness is not. Nor was it intimated that, for all of his “proceedings” (or equivalents) seeking to ventilate and obtain redress for his underlying grievance, Mr Burke was a vexatious litigant. [13] The defendants have, in the unusual circumstances, established the applicability of Rule 171(1)(a) and (e), at the least. The orders that may be made under that Rule do not go beyond striking out a pleading and awarding costs, which may be on the indemnity basis. Hence resort being had to Rule 16(g), for which this is an appropriate case. Orders ought to be made in terms of paragraphs 1, 2 and 4 of the defendants’ application filed 9 August 2012 accordingly, and with “permanently” deleted from paragraph 2 (consistently with the course White J took) and with reference to the indemnity basis deleted from paragraph 4. I think that Mr Burke deserves some recognition for the trouble he has taken to base the pleading now struck out on his erstwhile lawyer’s work. The costs order is likely to prove a hollow one. At the time of filing of the claim, the Deputy Registrar made an order granting Mr Burke exemption from payment of filing fees under Rule 971. [14] I propose to pronounce orders as indicated in Court on 26 October 2012, which will allow the parties a week to consider these reasons. -- 8 of 8 --