Citation: Radford v State of New South Wales; Radford v Justice Health, New South Wales [2011] NSWSC 700
Court: Supreme Court of New South Wales
Date: 29 June 2011
Judge(s): Johnson J
Background
An unrepresented plaintiff filed two handwritten Statements of Claim in the Supreme Court in late 2010 and early 2011. The first alleged assault, false imprisonment, and negligence arising from his arrest by New South Wales Police in December 1999. The second alleged medical negligence and mistreatment during his imprisonment in New South Wales prisons between 1999 and 2004.
Both claims had already been the subject of District Court proceedings. The police claim had a lengthy and troubled history in the District Court, culminating in the Court of Appeal striking out the plaintiff's Statement of Claim in October 2010 and making adverse costs orders. The medical negligence claim had been settled by consent in the District Court in May 2009, on the plaintiff's own initiative, with the proceedings dismissed and no order as to costs.
The defendants brought motions seeking summary dismissal of both Supreme Court proceedings on grounds of abuse of process, defective pleadings, and the expiry of limitation periods.
Legal Issues
- Whether the Supreme Court proceedings constituted an abuse of process, given the prior District Court litigation concerning the same subject matter
- Whether the Statements of Claim were so defective in form and substance as to warrant being struck out
- Whether the claims were statute-barred under the Limitation Act 1969 and, if so, whether any extension of time should be granted
Decision
Johnson J dismissed both sets of proceedings under Part 13 Rule 13.4 of the Uniform Civil Procedure Rules 2005, finding that abuse of process was clearly established in each case. The court applied the well-established principle that summary dismissal requires a very clear basis and should be used sparingly, but concluded that threshold was comfortably met here.
In relation to the Justice Health claim, the plaintiff had himself proposed the consent dismissal of the earlier District Court proceedings. Commencing fresh Supreme Court proceedings on the same subject matter amounted to an attempt to relitigate a concluded claim, constituting a plain abuse of process. In relation to the police claim, the Court of Appeal had struck out the plaintiff's Statement of Claim in the District Court, and the plaintiff had taken no further steps in those proceedings. Filing substantially the same claim in the Supreme Court was equally an abuse of process.
Johnson J further found that both Statements of Claim were fundamentally defective as pleadings, independently justifying the strike-out relief sought. The court also found that, had it been necessary to reach the point, it would have dismissed both claims on limitation grounds under section 18A of the Limitation Act 1969 as well.
On costs, the court ordered the plaintiff to pay the defendants' costs of both the motions and the proceedings. Johnson J noted that the State of New South Wales had already incurred approximately $185,000 in fees and disbursements in the District Court police claim proceedings, with adverse cost orders against the plaintiff remaining available to be pursued.
Orders Made
In both proceedings (2011/4865 and 2010/427094):
- The proceedings were dismissed pursuant to Part 13 Rule 13.4 of the Uniform Civil Procedure Rules 2005
- The plaintiff was ordered to pay the defendant's costs of the Notice of Motion
- The plaintiff was ordered to pay the defendant's costs of the proceedings
Key Takeaways
- Commencing fresh proceedings in a higher court on the same subject matter as claims already disposed of in a lower court, whether by consent dismissal or by appellate strike-out, can constitute a clear abuse of process warranting summary dismissal under the UCPR.
- A plaintiff who proposes and obtains a consent dismissal of their own District Court proceedings cannot later relitigate the same claims in the Supreme Court without confronting a strong abuse of process objection.
- Where the Court of Appeal has struck out a Statement of Claim and the plaintiff takes no further steps, filing a fresh claim on the same facts in another court does not revive the cause of action.
- Summary dismissal under Part 13 Rule 13.4 of the UCPR remains available where abuse of process is clearly established, even though the power must be exercised sparingly and only in plain cases.
- Defective pleadings and limitation issues can each provide independent grounds for dismissal, even where abuse of process is the primary and decisive basis for the court's orders.
Legislation and Cases Referenced
Legislation:
- Limitation Act 1969 (NSW), ss 18A, 62B
- Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), Part 13 Rule 13.4
Cases:
- Radford v State of New South Wales [2009] NSWDC 278
- State of New South Wales v Radford [2010] NSWCA 276
- Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62
- General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125
- Banque Commerciale SA (In Liquidation) v Akhil Holdings Limited [1990] HCA 11; 169 CLR 279
- McGuirk v University of New South Wales [2009] NSWSC 1424
- Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
- Walton v Gardiner [1993] HCA 77; 177 CLR 378
- Reichel v McGrath (1889) 14 App Cas 665
- Rippon v Chilcotin Pty Limited [2001] NSWCA 142; 53 NSWLR 198
- White & Libut v Thompson [2011] NSWCA 161
- Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; 147 CLR 589
- SW v the State of New South Wales [2010] NSWSC 966