CATCHWORDS Practice (Pleading) - Application to strike out pleading as embarrassing because it pleads matters of law and not facts. MARK BERNARD EVERARD McCCAULEY v. HAMILTON ISLAND ENTERPRISES PTY. LIMITED & ORS No. G5 of 1987 ty SO eta > Beaumont, J. 'met ay & AS Sydney wee AN 10 June 1987 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G5 of 1987 GENERAL DIVISION BETWEEN : AND: CORAM: Beaumont, J. DATED: 10 June 1987 ) ) MARK BERNARD EVERARD MCCAULFY Plaintiff HAMILTON ISLAND ENTERPRISES PTY. LIMITED First defendant KEITH WILLIAMS (QUEENSLAND) PTY. LIMITED Second defendant GREAT BARRIER REEF MARINE PARK AUTHORITY Third defendant THE COMMONWEALTH OF AUSTRALIA Fourth defendant REASONS FOR JUDGMENT (On third defendant's motion to strike out para.15A to 150 (incl.) of the plaintiff's further amended statement of claim) The background to this motion appears given on the fourth defendant's application to strike out parts of the further amended statement of claim. now moves to strike out paras.15A to 150 (inclusive) on the ground that they are embarrassing (0.11 r.16(b)). The pleading 1s in these terms: "15A. Further or in the alternative, pursuant to Regulation 13A(1) of the Great Barrier Reef Marine Park Regulations subject to in the reasons The third defendant IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G5 of 1987 GENERAL DIVISION BETWEEN: MARK BERNARD EVERARD MCCAULEY Plaintiff AND: HAMILTON ISLAND ENTERPRISES PTY. First defendant KEITH WILLIAMS (QUEENSLAND) PTY. LIMITED Second defendant GREAT BARRIER REEF MARINE PARK AUTHORITY Third defendant THE COMMONWEALTH OF AUSTRALIA Fourth defendant MINUTES OF ORDER (On third defendant's motion to strike out para.15A to 150 (incl.) of the plaintiff's further amended statement of claim) Judge making order: Beaumont, J. Date order made: 10 June 1987 Where made: Sydney THE COURT ORDERS: 1. The third Gefendant's motion to strike out paragraphs 15A to 150 (inclusive) of the plaintiff's further amended statement of claim 1s dismissed. 2. 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. 15B. isc. 15D. 15E. 15F. 15G. 15H. 2. Sub-Regulations (2), (3) and (4), a person shall not carry on aé=eprescribed activity in_ the unzoned area without the permission in writing of the Third Defendant. The Third Defendant was thereby under a duty not to allow a prescribed activity to be carried on 1n the unzoned area without the permission in writing of the Third Defendant. Further or in the alternative, pursuant to Regulation 13C(f) of the Great Barrier Recf 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 alrcraft or vessel mooring, landing, parking, loading or unloading. 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 un the unzoned area shall have regard to health and safety aspects in relation to the carrying on of the prescribed activity. 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. 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 sald Act un the commission of which 1t may have heen used or otherwise involved 1s instituted within that period, until the prosecution 1s terminated. The Third Defendant was thereby under a duty to seize and retain the pontoon in accordance with the said prosecution. Further or in the alternative, pursuant to s.66(2)(g) of the Great Barrier Reef Marine Park Act, 1975 the Governor General may ~Mmake 3. 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)(1) of the said Act the Governor General may make regulations regulating the conduct of persons in the Park. 15K. Pursuant to s.66(2)(3) 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. I15L. 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)(0) 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." 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 A.L.R. at p.274). 4. The present motion differs from the Commonwealth's motion in that 1t 18 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 1s said that the paragraphs 1n question are bad because they plead matters of law rather than material facts. Pleadings are dealt with by 0.11. 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 1s 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 alleqation of fact made by a party in his pleading 1s deemed to be admitted by the opposite party unless 1t 1S 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 1s served does not intend to admit must be specifically traversed by him (r.13(3)). It 1s 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 1s not necessary to plead the legal result, and if for convenience this is pleaded, the party 1s 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] Ch. 269; [1974] 3 W.L.R. 256; [1974] 3 All E.R. 205, C.A.)." 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 1s founded on contract, or arises out of a relation created by hbailment 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 aman in the street, the duty need not be specifically alleged. It 18s 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 1s 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 1S unnecessary, and therefore ought not to be introduced (Cane v. Chapman (1836) 5 Ad. & E. 647, referred to in Seymour v. Maddox (1851) 16 Q.B. 326; and see Hurdman v. North Eastern Railway Co. (1878) 3 C.P.D. 168, per Cotton L.J. at p.173)." The third defendant argues that the plaintiff's pleading 1s embarrassing because it does no more than allege the effect of the Regulations, a matter which the third defendant 1s not permitted to traverse since it 1S not a matter of fact. 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 18 true that the plaintiff has pleaded, by 6. 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. Put differently, this is not a case of a bare allegation of a proposition of law. If such an allegation had been made, 1t 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 1t was appropriate and proper for the pleader to not only refer to but also to explain the relevant operation of the provisions relied upon. The third defendant's motion 1s dismissed with costs. I certify that this and the preceding fiyg (S) pages are a true copy of the Reasons for Judgment herein of his helt Mr. Justice Beaumont. Ht Sains Associate Dated: 10 June 1987 Counsel and Solicitors for Plaintiff: Counsel and Solicitors for Third Defendant: Date of hearing: Date Judgment Delivered: Mr. A. B.Shand 0.C. with Mr. D. Cowan instructed by McGuren Allen & Holt Mr. A. Abadee Q.C. with Mr. P. Jones' instructed by Australian Government Solicitor 19 May 1987 10 June 1987