LIMITED DISTRIBUTION CATCHWORDS PRACTICE AND PROCEDURE - application to strike out application and statement of claim - whether pleadings disclose a cause of action - discussion of principles. Federal Court Rules O 11 r 16, O 20 r 2 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 ROY ALAN EMMERTON v GARRY BRUCE WEST and ANTHONY RAYMOND LAUER No NG 80 of 1995 Tamberlin J Sydney 17 March 1995 LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 80 of 1995 GENERAL DIVISION ) BETWEEN: ROY ALAN EMMERTON Applicant AND: GARRY BRUCE WEST and ANTHONY RAYMOND LAUER Respondents CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 17 MARCH 1995 MINUTE OF ORDERS THE COURT ORDERS THAT: 1. the Statement of Claim be struck out as presently formulated; 2. the applicant be granted leave to file an Amended Statement of Claim within 28 days; 3. there be no order as to the costs of the proceedings before the Court today. NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules. LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 80 of 1995 GENERAL DIVISION ) BETWEEN: ROY ALAN EMMERTON Applicant AND: GARRY BRUCE WEST and ANTHONY RAYMOND LAUER Respondents CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 17 MARCH 1995 REASONS FOR JUDGMENT On 16 February 1995, the applicant, Roy Alan Emmerton, filed an Application and Statement of Claim in this court seeking the relief set out in the Application. The Application is expressed to be brought under public interest, the Industrial Research and Development Incentives Act 1976 (Cth), and s 82 of the Trade Practices Act 1974 (Cth). It is expressed to be on the grounds appearing in the Statement of Claim and the relief sought is as follows: "1. Damages to the extent of the Statute of Limitations and interest. 2. Exemplary Damages (Particulars: see Statement of Claim and long term malfeasance). AND The Applicant claims by interlocutory relief: 1. An Order or Declaration that the said record is false in every damaging respect. 2. An Order that the Respondents pay to the Applicant an interim sum to prevent further loss and damage. 3. An Order or Declaration that the final hearing of this matter be expedited. 4. Such further Orders, Declarations and/or Directions as this Honourable Court deems just." The Statement of Claim is in these terms: "1. The Respondents are the Minister for New South Wales Police and the Commissioner for New South Wales Police and have control of and are responsible for investigations made and records kept by the New South Wales Police. 2. The Applicant is a research and development Scientist and Engineer whose work and legal situation are well known to the Respondents. 3. The Respondents are keeping a false and damaging record against the Applicant. 4. The said record has caused and is causing foreseeable damage to property of and damage and personal injury to the Applicant. 5. Particulars of damage and injury: The Applicant is; (a) unable to obtain gainful employment. (b) unable to exploit research results from work done since 1974 which is of importance to our Australian Economy. (c) unable to return to his profession as a Research and Development leader. (d) being damaged in his family and other personal relationships. (e) suffering severe financial stress. (f) suffering damage to his industrial property due to attrition caused by delay. (g) suffering damage to his industrial property due to loss of prototyping caused by loss of interest in real property. (h) suffering loss of capacity for advancement in his field. (i) being forced to change his lawful and productive way of life. 6. Particulars of Fraud: (a) All statements adverse to the Applicant are false and written to support a false reason for the record. (b) The Applicant was not in the area when the record states he was interviewed there. (c) The police avoided all independent verification of the record. (d) The police did not follow up on the serious complaints in the record." The submission has been made by the applicants on the notice of motion (the respondents in the main proceedings) that the Application and Statement of Claim disclose no cause of action and seek an order that the Application and Statement of Claim be struck out under O 11 r 16 and O 20 r 2 of the Federal Court Rules. It also seeks any appropriate further orders or directions and costs. I have given careful consideration to the matters alleged in the Statement of Claim in the context of the Application and in my view the particulars do not satisfy the requirements of O 11, in relation to pleadings. There are a series of allegations made but there is not pleaded a statement in a summary form of the material facts relied on which are capable of disclosing or giving rise to any known cause of action. It is, of course, trite law that pleadings are designed to define issues and fully inform the parties of the case they have to meet so as to enable them to take the steps necessary to deal with the issues raised. The pleadings must state all the material facts which are necessary to constitute a complete cause of action. In the present case, in addition, there is an absence of particulars which are necessary, in my view, to establish any claim in the present case. Furthermore, and in particular, it does appear that there is an allegation made as to fraud. As the authorities point out, this is a serious matter and the courts will not find fraud unless it has been properly pleaded. In the present circumstances I am not satisfied that the pleadings satisfy this essential requirement. I fully appreciate that in order to justify a strike out application, the power of summary dismissal should only be exercised in the most plain and obvious cases - see General Steel Industries Inc v Commissioner for Railways (NSW) (1964), 112 CLR 125. In the particular circumstances of this case, no reasonable cause of action is disclosed in the pleadings. It is fully appreciated that the applicant in the proceedings, Mr Emmerton, is a lay person and does not have any legal training, although he has appeared before the court on a number of occasions in relation to various pleadings which he has prepared and filed. Giving every latitude to the applicant in the present case, I cannot see how the matters alleged are sufficient to put on notice the respondents as to the case which they have to meet so they can meaningfully formulate a defence. In these circumstances, I propose to strike out the Statement of Claim as presently formulated but I propose to give the applicant a further chance to formulate a complying Amended Statement of Claim and I give leave to him to file an Amended Statement of Claim within 28 days. I appreciate that in the present case, the Trade Practices Act 1974 (Cth) is raised for the first time and this is a matter which, of course, has not been considered by judges in other courts, notably the Supreme Court of New South Wales, where a number of pleadings raised by the applicant in this matter have been considered by the court and in a number of cases struck out. In the circumstances then I do not strike out the Application but I propose to grant the applicant leave to file the Amended Statement of Claim within 28 days. I make no order as to the costs of these proceedings before me today. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Tamberlin. Associate: Date: 17 March 1995 For Applicant: Mr R A Emmerton appeared in person Counsel for Respondents: Mr D A Caspersonn Solicitor for Respondents: State Crown Solicitor Date of Hearing: 17 March 1995 Date Judgment Delivered: 17 March 1995