WILSON V. THE COMMONWEALTH OF AUSTRALIA AND THE STATE OF NEW SOUTH WALES 17/1959

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i REASONS FOR JUDGMENT \

Judgment delivered at_MSIBOURNS

on... MONDAY ,..27¢h OCTORER 1964 1.30 Toten, Gk Prat a 4 q

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MENT ORAL

'HE CO. AND THE

WILSON Ve

TH OF AUSTRALIA 'ATE OF NEW SOUTH WA!

NZIE

J

WILSON

Ve

COMMONWEALTH OF Al Ay 'ATE 0: W_ SOUTH W

The proceedings with which I am now dealing are summonses taken out by the defendants in an action which was commenced by a writ issued on the 31st July 1959 by the plaintiff against two defendants, the Commonwealth of Australia and the State of New South Wales. There is no other defendant to the action although the plaintiff both on his writ and in the statements of claim to which I will refer later has alleged that certain of the acts that he relies upon were done by particular persons who perhaps he would claim are the servants or agents of one or other of the defendants. The claim, however, is merely against the Commonwealth and against the State.

When the matter was last before the Court Mr. Justice Fullagar allowed amendments to the summonses to raise the question whether or not the action was within jurisdiction because of doubt whether the persons referred to in the statement of claim occupied positions which would make the Commonwealth or the State responsible for what is alleged to have been done. I do not, however, propose to deal with this aspect of the matter because I think that upon other grounds these summonses should succeed.

The position is that the plaintiff has already delivered two statements of claim which have been struck out. On each occasion leave was given for the filing of a further

statement of claim, and the document before me is the third statement of claim. Looking at the statement of claim I have

2.

no doubt that it must be struck out for it is not a document upon which it would be possible to try the claims which the plaintiff says he has. I consider, moreover, that in so far as it is possible to give legal significance to what is alleged in the statement of claim it does not disclose any cause of action, either against the State or against the Commonwealth. In these circumstances I feel I have no option but to do what was done on two occasions previously and strike out the statement of claim. 0n each of the other occasions, however, it was thought proper to give leave to file a further statement of claim, for a court is reluctant to shut a litigant out if there is any possibility that his proceedings can be framed in such a way to enable rights that he claims to be determined by a hearing. It is therefore to take a serious step for a judge to give effect to his conclusion that no further leave should be given. I have, however, decided that I must take that step. I am strengthened in that view by what the plaintiff has told me he would, if he had the opportunity, do if leave were given for the filing of a further statement of claim. I listened carefully to what was read as intended to take the place of what had been alleged earlier with regard to the certification, for instance, at Kingsford Smith Aerodrome and I have no doubt that if what was read were to be embodied in the statement of claim that statement of claim would have had to be struck out. It appears to me, therefore, that it is proper at this stage to put an end to these proceedings. I have been in some doubt whether I should, after striking out the statement of claim, merely stay the action or whether I should dismiss it, but I have come to the conclusion that in the circumstances of this case the proper course to take is to bring these proceedings to an end and to dismiss the action. The order I make, therefore, is that the statement of claim be struck out