Kingsman v Health Administration Corporation [1999] NSWSC 1032

New South Wales Supreme Court CITATION : Kingsman v Health Administration Corporation [1999] NSWSC 1032 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 013327/93 HEARING DATE(S) : 7 October 1999 JUDGMENT DATE : 7 October 1999

PARTIES : Walter Frederick Kingsman (Plaintiff) Health Administration Corporation (Defendant) JUDGMENT OF : Bell J at 1

COUNSEL : Plaintiff in person Mr S Woods (Defendant) SOLICITORS : Karen J Crawshaw (Defendant) CATCHWORDS : PRACTICE & PROCEDURE; Application for default judgment (Supreme Court Rules 1970 Pt 17); Successive applications; Whether present application raises some new fact or circumstance justifying consideration of application CASES CITED : Sue v Hill [1999] HCA 30; (1999) 163 ALR 648 DECISION : Notice of Motion dismissed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Thursday, 7 October 1999 013327/93 - WALTER FREDERICK KINGSMAN (FORMERLY KNOWN AS SEAN WALTER FREDERICK MORDAUNT) v HEALTH ADMINISTRATION CORPORATION

JUDGMENT re notice of motion (see transcript page 12)

1 HER HONOUR: The plaintiff, Walter Frederick Kingsman, by notice of motion filed on 5 September 1999 seeks various orders. I do not propose reciting the detail of them. It is sufficient to observe that in general terms the plaintiff seeks an order for summary judgment pursuant to Pt 17 of the Supreme Court Rules. I note that the plaintiff is unrepresented in the proceedings. 2 It is relevant to recite something of the history of the matter. On 30 November 1998 the plaintiff by notice of motion sought orders for default judgment pursuant to Pt 17 of the rules in an application before his Honour Hulme J. I note that in those proceedings, among other things, the plaintiff took issue with the circumstance that the defendant's defence had not been verified. That issue together with the claim for default judgment was dealt with by his Honour who declined to make orders in the terms sought by the plaintiff's motion. 3 On 8 February 1999 by notice of motion the plaintiff again sought orders for judgment pursuant to Pt 17 of the rules in proceedings that were dealt with on that day by his Honour Sully J. Central to the submissions advanced by the plaintiff on that occasion was the submission that the defence pleaded by the defendant, Health Administration Corporation, was bad for the reason, as it appears to have been put in the proceedings before his Honour, that the doctrine of Crown privilege or immunity did not exist as part of the current law of Australia. His Honour entertained submissions in that respect and noted that the point might ultimately be decided either in favour of the plaintiff or the defendant at the hearing of the matter, but that it was inappropriate for orders to be made either pursuant to Pt 15 r 26 or Pt 17 r 9. His Honour, after considering the merits of the matter, declined to make the orders sought in the plaintiff's notice of motion. 4 It is against that background that the matter comes before me today, the plaintiff having filed a further notice of motion seeking in essence the relief that he has previously sought before both Hulme J and Sully J. At the commencement of the proceedings I asked the plaintiff if he could identify some material new fact or circumstance such as would justify me embarking on a hearing of an application that raises the same issues as those before Sully J. In response to that the plaintiff referred me to the decision of the High Court in Sue v Hill [1999] HCA 30; (1999) 163 ALR 648 . As I understand the plaintiff's submission he seeks to argue that the doctrine of Crown immunity is not available to the Crown in the right of the State or Commonwealth of Australia in the light of the court's decision in Hill. 5 The circumstance that the High Court decided Hill after the plaintiff's notice of motion was before Sully J does not seem to me to be the sort of relevant new circumstance that would justify me embarking on a fresh consideration of the same issues. The plaintiff's argument based on Hill is simply a further basis upon which he seeks to contend that a defence pleaded by the defendant is misconceived. I refer to paragraph 12 of the amended statement of defence filed on 19 May 1999. In these circumstances it does not seem to me appropriate to reconsider the merits of the very matters which were previously agitated both before Sully J and Hulme J. For that reason I propose to dismiss the notice of motion. 6 Before doing so, I should indicate that I propose making an order that the plaintiff is not to move the court for an order for judgment pursuant to Pt 17 r 9 or an order seeking to strike out any part of the defendant's pleading pursuant to Pt 15 r 26 without the leave of a justice of this court. I raised that matter with the plaintiff in order to give him the opportunity to address such submissions as he may wish to about the appropriateness of such an order being made. The plaintiff informed me he did not intend to bring such further applications and therefore had no objection to such an order being made. 7 I consider it appropriate so to order for the reason that during the course of submissions the plaintiff indicated in a general way that he considered the defence pleaded by the defendant to be unlawful and illegal and he indicated that he would assert his right to keep coming back to court until that position was vindicated. I have made clear to the plaintiff that the issues that he seeks to ventilate before me on the hearing of the notice of motion are issues which he might properly raise at the hearing of the matter which I note is fixed for 1 February 2000. 8 My orders are, firstly, that the plaintiff, Walter Frederick Kingsman, not move the court for orders pursuant to Pt 15 r 26 seeking to strike out the whole or any part of the defendant's pleadings nor for orders under Pt 17 of the rules for default judgment without the leave of a justice of this court. I dismiss the notice of motion. (Submissions re costs ensued (see transcript pages 12-15). For her Honour's order as to costs see transcript page 15 line 55 to page 16 line 2).