Nathan Glenn Wortley v Health Care Complaints Commission [2001] NSWSC 149

New South Wales Supreme Court

CITATION : Nathan Glenn Wortley v Health Care Complaints Commission [2001] NSWSC 149 FILE NUMBER(S) : SC 20507/99 HEARING DATE(S) : 7/3/01 & 8/3/01 JUDGMENT DATE : 13 March 2001

PARTIES : Nathan Glenn Wortley Health Care Complaints Commission JUDGMENT OF : Sully J

COUNSEL : In person - Plaintiff S. Rushton SC - Defendant SOLICITORS : D. Swain - Defendant LEGISLATION CITED : Health Care Complaints Act 1993 (NSW) CASES CITED : X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 730,731 Elguzouli-Daf v Commissioner of Police of the Metropolis and anor. [1995] QB 335 DECISION : (1) Preliminary question of law answered - no; (2) Proceedings commenced by plaintiff's Statement of Claim filed 6/11/2000 dismissed; (3) No order as to costs

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

Tuesday 13 March 2001

20507/99 - Nathan Glenn Wortley v Health Care Complaints Commission

JUDGMENT

1 HIS HONOUR: On Thursday last the Court made an order for the separate decision of a preliminary question of law, namely, whether the facts pleaded in the amended Statement of Claim filed by the plaintiff on 6 November 2000 disclose any good cause of action. The procedural history which forms the background to that question is summarised in an interlocutory judgment delivered on Thursday last and refusing the plaintiff leave to make further amendments of substance to his amended Statement of Claim. It is unnecessary to repeat now the details of that procedural background. 2 Mr. Wortley, the plaintiff, has been conducting by himself his proceedings against the defendant. In connection with the present preliminary question of law, an attempt was made by the Court to have some proper professional assistance made available to Mr. Wortley, the Court utilising in that respect the procedure that is now available pursuant to SCR Part 66. Those efforts did in fact procure for Mr. Wortley the assistance of professional advice from M/s Higgins of Counsel to whom the Court is indebted on that account. Ultimately, Mr. Wortley preferred to represent himself at the hearing of argument upon the preliminary point. 3 The amended Statement of Claim which gives rise to the preliminary question of law was itself drawn by Mr. Wortley, and seems to have been drawn without professional legal advice and assistance. The pleading which has resulted comprises thirty-three numbered paragraphs. Generally speaking the draftsmanship of the pleading is unfocussed and imprecise, characteristics which make it more difficult than might otherwise have been the case to distil fairly quite what cause(s) of action the pleading is intended to put forward. 4 Since it is impossible, in any practical sense, to summarise such a pleading, I attach hereto a copy of the complete pleading as filed. 5 One thing that can be said at once about the amended Statement of Claim is that it is intended to originate in the Court a claim for damages. Indeed, on Wednesday last, when Mr. Wortley gave a general outline of his intended case, he indicated in terms that he sought not merely compensatory damages, but punitive or exemplary damages as well. 6 It is important to establish at the outset that the true purport of the amended Statement of Claim is to recover damages in an action at law. It is important to do that because a substantial part of the pleading is cast in terms that are not appropriate to an action at law for damages, although they would be appropriate to an application for judicial review, assuming that such a remedy would lie in the present case, a matter as to which I express no opinion. 7 An attempt to spell out of the amended Statement of Claim a definition, cast in conventional pleading terms, of Mr. Wortley's intended cause(s) of action at law, can be introduced conveniently by the following statements of principle taken from the speech of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 730,731: "The question is whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority's performance or non-performance of that function has a right of action in damages against the authority. It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages. A claim for damages must be based on a private law cause of action. The distinction is important because a number of earlier cases (particularly in the field of education) were concerned with the enforcement by declaration and injunction of what would now be called public law duties…………………………. Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (i.e. irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of a statutory duty or from the performance of it; (D) misfeasance in public office, i.e. the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful." 8 The application in the present case of that approach indicates, in my opinion, intended causes of action falling within each of Lord Browne-Wilkinson's categories; (A), (B) and (C).