Khalifeh and Anor v R.S.P.C.A. AND 15 Ors [2000] NSWSC 912

New South Wales Supreme Court

CITATION : Khalifeh and Anor v R.S.P.C.A. AND 15 Ors [2000] NSWSC 912 revised - 21/09/2000 FILE NUMBER(S) : SC 13197/94 HEARING DATE(S) : 5 September 2000 JUDGMENT DATE : 13 September 2000

Christian KHALIFEH - ( First Plaintiff/Resondents (in person) PARTIES : Norelle Khalifeh (Second Plaintiff) R.S.P.C.A. and 15 Ors - Defendants/Respondents. JUDGMENT OF : Simpson J at 1

LOWER COURT Supreme Court (Master) JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

R Lovas - Second Plaintiff/Respondent C Branson QC with A G Todd - Defendants/Appellants COUNSEL :

SOLICITORS : Angelo D'Angelo - Second Plaintiff/Respondent Ebsworth & Ebsworth (Defendants/Appellants Police Offences Act 1901 LEGISLATION CITED : Supreme Court Act 1986 (Vic) NSW Supreme Court Act 1970 Braeside Bearings Pty Limited v H J Brignell & Associates (Boronia) [1996] 1 VR 17 CASES CITED : Ratnam v Cumarasamy [1964] 3 AllER 933 Stollznow v Calvert [1980] 2 NSWLR 749 Chapmans Limited v Davey [1998] NSWSC 148 DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

13 September 2000

13197/1994 Christian KHALIFEH and ANOR v R.S.P.C.A. and 15 OTHERS Judgment

HER HONOUR : 1 This is an appeal from a decision of Master Harrison given on 31 March 2000. Before the Master was a notice of motion filed on behalf of the defendants to the substantive proceedings, the appellants in the current proceedings. The relief sought in the notice of motion was dismissal or stay of the substantive proceedings (in which the present respondents are the plaintiffs). It will be convenient to continue to refer to the appellants as the defendants, and the respondents as the plaintiffs. The defendants invoke the powers conferred by SCR Part 13 rule 5 and Part 33 rule 6(2). Pursuant to Part 33 rule 6(2) the court may stay or dismiss proceedings where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or fails to prosecute the proceedings with due despatch. Pursuant to Part 13 rule 5 the court may dismiss or stay proceedings, either in general, or in relation to any claim for relief in the proceedings, where: (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the court. 2 In the notice of motion the appellants relied on each of the three heads under which relief under Part 13 rule 5 may be granted, but during the course of the appeal I was told that no reliance had been or would be placed on any contention that the substantive proceedings disclosed no reasonable cause of action. What was put before the Master in support of the claim under this rule was that the proceedings were frivolous or vexatious or alternatively an abuse of the process of the court. 3 The substantive proceedings were commenced by summons on or about 16 December 1994. There followed a somewhat turbulent procedural history. On 30 January 1995 Dowd J ordered that the summons be struck out, but he did this in circumstances that permitted the plaintiffs to file a statement of claim that reflected the causes of action they sought to plead. It seems that the reason for the orders was that a summons was considered an inappropriate originating process, having regard to the claims the plaintiffs sought to advance. 4 In mid February 1995 the plaintiffs filed a statement of claim. It named sixteen defendants. The first is the Royal Society for the Prevention of Cruelty to Animals (NSW) (to which I shall refer as "the RSPCA"). The statement of claim identified the second to seventh, and sixteenth defendants as employees of the RSPCA; the second, third, fourth, sixth and seventh defendants as persons holding the office of Special Constable under the Police Offences Act 1901; and the eighth to fifteenth defendants as "Directors or Board Members" of the RSPCA. On its face the statement of claim was prepared and filed by the plaintiffs acting without the benefit of legal advice or representation. It appears that the proceedings initiated firstly by the summons, and then by the statement of claim, arose out of a dispute between the plaintiffs on the one hand, and the RSPCA (and its employees, directors and agents of the other) over certain horses the property of the plaintiffs. A number of criminal charges were brought against the plaintiffs which they successfully defended. It is unnecessary to attempt precisely to discern the legal bases for the causes of action contained in the original statement of claim. It is sufficient to say that it appears that the plaintiffs made claims against the defendants jointly, or against individual defendants, for malicious prosecution (a number of counts), negligence, possibly conversion, assault, trespass to property, and defamation. 5 On 29 May 1995 Master Greenwood struck out the paragraphs that pleaded the claims in defamation, and granted leave to the plaintiffs to file a fresh statement of claim pleading those causes of action separately. This was because he considered that claims in defamation had no place in a statement of claim pleading the plaintiffs' other causes of action. He refused other applications including applications to strike out the paragraphs alleging malicious prosecution. He allowed twenty-eight days for filing and serving a fresh statement of claim pursuant to the leave granted. That time expired on 26 June 1995. 6 On 10 November 1995 the plaintiffs filed an amended statement of claim. This was about twenty-two weeks outside the time allowed. 7 On 9 July 1997, on the application of the defendants, Master Malpass ordered that the amended statement of claim be struck out and granted leave to file and serve a further amended statement of claim on or before 22 August 1997. The plaintiffs filed a further amended statement of claim, purportedly pursuant to this order, on or about 6 November 1997. This was about eleven weeks outside the time allowed by Master Malpass. Although no extension of time was obtained by or on behalf of the plaintiffs, the document was accepted in the registry. 8 The history recounted in paragraphs 3 to 7 above is drawn principally from a chronology put before me in these proceedings on behalf of the defendants, and unchallenged by the plaintiffs. 9 Further insight as to the history of the matter is to be gained from the affidavit of Ms Zoey Mikus, the solicitor handling the matter on behalf of the defendants. Ms Mikus deposed that, since 9 July 1997 when Master Malpass struck out the amended statement of claim, four further versions of the document had been "bought(sic) into being, the last one on 2 August 1999". It emerged during the hearing of the appeal that, apart from the further amended statement of claim filed on 6 November 1997, none of these documents had been filed, but had been forwarded to the solicitors for the defendants, with or without covering letters, for the defendants to consider whether they would consent to their filing. Ms Mikus observed that some of the documents at least were essentially repetitious of earlier documents or "remodelled" versions of the same. 10 A bundle of documents constituting exhibits to Ms Mikus's affidavit was also before Master Harrison, substantially representing, it seems, the progress of the matter from January 1995 until September 1999, and rather extensive correspondence between the parties. 11 Ms Mikus also deposed that the tenth defendant, Mr John Foran, had suffered serious injuries in August 1994 causing brain damage and quadriplegia. She deposed that the defendants had incurred costs of $50,000 to the date of the affidavit.