New South Wales Supreme Court CITATION : Gould v Choo & Anor [2002] NSWSC 183 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20986/01 HEARING DATE(S) : Monday 18 February 2002 JUDGMENT DATE : 18 February 2002 PARTIES : Stephen George Gould v Florence Choo and Lana Chau JUDGMENT OF : Michael Grove J at 1 COUNSEL : SOLICITORS : In person (Plaintiff) S. Nash (Defendant) CATCHWORDS : (1) ADJOURNMENT - SUFFICIENCY OF GROUND - REFUSED - (2) PLEADING AND PARTICULARS - FAILURE TO DISCLOSE REASONABLE CAUSE OF ACTION - EXTENT OF RELIEF LEGISLATION CITED : Bankruptcy Act DECISION : STATEMENT OF CLAIM STRUCK OUT; FURTHER PROCEEDINGS STAYED IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Monday 18 February 2002 20968/01 STEPHEN GEORGE GOULD v FLORENCE CHOO and LANA CHAU JUDGMENT – On application for adjournment 1 HIS HONOUR: This is an application by the plaintiff, Stephen George Gould, for adjournment of the hearing of a notice of motion on behalf of the two defendants seeking that a statement of claim filed by him be struck out. That statement of claim states that it seeks damages for management negligence, damage to reputation and loss of income. The proceedings were commenced by Statement of Claim filed on 4 December last. 2 The motion which is before the Court for hearing was filed on 18 December. The matter was before a Registrar on 7 February and listed for hearing today. 3 The basis of the adjournment application is that Mr Gould, who appears for himself, wishes to draw my attention to what he claimed is the authority of some decision in the District Court in litigation which he described as Gould v Inspector Roberts. He tells me that this is a case that was heard in 1994. His computer research shows that District Court judgments are not readily available, although he did not contradict my enquiries as to whether he was the "Gould" of this case of Gould v Inspector Roberts. I gather from other things he said that he is, in fact, the Mr Gould of that litigation. 4 He has referred to a wish to search his own voluminous records of litigation in order to find this case. He does not, at this stage, recall the name of the Judge. He said it was a source of authority for the existence of a tort which he has named management negligence. 5 For my part, I do not think that the word "management" is of great importance. If the Statement of Claim showed that there was a cause of action in negligence, be it management or some other form of failure to take reasonable care and then Mr Gould would be, if I might so state it, on sound ground. 6 It does not seem to me that the document presently before the Court would be advanced by a search for this somewhat ephemeral authority which, in any event, would not be binding upon the Court. 7 In the circumstances, the application for adjournment is refused. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Monday 18 February 2002 20968/01 STEPHEN GEORGE GOULD v FLORENCE CHOO and LANA CHAU JUDGMENT 1 HIS HONOUR: This is a motion seeking to strike out a statement of claim issued by the plaintiff on 4 December 2001. The motion expressly seeks that order, although in submissions made on behalf of the defendants, alternative remedies were touched upon. 2 Some of that discussion, it should be conceded, arose out of my enquiry concerning the second prayer in the notice of motion which sought an order that the plaintiff not be allowed to file any further documents in the Supreme Court without leave of the Judge. That is a wide-ranging order and relates not only to the present litigation but would seem to me to have virtually the equivalent effect of an order such as that which would follow a finding that the plaintiff was a vexatious litigant. 3 I propose to deal, first, with the prayer that seeks a striking out of the Statement of Claim. This document is brief. It identifies the defendants, perhaps not with great precision but sufficiently identifies them as they have revealed themselves to be in affidavits filed, respectively, as a deputy official receiver and an acting insolvency and trustee officer, grade 2 employee, in the Federal bankruptcy administration. I note in passing the position for indemnity in s19A of the Bankruptcy Act for negligent acts done by persons in the course of performance of duties under the Act. 4 The affidavits show that the plaintiff is a bankrupt. Quite fairly, Ms Nash, for the defendants, drew my attention to s116(2)(g) of the Act insofar as whatever the Statement of Claim is purporting to do, it would seem to involve some attempt by the bankrupt plaintiff to recover compensation for some wrong done to him. The document contains some information under a title of "Particulars of Damage Sought". That would seem to follow the complaints articulated in oral submissions by the plaintiff, in which he indicated that the persons whom he has sued failed to allow him to pursue certain remedies and disclose certain information which he says resulted in his credit standing being most adversely affected. GOULD: I didn't say that at all, your Honour. 5 HIS HONOUR: Mr Gould said he did not say that at all. That is what I understood to be the thrust of his complaint but so that we know what it is, I took down verbatim his complaints when he said: "Somewhere down the track someone has been negligent." 6 Litigation cannot be founded upon a prayer, in effect, for the Court to conduct an inquiry. The plaintiff's documents show he is seeking damages for negligence described adjectivally as management negligence, damage to reputation and loss of income. 7 If a cause of action is vested at all, loss of income would merely be an ingredient of that damage and I do not propose to deal with that aspect as it is unnecessary. 8 Damage to reputation has the colour of an action being brought for defamation but the Statement of Claim itself discloses no publication, identifies no defamatory matter and does not seek to derive imputations from that matter such as would entitle an action for defamation, controlled as it is by the Act of 1974. 9 That leaves the first pleaded cause of action which is stated to be and, as I have said, damages for negligence or damages for management negligence. I have, in the course of refusing an adjournment, made some observations about the adjectival description of this negligence and I will not repeat what I have there said. 10 In order to found a cause of action in negligence, it is necessary for the pleader to disclose the existence of a duty of care and the breach by the defendants of that duty. The document does not state any. It does not even attempt to do so. No defendant should reasonably be asked to plead to this document. It does not disclose any cause of action recognised by the law. 11 I have already made some observations, however, about the second matter which is sought in the notice of motion. I do not propose to make any consequential order beyond staying further proceedings on the current Statement of Claim. 12 There is sought an order that the plaintiff pay the defendants' costs on an indemnity basis. I will hear the basis upon which application for that enhanced order for costs is made but indicate that subject to that I propose to make orders in accordance with paragraphs 1 and 3 of the notice of motion. Ms Nash, why should you have indemnity costs? NASH: The Statement of Claim was misconceived and so poorly pleaded that the defendants needed to bring the motion and that is all I wish to say to your Honour. HIS HONOUR: That entitles you to costs. Why does it entitle you to indemnity costs. NASH: That is all, your Honour. 13 HIS HONOUR: I do not propose to order indemnity costs. I order the Statement of Claim be struck out and that the further proceedings in this action be stayed. 14 I order the plaintiff to pay the defendants' costs of the motion. ********** Last Modified: 03/15/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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