Gould v Day & Anor [2002] NSWSC 492

New South Wales Supreme Court

CITATION : Gould v Day & Anor [2002] NSWSC 492 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20542/00 HEARING DATE(S) : 13 March, 15 March, 24 May, 31 May 2002 JUDGMENT DATE : 3 June 2002

Stephen George Gould (1st Plaintiff) Halisa-NSW Partnership (2nd Plaintiff) Halisa Internal (3rd Plaintiff) PARTIES : EAIM Project Partners (4th Plaintiff) OICY2KRAMP Project Partners (5th Plaintiff) Julian Day (1st Defendant) Alan Manly (2nd Defendant) JUDGMENT OF : Studdert J

In person (1st Plaintiff) COUNSEL : In person (1st Defendant) In person (2nd Defendant) SOLICITORS : LEGISLATION CITED : Bankruptcy Act CASES CITED : Faulkner v Bluett (1981) 52 FLR 115 Griffiths v Civil Aviation (1996) 67 FCR 301 DECISION : See para 28

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Monday 3 June 2002

20542/00 STEPHEN GEORGE GOULD & ORS v JULIAN DAY & ORS

JUDGMENT 1 HIS HONOUR: The Court has before it in these proceedings a notice of motion seeking the following orders: "1. That the first plaintiff be disallowed to continue this matter as he is a bankrupt and the matter vests in the Official Trustee. 2. That the matter be struck out. 3. In the alternative, that the first plaintiff pay security for costs of $20,000." 2 This matter was before me on 13 March 2002 and on that occasion I granted an adjournment having indicated what I perceived to be deficiencies in the statement of claim. Those deficiencies, whilst not stated exhaustively, were identified in broad terms, but I then indicated I would allow the plaintiff an opportunity to argue, if he sought to do so, that the statement of claim did not offend the Rules of Court. I also identified other matters in reasons published on 15 March 2002 which ought to be addressed on the adjourned date. I granted the plaintiff the adjournment on 15 March 2002, and set out deficiencies in the statement of claim in my reasons published on that date acknowledging the plaintiff's disadvantage as an unrepresented litigant. That was a disadvantage shared by the defendants. 3 On 15 March 2002 the matter was fixed for further hearing on 24 May 2002 to afford to the plaintiff an opportunity to address those matters raised in my judgment of 15 March. 4 Following 15 March three affidavits were filed on 5 April 2002, 22 April 2002 and 30 April 2002 but the plaintiff did not appear on 24 May 2002 and I adjourned the matter until 31 May 2002, directing that the plaintiff be notified of the adjourned date. The plaintiff did appear on 31 May 2002 and sought to explain the non-appearance on 24 May by an affidavit. The plaintiff's explanation was that he was waiting to be informed of a hearing date. That explanation is unacceptable because the date which was set for 24 May was set in his presence and in the presence of the defendants, who did appear on 24 May last. 5 Be that as it may, what occurred on 31 May was that Mr Gould sought a further adjournment with a view to seeing a solicitor, with whom he said he had an appointment next Wednesday. Mr Gould produced an affidavit, not previously filed, headed "On Going Harrassment Plaintiff and OIC Members". Much of his affidavit is couched in inadmissible language, and in my assessment contained no evidence such as warranted the further adjournment sought by the plaintiff. The plaintiff has had sufficient opportunity to address the deficiencies in the statement of claim, and considering not only the interests of the plaintiff but, as I must, the interests of the defendants as well, I considered no further adjournment ought be granted, and I declined the plaintiff's application. When doing so I indicated that I would state reasons for the decision I had reached that the statement of claim should be struck out, with such reasons to be delivered at 9.15 am on Monday 3 June 2002. I now publish my reasons for the conclusions that I have reached in this matter and for the orders that follow. 6 The further affidavits sought to be relied upon by the plaintiff of 5 April 2002, 22 April 2002 and 30 April 2002 are not appropriate as to form and are replete with assertions made in inadmissible form. I do not find them to be of significant assistance to the plaintiff. 7 I turn now to the problems in the statement of claim as pleaded. 8 So far in referring to the plaintiff I have been referring to the first plaintiff named in the statement of claim, Stephen George Gould. Other parties have been identified as plaintiffs in the statement of claim but as indicated on 15 March one of the deficiencies in the pleading is a failure to identify the plaintiffs. That failure has not been addressed in relation to either the second, third, fourth or fifth plaintiffs named in the statement of claim. That is the first problem which I identify. 9 Part 15 of the Rules imposes strict requirements for pleading and it is encumbent upon the plaintiff to identify in the pleading the nature of the cause of action or the causes of action relied upon. The pleader is required by Pt 15 to state in precise terms the material facts on which reliance is placed. The whole purpose of a statement of claim is to clearly state the case that must be met so as to give the opposing party or parties a proper opportunity to answer that case. Proper pleading is vital. Part 15 r 26 empowers the court to strike out a statement of claim where it: "(a) discloses no reasonable cause of action; (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or (c) is otherwise an abuse of the process of the court." 10 In my opinion, Pt 15 r 26 is enlivened here because this pleading does not disclose a reasonable cause of action and has a tendency to cause prejudice and embarrassment because of the difficulty which its form presents in identifying what is the case which the first plaintiff is seeking to make out. 11 In the paragraph identified as paragraph G of the statement of claim, the first plaintiff seeks damages "for himself for: (1) loss of immediate income; (2) damage to reputation; (3) loss of income from time spent prosecuting and defending malicious litigation; (4) loss of income through intellectual property royalty."