Rowe v State of New South Wales [2004] NSWSC 593

New South Wales Supreme Court

CITATION : Rowe v State of New South Wales [2004] NSWSC 593 HEARING DATE(S) : Friday 2 July 2004 JUDGMENT DATE : 2 July 2004 JURISDICTION: Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : APPEAL DISMISSED

CATCHWORDS : APPEAL FROM MASTER - STATEMENT OF CLAIM NOT DISCLOSING CAUSE OF ACTION - NO BASIS FOR ORDERING MEDIATION - NO SPECIAL POINT OF PRINCIPLE PARTIES : Martyn Edwin Rowe v State of New South Wales FILE NUMBER(S) : SC 20440/94 COUNSEL : In person (Applicant) V. Hartstein (Respondent) SOLICITORS : Crown Solicitor (Respondent)

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 20440/94 FILE NUMBER(S) : LOWER COURT A/Master Berecry JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Friday 2 July 2004

20440/94 - MARTYN EDWIN ROWE v STATE OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: There is before the court a Notice of Appeal seeking to challenge the decision of Acting Master Berecry delivered on 15 September 2003. On that occasion proceedings brought by the plaintiff, Mr Rowe, were summarily dismissed. It has been pointed out to Mr Rowe, who appears for himself this morning, that my jurisdiction on the appeal is focused upon demonstration of error in the judgment now challenged. The judgment was focused upon an amended statement of claim filed in court on 6 July 1995. The Acting Master's decision that it did not disclose any reasonable cause of action is acknowledged by Mr Rowe who this morning has, after some other matters were raised, asked whether he could file a fresh statement of claim. 2 Although, as I have said, the appeal is against the judgment of 15 September 2003, it is appropriate to sketch a little background to give an understanding to the complaints that Mr Rowe makes. On 4 August 2003 there had been filed in court two motions, one by the defendant, which was ultimately dealt with by Acting Master Berecry and another by the plaintiff, seeking that his claim be referred to mediation. A direction was given by Greg James J that the latter motion be heard first. When the matter came before Acting Master Berecry it appears that the content of the direction of 4 August 2003 had not been recorded on the file. In any event the transcript shows that counsel appearing for the defendant made a submission that the strike out application ought to be dealt with first. The rationality of that posture is self evident. If the originating process did not disclose a reasonable cause of action there is nothing to mediate. 3 As I have indicated, Acting Master Berecry proceeded to hear the defendant's motion with the result that the action was dismissed summarily. The plaintiff has already been before the court complaining of the sequence in which matters were dealt with and this has been the subject of a further judgment by Sperling J on 19 November 2003. His Honour was aware that the hearing of the defendant's motion had taken place in advance of the motion of the plaintiff, but he pointed out that he did not doubt that had the motion for mediation been heard first, the ultimate result would be no different and he formally dismissed the plaintiff's motion for mediation. I repeat, the rationality of that situation is self evident. There needs to be a viable cause of action in order to provide a foundation for mediation. 4 The first complaint made by the plaintiff in relation to the judgment now challenged is that the Acting Master did not obey Greg James J's directions. For the reasons that I have given that disobedience, if it can be so classified, was entirely inconsequential. The plaintiff has argued that because the Acting Master proceeded as he did that he was denied fairness and thereby denied justice. This is a non specific complaint and really only expresses his ground in other terms. 5 The plaintiff pointed out that he had been seeking assistance through the Registry for legal representation. This morning, after the hearing had proceeded for some time, he inquired whether or not he could make an application for an adjournment in order to see whether such assistance would be forthcoming. This hearing has been fixed since the matter was before the list judge on 14 May last. The plaintiff was present on that occasion. As has been pointed out by other judges, this purported claim has been on the file for something in the order of approaching ten years. It has not yet reached the stage of demonstrating by an originating pleading that there is a valid cause of action. I regard the application as unreasonable and I confirm that it is refused. 6 The final matter was an inquiry by the plaintiff as to whether he could file a fresh statement of claim. He has known, at least since the judgment of Acting Master Berecry, that his pleading was ineffective. He has candidly stated in a variety of terms that he is aware that the present pleading does not give rise to a cause of action. Some statements of that he has made suggest that the pleading does not even demonstrate what he seeks to complain about but this is not a matter that it is appropriate for me presently to investigate. My jurisdiction, I repeat, is limited to dealing with the appeal that has been lodged. 7 There is no indication from the plaintiff as to what it is he could present by way of a valid statement of claim. The defendant has been brought to this court on and off for many years. The plaintiff has been given many opportunities to bring before the court the substance of his complaint. He has been unable to do so in any valid fashion. It does not demonstrate that there is any reasonable possibility that this will be done after all this time merely to assert that he wants the help of legal advice. In a sense he has legal advice from Acting Master Berecry, namely, that no viable cause of action is demonstrated. 8 This appeal is, in my view, entirely hopeless and must fail. For the reasons that I have given, I would not make any ancillary order of the types canvassed by the plaintiff. 9 The appeal is dismissed. I order that the plaintiff pay the defendant's costs of the appeal. **********