New South Wales Supreme Court CITATION : Rinne v Director-General of DET [2005] NSWSC 261 HEARING DATE(S) : 29 March 2005 JUDGMENT DATE : 1 April 2005 JURISDICTION : Common Law Division JUDGMENT OF : Master Harrison DECISION : (1) The plaintiff's amended statement of claim filed 25 January 2005 is dismissed; (2) The plaintiff is to pay the defendant's costs as agreed or assessed. CATCHWORDS : Dismiss Amended Statement of Claim Anti Discrimination Act 1977 (NSW) - s 42D(2) LEGISLATION CITED : Supreme Court Rules 1970 (NSW) Part 13 r 5; Part 15 r 26 Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Dey v Victoria Railways Commissioners (1949) 78 CLR 62 CASES CITED : General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Webster & Anor v Lampard (1993) 177 CLR 598 Jarmo Rinne (Plaintiff) PARTIES : Director-General Department of Education and Training (Defendant) FILE NUMBER(S) : SC 20208/2004 Mr S Flanigan COUNSEL : (Defendant) Mr J Rinne (Plaintiff in person) Mr D McVey SOLICITORS : Department of Education and Training (Defendant) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 1 APRIL 2005 20208/2004 - JARMO RINNE v DIRECTOR-GENERAL DEPARTMENT OF EDUCATION AND TRAINING JUDGMENT (Dismiss Amended Statement of Claim) 1 MASTER: The defendant by notice of motion filed 1 February 2005, seeks to have the plaintiff's amended statement of claim either struck out in whole or in part or dismissed. The defendant relied on two affidavits of Daniel McVey sworn 8 September 2004 and 17 February 2005. The plaintiff relied on a bundle of documents "Ex A" and sought to revive his notice of motion to strike out the defendant's notice of motion. 2 Previously, on 8 September 2004, the defendant had filed an identical notice of motion seeking to dismiss the statement of claim. On 15 November 2004 Assistant Deputy Registrar Howe made an order striking out the statement of claim and granted leave to the plaintiff to file an amended statement of claim (ASC) by 28 January 2005. On 25 January 2005 the plaintiff filed an ASC. 3 At the outset of this hearing, the court gave the plaintiff the opportunity to avail himself of a referral order to the Pro Bono scheme in order for him to be provided with a barrister or solicitor to assist him to draft a further amended statement of claim. The plaintiff declined to do so and indicated that he wished to proceed with the hearing. 4 Part 13 r 5 of the Supreme Court Rules 1970 (NSW) (SCR) provides that the Court may dismiss the proceedings in three situations. These include: firstly, where no reasonable cause of action is disclosed; secondly, where the proceedings are frivolous or vexatious; and thirdly, where the proceedings are an abuse of the process of the Court. 5 Part 15 r 26 of the SCR provides that the Court may at any stage of the proceedings strike out the whole or any part of the pleading in three situations. These include: firstly, where no reasonable cause of action, defence or case is disclosed; secondly, where the pleadings have a tendency to cause prejudice, embarrassment or delay in the proceedings; and thirdly, where the proceedings are an abuse of the process of the Court. 6 In an application to have the statement of claim dismissed or struck out before trial, the onus on the defendant is high. As noted by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 130: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91], in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 7 Barwick CJ also said at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense.'" 8 Similar statements have been made in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998); Dey v Victorian Railways Commissioners (1949) 78 CLR 62; and Webster & Anor v Lampard (1993) 177 CLR 598. The pleading 9 I have carefully read the plaintiff's ASC. The plaintiff pleads (at paras 1 to 5): "1. The plaintiff asserts that the defendant allowed the plaintiff to suffer emotional and mental injury because the plaintiff wrote a letter of complaint to the former Minister of Education. Refer to para1, Particulars. 2. The plaintiff pleads that the review conducted by the Department of Education and Training (DET) which followed the letter of plaintiff's complaint to the Minister mentioned above in para.1 was not carried out with any fairness and was totally one-sided. Refer to para 2, Particulars. 3. After the plaintiff's meeting with a DET legal officer on 11 July 2001, plaintiff informs the officer that he has decided to sue the DET. The DET'S Child Protection Screening Agency is informed to flag on a statement in name of Jarmo Rinne. Refer to para.3, Particulars. 4. The following fact is material and must be pleaded: i) A copy of the defendant's "Outline of Written Submissions in Support of It's [sic] Notice of Motion filed 8 September 2004" and submitted to the court on 29/10/04 was not forwarded to the plaintiff until 15/11/04. ii) The submissions are in relation to the plaintiff's "Statement of Claim" filed 7 June 2004 and during a status conference in which the matter was specially fixed before the Master for Hearing on 15/11/04 at 10.00am. Refer to para.4, Particulars. 5. In the material mentioned above in para.4, the plaintiff pleads that it contains false factual matter and evidence. Refer to para. 5, Particulars." 10 Lengthy particulars then are provided. The plaintiff seeks damages which exceed $750,000.00 for distress and mental injury, financial losses, and breakage in relationships. The Administrative Decisions Tribunal (the Tribunal) 11 The plaintiff made a complaint to the Administrative Decisions Tribunal. On 13 May 2003, the Tribunal handed down its decision. The decision concerns a complaint of discrimination in employment on the ground of disability under s 42D(2) of the Anti Discrimination Act 1977 (NSW). 12 The complaint was that: "5 Mr Rinne complains that the Department discriminated against him on the basis of his speech disability. He alleges that the discrimination occurred in and after a meeting with the principal of Chester Hill High School, Mr Ross Pearce, on 1 April 1999. Mr Rinne at that time had been employed by the Department as a mathematics teacher at Chester Hill High School for 24 years. The meeting was also attended by the mathematics head teacher, Stewart Kennedy. Mr Rinne complains that at the meeting Mr Pearce made "defamatory criticism" of the way he spoke, "deeply injured" him with comments about his "accent" that were "extremely hurtful" and "put the fear of failure in the back of [his] mind". He says, "The allegations caused diffidence and developed in me a sense of failure. I was told to speak differently because of my accent and I was ridiculed by Mr R Pearce … I felt what was said by Mr R Pearce was used as a tool to denigrate me and my teaching." He says that because of Mr Pearce's comments he became deeply depressed, could not sleep or eat, was confounded and confused. He sought the advice of an official of the Teachers' Federation who, he said, told him he had probably been placed on an improvement program under which he might be liable to dismissal within a short period. He feared being dismissed from teaching. As a result he had decided to resign. Mr Rinne complains that Mr Pearce's comments constituted discrimination on the ground of disability and that he had suffered harm as a direct result of them. He had resigned, he said, "because of injury due to victimisation and discrimination". 6 After resigning from his full-time teaching position, Mr Rinne sought and obtained casual teaching with the Department. He was employed at Bass High School in 2000, doing both block and relief teaching, and for a short period in 2001. He complains that he was not offered any further casual teaching at Bass High School after March 2001 and that this was due to his complaint. He alleges that he was victimised by the Department on account of his complaint to the Board against Mr Pearce." [J paras 5-6] 13 The Tribunal held that the facts did not support Mr Rinne's complaint of victimisation. On the contrary, they indicated that Mr Rinne was treated well in 2001 when he was provided with 136 days work. The Tribunal found that the probable reason for the plaintiff not being offered work after March 2001 was that staff at the school could not contact him and that he did not return telephone calls the school staff made to him. Hence the Tribunal found that Mr Rinne failed to prove his complaint of victimisation and dismissed the complaint. For completeness, the plaintiff appealed this decision. On 15 September 2003 (the date of hearing of the appeal) the plaintiff withdrew his appeal. 14 Some of the pleadings in the ASC cover the same issues as those covered in the Tribunal. However, more importantly, it is difficult to understand what the plaintiff is actually asserting in his ASC. The plaintiff, in oral submissions, referred to seeking employment with a Grammar school and a Catholic school. He was told that he would be employed by them, but after certain checks were carried out he inferred that he was not offered employment. The plaintiff also spoke of collusion of witnesses at the Tribunal hearing. He also stated that he was not pursuing defamation proceedings. 15 The main purpose of pleadings is to allow the other side to know the case it has to meet. From a reading of the ASC, the defendant is not in a position to know the case it has to meet. However, the plaintiff submitted that the defendant has all of the documents. It is my view that the ASC does not disclose a reasonable cause of action. 16 The plaintiff has been given one opportunity to replead the state of claim. I cannot envisage how these deficiencies can be overcome by a further redrafting of the statement of claim by the plaintiff. For these reasons I dismissed the ASC. 17 Costs normally follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. The court orders: (1) The plaintiff's amended statement of claim filed 25 January 2005 is dismissed. (2) The plaintiff is to pay the defendant's costs as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.