CAIRNS v ICAC [2007] NSWSC 1518

New South Wales Supreme Court

CITATION : CAIRNS v ICAC [2007] NSWSC 1518

HEARING DATE(S) : 24 September 2007

JUDGMENT DATE : 24 September 2007

JUDGMENT OF : Hulme J at 1

DECISION : I order that the proceedings be dismissed

PARTIES : Robert Cairns Commissioner of ICAC

FILE NUMBER(S) : SC 30073/07

COUNSEL : In person L Chapman

SOLICITORS : In person IV Knight

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

24 September 2007

30073/07

ROBERT CAIRNS v COMMISSIONER OF THE ICAC

JUDGMENT 1 HIS HONOUR: On 17 July last the plaintiff, Robert Cairns, filed a statement of claim in this court naming as the defendant Jerrold Cripps QC of ICAC. The application before me is a notice of motion by the defendant seeking that the proceedings be dismissed or that the statement of claim be struck out pursuant to a number of provisions of the Uniform Civil Procedure Rules. 2 No evidence was adduced in support of the application and although the defendant sought to tender two letters during the course of the hearing, they were objected to, not signed, and in those circumstances I declined to admit them. The matter is accordingly to be decided upon the basis of the terms of the statement of claim itself considered in the light of relevant statutory provisions and rules of pleading and general legal principle. 3 In an opening section of the statement of claim entitled "Relief is Claimed" the plaintiff has set out some ten paragraphs. The tenor of them is sufficiently disclosed for present purposes in the following extract, "(1) Relief is claimed from the victimisation and harassment visited on the plaintiff by the ICAC. (2) Victimisation in the form of the reversal of the burden of proof. (5) Victimisation in this form of prejudice. (9) Harassment in the form of unqualified assessment officer and unauthorised statements." 4 The form of those paragraphs is such that the Court could not grant relief in the terms outlined. Given that towards the end of the document the plaintiff has specified, under a heading "Orders are Sought", other matters, it is probably appropriate to regard the paragraphs under the heading "Relieve is Claimed" as just an outline of the nature of the plaintiff's complaints. Of course, such an outline expressed in the way it is, is not appropriate for inclusion in a statement of claim but particularly given the fact that the plaintiff is a litigant in person, I would not be disposed to dismiss or strike out the pleading just on the basis of what is technically surplusage. 5 The orders sought are in these terms, "(1) A fair hearing to be provided by the ICAC in person with the plaintiff and a competent assessor. (2) Notice to be taken of applicable standards and legislation. (3) Notice to be taken of procedural documentation applicable to the matter. (4) Notice to be taken of the plaintiff's standing in this matter. (5) Relevant evidential documentation requested by the plaintiff to be provided by RailCorp including (and two documents are specified). (6) Protection from further victimisation and harassment by RailCorp. Termination notice to be voided. (7) Dispensation from any further duty of care to the investigation and advancement of this matter. Duty of care owed by the plaintiff in standards and legislation and at common law deemed by the court to be fulfilled." 6 In the part of the statement of claim entitled "Pleadings and Particulars" the plaintiff has made a number of assertions. It is not necessary that I set all of these out verbatim or indeed in summary form, but some account of what is alleged is appropriate. 7 In paragraph 1 the plaintiff asserts that acting in capacities of a train driver and controller of plant and an authorised officer pursuant to the Protected Disclosures Act he reported to ICAC in respect of a number of matters which would seem to encompass RailCorp safety audits. In paragraph 2 it is said that further to that information, "Which goes to fraud and falsification of rail safety information fraud" and other matters, issues were raised with ICAC going to the procedural matters arising from the initial investigation undertaken by the RailCorp's internal audit. 8 In paragraph 3 he asserts that the ICAC assessor made a report after some five months and an assessment interview. In paragraph 4 it is asserted that, "The findings took on the report for RailCorp internal audit repeating and advocating false statements made by RailCorp internal audit and mischaracterising the issues as they were laid." 9 He then goes on in the following paragraph alleging that on the strength of the ICAC report RailCorp's internal audit refused to produce its own report until pressure of one form or another was brought to bear, ultimately replying after some fourteen months delay, "In a way to indicate collusion between internal audit and the ICAC report."