Waters v Commonwealth of Australia [2012] NSWSC 790

Supreme Court New South Wales

Medium Neutral Citation: Waters v Commonwealth of Australia [2012] NSWSC 790 Hearing dates: 31 May 2012 Decision date: 13 July 2012 Before: Barr AJ Decision: Second further amended statement of claim struck out Legislation Cited: Uniform Civil Procedure Rules 2005 Safety, Rehabilitation and Compensation Act 1988 (Cth) Public Service Act 1999 (Cth) Occupational Health and Safety Act 1991 (Cth) Privacy Act 1988 (Cth) Cases Cited: Austral Pacific Group Ltd v Air Services Australia [2000] HCA 39; (2000) CLR 136 McGuirk v The University of New South Wales [2009] NSWSC 1424 Wearne v Southern Cross University [2006] FCA 1033 Horton v Jones (No. 2) (1939) 39SR (NSW) 305 Commonwealth of Australia v Mewett [1997] HCA 29; (1997) 191 CLR 471 Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297 Category: Principal judgment Parties: Natalie Elizabeth Waters (Plaintiff) Commonwealth of Australia (Australian Taxation Office) (Defendant) Representation: Natalie Elizabeth Waters (In person) K Eastman & T Glover (Defendant) DLA Piper (Defendant) File Number(s): 2010/367053

Judgment 1HIS HONOUR: By its notice of motion filed on 24 October 2011 the defendant, Commonwealth of Australia (Australian Taxation Office) seeks against the plaintiff, Natalie Elizabeth Waters, the following orders - "1Pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005, the Plaintiff's claims contained in her Further Amended Statement of Claim filed on 31 August 2011 be dismissed. 2In the alternative to order 1, pursuant to rule 14.28 of Uniform Civil Procedure Rules 2005, the Plaintiff's Further Amended Statement of Claim filed on 31 August 2011 be struck out. 3The Plaintiff pay the Defendant's costs of this motion." 2The plaintiff was employed by the Australian Taxation Office between 8 February 2000 and 24 November 2006. During that time she fell ill and lost time at work. She believed, perhaps as a result of the illness from which she suffered that she was being unfairly treated by the defendant and its officials. She raised many complaints about the manner in which she was treated during her employment. She remained dissatisfied after the cessation of her employment. On 5 November 2010 she commenced these proceedings by filing an amended statement of claim. It was a formidable document, running to 297 paragraphs over 87 pages. In it the plaintiff claimed damages in contract and tort, damages in equity, punitive damages, interest and costs. The amended statement of claim narrated a convoluted combination of fact, opinion and law. The appearance of the document suggests that it was not drafted with the benefit of legal advice. 3With the amended statement of claim the plaintiff filed a notice of motion seeking the following orders - "1Payment of final entitlements, outstanding since cessation of employment on 22 November 2004 (per paragraphs 119 to 214 and 227 to 234 of Statement of Claim). 2Interest on any final entitlements ordered pursuant to section 100 of the Civil Procedure Act." 4The defendant has at all material times been represented by a firm of solicitors called DLA Piper. The solicitor having the carriage of the matter was Ms Trembath. On 24 November 2010 Ms Trembath wrote to the plaintiff a letter including the following passages - "We refer to the amended Statement of Claim filed on 5 November 2010, It is our view that the pleading is hopeless and embarrassing (in a legal sense) and fails to identify any proper cause of action. The Statement of Claim does little more than provide a narrative of facts and does not seek to identify any legal claim in respect of the application. Further, the claim alleges contraventions of a number of Commonwealth laws. It is highly questionable that the Supreme Court would have any jurisdiction to determine claims based on the alleged contravention of Commonwealth laws. We invite you to discontinue the claim on the basis that each party bears its own costs. We also encourage you to seek legal advice about your claim. Should you wish to accept this offer please contact Donna Trembath by midday on 1 December 2010." 5There was an exchange of correspondence between the plaintiff and Ms Trembath and on about 3 December 2010 the plaintiff appointed Ms D Riggio to be her solicitor in the proceedings. Ms Trembath and Ms Riggio corresponded and agreed on orders to amend. Consent orders were made on 9 December 2010 which required the plaintiff, inter alia, to file and serve an amended pleading by 14 February 2011. 6On 9 October 2010 Ms Riggio ceased to represent the plaintiff. Between then and 18 March 2011 the plaintiff had no solicitor to act for her. A good deal of correspondence passed between her and Ms Trembath, mainly concerning an attempt to arrange a mediation conference. On a number of occasions the plaintiff foreshadowed her appointment of another solicitor. 7On 18 March 2012 the plaintiff informed Ms Trembath by letter that she was appointing Harmers Workplace Lawyers to represent her. 8On 23 March 2011, at a third directions hearing, the matter was stood over generally to allow for a mediation to occur. It was re-listed for directions on 27 April 2011. 9On 24 March 2011 Mr Peter Ferraro of Harmers Workplace Lawyers wrote to Ms Trembath about the proposed mediation. Unfortunately the attempt to arrange mediation was unsuccessful. Mr Ferraro never went on the record as acting for the plaintiff. 10On 27 April 2011, at the fourth directions hearing, it was noted that the plaintiff had withdrawn her notice of motion. She was directed to file any further amended statement of claim by 29 June 2011. 11On 2 June 2011 Sylvester Browne Lawyers informed Ms Trembath that they were instructed in the matter. On 29 June 2011 they forwarded a copy of a further amended statement of claim filed on that day. Mr David Sylvester went onto the record as the plaintiff's solicitor. 12Letters were exchanged between solicitors requesting and supplying particulars of the further amended statement of claim. Ms Trembath expressed dissatisfaction about the particulars provided and drew attention to ss44 and 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"), which obligated the plaintiff, in the circumstances of the present claim, to make a written election before bringing any action for damages for non-economic loss, failing which, by s44, no action lay against the Commonwealth of Australia in respect of an injury sustained by an employee in the course of employment. Particulars of the plaintiff's election were requested. 13On 3 August 2011 Mr Sylvester, having obtained counsel's advice, wrote agreeing to amend the plaintiff's pleading. 14On 11 August 2011, at a fifth directions hearing, orders were made by consent including a direction that the plaintiff file and second further amended statement of claim by 31 August 2011. 15On 26 August 2011 the plaintiff wrote to Ms Trembath informing her that Mr Sylvester was no longer representing her and that there would be a change of legal representative. In due course Mr Sylvester went off the record. 16On 1 September 2011 the plaintiff delivered a second further amended statement of claim to Ms Trembath. 17On 7 September 2011 Ms Kelly Godfrey of Employment Lawyers Australia Limited told Ms Trembath that she would be assisting the plaintiff. Correspondence was exchanged. 18On 15 September 2011 Ms Trembath wrote to Ms Godfrey expressing concerns about the second further amended statement of claim. Ms Godfrey did not respond. The defendant decided to re-list the matter for directions pursuant to leave already granted. 19On 29 September 2011 Ms Godfrey wrote to say that she was not representing the plaintiff. Ms Trembath notified the plaintiff of the re-listing date. 20On 17 October 2011, at the sixth directions hearing, an existing direction as to the filing of a defence was vacated and leave was granted to the defendant to file a notice of motion to strike out the second further amended statement of claim. So the present notice of motion was filed.