Whitehead v Nickells & ors [2013] NSWSC 1466

Supreme Court New South Wales

Medium Neutral Citation: Whitehead v Nickells & ors [2013] NSWSC 1466 Hearing dates: 27 September 2013 Decision date: 27 September 2013 Before: R A Hulme J Decision: Proceedings dismissed Catchwords: PROCEDURE - unrepresented plaintiff - power to dismiss frivolous or vexatious proceedings - no reasonable cause of action - abuse of process where proceedings foredoomed to fail - no point of principle Legislation Cited: Limitations Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Hamzy v Commissioner of Corrective Services (NSW [2011] NSWSC 120; (2011) 80 NSWLR 296 Category: Principal judgment Parties: Kerri Whitehead (Plaintiff) Defendants (as named): Roslyn Winifred Nickells Graham and Dorothy Mills Keith Anthony Whitehead The Estate of Peter Mathews Joe James & bus company if NOT the owner driver Lama Choedak Rinpoche Peter Olive & common law wife Alison Kath Boswell The Estate of Peter Whitehead The Estate of Christopher Robert Beaumont Clare Harrington Julie & Owen Tinnon Representation: Counsel: Solicitors: Plaintiff in person Mr D Williams (Joe James) Mr P Wholohan (Bus company) File Number(s): 2013/147224

Judgment 1HIS HONOUR: On 27 September 2013 when sitting as the Common Law Division duty judge I made orders pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") dismissing the proceedings in these matters. The pressures of the list that day did not permit the opportunity to give formal reasons for making those orders. The following are my reasons. 2Ms Kerri Whitehead commenced 12 different actions by the filing of statements of claim on 9 May 2013. There have been sundry documents filed since, including in most cases amended statements of claim. 3The matters came before the Registrar on 16 August 2013 for directions. The Registrar stood the matters over until 27 September 2013 for the purpose of Ms Whitehead showing cause as to why the matters should not be dismissed. I understand the Registrar's concern was that none of the matters appeared to disclose a reasonable cause of action. 4The Court has power to dismiss proceedings that are frivolous or vexatious; or where no reasonable cause of action is disclosed; or where the proceedings are an abuse of process: r 13.4 of the UCPR. 5The relevant principles were helpfully collected by Johnson J in Hamzy v Commissioner of Corrective Services (NSW) [2011] NSWSC 120; (2011) 80 NSWLR 296 at 300: [13] ... [A] very clear case is required before summary dismissal is granted and ... the power to make such an order should be sparingly employed: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125 ( "General Steel" ) at 129; Webster v Lampard [1993] HCA 57; 177 CLR 598 at 602-3. [14] The test is not whether the Plaintiff would probably fail in his action against the Defendants, it is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard at 602. Where the court is asked to summarily dismiss a plaintiff's case, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial and that an application to deprive him of that right will succeed only in the clearest of cases: Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 at 944. Usually, a party is not to be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. For a summary dismissal application to succeed, a high degree of certainty is required about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; 201 CLR 552 at 575-6. [15] By bringing an application for summary dismissal, the Defendants undertake the burden of establishing that there is no triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The General Steel test remains the primary touchstone for such an application. The mere fact (if it be the case) that a plaintiff's prospects of success might be characterised as slim would not be enough to strike out a pleading: Esanda Finance Corporation Limited v Peat Marwick Hungerfords [1997] HCA 8; 188 CLR 241 at 271; Preston v Star City Pty Limited [1999] NSWSC 1273 at [31]. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the Plaintiff a right to relief, or which, although weak, is properly debatable and has some apparent legitimate basis if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited at [37]. 6In the present case I was satisfied that there was a high degree of certainty about the ultimate outcome of the proceedings. They are each foredoomed to fail and, for that reason, are abuses of process. Many cases involve hopeless prospects of overcoming limitations hurdles. There are also significant difficulties in discerning what the causes of action are. 7To explain why this is so it is necessary to make reference to the proceedings individually. In doing so, and for convenience, I will refer to the matters by the last three digits of the file number and the details of the defendant(s) in the original statements of claim. I hasten to add that I am aware that in some of the amended statements of claim the defendant details are different.