Supreme Court New South Wales Medium Neutral Citation: De Varda v State of New South Wales [2015] NSWSC 695 Hearing dates: 27 May 2015 Date of orders: 27 May 2015 Decision date: 27 May 2015 Jurisdiction: Common Law Before: Wilson J Decision: See paragraph 29 Catchwords: PROCEDURE – strike out specific paragraphs of the pleadings – no point of principle Legislation Cited: Law Enforcement Powers and Responsibilities Act 2002 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Joseph De Varda (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Plaintiff appears in person Mr Saidi (Defendant) Solicitors: Crown Solicitor's Office (Defendant) File Number(s): 2012/10870 EX TEMPORE Judgment 1. HER HONOUR: Before the Court for determination is a Notice of Motion filed by the defendant in proceedings brought by Joseph De Varda against the State of New South Wales. The Notice of Motion which is before the Court this morning for determination seeks to have discrete paragraphs of the Second Further Amended Statement of Claim filed by the plaintiff struck out pursuant to r 28(1)(a), (b) and perhaps (c) of the Uniform Civil Procedure Rules 2005. 2. The matter now has some history and that history is relevant to the question of whether or not the Notice of Motion should be granted. Mr De Varda appears before the Court in person and he opposes the Court granting the Notice of Motion. It is his application that the motion be adjourned for a period of some months to permit him to obtain legal representation to assist him with pursuing his claim. 3. The fact that he is unrepresented has some relevance to the history of the matter, which I will set out in brief. The plaintiff's Statement of Claim relates to events which are said to have occurred on 9 April 2009. On that date the plaintiff was arrested by a police officer with the New South Wales Police. As I understand it, he was arrested in relation to a suspected offence of assault occasioning actual bodily harm. As is typical when an individual is arrested by the police, Mr De Varda was placed into the rear section of a police transport vehicle, to be taken to a police station and charged. 4. The plaintiff asserts that, rather than being taken expeditiously to a police station for that purpose, he was detained in the police vehicle and subjected to both hot air and toxic fumes. He says that, as a result of that, he lost consciousness and his health has been adversely affected. The plaintiff also asserts that his arrest was unlawful in that the police had no basis for a reasonable suspicion that he had committed any crime against any New South Wales law. 5. He further alleges that he was detained in contravention of s 105 of the Law Enforcement Powers and Responsibilities Act 2002; an Act commonly known by its short form of LEPRA. The plaintiff asserts that he was subsequently charged with an offence of assault occasioning actual bodily harm, despite the fact that the police officer had no reasonable basis for bringing such a charge, and it is his contention that the prosecution launched against him by the initiation of a criminal charge was malicious. 6. Mr De Varda has advanced from the bar table that there was a motive which he attributes to some former knowledge of the plaintiff by the arresting police officer. The plaintiff's ultimate claim, or perhaps a better way of expressing it, the underlying claim, appears to be that the constable owed the plaintiff a duty of care as to the manner in which her investigation and prosecution of an alleged criminal offence was conducted, and that the officer was negligent in the performance of that duty. 7. The damages that the plaintiff asserts have arisen from this negligence by the police is the loss of a grant, a research grant to him to permit him to further investigate a solar device which would harness solar energy and make that available in a domestic and commercial setting. The plaintiff asserts that by loss of that grant attributable, he says, to the negligence of the police, he has lost over $140 million, as I understand, in profit that could flow from the invention being put before the market. 8. Having been arrested on 9 April 2009, the plaintiff filed a Statement of Claim before the Court on 5 April 2012, which is almost three years after the actions which the plaintiff asserts were negligent and to his prejudice. 9. The Statement of Claim is brought for negligence and it contains a number of particulars and pleadings which would appear to be futile. There was an Amended Statement of Claim filed following the orders made by the Court on 19 February and 26 April 2013, but that Amended Statement of Claim does not appear to have corrected the errors with the pleadings. 10. The plaintiff filed a Further Amended Statement Of Claim on 3 June 2013, the State of New South Wales filed a Notice of Motion on 26 February 2014 seeking to strike out those parts of the Further Amended Statement of Claim which continued to be problematic. That motion came before Rothman J on 14 May 2014. Mr De Varda did not appear on that day and his Honour made a number of orders with respect to the Statements of Claim. 11. The plaintiff was directed to file a Second Further Amended Statement of Claim complying with the directions which had previously been made by the Court on 28 March 2014 and he was given three weeks to undertake that task. The costs of those proceedings were reserved. 12. Since that order was made by Rothman J the plaintiff has filed a Second Amended Statement of Claim, but it did not comply with the Court's orders. On 20 June 2014 Registrar Bradford directed the plaintiff to file a Third Amended Statement of Claim, but the plaintiff has failed to comply, and there have been no further amendments made to the pleadings. The pleadings, therefore, continue in the state which his Honour concluded was such that the claim could not go forward. 13. In brief, as I understand it, the difficulties that his Honour saw with the pleadings are that they seek to take action against the police for negligence with respect to the investigation of the plaintiff relevant to the allegation of assault occasioning actual bodily harm. 14. As his Honour indicated when dealing with the matter previously, there is no action for negligence under the Common Law against the police in relation to the exercise of their investigative function and, accordingly, the Statement of Claim, as presently pleaded, is futile. 15. It is now twelve months on from the date on which the plaintiff was ordered to re-plead his Statement of Claim to bring it into a form that the defendant could answer; thus ultimately permitting the matter to be determined by the Court. The pleadings remain in a problematic state. 16. Mr De Varda submits form the bar table that he faces some particular difficulty as an unrepresented litigant, and I accept that that is so. For any person seeking to file an action in the Supreme Court or, indeed, any court, it is difficult to comply with court rules and evidentiary requirements without having the benefit of legal training or the assistance of a lawyer. Mr De Varda points out that his field of specialty and expertise is science rather than law and that poses some particular barrier to him in prosecuting his claim. 17. However, there comes a point when a matter simply has to be moved along and it is well and truly at that point now. Mr De Varda is plainly a highly intelligent individual and, notwithstanding that his area of expertise is science and not law, I would expect a person of his clear intelligence to be able to make at least some attempt at putting his pleadings into a proper form or to obtain some assistance, even if not through retaining counsel, to achieve that end. 18. Mr De Varda did, at the suggestion of Rothman J, seek to avail himself of the pro bono scheme conducted by the New South Wales Bar Association, but he has advised the Court this morning from the bar table that that was without success and no member of the bar has been in a position to assist him with his Statement of Claim. 19. There are, however, other avenues of assistance available for unrepresented litigants. They are, I think any lawyer would concede, few and far between and not always easy to get access to but they do exist, particularly if all that is required, at least at an initial stage, is for some assistance to be given with respect to pleadings. Community legal centres generally offer free legal advice, either by telephone or appointments with particular services. Clerks of the Local Court can generally offer assistance or legal advice that is provided at the court houses, and there are other schemes that are available. Some members of the profession will take on cases without payment on the basis that payment will be made once a claim has been prosecuted. 20. So, there are avenues available to the plaintiff and there is nothing before me to suggest that he has sought to avail himself of any assistance beyond submitting his name to the pro bono scheme. 21. Mr De Varda has just interrupted the judgment to give me some further information concerning the attempts he has made to obtain assistance. He says from the bar table that he has sought assistance from the Legal Aid Commission but because of the assets that he has available to him, albeit, as I understand it, tied up in Federal Court proceedings, he does not fit the Legal Aid Commission criteria for a grant of legal aid and he was refused assistance through that organisation. 22. He subsequently sought assistance through an organisation he has nominated as Connect and was in communication with them for a period of time, but was ultimately similarly refused assistance. 23. As I said before that interruption, the Court acknowledges that obtaining assistance in matters of this nature is very difficult; such assistance being an extremely limited resource. 24. Be that as it may, the defendant is entitled to see the Court's orders complied with and to answer the Statement of Claim, in proper form, and in a form that accords with the orders of the Court. 25. The Second Further Amended Statement of Claim, as previously noted, does not comply with those orders and continues to fail to comply with the Court's orders, notwithstanding a further opportunity provided to Mr De Varda by Registrar Bradford in the orders made, that he file a further amended statement of claim and comply with the proper requirements as to the pleadings. 26. That history, in brief, establishes, certainly to my mind, that this matter has been outstanding now for some considerable period of time. In that period of time there has been a failure to comply with court orders and, whilst I accept that that failure is, from the plaintiff's perspective, that he is not in a position to comply with the orders because of the lack of legal representation, it does not detract from the conclusion that little or nothing has been done to advance this matter in the last year. 27. The plaintiff brings the claim against the defendant and the defendant is entitled to have it heard as expeditiously as possible. That has not happened, largely, it seems to me, because the plaintiff has not prosecuted it with proper diligence. 28. Accordingly, I propose to grant the notice of motion moved by the defendant and supported by evidence by way of an affidavit of Sally Gazzard of 24 July 2014. 29. The orders that I make are these: 1. Paragraphs 5A, 15D, 15F, 17(c), 17(f), 18(c), 18(d) and 17A of the Second Further Amended Statement of Claim filed on 14 June 2014 are struck out pursuant to Part 13, rule 28(1)(a) and (b) of the Uniform Civil Procedure Rules 2005. 2. Costs of today are reserved. 3. The plaintiff is to file and serve a third amended statement of claim complying with the previous orders of Rothman J by 3 August 2015. 4. The parties have liberty, previously granted, to list the matter with three days' notice. ********** 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. Decision last updated: 02 June 2015