Court Rejects Fourth Defendant's Motion to Strike Out Claims

The court dismissed a motion by the fourth defendant seeking to strike out claims against them, finding reasonable cause of action and prospects for success. The plaintiff was ordered to file an amended statement of claim.

OUTCOME: [RESPONDENT] : [NAME] v [RESPONDENT] & 4 [NAME] [2006] NSWSC 1204

HEARING DATE(S) : 9 November 2006

JUDGMENT DATE : 22 November 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Harrison

DECISION : (1) The [NAME] defendant's notice of motion filed 26 June 2006 is dismissed; (2) The plaintiff is to file and serve a further amended statement of claim within 14 days; (3) Costs are reserved.

CATCHWORDS : Strike out statement of claim and cross claims as against the 4th defendant - security for costs

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW) - Rules 13.4(1), 14.28(1) & 42.21

Agar v Hyde (2000) 201 CLR 552, [2000] HCA 41 [COMPANY] v [NAME] (NSWCA, unreported 26 August 1998) CASES CITED : [NAME] v Victorian Railways Commissioners (1949) 78 CLR 62 [COMPANY] v Commissioner for Railways (NSW) (1964) 112 CLR 125 Webster & [NAME] v Lampard (1993) 177 CLR 598

[NAME] [NAME] - [RESPONDENT] - First Defendant PARTIES : [RESPONDENT] Defendant [RESPONDENT] - [NAME] Defendant [RESPONDENT] - [NAME] Defendant [RESPONDENT] t/as [NAME] - [NAME] Defendant

FILE NUMBER(S) : SC 20672/2001

Dr [NAME] SC - Plaintiff Mr [COUNSEL] M [COUNSEL] SC - [NAME] COUNSEL : [redacted] Mr [RESPONDENT] - [NAME] Defendant Ms [RESPONDENT] - [NAME] Defendant

Stacks/Goudkamp - Plaintiff SOLICITORS : [redacted] [NAME] - [NAME] Defendant [NAME] - [NAME] Defendant

IN THE SUPREME COURT OF [RESPONDENT]

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 22 NOVEMBER 2006

20672/2001 - [NAME] v [COMPANY] & 4 [NAME] (Strike out statement of claim and cross claims as against the 4th defendant – security for costs) 1 HER HONOUR: By notice of motion filed 26 June 2006 the [NAME] defendant seeks firstly, an order that the plaintiff's action as against the [NAME] defendant be struck out as revealing no sustainable or reasonable cause of action, or alternatively, as an action that has no reasonable prospects of success on the basis of provable facts and on the material evidence against him; secondly, an order that the first and second defendants' amended first cross claim against the [NAME] defendant be struck out as revealing no sustainable or reasonable cause of action, or alternatively, as an action that has no reasonable prospects of success on the basis of provable facts and on the material evidence against him; thirdly, an order that the action brought by the [NAME] defendant in the second cross claim against the [NAME] defendant be struck out as revealing no sustainable or reasonable cause of action, or alternatively, as an action that has no reasonable prospects of success on the basis of provable facts and on the material evidence against him; fourthly an order that the [NAME] defendant be removed as a party in these proceedings; fifthly, an order that the plaintiff, the first, second and [NAME] defendants pay on a pro rata basis the costs of this notice of motion together with the costs incurred by the [NAME] defendant in defending these actions to date on an indemnity basis; sixthly, in the alternative, an order that the plaintiff's solicitor, the first, second and [NAME] defendants provide four the [NAME] defendant (a) security for costs in the sum of $80,000 on a pro rata basis; and (b) that a stay be granted against the [NAME] defendant until the money is paid into court; seventhly, in the alternative, an order that [COUNSEL], solicitor of Stack Lawyers for the plaintiff, [COUNSEL], solicitor of Henry Davis York for the first and second defendants and [COUNSEL], solicitor of [NAME] for the [NAME] defendant indemnify the [NAME] defendant. 2 The plaintiff is [RESPONDENT]. The first defendant is [RESPONDENT] ([NAME]). [NAME] is the owner of the [COMPANY] (the [COMPANY]) at Jindabyne. The second defendant is [RESPONDENT]. [NAME] is the licensee of the [COMPANY]. The first, second and [NAME] defendants have cross claimed against the [NAME] defendant seeking contribution and indemnity. The [NAME] defendant is [RESPONDENT]. The [NAME] defendant is [RESPONDENT]. The [NAME] defendant is [RESPONDENT] t/as [NAME]. The [NAME] defendant worked in the [COMPANY]. 3 The plaintiff relied on two affidavits of [NAME] dated 21 July 2006. The first and second defendants relied on the affidavit of [RESPONDENT] dated 24 July 2006. The [NAME] defendant did not appear and has not taken an active role in these proceedings. The [NAME] defendant relied on two affidavits of [RESPONDENT] dated 26 June 2006 and 8 August 2006.

The law 4 Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) UCPR) provides that the court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are if the proceedings are frivolous or vexatious, or no reasonable cause of action is disclosed, or the proceedings are an abuse of the process of the court. 5 Rule 14.28(1) of the UCPR provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court. 6 Rule 14.28(1) provides that the court may receive evidence on the hearing of an application for an order under sub-rule (1). 7 In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 the High Court held at 57 that:

"…Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." [footnotes omitted] 8 According to their Honours at [58], this is because:

"…it would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities..." 9 Similarly, in [COMPANY] v [NAME] (NSWCA unreported, 26 August 1998) Rolfe AJA at 13 found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to [NAME] v Victorian Railways Commissioners (1949) 78 CLR 62; [COMPANY] v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & [NAME] v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in [NAME]. 10 In [NAME], who heard the application alone, stated at 130: "Although I can agree with [NAME] in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, 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." 11 [NAME] [NAME] 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.'" 12 In [NAME] and [NAME] [NAME] reinforced the rigorous testing stating, at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' [Footnotes omitted] 13 According to Rolfe AJA in [NAME] at 15-16: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & [NAME] v Browne (1992) 30 NSWLR 1 and [COMPANY] v [NAME] (1997) 188 CLR 241."

The pleadings 14 It is pleaded (amended statement of claim filed 29/05/2005) that on 1 August 1998, the plaintiff, in the company of friends, attended the [COMPANY] premises. While playing pool a fight broke out between the plaintiff and 3 other patrons of the [COMPANY] namely [NAME] and [NAME]. Some of those involved in the fight were ejected from the [COMPANY] including the [NAME] and [NAME] defendants via its entrance. The first, second or [NAME] defendants, by its servant or agent, showed the plaintiff out of the [COMPANY] via its rear entrance. 15 Shortly after the plaintiff left the [COMPANY] it is alleged that he was set upon by four males. It is alleged that [NAME] and [NAME] were two of the attackers. As a result of the assault the plaintiff suffered severe brain damage. The plaintiff pleads causes of action of assault or trespass to the person and negligence against [NAME] and [NAME]. 16 Thus, there were two assaults upon the plaintiff. The first one occurring inside the [COMPANY] premises and the second one outside the [COMPANY] premises. 17 The plaintiff can give no useful evidence as to his assailants. There is evidence from witnesses [NAME] and [NAME], which establishes that [NAME] was amongst those who assaulted the plaintiff in the [COMPANY]. [NAME] says that [NAME] admitted to hitting the plaintiff first and knocking him down. 18 [NAME] was charged with the assault of the plaintiff and ultimately acquitted following a trial before a [NAME] in March 2002. [NAME] was also charged with the assault of the plaintiff. [RESPONDENT] was found guilty and convicted. 19 The [NAME] defendant submitted that no cause of action is obvious or manifest by the facts disclosed in the pleadings, nor in the pleadings of the notice of the amended first cross claim and the amended second cross claim and they should be struck out insofar as they relate to the [NAME] defendant. The [NAME] defendant further submitted that he will incur substantial legal costs at trial if he remains a party in these proceedings. 20 The plaintiff submitted that, because the question of the [NAME] defendant's liability for allegedly assaulting the plaintiff is factual and depends on the credibility of various witnesses who gave evidence in the criminal proceedings, it could never be said to be manifestly groundless or obviously untenable. According to the plaintiff, the mere fact that a [NAME] had reasonable doubts about the [NAME] defendant's involvement in the assault does not effect any subsequent civil proceedings and that the trial judge in civil proceedings might reasonably reach a different conclusion. Similar submissions were made by the first, second and [NAME] defendants. 21 While there is evidence to the effect that [NAME] assaulted the plaintiff inside the [COMPANY], there was no eyewitness evidence who saw [NAME] assault the plaintiff outside the [COMPANY]. 22 However, [NAME] gave evidence in the criminal proceedings that he saw [NAME] at the scene of the fight outside the [COMPANY] near the plaintiff. [NAME] saw [NAME] assault Mr [NAME] (t 456-459). [NAME] [NAME] gave evidence of seeing [NAME] walking away from the scene of the fight outside the [COMPANY] and saying to the [RESPONDENT] "mate come here", however the [NAME] defendant then fled the scene. This evidence puts [RESPONDENT] at the scene when the outside assault took place. 23 [NAME] admitted [COMPANY] involvement in the fight inside the [COMPANY] in that he restrained Mr [NAME] (t 1085). He denied any involvement in the fight inside the [COMPANY] and denied that he assaulted the plaintiff outside (t 1015-1016). This evidence is not consistent with the evidence of [NAME] and [NAME] [NAME]. 24 [NAME] saw the outside fight going on. He stated (Statement 07/08/1998): "When I first looked up, I was walking near the intersection of [ADDRESS], when I saw the fight but did not see anyone on the ground. A matter of second later I again looked over and saw a guy on the ground at the entrance to the bus terminus. The person on the ground was pretty well lying near the give way signs on the road. When I saw him, there were a group of guys standing around him and more than one person kicking him to the head area. I was so concerned about what I saw, I immediately ran towards the group. As I got to the group kicking the guy, they all had their backs to me… I've started to push people away, I was yelling things like "Fuck off, get off him, what are you doing"…" 25 He further stated (Statement 01/08/1998): "When we got to [ADDRESS] I heard a commotion, I looked up to my right and saw a fight going on. They were about 50 metres up [ADDRESS], at the entrance to a bus terminus there. I could see that there was a guy on the ground and the rest were kicking and stomping on his head. I ran up to where the fight was and I tried to tackle the people off the guy on the ground. At this stage, everyone was moving around. The guy on the ground was unconscious. … I'm pretty sure that there were only four guys involved in kicking the one on the ground…" 26 The plaintiff's friend, [NAME], was with the plaintiff during the evening and was present both inside and outside the [COMPANY]. He made the following statement (Statement 02/08/1998): "I then noticed the guys coming around from the front of the Aspen. They were on [ADDRESS] already. I saw that it was the same blokes from the Aspen. They stood in front of us and one of them said something like, "Look who we've found here." The guy with the blonde hair that was talking to [NAME] in the Aspen just punched [NAME] straight away. The rest started into him. The next thing I knew I was being punched and fighting with someone who I didn't know. I remember [NAME] and myself were on the ground being punched and kicked. I looked across to [NAME] and he had two guys forcefully kicking his head and body. The next thing I remember, I was standing near [NAME] who was lying on the ground. I was just yelling at these guys who were standing in front of us in a semi circle. There seemed to be four of them. I was yelling something like, "Fuck off, get away, get away." 27 Whether or not the plaintiff succeeds in the trial depends on the evidence given by the witnesses and their credibility. Other witnesses who did not give evidence in the criminal trial may be located. In any event, there is also evidence establishing [NAME] was present when both the inside and outside assaults occurred. This is not the clearest of cases and is not the sort of case that is amenable to a summary judgment application. Of course, the civil trial has a different burden of proof to that of the criminal trial. It is my view that the plaintiff, first, second and [NAME] defendants have reasonable causes of action against the [NAME] defendant. The pleadings should not be struck out as against the [NAME] defendant. 28 The plaintiff's Counsel admitted that the amended statement of claim needs some amendment. The particulars of negligence as against the [NAME] defendant are not pleaded. The plaintiff is to file and serve a further amended statement of claim within 14 days.

Security for costs 29 Rule 42.21 of the UCPR provides: "Security for costs

(1) If, in any proceedings, it appears to the court on the application of a defendant: [redacted]

(b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or

(c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or

(d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or

(e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so,

the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given.

(2) Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct.

(3) If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed. ...." 30 There is no evidence that establishes that jurisdiction in Rule 42.21(1) of the UCPR is enlivened. This application for security for costs fails. 31 The [NAME] defendant's notice of motion filed 26 June 2006 is dismissed. Costs are reserved.

[ADDRESS] orders:

(1) The [NAME] defendant's notice of motion filed 26 June 2006 is dismissed.

(2) The plaintiff is to file and serve a further amended statement of claim within 14 days.

(3) Costs are reserved. **********

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