Lin v State of New South Wales

These proceedings arise out of an interaction that Huai Ning Lin (‘the plaintiff’) had with police when they were called to her home in the early hours of 28 April 2015.

It appears that, following that interaction, a police officer made a record in a police report that the plaintiff was suffering from schizophrenia. The plaintiff denies that she had – or has ever had – schizophrenia, and she complains that, following this report, she has “been treated as a schizophrenia patient and all reports plaintiff (sic) made to police had been treated as unrealistic allegations”.

These events have led to her commencing proceedings, by way of statement of claim filed on 24 February 2023 (‘the SOC’), against the State of NSW (‘the defendant’) seeking two forms of “relief”:

Since the commencement of those proceedings, the plaintiff has filed a number of amended statements of claim: on 21 March 2023 and on 14 April 2023.

The defendant, by notice of motion filed 25 May 2023, moves for summary relief of the amended statement of claim filed on 14 April 2023 (‘the ASOC’). The defendant’s essential contention is that the claims are inadequately pleaded in fundamental respects and, in any event, are hopeless, and should be summarily dismissed.

The defendant read, in support of the application, an affidavit of Emma Morris affirmed 25 May 2023.

The plaintiff, on 31 May 2023, filed a “reply to notice of motion”. By that document, the plaintiff seeks three orders: that the defendant’s notice of motion itself be summarily dismissed, pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’) (order 1); that leave be granted to the plaintiff to file the proposed amended statement of claim dated 26 April 2023 (order 2); and that the plaintiff’s application “is referred to court hearing” (order 3).

I will briefly sketch the matters of background, so far as they are relevant to the present applications. In doing so, I will also address the nature of the plaintiff’s “claims”.

On 28 April 2015 the plaintiff made a report to police. Having done so, the plaintiff described what happened, in these terms (SOC, par 1):

This interaction with the police is contained in the COPS event report: E57928238. Relevantly, that report includes the following:

The plaintiff, however, alleges that “the truth” is that she has “never suffered or had been diagnosed [with] schizophrenia” (SOC, par 3; ASOC, par 7).

The plaintiff goes on to allege that, in July 2017, in what appears to be summary criminal proceedings of some kind, she “declared before Magistrate Robinson that [the] plaintiff does not have schizophrenia/mental health problem (sic) and proved self in court by successfully self-represented in court proceedings” (SOC, par 3(4); ASOC, par 8(c)).

The plaintiff, inter alia, alleges that the plaintiff’s involvement in those proceedings, as well as medical certificates from 2022, demonstrate the “plaintiff’s competitive mental capacity”, and that the plaintiff “never suffered from schizophrenia or any mental illness” (SOC, par 4; ASOC, par 8).

The plaintiff alleges that “the untrue police records seriously affect [her] rights”, and that, since May 2020, the plaintiff commenced to correspond with the Commissioner of Police, as well as lodging complaints about, those records: the plaintiff alleges that her claims have been ignored (SOC, par 5).

The plaintiff attached to her submissions a number of COPS event reports that record interactions that the plaintiff had with the police on 28 April 2015 (see [10], above), 6 February 2020 and 17 May 2020.

The plaintiff has also annexed a number of communications that she has had with the police. In general terms, the plaintiff’s communications with the police seek a resolution of what she described as the “mental health issue”, and the request that she made “to amend my personal records”.

The “causes of action” raised by the plaintiff are multiple. Rather than attempt the difficult task of summarising them, it is simpler to set out the thrust of what is alleged (SOC, par 4):

These causes of action are repeated in the ASOC, except the one in defamation.

The plaintiff has, as I have indicated, filed amended statements of claim on 21 March and 14 April 2023.

A further proposed amended statement of claim, dated 26 April 2023, has been served by the plaintiff. By the “reply to notice of motion”, the plaintiff seeks leave to file that amended statement of claim (‘the PASOC’); the defendant opposes that leave. I will briefly refer to some parts of that proposed pleading.

There is no amendment proposed to the relief claimed: it is therefore in the terms described in [3], above.

The plaintiff specifically alleges (the paragraph in the PASOC is not numbered):

The plaintiff then proceeds to set out in a narrative style form various matters in support of these claims, which are by no means easy to follow. The plaintiff, in doing so, makes reference to a number of judicial decisions the relevance of which is unclear.

Ultimately, the plaintiff repeats the relief sought – essentially a correction of the police COPS event reports and “compensation” for the plaintiff’s “suffering and losses” (ASOC, par 23).

The defendant seeks an order under r 13.4(1) of the UCPR – it is said that no reasonable cause of action is disclosed, and should be dismissed – and, in the alternative, pursuant to r 14.28(1) – it is also said that no reasonable cause of action is disclosed, that the proceedings otherwise have a tendency to cause prejudice, embarrassment and delay and should be struck out.

I will start with a short overview of the principles relating to pleadings.

The relevant legal principles that apply to pleadings are well-established.

In an application under rr 14.28(1)(a)-(c) of the UCPR, it is generally appropriate to consider at least three of them.

The first are the general principles that inform the nature and function of a pleading. In Young v Hones [2013] NSWSC 580 at [79]-[80], Garling J succinctly summarised the function of pleadings:

A number of these principles are reflected in the UCPR: see rr 14.6-14.20.

The second are the more specific principles that apply to particular claims. For example, certain matters must be specifically pleaded “that, if not pleaded, may take the defendant by surprise”: r 14.14 of the UCPR.

The third relates to the function of the Court. It is not the role of the Court to assist parties in drafting pleadings which comply with the UCPR: Gunns Ltd v Meagher [2005] VSC 251 at [57]; McGuirk v The University of New South Wales [2009] NSWSC 1424 at [35]. Rather, as noted in Gunns at [57], the Court is concerned with ensuring

Rule 13.4(1) of the UCPR provides:

A purpose of r 13.4 is to “save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings” and to protect “the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications”: Ugur v Attorney-General for NSW [2019] NSWCA 86 at [70].

The relevant principles that govern summary relief are well-established: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; [1949] HCA 1; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129; [1964] HCA 69 (‘General Steel’). In General Steel, Barwick CJ put the matter thus (at 129):

The Court of Appeal summarised the relevant principles in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200]:

It is sufficient simply to note that an order of that kind is not appropriately made except in the clearest of case, and the power that is available is to be exercised sparingly and with restraint.

Rule 14.28(1) of the UCPR provides:

When a pleading is “unintelligible, ambiguous, vague or too general”, the rule typically employed in those circumstances is r 14.28(1)(b): Gunns Ltd v Meagher at [57]. The rule is also available when a pleading does not comply within the general or specific principles of pleading such as those set out in rr 14.6-14.20 of the UCPR: Clarke v State of New South Wales (No 4) [2015] NSWSC 1054 at [33]-[45].

In my view the ASOC does not properly or meaningfully plead the material facts relied upon, or properly or meaningfully set out the legal claims sought to be advanced by the plaintiff against the defendant. I will explain, briefly, why I make that finding in relation to each of the three “causes of action” relied upon by the plaintiff.

The plaintiff’s first action is for breach of s 22 of the Mental Health Act 2007 (NSW) (‘the MHA’). Put simply, that section empowers the police officer, who finds a person who appears to be mentally ill or mentally disturbed, to take that person to a declared mental health facility if police believe on reasonable grounds that certain preconditions exist: ss 22(1)(a) and (b) of the MHA.

The plaintiff then alleges as follows (ASOC, par 5):

On what has been pleaded by the plaintiff, s 22 of the MHA has nothing to do with what occurred on 28 April 2015, or at any time thereafter. To be clear, nor is there any pleading seeking to demonstrate the materiality of that section to what is alleged to have occurred on that day.

In relation to the claim alleging breach of the Freedom of Information Act 1989 (NSW) (ASOC, pars 10 and 11), the plaintiff’s claim is made under s 45 of that Act. There are a number of difficulties with the pleading, such as it is, including the basis for this Court having jurisdiction to provide relief as sought. More fundamentally, however, is the fact that the Freedom of Information Act 1989 was repealed, and replaced by the Government Information (Public Access) Act 2009 (NSW) on 1 July 2010. It is unnecessary to consider that claim further as the plaintiff abandoned any reliance upon it: submissions dated 27 June 2023, par 7. The plaintiff, I add, confirmed that position during the course of her submissions at the hearing.

I turn now to the “tort” or “malpractice” claim. The plaintiff, in addition to what is alleged in ASOC, par 5, also alleges as follows in relation to that claim (pars 12 and 13):

There is nothing in these paragraphs of the ASOC, nor any of the earlier ones, that provide any particulars of, or the legal basis for, the “tort” claim. Nor are the decisions in Reeves v State of New South Wales [2010] NSWSC 611 (essentially, a claim for damages for psychological injury brought by a former police officer against the State) or Beckett v State of New South Wales [2015] NSWSC 1017 (a claim for malicious prosecution) in any way relevant.

In my view, the defendant is entitled to an order that the ASOC filed 14 April 2023 be struck out: the pleading, at a minimum, “has a tendency to cause prejudice, embarrassment or delay in the proceedings”: r 14.28(1)(b) of the UCPR.

Although the defendant, by its notice of motion, sought orders in connection with the ASOC filed 14 April 2023, an order confined to that pleading would leave on foot the ASOC filed on 21 March 2023. In my view all pleadings filed by the plaintiff have “a tendency to cause prejudice, embarrassment or delay in the proceedings” (r 14.28(1)(b) of the UCPR), and should be struck out.

The defendant sought an order, in the alternative, that the proceedings be dismissed. At the present time, I am not persuaded to make that order. That is for the following reasons. First, although I entertain some not inconsiderable doubt about this, I cannot exclude the possibility that there is a claim that is capable of being advanced by the plaintiff. The position is close to, but not quite at, the point where it may be open to conclude that there is, as the defendant submitted, no real prospect that the plaintiff would be placed to produce a better version than the current pleading such that it would be inutile to grant the plaintiff leave to file a further iteration: Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [43]ff. Secondly, even if that order were made, the plaintiff would, in the absence of an order to the contrary effect, be entitled to file a further pleading given s 91 of the Civil Procedure Act 2005 (NSW).

The plaintiff, by her “reply to notice of motion”, seeks leave to file a proposed further amended statement of claim dated 26 April 2023.

The defendant opposes a grant of leave, essentially on the basis that the proposed amended pleading is not materially different to the ASOC filed 14 April 2023. I agree.

In those circumstances, I refuse the plaintiff leave to file the PASOC.

For the above reasons I make the following orders: