Griffiths v State of New South Wales (No 2)

Mr Griffiths commenced these proceedings in December 2008, claiming damages for alleged negligence in his former employment as a police officer having been terminated by way of medical discharge in September 2001, after he was diagnosed to be suffering a borderline personality disorder. Since then the proceedings have had a considerable procedural history. The State of New South Wales now presses orders dismissing Mr Griffiths’ latest statement of claim, filed in April 2015.

Mr Griffiths was legally represented at the time of his discharge from the police force. He was also initially legally represented in these proceedings, but is now self-represented. There is a question as to whether or not certain of his claims give rise to any cause of action, given that they postdate the termination of his employment, in 2001. Further, given that the proceedings were not commenced until 2008, whether they are statute barred, is also in issue.

Since December 2008 he has amended his statement of claim on a number of occasions. There have now been 10 versions of his statement of claim served and/or filed. Still, the current pleading does not comply with the Rules.

Mr Griffiths explained at the hearing that his initial statement of claim was inaccurate. It was common ground between the parties that he was medically discharged in 2001 on account of injury to his shoulders. It appears that subsequently, before these proceedings were commenced in 2008, Mr Griffiths successfully brought other proceedings in the District Court, in relation to certain psychiatric injuries which he suffered during his employment.

In September 2010, Hall J dealt with the question of production of certain documents (see Michael Richard Griffiths v State of New South Wales (Supreme Court (NSW), 14 September 2010, unrep)). In February 2012, Harrison AsJ dealt with a motion by which Mr Griffiths sought a wide variety of orders, including orders requiring the Ombudsman and the State to produce certain documents (see Michael Richard Griffiths v State of New South Wales (Supreme Court (NSW), 21 February 2012, unrep)). Her Honour dismissed the motion and placed the matter into the inactive list for 6 months.

At the hearing earlier this week, Mr Griffiths contended that neither the transcript of the proceedings before Harrison AsJ nor her Honour’s judgment, record all that was dealt with at the hearing. Nevertheless he has not challenged her Honour’s decision, or that of Hall J, despite the State contending that he has been supplied with all documents he is entitled to and he complaining at its failure to produce documents which he claims that he requires.

In June 2013, Barr AJ dealt with a proposed amended statement of claim, which Mr Griffiths then sought leave to file (see Griffiths v State of New South Wales [2013] NSWSC 818). That leave was refused, his Honour concluding that the document failed to comply with various requirements of the Uniform Civil Procedure Rules 2005 (NSW). His Honour analysed that document in some detail and observed at [23] that it:

His Honour also observed at [24] – [26]:

The Registrar referred the matter to Bellew J in March 2015. His Honour noted that, in December 2014, Mr Griffiths had served another version of his statement of claim, which was said to be “partly completed or proposed”. That was disputed, but nevertheless, his Honour observed, the proceedings had then been on foot for some 7 years with little or no progress.

Mr Griffith’s position then was, his Honour recorded that he wished “basically”, to rely on a statement of claim of 27 November 2008, but that required further amendment. He also said that he needed 4 weeks to produce a final version. Directions were then given for service of the document and the filing of a motion.

On 17 April, Mr Griffiths served another amended statement of claim. It suffers from many of the problems discussed by Barr AJ in 2013.

In his 22 May affidavit, by a mix of evidence and submissions, Mr Griffiths explained his views as to the denial of procedural fairness and natural justice in relation to decision-making as to the termination of his employment, which he seeks to pursue in these proceedings. He contends that it is necessary in his statement of claim to include a chronology of events and documents which he wishes to obtain, such as identified reports of the State’s then instructed counsel, Mr Perrignon. The basis on which Mr Griffiths claims to be entitled to be provided with such documents, ordinarily the subject of legal professional privilege, was not explained.

Mr Griffiths also there developed, in detail, submissions as to the actions taken during the course of his former employment, from as early as 1996, in relation to his health; how his hurt on duty claim was pursued in the District Court proceedings after the termination of his employment, before they were finalised in 2005; his concern as to matters recorded in a COPS Event and in a Police Crime Intel Information System event; his views as to the operation of the Limitation Act 1969 (NSW), given the depression and anxiety he has been diagnosed to be suffering; alleged fraud, deceit and concealment of relevant material, including by the Police Minister in 2011; complaints about responses he had received to Freedom of Information requests; complaints that Barr AJ and Harrison AsJ had not required the State to comply with various binding statutory obligations; claimed admissions made in 2010 and 2013 that “medical provisions” had not been complied with; various claimed false statements; advice from the Ombudsman in 2006 that relevant files had been lost; numerous alleged failures by the State and the Ombudsman to comply with the provisions by of the Police Act 1990 (NSW), when dealing with his complaints; as well as explanations of advice which he had sought as to the State’s case.

Mr Griffiths also there explained what various of the paragraphs in the amended statement of claim were directed to, by reference to various legislation and documents, such as orders made in the District Court in 2005. This revealed, amongst other things, that part of the claim which Mr Griffiths seeks to advance is that by January 1996, the State should have ceased pursuing attempts to have him medically discharged on the grounds of mental illness and ought to have allowed him to pursue his career unhindered. His position was that to deny him the opportunity to advance his pleaded case, was to deny him the opportunity to be heard on matters of fact, on which the defendant in 2005 admitted that he had suffered a work related injury of depression and anxiety and that it had no basis in 1996 and 1998, to pursue his discharge on a diagnosis of borderline personality disorder.

These submissions were further developed in Mr Griffith’s detailed written submissions, where he submitted that his active police service had come to an end when he was directed off duty on permanent sick report in 1998. Mr Griffiths also submitted that if the amended statement of claim was found to be defective, he ought to be given the opportunity to amend the statement of claim which he first filed in 2008 (at [35]).

Mr Griffiths also developed his various complaints, including as to having been denied access to relevant documents and his explanation of what it was that he sought to pursue, by the various paragraphs of his amended statement of claim. He also relied on State of New South Wales v Seedsman [2000] NSWCA 119, where it was found that the Police Service had failed to provide a safe system of work to protect employees such as Ms Seedsman, from mental injuries. His case was that he, too, had been put at risk of psychiatric injury during his employment and that he had not been provided with a safe work environment, with the result that he was eventually found to have suffered a total and permanent work related disability.

In his 2013 judgment, Barr AJ explained, in detail, the way in which the pleading which his Honour had to consider had been structured and why it was that this document did not comply with the Rules.

For example, his Honour noted at [18] that “Paragraphs [8] - [39] inclusive of the draft are gathered under the heading “FIRST COUNT OF BREACH OF CONTRACT/NEGLIGENCE CAUSING INJURY/DUTY OF CARE/DENIAL OF NATURAL JUSTICE/PROCEDURAL FAIRNESS.” They deal with events said to have taken place between 1991 and 2001. He then extracted certain of the following paragraphs:

The April 2015 statement of claim now has as its first “count”: “NEGLIGENCE, DUTY OF CARE FAIL TO PROVIDE SAFE WORKING ENVIRONMENT FAIL TO COMPLY WITH AWARD AGREEMENT, POLICE ACT 1990 AND POLICE REGULATIONS 1990, DENIED PROCEDURAL FAIRNESS.” A chronology of certain events which are claimed to have occurred from 1991 follow at [6] - [36]. They expand considerably on the events dealt with in the particulars quoted above. After [36], particulars of “NEGLIGENCE, BREACH AWARD, AGREEMENT, POLICE ACT 1990 AND POLICE REGULATIONS 1990 AND 2000, DENIED PROCEDURAL FAIRNESS” are given in paragraphs (a) to (x):

In a second paragraph [36] it is then claimed:

The statement then turns to “SECOND COUNT, AS PERTAINING TO EVIDENCE FIRST TO PLAINTIFF’S POSSESSION AS OF 24 SEPTEMBER 2010”. What this is intended to mean is not apparent. From [37] to [53], there is a further chronology of alleged events, commencing in 1999, before particulars of negligence are provided:

Then, a heading “THIRD COUNT NEGLIGENCE IN MATTERS ARISING FROM AND OR DURING THAT PAST EMPLOYMENT” appears, with particulars of events commencing in 2005 then being provided from [55] to [68]. The particulars then provided are:

The damages claimed total $2,989,015.

As Barr AJ explained, Rule 14.7 requires that a summary of the material facts relied on, not the evidence by which those facts are to be proven, are to be pleaded. Rule 14.8 also requires pleadings to be as brief as the nature of the case allows. Rule 14.9 requires that the effect of a document or words spoken must be pleaded. A mere reference to the existence of a document is not sufficient. His Honour observed at [22] that “[i]n many places the draft defies any attempt to distinguish facts from evidence.”

The current pleadings contain similar difficulties. This amended pleading has attempted to address the deficiencies Barr AJ identified, but still it does not distinguish sufficiently between material facts and evidence. It also contains many statements as to opinions which Mr Griffiths holds about alleged conduct, as well as conclusions and opinions which he holds about various documents and events. These are not matters for pleadings.

As presently framed, the April amended statement of claim is a difficult document to understand and to respond to and will also make identification of the real issues in these proceedings difficult.

Generally, an order dismissing a statement of claim should not be made under Rule 13.4, where the document is merely ill expressed. That Rule provides:

The problems which Barr AJ identified in 2013 have, however, not been addressed. On the history of these proceedings, Barr AJ’s assessment that Mr Griffiths is incapable of producing a document, without legal assistance, which will adhere to the requirements of the Rules, was accurate. He has plainly not obtained such assistance in the drafting of the April 2015 pleadings.

In exercising its discretions the Court is obliged to have regard to the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), namely the just, quick and cheap resolution of the real issues in the proceedings. The dictates of justice must also be taken into account, as s 58 requires, it providing that the Court:

Considerations of elimination of delay and proportionality of costs must also be taken into account (see s 59 and s 60). Section 57 requires the proceedings to be managed having regard to the following objects:

The real question is now whether Mr Griffiths should be given any further opportunity to amend his pleadings. Nothing in the procedural history of the matter, or the written or oral submissions which Mr Griffiths has advanced, provides any basis on which it could be concluded that he has either the capacity, or desire to take the necessary steps to produce a pleading that complies with the requirements of the Rules which bind all litigants.

To the contrary, given Mr Griffiths submission that he could amend the statement of claim “… back down to about two pages the moment they provide me with the evidence and/or acknowledge that it does not exist …”, it is apparent that any prospect of his statement of claim being pleaded in accordance with the requirements of the Rules is illusory, given that his challenge to the adequacy of the production of documents he has pursued, have failed.

While orders under Rule 13.4 will not lightly be made, in this case, I am satisfied that it is not consistent with the dictates of justice to provide Mr Griffiths with any further opportunities to amend his pleadings. He has had more than a just opportunity to adhere to the requirements of the Rules and has not availed himself of that repeated opportunity.

Justice must have regard to the position of both parties. These proceedings have not, in 7 years, produced a properly pleaded statement of claim to which the State can respond and the matter can proceed to trial. Justice does not permit further time or costs to be wasted in the pursuit of its production. That Mr Griffiths has a reasonable cause of action is not apparent. Giving Mr Griffiths further opportunities to amend his pleadings, would, in all of these circumstances, involve an abuse of the processes of the Court.

In the circumstances I have concluded that the amended statement of claim filed in April 2015 should be dismissed in accordance with Rule 13.4. I order accordingly.

The usual order as to costs is that they follow the event. That would be an order in this case, that Mr Griffiths bear the State’s costs, as agreed or assessed. Unless the parties approach to be heard within 21 days, that will be the Court’s order.