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BRADLEY JAMES WATERS v PAUL SCOTT and DEMAR PTY LTD

Supreme Court of the Northern Territory of Australia

Asche J.

5 March 1987

Practice and Procedure - Order 29 rule 4  -	application to strike out Statement of Claim as showing no cause of action against one defendant - Statement of Claim unclear in reference to such defendant but curable by amendment - Order
29 rule 4 inapplicable in the circumstances.

Cases applied:-

Republic of Peru v Peruvian Guano Company (188 7)	36 Ch. D 489
Wall v Bank of Victoria Limited (1890) 16 V.L.R. 2 Arbon v Anderson (1942) 1 All E.R. 264
Kemsley v Foot (1951) 1 All E.R. 331

Counsel for the Plaintiff Solicitors for the Plaintiff Counsel for the DefendantE Solicitors for the Defendants

G. Schneider
Waters James & O'Neil
J.	1,eill Ward Keller

asc870017a

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
S.C. NO. 934 of 1986	BETWEEN:
BRADLEY JAMES WATERS

Plaintiff
AND

PAUL SCOTT
First Defendant
AND

DEMAR PTY LTD
Second Defendant

CORPJ•l:	Asche J.

REASONS FOR DECISION
(Delivered the 5th day of March 1987)

The application of the First Defendant is that the Plaintiff's action against the First Defendant  be struck  out as net disclosing any cause of action, and jucg:r,er.t be entered  for the said First Defendant.	Although it is stated on the application that it  is  made pursuant  to Order  17, rule 1 of the Supreme Court  Rules, I am prepared  to accept that in fact it is more properly placed  under Order  29, rule 4, and so much has been conceded by .Mr  Neill  on behalf  of the Defendant.

I took a short time to look at the authorities, but having now examined the authorities, I am in no doubt that the application should be dismissed.		The Statement of Claim it is true contains some ambiguity.	It is a claim by the Plaintiff for personal injuries sustained in the course of his employment.	The second named Defendant is named as his employer, and the first named Defendant is named as an employee of the Second Defendant.

The Statement of Claim alleges that the Plaintiff sustained injuries, and gives details of those, and then pleads, in paragraph 7, that the injuries were occasioned by the negligence of the Defendants.	Particulars of negligence of the Defendants then follow, and I think it is conceded by Mr Schneider that it would have been more convenient and certainly clearer had the particulars of negligence been particularised as to each Defendant.	In fact, one can only infer against which Defendant the particulars of negligence are raised.

Most of the particulars would seem clearly to be raised against the second named Defendant, and when one looks at particulars (!!), (I), and (FI, which are probably those which could be suggested as being raised against the first named Defendant, they are described as:

"(H)		activating the machine when it was unsafe to do so;

(I)
< '

(J)

failing to warn the Plaintiff that the first named Defendant was about to activate the machine;

failing to heed the position of the Plaintiff."

When one is faced with the opening part of paragraph 7 by the bald statement that the injuries were occasioned by the negligence of the Defendants, and the three particulars that I have read out are then nominated, there is certainly some room for argument that they do not, or they may not, apply, so far as the first named Defendant is concerned; or do not clearly point to any negligence in the first named Defendant.	However, they are clearly matters which can be cured by amendment, and I am told that an amendment has been drawn.

In a very broad sense, no doubt it could be said that the allegation of negligence is established against the first Defendant, but it is sorne,;hat tenuous and unclear.
Ho,,, eyer,	the	cases in relation to the application of  Order 29, rule 4 make it plain that the objection which can be taken under that order should be a very clear one indeed.
Order 29 itself is headed "Proceedings in Lieu of Demurrer",

and it is accepted that these rules were brought in to abolish the dernurrer rules and substitute the rules which are now in force in this Court and in other Courts.

So 1nuch was explained by Chitty J. in the case of Republic of Peru v Peruvian Guano Company (1887) 36 Chancery Division, 489 at page 495, and a great deal of useful background can be obtained by reading what he says.	He commented that the motion was made under what he called the first branch of Order 25 rule 4; and I interpolate to  observe that Order 25 rule 4 in the form in which it was before Chitty J. is similar to Order 29 rule 4  of the Rules of the Supreme Court of the Northern Territory.	I note from the White Practice that in England the rule has since been somewhat altered.

What Chitty J. said was this:

"There is some difficulty in affixing a precise meaning to the term 'reasonable cause of action' used in order 25, rule 4.	In point of law, and consequently in view of a court of justice, every cause of action is a reasonable cause; but obviously some meaning must be assigned to the term 'reasonable'.	Dernurrers are abolished, and it could not have been intended to demolish demurrers by the right hand, and restore them by the left.
So far as method of procedure was concerned, demurrers, certainly in the court of Chancery and in the Chancery Division at the time when these orders came into operation, were a cheap and expeditious mode of obtaining a decision.	The mere substitution of a motion or summons for the demurrer would not be an adequate explanation for order 25.	Having regard to the terms of rule 4 and to the decisions on it, I think that this rule is more favourable to the pleading objected to, than the old procedure by demurrer.	Under the new rule the pleading will not be struck out unless it is demurrable, and something worse than demurrable."

'.		In the case of Wall v Bank of Victoria Limited (1890) 16 VLR at page 2, an application was made under this
order which, in Victoria, is Order 25 rule 4, that the claim alleged by the Plaintiff did not disclose any cause of action.	In the course of argument Hood J. interpolated at page 3:

"I think that this is an objection which might be taken in the defence by way of a demurrer."

In giving judgment, at page 4, His Honour observed:

"Applications under this rule are intended to  enable the parties to raise questions of law and have them decided quickly: Burstell v Bafus 26 Ch.D 35, and an action may be dismissed under this rule on the same grounds as those on which a demurrer might formerly have been allowed.	But the action must appear on the face of it, manifestly groundless: Metropolitan Bank v Pooley 10 App. Cas.
210.	It must be so manifestly faulty that it does not admit of argument: Bryer v National Insurance Company 8 A.L.T. 541; and if the pleading is intelligible in itself, such objection should be taken in the reply: Smith v President of St Arnaud
8 A.L.T. 53, and the question is not whether the pleading is good or bad, but whether it can be regarded as frivolous or vexatious or unreasonable, or as disclosing a case which the court is satisfied will not succeed:	Republic of Peru v
Peruvian Company 36 Ch. D. 496."

It is, I think, conceded that it is not suggested in this application that the pleading is frivolous or vexatious or unreasonable; what is put is that the Court should be satisfied that it should not succeed.

Similarly, in Arbon v Anderson (1942) 1 AER 264, at 266, Luxmoore LJ said:

"The application to strike out the statement of claim as against all the defendants was made under the Rules of the Supreme Court, order 19, rule 27, and Rules of the Supreme Court order 25, rule 4.
While the application to dismiss the action was made under the last mentioned rule, it is well settled that it is only in plain and obvious cases that recourse should be had to the summary process of dismissing an action under the Rules of the Supreme Court, Order 25, rule 4, and that an action will not be dismissed under it unless the case is beyond doubt.	The fact that the case is weak and not likely to succeed is no ground for the dismissal of the action under Rules of the Supreme Court order 25.	A pleading will not be struck out under either order unless it is not only demurrable but something worse than demurrable, that is, such that no legitimate amendment can save it from being demurrable, or it is embarrassing."

Finally, in Kemsley v Foot (1951) 1 AER, 331 at page 33, a case which was affirmed on appeal at (1952) 1 AER, 501, Somervell LJ, in referring to cases mentioned in the Annual Practice under Rules of the Supreme Court Order
25, rule 4, says:

"The effect of the cases is accurately  summarised in the Annual Practice, and I think applies to both r u l es  '1    -

(He was dealing with Order 25, rule 4, and Order 19, rule 27):

"They should be applied only in plain and obvious cases, and if there is a point of law which  requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under Rules of the Supreme Court order 25,
rule 2."

,	.
Now, all that one can comment so far as the Statement of Claim here is concerned, is what I have already said, that there is some element of ambiguity in the claim by the Plaintiff against the First Defendant.	It goes no more than that, and if necessary could easily be cured by amendment.

The application, therefore, seeks something which in my view cannot be granted in the context of the present case, and the application should be dismissed. Order that Defendants pay the costs of the application.