FEDERAL COURT OF AUSTRALIA

Wride v Schulze [2004] FCA 281

PRACTICE AND PROCEDURE – pleadings – application to strike out statement of claim as disclosing no reasonable cause of action – application to have proceedings summarily dismissed – no reasonable cause of action – pleadings struck out – application dismissed.

Federal Court Rules O 11; O 12 r 2; O 20 r 2

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied

DONALD CHARLES WRIDE v HOWARD K SCHULZE AND G E HABEL

S 175 OF 2002

LANDER J

ADELAIDE

23 MARCH 2004

THE COURT ORDERS THAT:

1.         Pursuant to O 11 r 16 the amended statement of claim is struck out.

2.         Pursuant to O 20 r 2 the applicant’s application is dismissed.

3.         The applicant pay the respondents’ costs including the costs ordered by the Full Court to be costs in the cause.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this matter the applicant, who is unrepresented, has brought proceedings against his former patent attorneys.  In action number S 176 of 2002 the same applicant has brought proceedings against IP Australia in relation to the same matters raised in these proceedings (‘the IP proceedings’).  The two matters were heard together because the parties have a common interest. 

2                     In these proceedings, the applicant claims in his application filed on 19 July 2002:

‘1.        Compensation for loss of income from patent rights that were fraudulently taken away from the inventor, DC Wride, by his patent agents Mr JC Schmidt and Mr GE Habel in collusion with the Australian Patent Office who the commissioner at that time was Mr KB Petersson, who in turn were in collusion with the Federal Liberal Party and government.

2.         All monies paid, for patents and services over this whole period of time, reimbursed to the inventor.’

3                     He seeks the same relief in paragraph 1 of the application in the IP proceedings which was also filed on 19 July 2002.

4                     Both applications were accompanied by an affidavit each of which was in similar terms to the other.

5                     It is not necessary, because of events which have transpired, to identify the claims in those affidavits.

6                     In both proceedings, the respective respondents issued a notice of motion seeking to have the proceedings dismissed.

7                     The two applications were originally heard by the same judge of this Court (the primary judge).

8                     In both cases, the primary judge dismissed the applicant’s application and ordered the applicant to pay the respondent’s costs.

9                     The primary judge found that the Federal Court of Australia did not have jurisdiction to hear the subject matter of the applicant’s applications and the proceedings were dismissed for want of jurisdiction.

10                  In both cases, the applicant appealed to the Full Court of the Federal Court and after a short hearing in the Full Court orders were made, by consent, setting aside the orders of the primary judge and remitting both matters to a single judge for further hearing.

11                  The Full Court did not give reasons because the orders were by consent, but a perusal of the transcript of the hearing in that Court indicates that there was a suggestion that the orders made by the primary judge dismissing the applications might have been premature because, on the affidavits supporting the applicant’s applications, it was difficult to discern precisely the cause of action pursued and, in those circumstances, difficult to discern whether the Court had jurisdiction or not.

12                  I assumed responsibility for the management of the matters and, on 22 September 2003, I made directions in both matters that the applicant file and serve a statement of claim within 28 days.

13                  The applicant failed to comply with that direction and the matter was called on again on 5 November 2003.

14                  On that occasion, the applicant told me that he had been suffering from a medical problem and he had been unable to comply with my direction.

15                  I extended the time within which he had to file the statements of claim by a further 10 days.

16                  The applicant filed a statement of claim in the same form in both matters.  The respective respondents in each action responded by filing a notice of motion seeking to have the applicant’s proceedings summarily dismissed as disclosing no reasonable cause of action.

17                  In this matter, an affidavit sworn by the respondents’ solicitor was filed in support of the respondents’ motion.

18                  When the matter was called on for hearing, I gave leave to the respondents to amend their motion to seek the following orders:

1.         An order pursuant to O 11 r 16 striking out the statement of claim as disclosing no reasonable cause of action.

2.         An order pursuant to O 20 r 2 dismissing the applicant’s proceedings for disclosing no reasonable cause of action.

19                  As I have said, the motion for summary dismissal in this matter was heard at the same time as that in the IP proceedings and the reasons in this matter are also apposite to the motion in the IP proceedings.

20                  The respondents submitted that the applicant’s statement of claim is unintelligible and impossible to address by way of reply.

21                  The applicant’s statement of claim is a long handwritten document which purports to join as respondents not only the respondents in each of the actions but also the State and Federal Liberal parties and governments.

22                  It is not in the form of a statement of claim.  It is simply a very long document which makes a number of allegations over a long period of time commencing in 1950 against a number of parties, some of whom are not parties to the action.

23                  The applicant has pleaded that in 1950 Thomas Playford, the then Premier of South Australia, abused his public office and engaged in a conspiracy with the applicant’s uncle and the applicant’s cousin to illegally acquire a property apparently in the estate of the applicant’s father.  It is not possible to understand how this matter is relevant to any claim against the respondents but the statement of claim suggested that particular matter ‘was only the beginning of the harassment and continuous monitoring and destroying of the Wride family of WG Wride as that government assessed them to be all uneducated fools’.  The applicant is an inventor.

24                  Next, it is pleaded that Sir Robert Menzies’ government ‘went into collusion’ with Sir Thomas Playford to destroy the applicant and to prevent the Australian people from knowing they were using the applicant’s inventions.  To that end, it is claimed that Sir Robert Menzies used ‘his Patent Office and its commissioner, Dr KB Petersson, to steal the inventions of the inventor DC Wride and destroy others so he would never be known as a true inventor’.

25                  Next, it is pleaded that in doing so ‘they breached the Patents Act of 1952 and 1990’.  It is complained that the breach arose by the Commissioner giving the applicant bogus provisional patents for two of his inventions in July 1965.  He claims that his patent attorneys had a conflict of interest and, moreover, conspired with the State and Federal governments and lied to the applicant about the patentability of his inventions.  It is pleaded that another person benefited by reason of that conspiracy.

26                  Next, it is claimed that ‘Gillette’ stole his patent for a twin-blade razor.

27                  The applicant claims ‘mental torture for my whole family and, the destroying of my profession, through no fault of my own, and never knowing what the problem I had was’.

28                  Next, he claims that in 1969 he invented a new type of power hacksaw and obtained a provisional patent in respect of it but that it was allowed to lapse.  I think it is alleged that occurred by reason of the default of his attorneys.

29                  The patent office apparently renewed the provisional patent.  The applicant claims that ‘the patent system of Australia is flawed and unable to operate as it cannot have a Commissioner of Patents or a Deputy until a court of law examines its credibility on it (sic) and compensates the inventor DG Wride for his financial losses’.

30                  Next, he claims that the patent office involved itself with ‘premeditated fraud’ which gave rise to his razor designs being stolen.  He claims that he was a victim of fraud in relation to the patenting of a hydraulic jack which he invented.

31                  He claims that he invented a retractable light tower which should have been used at the Adelaide Oval but his invention was refused by the Lord Mayor.  He claims that to be a conspiracy to defraud to ‘keep the public from knowing the full potential of the inventor D.G. Wride’.

32                  He details other claims which he said arose out of the failure of the patent office to deal with his applications appropriately.

33                  He claims that he has been the victim of a widespread conspiracy which included as conspirators the State and Federal Liberal Parties and the State and Federal governments, patent attorneys and IP Australia.

34                  Attached to the statement of claim is a document entitled ‘Story’ which is a long history of dealings with lawyers, courts and government.

35                  I am sure that the applicant firmly believes that he is the victim of the actions and inactions of other parties as a result of which he has suffered mental torture and financial loss.

36                  The applicant is unrepresented and has little or no knowledge of court proceedings.  I think, with respect, that the document he has put forward as his statement of claim demonstrates that.

37                  It has no structure at all.  It does not comply with O 11 r 1 of the Federal Court Rules.  It deals with several matters, but is not divided into paragraphs: O 11 r 1(a); nor are the various matters raised pleaded in separate paragraphs: O 11 r 1(b).  The paragraphs are not numbered: O 11 r 1(c).  It does not contain only material facts: O 11 r 2(a); but at the same time it is not as brief as it should be: O 11 r 3; and it is not appropriately particularised: O 11 r 10(b).  There is no inconsistency in the last three matters.  The document has all three flaws because it has no real resemblance to a pleading.

38                  The applicant pleads fraud and conspiracy but does not properly particularise his claim: O 11 r 10; O 12 r 2.  There are allegations of conspiracy and fraud against the respondent but also against non-parties (the Federal and State Liberal Parties and governments).

39                  There is nothing that can be done to make the statement of claim conform with the Federal Court Rules.

40                  I have no doubt that I must strike out the statement of claim as disclosing no reasonable cause of action.  In due course, I will make an order accordingly.

41                  However, as I have noted, the respondents want me to go further and they ask me to make orders dismissing the proceedings on the basis that the proceedings disclose no reasonable cause of action: O 20 r 2.  Such an order amounts to summary dismissal.

42                  Such an order is made sparingly and only in the clearest case.  In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ said, in relation to the exercise of the power to dismiss summarily, 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”.

            At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak about at a glance”’.

43                  In my opinion, this is a case of the type referred to by Barwick CJ.

44                  I invited Mr Wride to put everything to me in opposition to the respondents’ motion to dismiss the proceedings for disclosing no reasonable cause of action.  He told me that he would not be able to engage the services of a solicitor.  He said he would try to find time to read the books so as to be able to put the statement of claim in an acceptable form.  He said, and I have no doubt that he is right in this, the case was important to him.

45                  In my opinion, there is no possibility that Mr Wride can identify a cause of action on the material presently before me without the assistance of a legal practitioner.  I am also satisfied that upon the material before me no cause of action could be identified by a legal practitioner.

46                  I can therefore conclude, as the authorities require me to, after adopting the most cautious approach, that upon the material which has been disclosed there is no possibility at all that a reasonable cause of action can be identified or made out.

47                  I have come to that decision unaided by any other material except the material supplied by the applicant himself.

48                  As I have already mentioned, the respondents’ solicitor has sworn an affidavit in support of the respondents’ motion.  In that affidavit he has deposed to the course of proceedings in the District Court of South Australia and the Supreme Court of South Australia in which the respondents are plaintiffs and the applicant defendant.

49                  The respondents commenced an action in 1998 in the District Court of South Australia against the applicant to recover the unpaid balance of their fees for services rendered.  The applicant filed various defences and counterclaims in which he raised the same matters he has raised in this Court.  All defences and counterclaims were struck out.  Eventually, on 7 December 2000, a master of the District Court entered judgment for the respondents.  As at that time, the applicant had been given five opportunites to file an appropriate defence and counterclaim.  The applicant appealed to a judge of the District Court who, on 26 March 2001, dismissed that appeal.  On 22 July 2002, a master of the District Court dismissed an application brought by the applicant to set aside the judgment entered by the master on 7 December 2000.  The applicant appealed that decision to a judge of the District Court who dismissed that appeal on 11 September 2002.  The applicant appealed from the order of the judge of the District Court to the Supreme Court.  On 13 June 2003 Sulan J dismissed that appeal.

50                  The respondents have a judgment for $88,521 against the applicant which remains unpaid.

51                  It is worth noticing that both the District Court of South Australia and the Supreme Court of South Australia have come to the conclusion that pleadings filed by the applicant in the District Court have been so inadequate that they should be struck out.

52                  In those courts, judicial officers have concluded that the defence and counterclaim raised by the applicant to proceedings brought by his former patent attorneys for collection of their fees simply do not disclose a defence and cannot support a counterclaim.

53                  However, I do stress that I have examined the material for myself and it is my conclusion that the material advanced before me by the applicant cannot support any reasonable cause of action.

54                  I will make the following orders:

1.         That pursuant to O 11 r 16 the amended statement of claim is struck out.

2.         That pursuant to O 20 r 2 the applicant’s application is dismissed.

3.         The applicant must pay the respondents’ costs including the costs ordered by the Full Court to be costs in the cause.

55                  I will make the same orders in the IP proceedings.

Associate:

Dated:              23 March 2004