Supreme Court of Norfolk Island

Buffett v Norfolk Island Regional Council [2026] NFSC 3

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 425(1)(a) and (d) of the Court Procedure Rules 2006 (ACT), the further amended statement of claim dated and filed 22 January 2026 be struck out in its entirety.

2.    Pursuant to r 40(1)(e) of the Rules the originating process, being the originating application dated and filed 16 September 2025, be set aside.

3.    Pursuant to r 425(3) of the Rules the proceeding be dismissed.

4.    The plaintiff pay the costs of the defendants as agreed or assessed.

REASONS FOR JUDGMENT

BROMWICH CJ:

1    This is an application in a proceeding made by the defendants to have the plaintiff’s originating process, being an originating claim dated and filed 16 September 2025, set aside. The application also seeks any other orders that the Court considers appropriate. In the defendants’ submissions, they also sought to have the plaintiff’s further amended statement of claim (FASOC) filed in this proceeding on 22 January 2026 struck out.

2    The defendants are named as follows:

    Norfolk Island Regional Council, described as ‘an entity purporting to exercise local government and administrative functions on Norfolk Island’;

    Mr Philip Reid, described as at all material times being the Acting General Manager of the Council;

    Ms Margaret Hoekstra, described as at all material times being employed or engaged by the Council in the offices of the General Manager;

    Ms Tatiana Samuel, described as at all material times being employed or engaged by the Council in a waste management and community liaison capacity; and

    Mr John Sevil, described as at all material times being employed or engaged by the Council in a corporate and administrative capacity including in relation to Freedom of Information functions.

3    The defendants contend that the FASOC should be struck out on the basis it fails to disclose a reasonable cause of action, is otherwise embarrassing, and is therefore an abuse of the Court. The defendants also oppose the plaintiff being given leave to replead, and consequently also seek to have the originating claim set aside and the proceeding dismissed.

4    The plaintiff, Ms Cherri Buffett, opposes the strike out. She contended that she should be given a fourth opportunity to plead her case, and that identified deficiencies are capable of clarification, amendment, or repleading. However, she also said that she believed that it was sufficient for her to disclose the entirety of her case going beyond the FASOC by way of affidavits that she has already filed, despite the pleadings not having closed and there being no order to file such evidence. She stated that she believed that she had the right to have her case heard on the merits and maintained that the defendants should be required to file a defence (or defences) to the FASOC. She contends that she has a sound evidentiary case and that she should be allowed to run it as is upon that basis.

5    The application in a proceeding was heard before me on 30 July 2026.

Principles

6    It is not necessary for the purpose of this proceeding to set out the existence and nature of this Court’s jurisdiction, as has been done in the defendants’ written submissions (at [6]ff), because this is not a disputed issue. It suffices to note that pursuant to s 19(4) of the Supreme Court Act 1960 (NI), the Court Procedure Rules 2006 (ACT) (Rules) are applied in this Court, and it is these Rules by which parties to proceedings must ordinarily abide.

7    Rule 40(1)(e) provides:

40 Setting aside originating process etc

(1)    The court may—

…

(e)    set aside an originating process; or

…

8    Rule 425 provides:

425 Pleadings—striking out

(1)    The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading—

(a)    discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or

(b)    may tend to prejudice, embarrass or delay the fair trial of the proceeding; or

(c)    is frivolous, scandalous, unnecessary or vexatious; or

(d)    is otherwise an abuse of the process of the court.

Note 1     The registrar may also reject a document that is filed if it does not comply with these rules (see r 6140 (Rejecting documents—noncompliance with rules etc) or if it is an abuse of the court’s process or is frivolous or vexatious (see r 6142 (Rejecting documents—abuse of process etc)).

Note 2     Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

Note 3     Rule 6901 (Orders may be made on conditions) provides that the court may make an order under these rules on any conditions it considers appropriate.

(2)    The court may receive evidence on the hearing of an application for an order under this rule.

(3)    If the court makes an order under this rule, it may also make any other order it considers appropriate, including, for example—

(a)    if the court makes an order under subrule (1) (a)—an order staying or dismissing the proceeding or entering judgment; and

(b)     an order about the future conduct of the proceeding.

9    Rule 430(1) provides:

430 Pleadings—all necessary particulars must be included

(1)    A party must include in a pleading particulars necessary to—

(a)    define the issues for, and prevent surprise at, the trial; and

(b)    enable the opposite party to identify the case that the pleading requires the opposite party to meet; and

(c)    support a matter specifically pleaded under rule 407 (Pleadings—matters to be specifically pleaded).

10    Rule 433 provides:

433 Pleadings—how particulars must be given

(1)    The particulars to be given by a pleading must be stated in the pleading or, if that is inconvenient, in a separate document mentioned in, and filed and served with, the pleading.

(2)    Further particulars may be given by correspondence.

(3)    A party giving further particulars must file a copy of the particulars.

Background

11    By way of her originating application, Ms Buffett brings claims described as being for defamation, intimidation, harassment, and associated torts. She seeks injunctive relief, damages, and costs.

12    Ms Buffett resides on Norfolk Island, describes herself as a native Norfolk Islander and as the President of the Norfolk Island Chamber of Commerce. Ms Buffett sues the defendants on the basis of alleged conduct which initially arose out of an interaction between Ms Buffett and Council staff members at Norfolk Island Waste Management Centre. Ms Buffett says that during the interaction, Ms Samuel, who is the fourth defendant, acted in an intimidating manner which caused Ms Buffett to feel unsafe and fear harm. Ms Buffett subsequently received correspondence which placed restrictions on her contact with the Council, in relation to her capacity as the President of the Chamber. Ms Buffett says that the correspondence and subsequent communications were defamatory. Ms Buffett also says that the Council released documents which constituted disclosure of her personal information and this disclosure was unauthorised and unlawful. The connection between the alleged disclosure and the other events the subject of the cause of action is not clear from the FASOC or originating claim.

13    The nature of the case that Ms Buffett has brought is summarised in the originating claim, accompanied by the original statement of claim filed the same day, as follows (verbatim):

Nature of Claim

Defamation, intimidation, harassment, and associated torts arising from actions of Norfolk Island Regional Council and its employees and officers.

The Plaintiff brings proceedings for:

Defamation (common law) – false and derogatory publications and communications made by the Defendants, individually and/or collectively, concerning the Plaintiff, including but not limited to unredacted FOi disclosures, defamatory internal emails, and official correspondence targeting the Plaintiff personally.

Misfeasance in public office / abuse of authority – including threats, intimidation, and unreasonable restrictions on the Plaintiff's rights as a private individual.

Assault, Intimidation, Harassment (Trespass to the person) – arising from the conduct of Defendant Samuels, while on duty working for Norfolk Island Regional Council who engaged in threatening and aggressive behaviour towards the Plaintiff on 18 June 2025 and then after that also by other Norfolk Island Regional Council employees, officers.

14    The pleadings in the FASOC do not go a lot further than the summary above in describing the causes of action relied upon or the material facts asserted in relation to each complaint made. Apart from the formal components of the FASOC, such as the identification of the parties, not much of the substance is amenable to any defence being pleaded.

15    The form of the allegations in the FASOC make it impossible to make admissions because of the lack of clarity and precision about what is being alleged; but they also make it difficult to make responsible denials for much the same reason. The only viable pleading to most of the substantive allegations, if required as Ms Buffett said should be ordered, would have been to plead a version of not knowing and therefore cannot admit, provided for in r 443(4), but only for personal injury claims seeking damages. That is not ordinarily an acceptable approach other than for allegations that are not within the knowledge of a defendant. It is most definitely not acceptable for this case.

16    As I pointed out to Ms Buffett during the course of the hearing, a central purpose of proper pleadings is that allegations can be admitted (in which case no evidence is required to prove them) or denied, and so that the parties can join issue on allegations that has been made and disputed (ordinarily requiring evidence to be adduced). This is fundamental to the fair, efficient and effective, and indeed workable, conduct of most contested civil litigation.

Requests for particulars

17    A point of contention between the parties that arose leading up to and during the interlocutory hearing on 30 July 2026 was the correspondence between the parties whereby the defendants clearly and expressly advised that they considered the pleadings were insufficient, and why, and made repeated attempts to obtain further and better particulars from Ms Buffett. It is helpful for the purpose of these reasons to set out a chronology of sorts of the requests made by the defendants to Ms Buffett, because that is relevant to the determination of this application, including in particular as to the viability and utility of allowing for yet another attempt to plead the case properly if I conclude that it is sufficiently defective to warrant it being struck out in whole or in part.

18    The chronology is informed by the evidence before the Court by way of the parties’ affidavits. Prior to commencing this proceeding, on 23 June 2025, Ms Buffett sent a letter to the Council which purported to be a concerns notice, in relation to the conduct which she says constituted defamation. The defendants say the letter did not comply with the requirements of a concerns notice under s 12A of the Defamation Act 2005 (NSW) (NSW Defamation Act). The parties corresponded about Ms Buffett’s complaints, in relation to the alleged defamation, breach of privacy, and assault.

19    Ms Buffett filed the original statement of claim on 16 September 2025, with the originating claim. On that same day, the legal representatives for the Council, Mr Reid, and Ms Samuel (at that time only acting for those defendants) wrote to Ms Buffett and requested she provide particulars for her claim.

20    On 19 September 2025, Ms Buffett filed an amended statement of claim. Pursuant to r 505(1) of the Rules, Ms Buffett was entitled to amend her pleadings once before the close of pleadings without the Court’s leave.

21    On 15 October 2025, the defendants wrote to Ms Buffett, asserting she had not replied to their earlier letter and again requesting further particulars, noting they could not respond to the claim without adequate particulars. It emerged at the hearing that this assertion was correct.

22    On 21 October 2025, the defendants (now all five defendants acting together) filed a Notice of Intention to Respond.

23    On 31 October 2025 the matter then came before me for directions. The deficiencies in the pleadings were raised with Ms Buffett on this occasion, and it was identified what she was required to plead to in her amended statement of claim. The defendants raised their requests for further particulars and that these requests had gone unanswered. On that day, I made orders granting leave for Ms Buffett to file any further amended statement of claim.

24    On 22 January 2026, Ms Buffett filed the FASOC.

25    On 12 February 2026, the defendants again wrote to Ms Buffett in relation to the FASOC which had been filed, noting that it contained the same deficiencies in pleadings as the previous iterations, and requesting further and better particulars. In this letter, the defendants set out precisely what they required, in terms of particulars, from Ms Buffett.

26    On 13 February 2026, the matter was before me for directions hearing, and again, the deficiencies in the FASOC were raised. The defendants also raised their attempts to obtain further and better particulars from Ms Buffett.

27    On 19 February 2025, Ms Buffett wrote by email to the legal representatives for the defendants. In that correspondence, Ms Buffett said:

For clarity, please confirm whether the Defendants maintain any of the requests previously raised, and if so:

1.    identify precisely which requests remain pressed;

2.    provide an updated and consolidated statement of those requests; and

3.    confirm the procedural basis upon which they are said to arise.

28    Ms Buffett said she did not respond to the prior correspondence because it had not been filed in Court and no formal application had been made. Correspondence between the parties agitating some request, particularly when it relates to requests for particulars, is not required to be filed in Court in order for the recipient of that request to respond. The Court can, at the request of a party, make an order for better particulars to be provided pursuant to r 434 of the Rules.

29    In the usual course of civil litigation, requests for particulars are commonplace and usually actioned by lawyers or parties corresponding with one another to request and subsequently provide those particulars. It is certainly not necessary for the Court to make such an order, if the parties are willing to provide the requested particulars when the need is identified by the requesting party. As I explained to Ms Buffett when she came before me on 13 February 2026, parties to a proceeding are encouraged to communicate with one another to resolve disputes and concerns and only to approach the Court for assistance in that process where it cannot be resolved between them.

30    On 24 March 2026, the defendants wrote to Ms Buffett drawing her attention to their earlier letter of 19 February 2026, noting that Ms Buffett was yet to respond to the requests for particulars, and as such reserving their rights to bring an application to strike out the pleadings. The application in a proceeding was then filed on 29 May 2026.

31    At the time the proceeding came before me on 30 July 2026, the defendants said that no requests had been answered by Ms Buffett. At the interlocutory hearing on 30 July 2026, Ms Buffett told the Court she had not responded in writing to any of the defendants’ requests.

CONSIDERATION

32    The principles as to the requirements of pleadings are well established. It suffices for present purposes to reproduce the statement of principle in Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286:

The function of pleadings is to state with sufficient clarity the case that must be met … to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.

33    A statement of claim, at the minimum, must disclose a reasonable cause of action, and plead material facts by which any such cause is sought to be established. As a global observation, no constituent elements of any cause of action are identified in the FASOC, much less made the subject of pleaded material facts.

34    As is evident by the chronology set out above, for each of the original statement of claim, the amended statement of claim, and the FASOC, the respondents’ solicitors sought particulars. The final version of the particulars sought was contained in a letter from the defendants’ solicitors dated 19 February 2026, addressing the FASOC and consolidating what had been sought in relation to each of the prior iterations. Over the course of the proceeding, several attempts were made to persuade Ms Buffett to answer the questions in that letter. The stance that she took in terms of her actions and what she said in the course of the hearing of this application was that she did not have to answer the questions asked (which is literally correct as no order was made to do so). She chose instead to respond by other email communications which did not answer those questions, and by filing the affidavit evidence upon which she wished to rely. She has never provided the particulars sought.

35    Filing affidavits instead of proper pleadings is simply not acceptable. It does not observe the critical distinction between:

(a)    allegations relied upon by way of pleadings, which, as I detail below, can then be admitted or denied, and also serve the procedural fairness objective of informing the defendants of the case that they have to meet;

(b)    evidence, by which the allegations are sought to be proved or disproved or otherwise met if not admitted; or

(c)    submissions, which address how the evidence does, or does not, establish the allegations alleged by the plaintiff, or the denials or other defences advanced by the defendants.

36    It is fundamental to the proper administration of justice that the precise allegations are properly pleaded and thereby be able to be properly addressed in a defence. That position has not and cannot be met by the existing FASOC. It is not acceptable to endeavour to bypass that process by only purporting to detail the allegations by way of evidence, as Ms Buffett maintains, incorrectly, that she is entitled to do.

37    Further, the defendants have at all times maintained that the defamation claim contained in each iteration of the statement of claim was unable to be commenced because a valid concerns notice has never been served. I am satisfied that this contention is almost certainly correct, but it is not necessary to rely upon that conclusion, and it would increase the length and complexity of these reasons to do so. That is because this contention in turn relies upon the concerns notice part of the NSW Defamation Act, which I am satisfied applies as part of the substantive law of Norfolk Island. However, Ms Buffett does not refer to that Act, but rather both to the Defamation Act 2005 (Cth) (an Act that does not exist) in the concerns notice itself and to defamation at common law in the part of the originating statement of claim extracted above. While it would probably be safe to determine this issue by reference to the NSW Defamation Act, it is safer still to determine this application by reference to the pleadings in the FASOC that Ms Buffett relies upon and contends are adequate.

38    The defendants’ submissions, made in writing and substantially repeated orally, convincingly demonstrate that the FASOC is so defective that it must be struck out. Ms Buffett chose not to address the defendants’ written submissions in her written submissions, nor those written submissions or the defendants’ oral submissions, orally. It suffices to describe in a summary way the substance of the defendants’ written submissions, which are self-evidently correct, as follows:

(a)    In relation to the claims of intimidation and harassment claims, none of the elements of any relevant cause of action are specified. The particular facts relied upon are not identified beyond an assertion of an engagement between the fourth defendant and Ms Buffett described as being intimidating and confrontational. To the very limited extent that these claims are made, the nature of those claims is opaque. The references to the letter restricting contact between Ms Buffett and the Council do not identify how that is relevant to the complaints made.

(b)    The defamation claim fails to identify what the relevant statements are; whether they were oral or written; how the plaintiff is alleged to have been identified by those statements; the defamatory imputations (that is, meanings) alleged to have been conveyed; or the harm alleged to have been suffered (including why it amounts to serious harm as required by the NSW Defamation Act, if that is the legislation relied upon).

(c)    If the defamation claim, or the FASOC more generally, is intended to include a claim for breach of privacy or misuse of confidential information or similar, it is not stated with any clarity or precision what statements or information has been disclosed, nor when or how such disclosure occurred. There is no identification of any obligation of confidence. Nor is it stated how the disclosure of any information constitutes a breach of confidence or privacy and/or a misuse of any relevant information.

(d)    In relation to the misfeasance in public office claim, none of the elements of that tort have been identified, nor any facts pleaded in support of those elements. No invalid or unauthorised act is identified, and no particulars of malice are provided beyond a bare allegation that unspecified powers were exercised with reckless indifference to Ms Buffett’s rights.

(e)    The FASOC does not properly plead or particularise the kind of damages sought, nor the basis on which it is alleged that injunctive relief is available in respect of the claims for harassment, intimidation or unlawful disclosure concerning Ms Buffett.

39    On the question of whether Ms Buffett should be granted leave to replead, several features of this proceeding so far stand in the way of that being permitted to take place. First, each iteration of the statement of claim was the subject of requests for particulars, which were not addressed in the next iteration. The chronology of these requests is illustrated above. The final iteration, the FASOC, was the subject of a detailed request for particulars, which remains unanswered over five months later. Ms Buffett remains determined not to answer that request. She was not compelled to do so, but she cannot avoid the consequences of taking that stance. I have no confidence that she has either the capacity or inclination to address the manifest deficiencies of the FASOC. As Adamson J pointed out on this issue in Dickens v State of New South Wale (No 3) [2018] NSWSC 485, which I adopt as apposite to this application:

[43]    I do not envisage any real prospect that, with more time and another opportunity, the plaintiff will be able to produce a better version than the current pleading. I accept that the plaintiff has dedicated much time and energy to the various iterations of the pleading. However, the drafting of a pleading which complies with the rules is not a question of application, energy and motivation. It is a question of skill. If there is no real prospect of the plaintiff being able to improve the current pleading, there is no utility in permitting or requiring an unknown number of further iterations before the proceedings are inevitably dismissed. Every time the defendant moves the Court to strike out the pleading or dismiss the proceedings, cost and time are spent which could be used otherwise in the administration of justice. That the State might be able, subject to other calls on its resources, to afford to bring such applications and argue them in a manner consistent with its obligations as model litigant, does not mean that the Court should require it to do so repeatedly without prospect of a better outcome in a revised pleading. What Beach J said in [Knorr v CSIRO (No 3) [2012] VSC 529] in [27]–[29] is apposite to the present case:

[27]    … If I permitted this proceeding to remain on foot, and gave the plaintiff a further opportunity to plead a case in compliance with basic and fundamental rules of pleading, or more particularly with law, I am comfortably satisfied that the plaintiff would continue to deliver lengthy and impenetrable documents, upon which no trial could reasonably or fairly be conducted.

[28]    Again, as was said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd [[2012] VSCA 97 at [36]] “[t]here comes a point at which a self-represented litigant must be required to take responsibility for his choices”. Consistently with the principles enunciated in the [Civil Procedure Act 2010 (Vic)], Mr Knorr cannot be permitted to continue to subject the parties to this proceeding to significant cost and inconvenience and to add pointlessly to the load on the Court’s already limited resources.

[29]    The fundamental problem with this proceeding is that, if it is left on foot, there will be no progress. What will occur will be contrary to the requirements of the Civil Procedure Act. Further, it will be contrary to law. I am satisfied, in the unusual circumstances of this case, that the plaintiff’s proceeding must be dismissed.”

[Footnotes omitted.]

[44]    The passage referred to by Beach J from Karam v Palmone Shoes Pty Ltd [2012] VSCA 97 at [36] is worth setting out in full:

A self-represented litigant cannot be allowed forever to stand behind the shield of his own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the Court’s already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices.

Conclusion

40    It follows that the FASOC must be struck out, leave to replead refused, and the proceeding therefore dismissed. Ms Buffett must pay the defendants’ costs.

Associate:

Dated:    25 August 2026