Elliott v Seymour [1999] FCA 976

Elliott v Seymour [1999] FCA 976

The statement of claim, as drafted, fails to disclose a reasonable cause of action for several alleged torts—including misfeasance in public office, conspiracy, intimidation, and negligence—because the pleading lacks necessary factual particulars, fails to allege required elements (such as intention or knowledge),...

Source-derived case information.

Parties
Applicant: John Dorman Elliott; First Respondent: Sergeant Douglas Seymour; Second Respondent: Thomas Sherman; Third Respondent: National Crime Authority; Fourth Respondent: Director of Public Prosecutions for the State of Victoria; Fifth Respondent: Australian Broadcasting Corporation; Sixth Respondent: Steven Marshall Crabb
Jurisdiction
Australia
Judgment Date
19 July 1999
Procedural Posture
Application/motion in Civil Proceedings / Interlocutory Application for Leave to Amend Statement of Claim; Strike Out Applications; Case Management Directions
Outcome
Leave granted for further amendment; case not struck out; interlocutory orders made for repleading and adjournment of pending motions.
Legal Topics
Misfeasance in Public Office, Conspiracy, Negligence, Breach of Statutory Duty, Abuse of Process, Intimidation, Amendment of Pleadings, Strike Out for No Cause of Action
Tort Law Administrative Law Criminal Law Civil Procedure Misfeasance in Public Office Conspiracy Negligence Breach of Statutory Duty +4 more

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Summary, issues, holding and outcome

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Parties

John Dorman Elliott

Applicant

Sergeant Douglas Seymour

First Respondent

Thomas Sherman

Second Respondent

National Crime Authority

Third Respondent

Director of Public Prosecutions for the State of Victoria

Fourth Respondent

Australian Broadcasting Corporation

Fifth Respondent

Steven Marshall Crabb

Sixth Respondent

Procedural Posture

Application/motion in Civil Proceedings / Interlocutory Application for Leave to Amend Statement of Claim; Strike Out Applications; Case Management Directions

Legal Issues

  1. 1 Whether the applicant's statement of claim discloses any reasonable cause of action against the respondents
  2. 2 Whether the proceeding amounts to an abuse of process (including collateral attack on earlier acquittals or inconsistent findings)
  3. 3 Whether causes of action such as conspiracy, misfeasance in public office, negligence, and intimidation are properly pleaded against each respondent

Ratio Decidendi

The statement of claim, as drafted, fails to disclose a reasonable cause of action for several alleged torts—including misfeasance in public office, conspiracy, intimidation, and negligence—because the pleading lacks necessary factual particulars, fails to allege required elements (such as intention or knowledge), or pursues claims not available on the facts. However, subject to substantial amendment and proper particularisation of pleaded causes of action as identified in these reasons, the applicant should be permitted one further opportunity to file a further amended statement of claim limited to those causes of action that are arguably available. The proceeding is not struck out or...

Court Disposition

Leave granted for further amendment; case not struck out; interlocutory orders made for repleading and adjournment of pending motions.

Orders

  • The applicant file and serve by 3 September 1999 a draft further amended statement of claim conforming with the reasons for judgment published this day.
  • The applicant's motion on notice dated 4 February 1998, the first, second and third respondents' motion on notice dated 4 December 1997, the fourth respondent's amended motion on notice dated 27 April 1998 and the sixth respondent's motion on notice filed on 11 December 1998 be adjourned to 27 September 1999.