Allen v The State of New South Wales & Ors

Allen v The State of New South Wales & Ors - [2001] NSWSC 780 - NSWSC 2001 case summary — Zoe

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JUDGMENT 1 HIS HONOUR: This matter involves notices of motion taken out by five of the eight defendants nominated in the plaintiff's statement of claim seeking relief of various kinds and a further notice of motion taken out by the plaintiff seeking other relief. The plaintiff originally commenced action by way of a statement of claim filed in this court on 2 July 1999. That statement of claim nominated three defendants, the present, second and third defendants and the present first defendant who was joined in a tripartite manner with the Building Services Corporation and the Department of Fair Trading. 2 On 1 September 2000 the plaintiff filed a document which is entitled Further Amended Statement of Claim. It is the contents of that document which is substantially the subject of the various notices of motions taken out by the parties. It increases the number of nominated defendants to eight. However, in relation to the first defendant, the State of New South Wales as nominated in this latter document, stands alone as a defendant the Building Services Corporation and the Department of Fair Trading who had been nominated in the tripartite language of the original statement of claim are no longer nominated as defendants. 3 I shall deal with the matters raised in the notices of motion taken out by the defendants and then turn to the relief sought by the plaintiff in his notice of motion. 4 Underlying the plaintiff's allegations against all nominated defendants is damage caused to a house formerly owned by the plaintiff and his ex-wife at Balgowlah. That damage arose from faulty foundations. The house was built in 1958 on what appears to be a former quarry. It is the plaintiff's allegation that the foundations were not set in bed rock but in uncompacted imported fill. The plaintiff and his wife purchased the house in 1986. The damage caused by the defective foundations had become apparent in 1992. The plaintiff then made a claim against the house's insurer, the third defendant (NRMA Insurance Ltd). Repairs by way of inter alia underpinning were then undertaken by the third defendant using its powers of subrogation under the policy then held by the plaintiff with it. The underpinning work undertaken was completed prior to the 2 July 1993. It is the plaintiff's allegation that the underpinning carried out work was ineffective. Indeed the house was ultimately sold as part of proceedings in the Family Court between the plaintiff and his ex-wife for land value only having regard to the failure of the attempt to underpin the house. Over the years the plaintiff has raised the question of the faulty foundations and their ineffective repair with a number of authorities including not only the local council which is the second defendant but also authorities under the control of the first defendant, the State of New South Wales, and the sixth defendant, the Commonwealth of Australia. It is the plaintiff's allegation that the failure of the various authorities to whom he made complaint to assist him which founds of many of his allegations against both the State of New South Wales and the Commonwealth of Australia. 5 I turn then to the individual notices of motion.

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The State of New South Wales. 6 By its motion the State of New South Wales seeks, pursuant to part 13 rule 5 of the Supreme Court Rules, that the proceedings be dismissed. In the alternative, pursuant to part 15 rule 26, the first defendant seeks to have these proceedings struck out. 7 In paragraph 2 in the statement of claim the plaintiff alleges that the first defendant is responsible 'its own conduct and that of the relevant authorities including the Department of Fair Trading, the Department of Local Government, the Attorney-General's Department, the Building Services Corporation, the Workcover Authority, the Legal Services Commissioner, the Law Society of New South Wales. 8 I turn first to the plaintiff's claim that the first defendant is responsible for the conduct of the Law Society of New South Wales. In the body of the statement of claim references are made on numerous occasions particularly in paragraphs 49, 64, 68, 74 and 93 to the Law Society. As I made plain to the plaintiff during argument the Law Society is not a public authority under the control of the State of New South Wales. It is a public company limited by guarantee. The plaintiff's claim that the State of New South Wales is liable in law for the acts of the Law Society of New South Wales is plainly not tenable. Accordingly to this extent the plaintiff's action is entirely defective and should be dismissed pursuant to part 13 rule 5 insofar as it refers to the first defendant being responsible for the said Law Society of New South Wales. 9 Much of the plaintiff's further amended statement of claim involves allegations that the first defendant is responsible for the acts of the Building Services Corporation. The Building Services Corporation was established pursuant to s 105 of the Building Services Corporation Act 1989. A plain reading of s 105 of that Act clearly indicates that the Building Services Corporation was during its lifetime a statutory corporation. By Act 122 of 1996 the name of the Building Services Corporation Act 1989 was changed by s 1 of Act 122 of 1996 to the Home Building Act 1989. Effectively the 1996 Act abolished the Building Services Corporation and transferred its assets, rights and liabilities to the Fair Trading Administration Corporation. Again a plain reading of s 107 and s 109 of Act 122 of 1996 indicates that the Fair Trading Administration Corporation is a statutory corporation. 10 The relevance of the Building Services Corporation or the Administrative Corporation being statutory corporations for the purposes of these proceedings may be illustrated by reference to s 5(1) of the Crown Proceedings Act 1998. Section 5(1) is in the following terms:

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Manly Council 16 The Manly Council is the second defendant in the matter. The plaintiff's claim against the council is founded on two bases:- 1. The council's failure in 1958 when the subject premises were constructed to properly inspect the works so that the faulty foundations were allowed to remain in place, and 2. The council's failure to properly supervise the underpinning works carried out in 1993. 17 As I have mentioned in the short narrative at the commencement of these reasons the work of underpinning which founds the plaintiff's second complaint against the Manly Council were completed prior the 2 July 1993. The plaintiff's original statement of claim was filed in this Court on 2 July 1999. Indeed paragraphs 26 to 30 of the plaintiff's affidavit sworn on 28 March 2001 indicate that the plaintiff was aware of deficiencies in the completed underpinning at least by the 15 June 1993 when he wrote to the council. This is not a case where either the original discovery of the deficiencies in the foundations in 1992 were of a minor kind or that the plaintiff was unaware that the deficiencies in the repairs undertaken were other than what they were. 18 The importance of these observations is that the second defendant principally relies upon the Limitation Act 1969 in support of its motion that the plaintiff's action should be dismissed pursuant to part 13 rule 5. By s 14 of the Limitation Act 1969 an action not commenced within six years from the date when the cause of action first accrues in not maintainable. On the plaintiff's own evidence the plaintiff was fully aware of the damage which founds any cause of action he had against the council more than six years before he issued his first statement of claim in this matter. While in the body of his statement of claim he makes generalised allegations which may described as fraud and deceit against all governmental bodies involved there is no suggestion in the body of the statement of claim that he was prevented in bringing action in time. Although the damage attributable to the building of the house in 1958 could properly described as latent damage the plaintiff again was fully aware of that damage by 1992, ie, seven years or more before he issued his statement of claim. Thus I am of the view that in relation to the second defendant s 14 of the Limitation Act 1969 applies and that his claim against the council is statute barred. There are other matters which were raised by the second defendant on its motion but in view of the view I have come to in relation to the Limitation Act applying here I do not need to deal with those matters. Accordingly, the order of the Court in relation to the second defendant is that the plaintiff's action against the second defendant is dismissed. Similar considerations apply in relation to costs and again I am of the view that the second defendant is entitled to its costs of the motion against the plaintiff.

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Miller Goddard 22 The fifth defendant is in fact one John Russell Miller. He appeared on behalf of the plaintiff in proceedings in the Family Court between the plaintiff and his wife. The matters involved in the Family Court, while of course involving questions of matrimonial property, are in my view completely distinct from the proceedings the plaintiff wishes to bring against the first, second, third and sixth defendants. Mr Miller has deposed and indeed the plaintiff does not deny that he was never instructed to act in relation to any claim the plaintiff may have in relation to the faulty foundations of his house. Accordingly, I am of the view that the fifth defendant's motion that the proceedings against him or his firm be heard separately from the balance of proceedings is one that should succeed. My reason for so deciding is that the proceedings against the fifth defendant are so distinct from the proceedings the plaintiff wishes to bring against the other defendants are such that justice demands that such an order be made. 23 However, I am of the view that the plaintiff in issuing separate proceedings should replead the matters alleged against the fifth defendant. Once again the plaintiff's pleadings are not only prolix but in my view in form embarrassing. 24 The plaintiff has also not replied to a request for particulars put on by the fifth defendant nor served affidavits to which he refers in his statement of claim, ie, affidavits in relation to action against the fifth defendant. However, because I am of the view that the plaintiff should replead his action separately against the fifth defendant, I believe it may be premature to make any other orders other than to order that the trial of the action between the plaintiff and the fifth defendant be heard separately from any other proceedings which may survive from the further amended statement of claim. The plaintiff is to separately plead a statement of claim in accordance with the rules of Court. I order that the plaintiff serve a fresh statement of claim against the fifth defendant within 28 days from the delivery of these reasons. Again I am of the view that the plaintiff ought to pay the fifth defendant's costs of the motion.

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The Fifth Defendant did not act or assist when the Plaintiff advised of the improper conduct of the ex-wife and the Child Support Review solicitor Turtons and the resultant misleading and deceptive report to the CSA. 27 In my view the verbiage of these paragraphs discloses no cause of action. Accordingly, they should be struck out. I should add that even if a cause of action were disclosed the verbiage used is prejudicial and embarrassing in the relevant sense and would lead to an order for the paragraphs to be struck out in any event. 28 Against the Australian Broadcasting Authority the plaintiff makes the following allegations: 53. The conduct of 2UE, the First and Third Defendants are matters which the Sixth Defendant's Australian Broadcasting Authority (ABA) has also failed to properly investigate and act on in the Plaintiff's submission to the ABA "Cash for Comments" Inquiry in 1999. 103. In 1999 the Plaintiff made a submission to the Sixth Defendant's Australian Broadcasting Authority's "Cash for Comments" Inquiry (ABA) complaining on the failure of 2UE to raise the Plaintiff's problems with the Third Defendant and the disappearance of the BSC Insurance levies and the Special Fund by the First Defendant. 104. The ABA inquiry confirmed that large corporations including Third Defendant paid the media to suppress negative comment on their organisations, which in itself is failure of the Third Defendant to act in the utmost good faith and fair dealing. 47 (Particulars). The Plaintiff made a submission to the Sixth Defendant's Australian Broadcasting Authority (ABA) "Cash for Comments" Inquiry but still nothing was done although the Inquiry found that large corporations such as the Third Defendants paid the media to suppress negative press about their organisations. Again the verbiage of these paragraphs does not reveal any cause of action. The plaintiff's allegations must be struck out and I so order. 29 Similar considerations apply to the plaintiff's allegation involving the Australian Competition and Consumer Commission. In paragraph 101 he pleads as follows: 101. In 1992 the Sixth Defendant's Trade Practices Commission failed to reveal the long term corrupt building culture acknowledged in the 1995/96 BSC Inquiry and that many unsuspecting ordinary Australian citizens had been subjected to great emotional and financial damage and that the risk was still there and into which the Plaintiff was trapped.

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Again the verbiage used shows no valid cause of action. Once more the paragraphs must be struck out. 32 In relation to the statutory authorities the ABA, the Australian Competition and Consumer Commission, the Australian Securities and Investment Commission the plaintiff alleges that as a consequence of what fell from the High Court in ASIC v Edensor Nominees Pty Ltd & Ors [2001] HCA 1 he is entitled to sue the Commonwealth in relation to their activities without joining those statutory authorities as a party. In this matter so he argues the situation is different from that which pertains in New South Wales under s 5 of the Crown Proceedings Act 1988 with which I have dealt above. In ASIC v Edensor Nominees Pty Ltd the High Court held that while ss 7 and 8 of the ASIC Act established it as a body corporate that circumstance of itself does not deny the proposition that ASIC falls within the scope of the expression 'the Commonwealth' in s 75(iii) of the Constitution. While it seems to me that the ruling of the High Court in ASIC v Edensor does give some support for the proposition advanced by the plaintiff that it was appropriate to nominate the Commonwealth as a defendant in the allegations he wished to raise against the various statutory corporations of the Commonwealth. It is not necessary for me to decide this point. I say this because of the view I have come to as to the validity of the plaintiff's claim against the nominated Commonwealth authorities. 33 The upshot therefore I am of the view that the verbiage contained in the allegations made against the defendant, the Commonwealth of Australia, do not reveal any cause of action. I thus must dismiss the claims insofar as they apply to the Commonwealth pursuant to part 13 rule 5 of the Supreme Court Rules. It follows as I have in relation to the other motion brought by the other defendants that the plaintiff will have to pay the Commonwealth's costs of this motion. 34 As I stated at the outset of these reasons the plaintiff himself sought relief by way of notice of motion. The orders he sought are as follows: 1. That a jury be appointed to hear all interlocutory and final hearing matters in these proceedings.

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That the Defendants fully indemnify the Plaintiff against any costs, loss and damage resulting from these proceedings as the case is a test case and is a matter in the public interest. 35 As to request that a jury be appointed to hear all interlocutory and final hearings in these proceedings it should be said at the outset that juries at common law do not hear interlocutory matters. As far as a jury being appointed to hear a final hearing in the matter it seems to me that, as the only remaining defendants in this action are NRMA Insurance Limited and two of his former solicitors, until the plaintiff repleads against NRMA Insurance Limited it seems to me to be premature to consider the question of appointing a jury to hear the matter. Again as far as a separate action involving Mr Miller solicitor is concerned once again until the matter is repleaded it is premature to consider whether a jury should hear the final matter. 36 I will deal with the remaining requests seriatim. Request 2 in the notice of motion in fact occurred. Request 3: Unfortunately for the plaintiff the reverse result has occurred. Request 4: In view of the orders I have made it is too early to have a Status Conference being convened until the pleading against NRMA Insurance Limited and Mr Miller are complete. Request 5: It seems to me that the Court has no power to make the order requested. Request 6: The plaintiff has already been granted leave to file a further amended statement of claim in relation to the third defendant and fifth defendant in these proceedings. Request 7: I have already ordered that the action against the fifth defendant be heard separately. Request 8: This is not an appropriate time for such an order to be made - being an order in the nature of final relief. Accordingly, the plaintiff's motion is dismissed with costs. 37 As I have indicated above the effect of the orders I have made is to leave three defendants remaining. The seventh and eighth defendants did not take part in the proceedings initiated by notice of motion before me. Thus they remain in the matter. However, the matters pleaded against patently suffer from the same deficiencies in pleading which I have identified in relation to the other nominated defendants. Because the plaintiff in repleading will have to substantially recast his statement of claim I believe that in fact the present pleading, that entitled 'Further Amended Statement of Claim', should be struck out in its entirety. In repleading the plaintiff should take care to avoid framing his allegations against the three remaining defendants in embarrassing or prejudicial language. The same remarks apply to the plaintiff's action against the fifth defendant, which I have severed. 38 I summarise my orders as follows:- 1. The plaintiff's claims against the first, second and sixth defendants are dismissed with costs. Those defendants may enter judgment forthwith.

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