HIS HONOUR: By a notice of motion dated 9 April 2019, Armidale Regional Council ("the plaintiff") seeks orders that the defence filed in response to its amended statement of claim seeking an order for possession and leave to issue a writ of possession for a property, be struck out. The amended statement of claim identified three defendants, including the registered proprietor of the property, Florence Vorhauer ("the first defendant") and her daughter who cohabited the property with her, Racheal Vorhauer ("the third defendant"). The second defendant was another daughter and co-habitant, Lisa Vorhauer ("the second defendant"), who died after the proceedings were initiated.
The background to this application is a longstanding failure by the first defendant to pay council rates on her property, as well as charges for water, sewerage and drainage services. The plaintiff pleaded that by 31 October 2018, the total amount owing was $72,584.04, of which $35,343.47 had been owing for more than five years, which entitled it to sell the property pursuant to s 713(2)(a) of the Local Government Act 1993 (NSW) ("the Act"). The property was sold by the plaintiff on 6 November 2018, pursuant to s 722 of the Act, for a purchase price of $108,000. The settlement and transfer of the property to the purchaser under the contract of sale is conditional on the plaintiff providing vacant possession of the property to the purchaser on settlement. The plaintiff is unable to do this, as the first and third defendants are currently in possession of the property.
The procedural history of the matter, so far as is relevant, is as follows.
On 13 December 2018, the plaintiff filed a statement of claim seeking an order for possession of the property; leave to issue a writ of possession forthwith; and an order that any remaining amount between the amount of unpaid rates on the property and the purchase price from the property be able to be used by it for the costs of the proceedings and any costs liability, as well as an order for costs against the defendants jointly and severally, or alternatively against the first defendant.
The first and second defendant filed separate defences on 23 January 2019. The defence filed for the first defendant pleaded two grounds:
"1 Notice of a constitutional matter s 78B Judiciary Act 1903
2 No Contract of Sale presented as evidence of 'sale' "
The defence filed for the second defendant pleaded:
"Property ruled by the Land and Environment Court as being owned by Lisa Vorhauer is included in 'draft' Contract of Sale (not presented to Court). See Affidavit affirmed 7/12/18 attached as 'A' to this Affidavit."
It is apparent that the documents, which are handwritten, were prepared without the benefit of legal advice. The defence for the second defendant purports to have attached to it a verifying affidavit, but there is only a collection of documents hand-marked as "Exhibits". The verification page indicates her signature was witnessed by a Justice of the Peace, but the pro forma statements of verification have been over-written. The statement "I believe that the allegations of fact contained in the defence are true" was amended by striking out the word "true" and writing alongside it "lies". Similarly, the statement "I believe that the allegations of fact that are denied in the defence are untrue" was amended by striking out "untrue" and replacing it with "true". Presumably the second defendant misunderstood the statements, thinking they meant the reverse of what they in fact mean.
The defence includes a number of attachments of various descriptions, including documents relating to the second defendant's poor health, documents relating to proceedings commenced in the equity division seeking an injunction against an eviction notice, various items of correspondence, extracts of legislation and a document purporting to be an affidavit of the first defendant with various attachments of its own, including correspondence relating to unpaid rates on the property. There is no affidavit that explains the relevance of these documents to the defence.
On 1 February 2019, the second defendant died.
On 11 February 2019, orders were made noting that the plaintiff was to file a notice of motion seeking to file an amended statement of claim by 15 February 2019, correcting some details and removing the second defendant. As well, an order was made directing that the defendants serve their defence filed on 23 January 2019, by 15 February 2019.
The plaintiff filed its notice of motion on 12 February 2019 as foreshadowed, and the defendant served an incomplete version of the defence.
Also on 12 February 2019, the Court received a document from the first defendant titled: "Ex parte submission for hearing being held on 11/2/2019 for case number 2018/00383844", in which she noted that the second defendant was deceased and contended that probate in relation to her estate would need to be completed before the plaintiff could proceed with claims against her property.
The first defendant described herself as:
"… [a] 78 years old diabetic, who has recently had a serious operation, and with attending [the second defendant] in hospital since 15 January 2019 and the death and burial of [the second defendant] on the 6 February 2019, does not permit me health to travel to Sydney."
She went on to request "the transfer of this matter to the Supreme Court at Armidale NSW 2350."
On 28 February 2019, the third defendant emailed the plaintiff's solicitors, Clifton Legal, stating that her proper title for "legal documentation" was "Princess Rachael", adding:
"What better way Mr Clifton to present your complete mockery and contempt to a European Royal living in Australia before the eyes of EUROPE than to do it officially in the Supreme Court of Australia."
The third defendant attached a letter sent to this Court, in which she described herself as a "German royal princess".
On 11 March 2019, orders were made removing the second defendant as a party, granting leave to the plaintiff to file and serve an amended statement of claim on or before 15 March 2019, and granting leave to the first and third defendants to file and serve an amended defence on or before 29 March 2019.
The amended statement of claim was filed and served by the due date, and on 29 March 2019, the first defendant delivered an unfiled document titled "amended defence" to an officer of Armidale Council ("the first version").
The first version included three grounds, which are as follows:
"1. NSW Revenue entitled Land Tax Certificate states 'There is no Land Tax charged on that land up to and including the 2018 tax year.'
2. The Local Government Act 1993 No 30 has no date of commencement.
3. No basis for Plaintiff's claim exists."
In relation to the first ground, I note that the claim is for council rates and charges for water, sewerage and drainage services, not land tax. In relation to the second ground, the first defendant apparently is unaware that the date of commencement of an Act is to be found in the government gazette, which in this case was New South Wales Government Gazette, No 73, 1 July 1993, at 3341.
Attached were a number of documents including:
A land tax certificate dated 9 July 2018, stating that there was no land tax charged on the land up to and including the 2018 tax year;
A copy of s 2 of the Act, stating that it commences on a day or days to be appointed by proclamation;
What appears to be a diagram of the land in question downloaded or copied from a real estate website;
A public notice from the publication "The Land", apparently authored by the first defendant, contending that "s 114 Constitution forbids land tax in Australia";
A photocopy of a caveat on the land lodged by the first defendant on 10 November 2018, the stated reason being that:
"Council's writ 14523 issued by the Supreme Court was invalid pursuant to s 109 of the Australian Constitution. The evidence to support the writ contained fraud and perjury such documents being on caveat no 5276515 (4) Bankruptcy Notice No NG 7970 of 1998 was set aside"; and
A title search of the property, with notification of the writ and caveat.
On 9 April 2019, the plaintiff filed the notice of motion that is the subject of this application, seeking the following orders:
Pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the defence filed on 23 January 2019 be struck out.
Further or in the alternative, pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the amended defence filed on 29 March 2019, if filed, be struck out.
The first and third defendants to pay the plaintiff's costs of the motion.
Such further or other orders as the Court sees fit.
On 16 April 2019, the first defendant filed a document that reproduced the pro forma pages of the defence as filled in and served on the plaintiff on 29 March, but did not contain the abovementioned documents ("the second version"). There was a hand-written verifying affidavit by the first defendant, in which she referred to a copy of the defence attached to an affidavit of service affirmed by her, dated 10 April 2019 and filed on 15 April 2019 ("the third version"). The third version included an article photocopied from the Sydney Morning Herald, entitled "Premier moves swiftly to shake-up bureaucracy", with a handwritten notation of the date, being 6-7 April 2019. The affidavit in the second version refers to this article and suggests that the Office of Local Government has been abolished, and therefore it cannot be a party and a hearing cannot proceed. This, of course, overlooks the fact that the plaintiff is not the Office of Local Government.
On the same date, 16 April 2019, the first defendant filed a document titled "Ex-parte written submission for hearing being heard on 29 April 2019 at 10am before a Duty Judge". This document advanced arguments which are considered below.
[3]
Relevant legislative provisions
Rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") is as follows:
"14.28 Circumstances in which court may strike out pleadings
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court."
[4]
Principles
The plaintiff relies on Harden Shire Council v Richardson [2012] NSWSC 622 as authority for the proposition that the Act gives rise to the local government authority's power to sell land in the manner it did.
In Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44, Hodgson JA (Mason P and Handley JA agreeing) said, in respect of the function of pleadings:
"20 It might appear that these rules do not require that causes of action be stated in pleadings: the requirement is to have a statement of material facts, and indeed to have only such a statement. However, in my opinion -
(1) 'Material' means material to the claim, that is, to the cause or causes of action which are relied on.
(2) The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract.
(3) The general requirement to avoid surprise means that material facts must be stated in such a way that a defendant can understand the materiality of the facts, that is, how they are material to a cause of action.
21 Accordingly, even on the basis of these rules which are common to the District Court and the Supreme Court, I do not take cases such as Konskier as establishing that there is never any requirement to do more than set out facts. Where there is a danger of surprise, which arises particularly where there is lack of precision and clarity in the pleading, it may well be appropriate to require a plaintiff, either in a statement of claim or in particulars, to explicitly relate the facts it pleads to specified causes of action."
In State of New South Wales v Williams [2014] NSWCA 177, Emmett JA (Macfarlan JA and Simpson J agreeing) stated, at [71]:
"… the power to strike out a pleading on the basis that it discloses no reasonable defence, or is an abuse of process, should be exercised only in plain and obvious cases. The power should not be exercised in cases of doubt or difficulty or where the pleading raises a debatable question of law. Once it appears that there is a real issue, whether of fact or law, and that the rights of the parties depend upon it, a court should not dismiss a defence raising such an issue, either on the basis that no reasonable defence is disclosed or as an abuse of process (see Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129-130; Commonwealth v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [11]-[12] and Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at 139-140)."
A pleading is embarrassing where it is "unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him": see, for example: Meckiff v Simpson [1968] VR 62 at 70; McGuirk v University of New South Wales [2009] NSWSC 1424 at [30]; and Szanto v Bainton [2011] NSWSC 985 at [107] and Renshaw v New South Wales Lotteries Corp Pty Ltd [2018] NSWSC 1954 at [145].
In Shelton v National Roads & Motorists Assn Ltd [2004] FCA 1393, Tamberlin J stated, at [18]:
"'Embarrassment' in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Limited [1995] FCA 1429; (1995) ATPR 41-434."
In Szanto v Bainton, Ward J stated, at [107]:
"What is meant by an embarrassing pleading in the context of an application such as the present relates, in essence, to whether the pleading can serve the function of a pleading under the Rules - namely, in succinct fashion, to put the defendant properly on notice of the real substance of the claim made against it and to know what case it is that the defendant has to meet. Thus a pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence (Gunns Ltd v Marr [2005] VSC 251 at [14]-[15]) or if it contains inconsistent, confusing or irrelevant allegations (Shelton v National Roads & Motorists Assn Ltd [2004] FCA 1393; (2004) 51 ACSR 278; at [18])."
[5]
Parties' submissions
The plaintiff submits that the defence and amended defence should be struck out on three bases. The first basis is that they do not disclose what the defendants' actual defence is. In relation this basis, it submits that the pleadings are substantially unintelligible, ambiguous and imprecise, so as to not give the plaintiff proper notice of the real substance of the defence, and also contain inconsistent, confusing or irrelevant allegations. The plaintiff points to rr 14.26 and 14.27 of the UCPR, submitting that there can be no general joinder of issue based on the amended defence, and that the defence is its current form runs the risk of admitting the propositions from the amended statement of claim. This would, it is submitted, cause prejudice to the plaintiffs were this matter to proceed to hearing and therefore not be in the interests of justice.
The second basis advanced by the plaintiff is that, to the extent that a defence is disclosed, it is not reasonable, has no prospects of success and is manifestly hopeless.
The final basis is that to allow the defence to continue in its present form would cause prejudice to the plaintiff, undue delay at trial, and waste the Court's resources.
The plaintiff foreshadowed arguments that the defendants might make were they represented at the hearing. One such argument was that the issue could be solved with a request for further particulars. The plaintiff submitted that such a request would be unable to remedy the deficiencies of the defence and amended defence.
As noted, the third defendant has not filed any material or otherwise submitted any documentation. The first defendant has forwarded two sets of written submissions, the first being received on 12 February 2019. As noted above, in this document, the first defendant submitted that the proceedings should be stayed until probate is completed on her deceased daughter's estate. However, it is not explained how an absence of probate in respect of an occupant who is deceased is relevant to a writ of possession.
The request that the matter be transferred to Armidale, also noted above, was not pursued and in any event, accepting the contents of her doctor's letters to the effect that the first defendant's ill-health prevents her travelling to Sydney, there was no explanation as to why she was not legally represented.
The first defendant's second submissions, filed on 16 April and expressed to be intended for this hearing, advance a number of arguments. The first is that her ill-health prevented her from attending the hearing. The second relied on the caveat she had lodged on the title of the property, submitting that it required the purchaser and "registrar-general" to be joined as parties to the proceedings. Again, it is not apparent how the lodging of the caveat, in itself, is a bar to a writ of possession. The interest that the caveat seeks to protect, as described in the photocopy, simply references s 109 of the Constitution and a reference to what is described as a bankruptcy notice, but is undeveloped. The next argument is so poorly expressed that it is incomprehensible. It appears to allege that the absence of the purchaser and "registrar-general" as parties means that the hearing is tainted with "the criminality of fraud condemned by the Oaths Act 1900 and the Crimes Act 1900", thereafter citing nine sections. She further submits that there is no land tax owing, and then poses the question, "Isn't land tax the same as rates?", to which the answer is of course, no, rendering that argument also irrelevant.
Thereafter, the first defendant's "submissions" refer to the Constitution and a High Court judgment that refers to s 109 of the Constitution, namely, University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & Others (1984) 158 CLR 447; [1984] HCA 74. Finally, she suggests that service has not been properly effected by the plaintiff and, as best I can discern, that there has not been a proper delegation of authority by the plaintiff for the purposes of the verifying any other affidavits sworn or affirmed by the plaintiff's solicitors. Leaving aside the question of the absence of filed evidence for these submissions, there appears to be no basis for them, in any event.
[6]
Conclusion
Neither defendant has entered an appearance in proceedings in this Court, both on the hearing of this motion and on four directions hearings earlier this year. The third defendant has not contacted the Court or the plaintiffs, other than to send the email in which she complained that she was not properly addressed in the proceedings.
Tendered at the hearing were an affidavit of service of a solicitor in the firm appearing for the plaintiff, deposing to having emailed the first defendant, and posted to both the first and third defendants, a copy of the orders made on 15 April 2019, which includes an order that the hearing would proceed on the date on which it was heard. The handwritten title of the first defendant's "submission for hearing being heard on 29 April 2019", which was filed on 16 April 2019, is evidence enough that the first defendant was aware of the hearing. The letters from her doctors attesting to her ill-health preventing her from attending the hearing only partly explain her failure to appear in the matter. She does not explain why she has not arranged legal representation.
The three versions of the amended defence do not disclose a proper basis for opposing the orders sought. Nor do the "submissions" filed on 8 February 2019 and on 16 April 2019.
I conclude that the defence and amended defence should be struck out on all three bases advanced by the plaintiff; in relation to the first basis, I have concluded that it is not possible to discern what the defendants' actual defence is. Similarly, I conclude that the second and third bases are also made out, namely, that the grounds of the defence are not reasonable, have no prospects of success and are manifestly hopeless. Further, to allow the defence and amended defence to continue in its present form would cause prejudice to the plaintiff, cause undue delay at trial and would waste the Court's resources.
Accordingly, pursuant to r 14.28 of the UCPR, I am satisfied that the defence and amended defence should be struck out.
[7]
Orders
Accordingly, I make the following orders:
(1) Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the defence filed on 23 January 2019 and the amended defence filed on 16 April 2019 are struck out.
(2) The first and third defendants are to pay the plaintiff's costs of the motion.
[8]
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Decision last updated: 06 September 2019