Jensen v State of New South Wales

ex tempore Judgment (revised) 1HIS HONOUR: Before the Court are proceedings which arise out of a statement of claim filed in the Court on 18 February 2012. That statement of claim is brought by the plaintiff Paula Ann Shirley Jenson and the defendant in those proceedings is the State of New South Wales. 2The case has a lengthy and chequered procedural history which is comprehensively and fairly set out in a procedural chronology provided to me by counsel for the defendant, Mr Mallon and prepared by those who instruct him. That chronology will be with the Court file and can be where necessary incorporated into these reasons. 3It seems that an attempt was made at an early stage to obtain a default judgment against the defendant and there are in the Court file no less than three affidavits of service. However, it appears that the statement of claim had not been served and the attempt to obtain default judgment failed. A defence was filed on 13 May 2013. Before me today are two notices of motion. The first is by the defendant and it is an application in the alternative for either dismissal of the action altogether or the striking out of the statement of claim. There is also an application by the plaintiff's mother to be joined as a second plaintiff. In the absence of the appearance of either the plaintiff's mother or the plaintiff I fail to see how I could sensibly deal with that motion. 4In any event, as was submitted by Mr Mallon, such an order would be otiose if I am persuaded either to dismiss the plaintiff's case or to strike out the statement of claim. However a preliminary issue has arisen and that issue is whether or not I should proceed to determine the notices of motion at all and the reason that preliminary question arises is because the plaintiff is not in attendance here today. At about ten past ten this morning the matter was called outside Court three times and the plaintiff did not appear. The matter was called again at ten minutes to midday. At that time the plaintiff was specifically called by name, as was her mother who was called three times and neither answered the call. 5In those circumstances the question becomes whether the Court should proceed to hear the notice of motion ex parte. On that question I have received invaluable assistance from Mr Mallon and those who instruct him. In the traditions of what is sometimes called "the ideal litigant", the Crown Solicitors Office has provided an extensive affidavit affirmed by a solicitor, Mr Thompson, which sets out in a fair and balanced way the history of the litigation and annexes a number of documents which are marked from (a) to (o). The material provided by the defendant in Mr Thompson's affidavit gives both sides of the story and provides me with something of a dilemma in undertaking the balancing exercise which I must undertake in determining whether to proceed with the matter ex parte. 6I should also observe that in this case and in an associated case involving the same plaintiff but a different defendant (LKM Capital Limited), which is also before the Court today, there has been extensive correspondence with the Registrar of the Court. 7The details of the correspondence and the expansive and extensive communications that have come from the plaintiff need not be detailed but a matter of real significance is that she says through the correspondence that she is unable to attend Court because of a medical condition which can be described in general terms, and taking from her correspondence, as severe anaemia. There is in the Court file a report from an Associate Professor Ian Kerridge which supports and affirms the fact that the plaintiff suffers from such a condition and I refer to a report dated 27 June 2013, which was annexed amongst other things to an email from the plaintiff to the Registrar. From a perusal of the Court file, it appears that since November of 2013 attempts have been made by the Registrar to obtain updated medical certificates but as best as I can see, and I suppose I could be missing it, no updated medical reports have been provided to the Court. 8That brings me to the material provided by Mr Thompson in his affidavit and in particular to what is annexure L. Annexure L does provide more up-to-date medical evidence. In particular there is another report from Dr Kerridge and that document confirms that the plaintiff "suffers from continuing severe anaemia and iron deficiency" and details her disabilities as including "compromised cardiovascular symptom function with ongoing shortness of breath on exertion...and arrhythmia". The consequence of that in the opinion of Associate Professor Kerridge is that it is "doubtful that Paula would be able to function effectively in Court." 9I have asked Mr Mallon today whether there was any doubting the fact that the plaintiff suffers from the medical condition and he has confirmed that there is nothing to suggest that the condition is other than a genuine one and that the reports to which I have just referred are other than truly reflective of her condition. That material plainly enough must cause the Court to take pause when considering whether to deal with the matter in the absence of the plaintiff who is plainly unwell. I have the power to do so as Mr Mallon points out to me under the Uniform Civil Procedure Rules 2005 (NSW)(UCPR) Pt 18 r 18.7 and the basis upon which I would do so is really governed by the general principles in ss 56 and 57 of the Civil Procedure Act 2005 (NSW). To be brief about it, both the Act and the rules are designed to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Where there is any deviation between these three objectives I would certainly take the view that "just" would prevail. 10Militating against proceeding today is the medical condition to which I have just referred and the fact that the plaintiff is it seems for the most part, although not always, unrepresented. There are matters militating the other way and the first of those is the length of time that the case has been before the Court and bouncing around. It is the case that the statement of claim was brought in the early part of 2012 but the litigation has a background and the background goes back many more years than that. The claim, as I will come to presently, arises out of proceedings in this Court which were brought by the financier LKM Capital Limited which resulted in orders for possession by which the plaintiff and her family lost their land. The history of the matter is lengthy and the matter has been before the Court and in particular before the Registrar on countless occasions and that is a matter that militates in favour of proceeding today. 11The second matter that militates in that direction is the fact that as Mr Mallon states or submits the making of orders in the nature of dismissal or strike out would not result in the plaintiff forever being locked out of or estopped from bringing her claim if she chooses to do so. She could either recommence proceedings or attempt to reinstate the current proceedings. 12The other matter that is operating on my mind when doing this balancing exercise as to whether or not to proceed ex parte is the fact that the case is coming before the Court from time to time with a degree of regularity and somebody is paying for that. As I have indicated, the defendant is represented by the State Crown Solicitor and the ultimate funder of this litigation is the taxpayer of New South Wales. That would not, in and of itself, justify proceeding ex parte if justice dictated against it but it is a matter to be weighed in the balance bearing in mind those guiding principles in the overriding purposes stated in s 56. 13Just looking at the file, it seems a matter was before the Court and by that I mean the Registrar on 12 June 2012, 29 June 2012, 24 September 2012, 12 November 2012, 26 November 2012, 29 January 2013, 21 February 2013. 26 April 2013, 23 July 2013, 18 September 2013, 21 November 2013 and finally 13 February 2014 when the Registrar made the order that the matter be stood over to today's date to be dealt with by the Duty Judge. On each and every one of those occasions it seems that the defendant was represented and that costs money as does simply having the Court operating. As I say that would not be in any sense a determining factor but it is something to be weighed in the mix of matters relevant to the exercise of the discretion. 14The final matter which I take into account in resolving the question of whether I should proceed ex parte is the fact that there is in the Court file a number of documents in which the plaintiff has put her position before the Court in the form of written submissions. It is true that those written submissions are not necessarily directed to the questions which arise under Pt 13, r 13.4 (which is to say dismissal of proceedings) or Pt 14, r 14.28 (which relates to the striking out of pleadings) but, in a sense, they are concerned with the questions that there arise because they are, unquestionably, the plaintiff's attempts to articulate her case both in fact and in law. In dealing with the matters ex parte the submissions made by the plaintiff are before the Court and can be taken into account to assess whether the very stringent tests required to be adopted have been met. 15The documents I am talking about in particular are the documents styled "Submissions of Paula Jensen, (aka Princess Paula of the Principality of Snake Hill)" filed on 25 May 2012, the "Submissions of Paul Jensen" filed 29 April 2013 and the "Submissions of Helena Jensen" filed on the same date. In all of those documents the nature of the claim asserted by the plaintiff and putative second plaintiff is articulated and I can take those submissions into account in determining whether I should order either a dismissal of the proceedings or the striking out of the statement of claim and in considering whether any reasonable cause of action is disclosed or, in so far as it arises, whether the statement of claim or the proceedings are frivolous or vexatious. 16Balancing all of the things that I have hitherto referred to, I am satisfied that I should proceed to deal with the notice of motion even though the plaintiff is not here and I propose to do so. 17That brings me to the substance of the motion and the substantive questions that arise. It is necessary to understand the basis of the submission that is made on behalf of the defendant to set out in detail the terms of the statement of claim. The statement of claim seeks damages in the sum of $20,000,000, "the return of the properties taken from our family without cause", "the return and payment of all rental income from those properties since March 2000" and "loss of income as I have spent most of my time trying to find some government authorities in this matter and also spent time researching laws and trying unsuccessfully to get some justice". 18The particulars of that claim are as follows: (1)The NSW Police, NSW government departments and ministers allowed and enabled and assisted LKM Capital Limited to take properties and rental income from us without cause, by them dishonestly claiming that we were behind with mortgage payments when they admitted that we were in fact ahead with those payments. (2)This ruined my reputation in financial circles, thereby ruining my chances of being a property developer, which is why I had studied Structural Engineering and obtained my Builders License. (3)This matter has wasted so much of my life and caused further losses and personal trauma which would not have occurred but for LKM's fraudulent actions being encouraged by NSW employees who were in positions to stop LKM and were paid to uphold and enforce laws and protect members of the public such as myself. (4)LKM forced me to be a guarantor for my parents' loan, but then took all of the equity of the properties without reason, depriving me of my share of our constructive trust. (5)My parents and I had a constructive trust because I lent a substantial amount of money for those properties, and worked by doing all maintenance on the properties and dealing with the tenants for several years without any pay or recompense. (6)The NSW Police refused to conduct a proper investigation into the fraud perpetrated by LKM Capital Ltd when they issued a dishonest statement that caused me to suffer loss and damage, by falsely claiming that we were behind with a mortgage when we were about a year ahead, where all of the evidence and the other party's affidavit showed we were approximately a year ahead with that mortgage when they falsely sued us for being behind which should make the whole case against us null and void, and it constitutes fraud, which, contrary to what the NSW Police said, does constitute a criminal offence. These actions are mentioned as crimes in the NSW Crimes Act, and the Police should have known that without me needing to find the Act for them. LKM Capital Ltd even provided an affidavit to the court regarding alleged discussions they had had with NSW Police officers who were supposed to be investigating our matter, but seemed to prefer to ask the other party if they felt they were doing anything wrong. The NSW Police also incorrectly advised that only the ACCC could investigate this matter when this does not even fall within the ACCC's guidelines. (7)This claim arises from a civil wrong other than of a type that can otherwise be categorised, and directly caused and led further enormous losses, pain, suffering, hardship, thefts, etc. (8)This claim arises from the defendant unlawfully interfering with the land by beginning a fraudulent court case against us, committing perjury in the documents filed in that case and misleading the court and perverting the course of justice, and the NSW Police refusing to investigate our complaint of fraud, the NSW Land Titles office transferring the properties while aware that fraud had been committed, the NSW Attorney-General and his department refusing to investigate or to assist us in any possible way, telling us to to get over it", the NSW Premiers refusing to investigate or to assist us in any possible way, the NSW Department of Fair Trading refusing to assist us and ignoring real estate laws which they are supposed to uphold and enforce such as only a registered proprietor being allowed to transfer the management from one agency to another, and everyone we contacted individually and collectively breaching and/or ignoring laws and automatically assuming that we were in the wrong, thereby allowing LKM to take and sell the properties for approximately half market value. (9)The NSW Police and the NSW Department of Fair Trading also refused to investigate our complaints of LKM Capital Ltd placing themselves on the leases as landlord prior to any hearing in court, and collecting our rents without any court order to do so, and providing a false and misleading alleged property valuation for about a quarter of the market value, without any sales evidence or even an inspection of the subject properties. (10)The NSW Ombudsman refused to investigate my complaints about the NSW Police, telling me that it was "none of my business" whether anyone investigated my complaints or not, and they were really nasty to me and even hung up the telephone when I rang to ask why they had not replied to my letters. (11)The NSW government ministers that I contacted all ignored my complaints, and some even said that this would not have happened if I had just "paid all the bills on time". They had obviously not even bothered to look at the two of three pages of evidence that clearly showed that the claim against us was clear fraud and perjury. Most of the letters of complaint were not answered and the few letters I did receive in response to complaints did not even refer to any of the issues in my complaints. I expected that they could at least have found someone to read one of my letters, and to contact me if they were somehow confused by any of it, rather than just automatically dismissing my complaint and then refusing to ever speak or correspond with me about it or anything else ever again. It seems I was blacklisted for daring to beg for help. (12)This claim arises from the defendant disturbing my use and enjoyment of land, contrary to all laws and against all evidence. (13)This claim arises from the defendant unlawfully doing something that interferes with me, my goods or land that does not fall into one of the other categories of trespass, as they forced me to research and study legal textbooks and try repeatedly to get some justice in this matter from authorities, and forced me to deal with rude; abusive, illiterate, incompetent and lazy public servants who totally refused to investigate this matter or to assist me in any way despite them being employed by the relevant authorities, but some of them had the time and energy to threaten me. The costs of telephoning, emailing, faxing, sending letters to and visiting these people with no benefit was in the tens of thousands of dollars. Internet time to make websites and contacting people around the world to expose this corruption was added expense. The frustration and emotional pain and suffering caused to me by these people cannot be monetarily quantified, but it wasted my entire life and stopped me from being able to earn a living and enjoying my land and goods and time as I should be allowed to do according to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Charter of the United Nations and other international treaties that Australia has agreed to uphold within all of its states and territories. (14)Laws were blatantly breached and ignored by the people paid to uphold and enforce them. (15)It was made impossible for me to obtain any access to justice. 19It is also necessary to set out in a little detail the submissions that are made by the plaintiff both on 20 May 2012 and those filed on 29 April 2013. The submissions of 29 April 2013 say amongst other things that "the state of New South Wales does NOT have any valid or tenable defence as the facts of the matter are on the public record and cannot be disputed. The main documents from that litigation can be viewed at . ". A perusal of that website shows that the plaintiff asserts that she and others seceded for the state of New South Wales, thus making any claim against their property unconstitutional. This is a reference back to the litigation in which the mortgagees successfully obtained judgment and possession of certain real estate many years ago. The submissions dated 20 May 2012 provide an enormous amount of detail of the asserted wrongs done to the plaintiff and her family. It includes the following: "We were told by the Police that the Crimes Act NSW does not exist, and they said that a solicitor is allowed to steal peoples' properties as it is then supposedly termed 'civil theft' which the police said was allowed." 20The defendant has filed an outline of written submissions in respect of the application and I should note that very little has been added today in argument in respect of the notice of motion, that is to say to strike out or dismiss the proceedings. Most of the focus of this morning's argument was a discussion as to whether the matter should proceed today at all and I have not troubled. Mr Mallon with many questions about the motion itself because, whilst the submissions he puts are economical, they are also clear and in my opinion completely convincing. 21The tests that have been formulated by the Court - and I specifically refer to the cases of General Steel Industries v Commission for Railways (1964) 112 CLR 125 and Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 - are stringent. The kinds of phrases that are used are that the plaintiff's claim must be taken at its highest and must be "so obviously untenable that it cannot succeed", "manifestly groundless" and "disclosed a case which the Court is satisfied cannot proceed." In Batistatos v Roads and Traffic Authority the High Court made it clearer still that the strength of the language in General Steel (to which I have just made reference) has to be given its true effect. The High Court urged upon trial Judges and courts exercising the kind of jurisdiction that I am here asked to invoke to proceed with real circumspection and on the basis that cases ought not be decided in a summary way other than in the clearest of cases. 22I am of the opinion, having read the plaintiff's arguments in the written submissions, and having considered the statement of claim itself that before me today is a case which is properly described as the clearest of cases. The claim is manifestly groundless. It is an attempt to bring the state of New South Wales into a civil dispute, which was resolved against the plaintiff many years ago in circumstances where the allegations made in the statement of claim are uncertain and to adopt the language of Mr Mallon "convoluted" and "embarrassing". 23There are allegations made against unspecified Ministers and public servants. The basis of the claim appears to be that the plaintiff, having litigated a court case against her financier and having lost it, now attempts to say that outcome was wrong, that outcome was unjust and that any conceivable officer or public servant or Minister in the State in which that litigation occurred is responsible in the civil law as a result of what she describes in paragraph 7 of the claim as "civil wrong other than of a type that can otherwise be categorised". 24I do not understand Mr Mallon in his submissions to be submitting that the claim is frivolous or vexatious although I may have missed that part of his submission. His argument is that no reasonable cause of action is disclosed and that is to adopt the language of Pt 13 r 13.4 sub-r 1 para (b) and in so far as he relies on the alternative application to strike out the proceedings he relies also on the prejudice and embarrassment that is occasioned by the very non-specific and, if I could say so with respect, flawed allegations contained in the statement of claim. 25As I have said at the outset in dealing with the question of whether I should deal with this case in the absence of the plaintiff, Mr Mallon's conduct here today has been exemplary and fair and he offered what might be considered to be a compromise position whereby I could strikeout the leadings under Pt 14 r 14.28 and provide the plaintiff with leave to restore the matter to the list. 26I have considered doing that but having considered the matter conscientiously and earnestly I am of the opinion that this case is one that should be dismissed under Pt 13 r 13.4 so I propose to make the orders sought by the plaintiff as its primary application. 27Accordingly the order that I make is this, that the proceedings against the defendant be dismissed pursuant to r 13.4 of the Uniform Civil Procedural Rules 2005 (NSW). 28At my invitation, and in conformity with his conduct throughout the day, Mr Mallon did not seek costs and I make not order as to costs.