Supreme Court Rules 2000, r 259

Cox v Journeaux (No 2) [1935] HCA 48, 52 CLR 713

Dey v Victorian Railways Commissioners [1949] HCA 1, 78 CLR 62

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, 112 CLR 125

Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118

Gunnarsson-Wiener v Iles [2020] TASFC 1

Judgment Number: [2025] TASSC 55

1. This Court has power to dismiss a claim which is so deficient that it would not be appropriate to allow the proceedings to continue. This is a clear case in which that power should be exercised.
2. On 18 March 2024, Lorraine Jordan filed a writ commencing an action against Community Housing Limited. Miss Jordan filed an amended statement of claim in the action on 23 September 2024. The action concerns a residential property in Waverley in Tasmania. Miss Jordan claims to be a tenant but the order sought by her is that title to the property be transferred to her. The defendant's application for an order striking out the amended statement of claim and dismissing the action should be allowed because none of the facts which Miss Jordan sets out in the amended statement of claim, or any combination of those facts, even if proved, are capable of establishing any legal right to that remedy.
3. The defendant to the action was identified in the writ as "Community Housing Limited, Property Management for Homes Tasmania. The Homes Tasmania executive Eleri Morgan-Thomas". Miss Jordan intended the defendant to be Community Housing Limited and the action has only been prosecuted against that entity, which I will refer to as the defendant. It was the only party which was served and appeared. It is the only defendant which has been named on all the subsequent court documents. In the endorsement to the writ, Miss Jordan claimed possession of the property. The endorsement also claimed other relief in these terms:

"7 years of maintance (sic) and 5 years of deliberate mental anguish inflicted on the plaintiff by way of retaliashional (sic) eviction, envolving (sic), negligence, causing detriment to plaintiff."

1. Although not pleaded in the amended statement of claim, it is not contentious that Homes Tasmania is the State government authority responsible for provision of social housing in this State, and the defendant manages properties for that entity. It may safely be assumed that the property is owned by Homes Tasmania but managed by the defendant. The writ was filed in the context that Miss Jordan was, at that time, attempting to prevent the defendant from taking possession. It was accompanied by a three page typed statement of claim also dated 18 March 2024. That document is directed to the defendant. It claimed, in very general and mostly discursive narrative terms, that Miss Jordan was a tenant of the property and complained about her poor treatment dating back to 2018 by the defendant. The statement of claim was primarily directed at what she referred to as a "recent eviction attempt" and to prevent further attempts by the defendant to remove her from her home. The document referred to Miss Jordan's fear that she would be "dragged from her home" and claimed that she was party to a residential tenancy agreement. There is no clear statement of the orders which are sought in the action except that the concluding paragraph refers to an attached application for an injunction and continues:

"I am asking for the property to be signed over to myself as it is the lesser of the two amounts for compensation I could ask. I have taken years of mental anguish. And the property is worth less that an amount if I won, than calculated compensation for all the breaches and illegal actions I have endured over the years."

1. Miss Jordan commenced parallel proceedings in the Magistrates Court under the Residential Tenancy Act 1997. Her proceedings initially came before the Magistrates Court where a magistrate determined that there was no jurisdiction under the Act to resolve a dispute about the defendant's attempted termination of the tenancy because there was no residential tenancy agreement within the meaning of that term in the Residential Tenancy Act, s 10. However, on 12 November 2024, Marshall AJ found that the magistrate's decision was wrong and determined that Miss Jordan was a party to a residential tenancy agreement. His Honour found that the Tasmanian legislation created a legislative construct whereby a residential tenancy agreement may exist without proof of a "prior agreement" or the existence of valuable consideration, requiring only the grant of a right of occupancy for value: Jordan v Community Housing Limited [2024] TASSC 63. Miss Jordan's status as a tenant of the property under that legislation was finally and authoritatively determined. No appeal was pursued.
2. Notwithstanding her success in those proceedings, Miss Jordan wishes to continue this action. To the extent that the endorsement on the writ and the original statement of claim sought "possession" of the property, the result of the order made by Marshall AJ is that Miss Jordan retains possession of the property and has all of the rights of a tenant under the Residential Tenancy Act. With the writ, Miss Jordan also filed an interlocutory application seeking an order, in effect, that there be no "eviction or sale" of the property "until the matter can be heard". No order was made on that application until it was dismissed by Daly AsJ on 30 August 2024, and there is no other basis for an order "for possession" in the action.
3. Miss Jordan is not, and in this action has never been, represented by a lawyer. The writ, the first statement of claim and the amended statement of claim are all documents she prepared herself. The pleading I am to primarily consider is the amended statement of claim dated 23 September 2024. Doing the best I can to make sense of it, and using my language rather than hers, it asserts that she had lived in the property for almost eight years having moved in with her son in 2017, that she was party to a residential tenancy agreement under the Residential Tenancy Act 1997 and paid rent and not breached any term of the tenancy. The document then contains a lengthy description of her complaints of bullying, harassment, intimidation and threats of eviction by officers of the defendant, the defendant's failure since 2018 to attend to repairs and to maintain the property to an appropriate standard, and the anxiety caused to her by the defendant's refusal to agree that she was party to a residential tenancy agreement and the defendant's attempts to remove her from the property.
4. The amended statement of claim refers indirectly to other proceedings under the Residential Tenancy Act and asserts "five years of mental anguish" and anxiety arising from these tenancy disputes, that the attempted eviction was "retaliashional" (sic) for her enforcing her rights, and to the financial burden of the costs of the ancillary court proceedings.
5. Most importantly for present purposes, the document concludes, under the heading "Orders Sought by the Plaintiff", by claiming the "deeds for the property" under the "Propperty Rights Act" (sic) on the grounds that the defendant "broke a fixed term lease agreement" by "an unlawful eviction process", breaching Miss Jordan's "quiet enjoyment" by not letting her "live in peace, from harrasement (sic), intimidation, manipulation, threats and bullying" and did not "deal with urgent repairs" or "keep the property up to standard" and entered the property "without due cause".
6. Miss Jordan was asked at the commencement of the hearing of the defendant's application to again consider and re-state the orders she asked the Court to make in the action. She confirmed that the order she sought was that "the titles to the said property be handed over, signed over to myself." She also said that she had asked for "an apology". She later submitted that "it wasn't about money, it's about the fact that I've put hard labour into the property." She continued by asserting that she wished to have the defendant's staff made "accountable" by being "charged" or "found at fault" for their actions. In her submissions in opposition to the application, Miss Jordan contended, in substance, that she wished to confirm her status as a tenant, that she was aggrieved by years of the defendant's failing to maintain the property, to show that the eviction attempt in 2023 was unlawful and to demonstrate that she had not been allowed "quiet enjoyment".
7. The Court's records of proceedings make clear that Daly AsJ, during various interlocutory hearings, explained to Miss Jordan the need to formulate her case in a coherent way. On 30 August 2024 his Honour specifically referred Miss Jordan to the rules of pleading in Supreme Court Rules 2000, r 227, and the rule was read to her. This application was made on 13 February 2025. There has been ample time since then for Miss Jordan to consider her claim and obtain advice about it. Despite what I do not doubt are her best efforts, the amended statement of claim does not comply with Supreme Court Rules, r 227. It is not brief, the material facts are not stated in summary form or divided into paragraphs containing separate allegations. There are numbered paragraphs but, like the first statement of claim, the document retains the character of a discursive narrative. It does not give reasonably explicit notice to the defendant of the grounds of action on which Miss Jordan intends to rely at the trial. However, this application does not depend on whether there are technical breaches of the pleading rules.
8. The Supreme Court Rules 2000, r 259, authorises the dismissal of an action with judgment accordingly where the pleading does not disclose a reasonable cause of action, or where the pleading shows that the claim is frivolous or vexatious. Rule 367 authorises the giving of summary judgment in favour of a defendant where the action is frivolous or vexatious or the defendant has a good defence on the merits. The defendant did not apply for summary judgment within the time limited by r 367, and no application is made for an extension of time, but there is the inherent jurisdiction of the Court to stop cases which clearly have no prospect of success. In this case there is no evidence relevant to the merits of the plaintiff's claim. The application is to be decided on the basis of the pleadings alone.
9. A cause of action is every allegation of fact which the plaintiff must prove to establish the right to the relief claimed, and a reasonable cause of action means a cause of action with some chance of success, when considering the allegations of fact contained in the challenged pleading alone: Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152, 161 ALR 458 per Nicholson J at [24]. Summary dismissal is a step which should only be taken if the case is "very clear"; Dey v Victorian Railways Commissioners [1949] HCA 1, 78 CLR 62 per Dixon J at 91, General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, 112 CLR 125 per Barwick CJ at 128-130 and Cubillo v Commonwealth [1999] FCA 518, 89 FCR 528 at 549-551. As was explained by Blow CJ in Gunnarsson-Wiener v Iles [2020] TASFC 1 at [8], citing Burton v Shire of Bairnsdale [1908] HCA 57, 7 CLR 76 at 92; Pridmore v Magenta Nominees Pty Ltd at [24]; Von Stalheim v Anti Discrimination Tribunal [2009] TASSC 6 at [9], when the word "frivolous" is used to describe a court proceeding, it means that the claim made in that proceeding is so obviously untenable that it cannot possibly succeed. A litigant is entitled to submit a claim he or she believes can be established, although the foundation is slender, but the Court's dismissal power may be exercised when a claim is so deficient that it would not be appropriate to allow the proceedings to continue: , As to the approach to the application generally see ; at - , and per Porter J at [19]-[24].
10. Some leeway may be given to Miss Jordan as a self-represented litigant. However, as Nettle and Osborn JJA pointed out in Karam v Palmone Shoes Pty Ltd and Anor [2012] VSCA 97 at [36]:

"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."

1. In some cases, particularly involving unrepresented parties who are less able to produce pleadings in an action, non-compliance with the rules of pleading can be matters of form rather than substance, and are capable of being cured by amendment. However that is not the case here. Miss Jordan does not claim to have ever been anything more than a tenant. Her claim to a transfer of the property to her cannot possibly succeed. Even if Miss Jordan's complaints about the conduct of the defendant are proved, there is no legal basis upon which a breach of a term of a residential tenancy agreement, or unjustified attempts to terminate a lease, could ever entitle her to ownership of the property. An amendment to the statement of claim to attempt to establish a claim for such relief would be futile.
2. In Tasmania there is no Propperty Rights Act (sic) and no other legislation which entitles Miss Jordan to a transfer of the title to property. In the amended statement of claim reference is also made to asserted breaches of the Residential Tenancy Act 1997, the Human Rights Act 2019, the Civil Liability Act 2002, Homes Tasmania Act 2022, the Welfare of Animals Act 1993 and the Police Offences Act 1935. Whilst reference is made to sections of these various statutes, no explanation is given of how a breach might found a cause of action against the defendant of the nature asserted which is enforceable by action in this Court. None of the various pieces of legislation she refers to give rise to any right to the legal relief she claims. This Court has no power to order an apology for past conduct, or that anyone be charged with a criminal offence and her rights to possession as a tenant have been established in separate proceedings. A desire that someone be "found at fault" is futile in the absence of a cause of action.
3. The proposition that Miss Jordan could never be entitled to ownership of the property is so obvious that it is hardly necessary to point out also that there is no pleading that the defendant was or is the owner of the property. If it is not, no order against the defendant concerning ownership of the property could be made or enforced. Homes Tasmania is not a party to the action and no order could be made affecting its interests.
4. It is not part of the Court's function to provide Miss Jordan with legal advice, or to cast around the many, mostly irrelevant, facts asserted by her to attempt to ascertain whether they may establish a cause of action for a remedy she does not seek. It is not for the Court to work out for her whether she may have an action. That would be unfair to the defendant. To the extent that I should allow for the risk of injustice by not allowing Miss Jordan a further opportunity to re-plead a different claim, I would observe that there is little prospect of any reasonable cause of action being established by the pleaded facts. None of the pieces of legislation Miss Jordan refers to create any relevant private right of action enforceable in this Court. No pleaded facts allege damage to property, injury to person or financial loss arising from breach of contract or tort. One possibility is an action for damages for "mental anguish". To the extent that such a claim may be based on alleged breach of contract, the amended statement of claim does not plead facts to establish a common law lease. What breach is asserted and when it occurred throughout a period of six or seven years is not pleaded. A claim of that nature based on breach of contract would face many barriers: Elisha v Vision Australia Ltd [ 2024] HCA 50, 421 ALR 184. As to liability in negligence, the amended statement of claim asserts that the defendant "breached Miss Jordan's, civil liability, standard of care, causing great mental anguish and high anxiety for 5 years." She asserts that the defendant continued to deliberately torment her despite an "obvious risk of harm" and breached a duty of care. When and how this happened is not readily apparent. However, damages are not sought and such a claim would require proof of duty, breach, causation and damage and faces the limitations on recovery for pure mental harm in the Civil Liability Act 2002, Part 8. The remote possibility that some claim for other relief might exist does not persuade me that the statement of claim could be justly cured by amendment and that the order sought by the defendant should not be made.
5. Miss Jordan's amended statement of claim does not disclose a reasonable cause of action for the relief she claims. Her claim is frivolous in the sense that it is obviously untenable and cannot possibly succeed. To allow it to continue would impose unnecessary injustice and cost on the defendant. I order that the action is dismissed and that judgment be entered for the defendant.