Julia Wedding as trustee for the Julia Wedding Super Fund v Attorney General for New South Wales

Supreme Court of NSW|2016-08-17|Before: Slattery J

Judgment

The plaintiff, Ms Julia Wedding has sued the defendant, the State of New South Wales ("the State") in tort. She alleges that the State owes her a duty of care to ensure that she has received fair treatment through a number of persons and entities including local councils, the Police Department, the Minister for Planning, the Minister for Roads and Crown Lands and a local member of Parliament. Ms Wedding contends that the State has breached its duty of care and that she has suffered loss as a result.
The State says Ms Wedding does not have any claim at law against it. So it now seeks an order pursuant to Uniform Civil Procedure Rules 2005 ("UCPR"), r 13.4(1)(b) that these proceedings be dismissed for failure to disclose a reasonable cause of action.
Ms Wedding, appears for herself to contest the State's application. Mr L Waterson of counsel appears for the State instructed by the Crown solicitor. Background to the proceedings and the underlying facts is necessary to understand Ms Wedding's claim and the State's application.

Procedural History

Ms Wedding filed her Summons commencing these proceedings on 2 February 2016, together with an undated affidavit.
On 26 February 2016, on the return date of the Summons Darke J granted leave to the State to file a Notice of Motion to strike out or dismiss Ms Wedding's Summons. The matter was stood over until 8 April 2016 in Darke J's Real Property list.

Ms Wedding Purchases and Holds a Property in Cobargo

The Court has extracted the sequence of some of the relevant events from Ms Wedding's Summons, affidavits and Statement of Claim and some material supplied by the State. This has not been an easy task and has meant the review of a considerable body of irrelevant material. As is required on such strike out motions, the State accepted the facts Ms Wedding alleges as true for the purposes of argument on the motion.
The relevant events begin when Ms Wedding purchased a property in Hardy St, Cobargo in May 2010 as trustee for her self-managed superannuation fund. The Property is situated within the shire administered by the Bega Valley Shire Council ("the Council"), and comprises some 18 separate lots.
A little over two months after her purchase, in early August 2010, Ms Wedding received an email from her neighbour requesting some funding assistance to pave a Crown road, Cowderoy St, which runs along the south-western border of the Property. She refused this request on the basis that Cowderoy St provided access only to the south-western lots of the Property. She preferred to improve Hardy St, on the northern side of the property, which she alleges is a Crown road which would provide access to all and not just some of the lots on the Property.
Ms Wedding contacted Council to raise the issue of the development of Cowderoy St and asked if instead she could use Hardy St as "logical & easy access". Ms Wedding contends that Hardy St is a Crown road, and that at the time she purchased the Property, Hardy St "was clearly shown on NSW Government maps and plans … as a road one chain wide running between the Plaintiff's property and her northern neighbour's property".
But after Ms Wedding had refused to contribute to paving the road on the south-western side and complained to the Council Ms Wedding says that the fences on the south side of the property were ripped down and trees on the Property were destroyed in retaliation. Ms Wedding says that she observed these signs of trespass to the Property on 19 August 2010.
The following day, she met with representatives of the Council. Ms Wedding contends these representatives stated to her that Council would not unblock Hardy St, and would block a road that provided access to the western lots of the Property, because they "assumed [the plaintiff] would build without a DA".
Ms Wedding suspected that her neighbour was involved in the trespassing that was taking place on her land. So on 27 August 2010 she contacted the local police. Senior Constable Burden from the local police attended the Property in September 2010. SC Burden appears to have issued a warning to a number of persons present on that occasion that there was to be no unauthorised accessing of Ms Wedding's Property without her consent. But SC Burden advised Ms Wedding that without further information about the alleged unauthorised access that was occurring there was insufficient evidence to commence a prosecution against anyone in relation to her complaints of trespass to land. These facts are recorded in an email sent by SC Burden to Ms Wedding just after his visit. Similar sentiments were conveyed to Ms Wedding by the Local Area Command (LAC) at the same time.
In August 2011, Ms Wedding also discovered that the access road to the western lots of her Property had been blocked by a number of large boulders. She contends that this blockage was an aggressive action of either the Council or her neighbours directed against her. She claims that these other neighbours were allegedly blocking Hardy Street to prevent her opening access to her own property by that means.
In March 2013, Ms Wedding discovered that some electric fencing had been attached to the existing fences on her Property. In an email dated 7 June 2013 to the local Council, Ms Wedding followed up this and other issues. She complained in the 7 June 2013 email to the Council about unauthorised access to the Property, ongoing trespasses on the Property, power poles erected by an electricity utility without any opposition from the council, the action of the electric fences, and the blocking of Crown roads to the north and south of the Property. Ms Wedding's final plea to the Council was that she was being taken advantage of as an absentee owner and she hoped the council would urgently "help to resolve these issues of intimidation, bullying, trespass, destruction of property, injury of person, attempted theft of Crown land on private land, and moving a fence lines."
The Council responded to her 7 June 2013 email on 13 June 2013, declining to become further involved in these issues. The Council's letter stated to her that the matters she had raised were "civil matters (not Council matters) that you need to address with your neighbours and the Crown". So far as evidence goes this is where the correspondence was left with the Council.
Ms Wedding then took up her case with other public authorities. In early 2014 she corresponded with the Department of Primary Industries (referred to in these reasons as "Primary Industries") on a number of occasions. Departmental officers from Primary Industries informed her that Hardy Street is a private road. Ms Wedding says that the Department of Transport and Roads ("Transport and Roads") confirmed the status of this road to her in June 2014 as a Crown road.
Ms Wedding then complained to the Ombudsman. He responded to her complaint on 20 May 2014, stating that there was insufficient evidence of wrongful or improper conduct to justify the Ombudsman commencing an investigation.
Ms Wedding has sent further emails in August 2014, February 2015 and March 2015 to a series of recipients, which include Ministers of the State and Police. But some of the allegedly unauthorised additions to the Property appear to have been removed by February 2015.
Ms Wedding is now concerned that given the "history of intimidation by locals" and as a result of the events of which she complains "the property cannot be sold for a reasonable price while roads are blocked" and she has thereby suffered loss.

Ms Wedding's Pleadings and Evidence

Ms Wedding took a somewhat unconventional approach to pleading: the material facts comprising her alleged cause of action were contained not only in her Statement of Claim but in her Summons and the two affidavits she filed.
The relief that the plaintiff sought in the Summons in the proceedings was the following: "1 Seeking "Just Compensation" for the property with purchase of Lots [address not published] Hardy St by the Government. Plaintiff could not go ahead with "quiet enjoyment" or maintenance, development, or sale, due to intimidation by harassing actions such as damage to trees & fences, obstruction of roads, blocked access to eastern lots, removal of signs, trespass by neighbours grazing cattle on JWSF property, & private nuisance such as unauthorised erection of electric, wire & barbed wire fences. 2 Seeking "Compensation" for time spent corresponding with Government and agencies, which was protracted when the Plaintiff's questions were not clearly answered, with referrals to various departments & individuals, although the Plaintiff attempted to speed up the process by asking to meet officials to discuss solutions such as donating land. 3. Seeking "Compensation" for personal suffering; including distress, & reduced energy levels for university, relationships, & work (& see physical injury treated at Bega Hospital). 4. Seeking some "Compensation" towards "Expectation loss" by the Plaintiff, who bought 18 titles of prime land, with western lots overlooking the town & divided by a sheer cliff from eastern lots which are park-like near the Cobargo showground."
The plaintiff here describes a mixture of relief. The first prayer for relief appears to seek resumption of the Property together with just compensation, because no other use of the land is possible by the plaintiff, due to third party actions. This is not obviously founded on a claim in negligence. The second prayer for relief seeks compensation for inconvenience due to administrative delays by government agencies. This also does not identify an obvious cause of action. The third and fourth prayers for relief appear to be closer to a claim for damages for what could be tortious injury. It is necessary to look at other documents filed on the plaintiff to ascertain that the plaintiff does appear to be complaining of tortious injury.
The Summons also described the Nature of the Dispute as follows: "Plaintiff seeks natural justice from the Attorney-General because of negligence by the NSW Government which did not govern to successfully resolve issues of deteriorated & blocked access roads, devaluation, trespass, private nuisance, damage to property & possible adverse possession. Plaintiff has a duty to mitigate against losses to Super Fund commercial investment, & suffered through delays in corresponding with Government. The Plaintiff seeks judicial advice about defacing of property by power lines, & information withheld by power companies, & advice about the financial viability of the Super Fund, after complaints to local Council & Police then to Government Ministers did not protect the Plaintiff from harassment & intimidation by locals, who were not involved with Aboriginal land rights or easements."
At one level the Nature of the Dispute as described in the Summons (and some other parts of the Summons) would appear to found a claim for administrative law remedies and perhaps also judicial advice under Trustee Act 1925 (NSW), s 63. But given the rest of what the plaintiff advances in her Statement of Claim and in particular the 17 March 2016 affidavit, such causes of action can be ignored.
Rather Ms Wedding's core complaint appears to be "negligence by the NSW Government" for failing to "successfully resolve issues" that include "deteriorated and blocked access roads, devaluation, trespass, private nuisance, damage to property and possible adverse possession" all of which seem to have resulted in losses to the plaintiff "suffered through delays in corresponding with Government". The plaintiff appears to be alleging that the State is guilty of negligence due to delay in dealing with these various issues that appear to have been caused by third parties. The other materials Ms Wedding has subsequently filed appear to be directed towards such a claim.
The form of the Summons also provides for a Statement of Issues. But this part of the Summons does not throw much further light on the plaintiff's claims. She talks in the "Issues" of her intimidation "by the behaviour of the Cobargo locals and lack of action on her behalf by authorities". She then complains of "Government representatives" causing the plaintiff distress "by not clearly answering the plaintiff's emails in understandable English and by delays in referring the plaintiff's queries to various people and departments" and "by not quickly meeting the plaintiff" for a full discussion to consider possible solutions. Much of the rest of the Statement of Issues is in substance a complaint about the failure by Government representatives: to meet the plaintiff, to stop neighbours gaining unauthorised access to the property, to allow local roads to deteriorate, to fail to deal with offers made by the plaintiff in the public interest, and to stop local people taking illegitimate advantage of the plaintiff's absence from her land. Finally the Statement of Issues complains about the failure of Government to "secure the rights of all landowners surrounding Hardy Street". Various other complaints are made about electricity power companies writing confusing correspondence to the plaintiff and placing unauthorised power poles on her land and unauthorised alterations to Hardy Street by the Council.
None of this material is set out in the Statement of Issues in such a way that it could be said to logically support a claim in negligence.
The Statement of Claim throws a little more light on the cause of action the plaintiff pleads than does the Statement of Issues in the Summons. The Statement of Claim claims just compensation for property, and compensation for costs, interest, expectation loss and non-economic losses (said to be "distress and for time lost"). The Statement of Claim is sufficient to identify that this is not purely a claim for economic loss. The pleading alleges that the government and the Minister for Roads referred the plaintiff's queries to a number of people and caused the plaintiff to suffer from unnecessary delays and confusion. The plaintiff also alleges that the Minister for Planning was negligent not responding in a timely manner or with an understandable explanation to the plaintiff's queries even though the Minister had all the relevant maps and plans of Hardy Street as provided by the plaintiff. The Statement of Claim does not appear to make claims against the Council or the local member but it does make clear that the plaintiff alleges she suffered non-economic losses in the form of mental and physical stress and loss of faith in the government's ability to ensure justice for an ordinary citizen as a result of the government's conduct.
Some of the material that best categorise Ms Wedding's complaints as being actions in negligence were contained within her 17 March 2016 affidavit. Relevant extracts from that affidavit, describing the case in negligence that she seems to be pleading, are set out later in these reasons, when individual duties of care are analysed more closely.
But at this stage, the duties of care that Ms Wedding alleged that the State owed her and breached can be summarised as follows: 1. A duty to ensure fair treatment is given to citizens by local councils 2. A duty to ensure fair treatment is given to citizens by the police (extending to the protection of property) 3. A duty to ensure fair treatment is given to citizens by the Minister for Planning (extending to providing reasonably accurate plans and maps of property and access thereto) 4. A duty to ensure fair treatment is given to citizens by the Ministers for Roads and Crown Lands (extending to a duty to liaise to ensure a citizen with a complaint does not "undergo prolonged delays and confusion") 5. A duty to ensure fair treatment is given to citizens by local Members of Parliament
Ms Wedding appeared to seek relief for both economic and non-economic loss arising out of these alleged breaches of the above duties and seemed at times as though she intends to pursue a claim for resumption of the land (albeit a not very adequately pleaded claim).
The State submitted at the hearing on 17 August that Ms Wedding's action in negligence is "doomed to fail" and that it does not owe any of these pleaded duties of care to her, as are best described through her affidavit of 17 March 2016. The State contends generally that the alleged duties would, if they existed: be owed to the public at large and not to the plaintiff; be inconsistent with applicable legislation; and be unsupportable at general law.
Ms Wedding provided supplementary written submissions and several volumes of material for the Court's consideration. The additional materials that she provided did not relate very closely to a claim in negligence and fell into four main categories.
First, Ms Wedding provided materials in support of principles of sustainable development and of public participation in local environmental decisions, which, her case infers, would have required the Council to ensure Hardy St was able to be used by all local residents. Those materials included the Environmental Planning and Assessment Act 1979 (NSW); Protection of the Environment Administration Act 1991 (NSW); the State Environmental Planning Policy No 70 - Affordable Housing (Revised Schemes) (SEPP70); the Rio Declaration on Environment and Development; the Report of the World Commission on Environment and Development: Our Common Future; the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the "Aarhus Convention"); and Mabo v Queensland (No. 2) (1992) 175 CLR 1 ("Mabo"). She submitted that she put forward Mabo as authority that international law is a legitimate and important influence on the common law.
Secondly, Ms Wedding provided materials in support of the existence of general property rights, including the International Covenant on Civil and Political Rights; Real Property Act 1900 and the Commonwealth of Australia Constitution Act 1901 (Cth).
Thirdly, Ms Wedding provided cases and materials in support of the contention that Crown immunity has been abolished. These included Commonwealth v Mewett (1997) 191 CLR 471; Judiciary Act 1903 (Cth); and "The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation" (ALRC Report 92).
Finally, Ms Wedding provided materials in respect of the relationship between Councils and the State, namely State Environmental Planning Policy No 1 - Development Standards (SEPP1) and Wehbe v Pittwater Council [2007] NSWLEC 827. This material was said to support the proposition that councils should raise any matter of significance to the public interest with the Director-General. On Ms Wedding's case, the issue of Hardy Street should have been raised with the Director-General. She also included among this group of materials the text of Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, a case identifying the principles to be considered in relation to the use of Development Control Plans by Councils, including the compatibility of council planning policies with the policies of a "relevant Government agency".
The relevance of much of this material is doubtful. Ms Wedding did not seek in her submissions to use particular passages from these cases or materials to support the existence of the duties of care or other elements of her claimed cause of action.
Many of the principles of law for which the plaintiff contended by advancing these materials were not in dispute. The real issues concerning Ms Wedding's pleaded case mostly lay elsewhere. The Court did its best to examine her materials for the purposes of distilling matters of relevance to her case.

Naming the Defendant in these Proceedings

Ms Wedding has variously named the "Attorney General of NSW on behalf of the State of NSW Government" as the defendant to these proceedings and then in subsequent court documents "the State of New South Wales" as the defendant responsible for the negligence she alleges. No court order entered in the proceedings formally changes the name of the party joined from the Attorney General of NSW to the State.
But the Court assumes that the joinder intended is of the State. That is largely consistent with applicable legislation. The Crown Proceedings Act 1988 (NSW) was introduced to abolish the procedure of appointing and suing nominal defendants in place of the government, repealing the Claims against the Government and Crown Suits Act 1912 (NSW). Section 5 of the Crown Proceedings Act provides that a person may bring a claim against the Crown (not being a claim against a statutory corporation representing the Crown) under the title "State of New South Wales". The Crown is defined by s 3 as including the Government of NSW, a Minister of NSW, and a statutory corporation or other body representing the Crown in right of NSW. The correct defendant in respect of the tortious liability of a Minister is therefore the State of NSW: Bhattacharya v Minister for Police (NSW) [2001] NSWSC 520.
In Sneddon v State of NSW [2012] NSWCA 351 ("Sneddon"), it was argued that the State of NSW was liable for the conduct of a Member of Parliament under the Crown Proceedings Act or the Law Reform (Vicarious Liability) Act 1983 (NSW). By majority, the Member was held liable under the latter Act.
Section 9 of the Act, however, provides: "(1) This Act (except for section 10) does not affect any law, custom or procedure under which civil proceedings may be brought by or against the Crown under any title. (2) Without limiting subsection (1), this Act does not affect any law, custom or procedure under which the Attorney General is entitled or liable to sue, or be sued, or to intervene in any proceedings on behalf of the Crown, on the relation of, or on behalf of, any other person or in any other capacity or for any other purpose whatever."
The Explanatory Notes to the Crown Proceedings Bill 1988 stated in relation to this section that: "Clause 9 makes it clear that, in allowing civil proceedings to be taken by and against the Crown under the title "State of New South Wales", the proposed Act does not prevent civil proceedings from being taken by and against the Crown under another title. An example is proceedings in which the Attorney General becomes a party on behalf of the Crown for the purpose of protecting the public interest. The proceedings may be to protect the general public welfare (e.g. to restrain a public nuisance) or to protect the welfare of a particular group (e.g. to enforce a charitable trust). In these proceedings the Attorney General is carrying out the Crown's role as parens patriae (parent or guardian of the people). The proceedings may be taken on the Attorney General's own initiative or on relation-that is, at the request of a person who accepts responsibility for the costs which may be ordered against the Crown."
Despite the lack of formal orders the parties in this case appear to have adopted that the State is the defendant, and the Court will do the same in the circumstances. The difference probably matters little in these proceedings.

Applicable Law

The applicable law is not contentious. The Court has had regard to the principles governing the summary dismissal of proceedings. The Court was also referred by the parties to two general aspects of the relevant law of torts: the circumstances in which public authorities will be held to owe duties of care and the duty of such an authority to avoid misconduct by others.

Summary Dismissal

The principles to be applied upon an application for summary dismissal against a plaintiff are well known. They have been stated in many cases but most recently have been set out in the remarks of Gleeson JA in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [196] to [200]: "[196] It is not in dispute that "great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal": General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ). [197] More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]: "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." [198] Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24]. [199] In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]: "The question is...whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated." [200] Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24]."
Although it is common practice to look to the plaintiff's Statement of Claim on a motion under UCPR, r 13.4(1), the Court is entitled to consider evidence on any application under the rule and is not confined to dealing with the matter solely by reference to the pleadings: Wenlock v Moloney [1965] 2 All ER 871; Howden v Truth & Sportsman Ltd (1937) 58 CLR 416 at 419. The discussion above shows that a wider view was necessary in this case. As will be apparent below, the Court has had regard to Ms Wedding's assertions of five duties to take reasonable care, which are better described in her affidavit of 17 March 2016 rather than in her Statement of Claim, as founding her alleged claim in negligence.
The State did not seek to strike out the plaintiff's action on the basis that her pleadings are embarrassing in form: UCPR, r 14.28. Rather, the State's sole basis for striking out the proceedings is that they did not disclose a reasonable cause of action.

Aspects of the Duty of Care Allegedly Owed to the Plaintiff

Some common general themes run through the State's contentions that Ms Wedding's pleaded duties of care against the State are defective. These general themes were that the pleaded duties of care are not maintainable in light of the principles applicable in cases where public authorities are said to owe duties of care. Another theme is the obligation that public authorities owe to avoid misconduct by others.
As to the first of these themes, the State submitted that the "general principles to guide the Court in determining whether or not a novel duty exists with a public authority" are the six steps by articulated McHugh J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 ("Crimmins") at [93]: "In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions: Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty. Would such a duty impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? If yes, then there is no duty. Are there any other supervening reasons in policy to deny the existence of a duty of care (e.g., the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty."
Recently Adamson J applied the Crimmins test in Hammond v NSW [2013] NSWSC 304 at [51], a decision later approved by the Court of Appeal: Hammond v NSW [2015] NSWCA 304 at [27].
The State also submitted that Ms Wedding had failed to show that the State had a duty to control any of the other actors in her case that she had identified. The State referred the Court to Hayne J's judgment in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [114], in which his Honour stated: "… [A] duty to take steps to control that conduct [the conduct of a third party] should not be found if the person said to owe the duty has not the capacity to fulfil it. …"
On the same issue the State referred the Court to the judgment of Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [150], where their Honours stated that: "The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. It assumes particular significance in this appeal. This is because a form of control over the relevant risk of harm, which, as exemplified by Agar v Hyde, is remote, in a legal and practical sense, does not suffice to found a duty of care."
Another incidental but general matter the State emphasised that was relevant here was the "difficulty of formulating the practical content of a duty to take reasonable steps to avoid foreseeable risks of harm, for the purpose of measuring the performance of an authority against such a duty, may be a reason for denying the duty": Crimmins at [5] (Gleeson CJ); and Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1 ("Dansar") at [150].
And Ms Wedding asserted in respect of each of the five alleged duties that a "reasonable person" would expect the Ombudsman, relevant Ministers (Local Government, Police, Planning Roads, Crown Lands), associated Departments and relevant Member of Parliament to have taken steps to redress the alleged inequalities.
These reasons now analyse each of the five alleged duties of care upon which Ms Wedding relies.

A duty to ensure fair treatment is given to citizens by the Local Council

Ms Wedding best describes the relevant duty of care she asserts against the State because of the conduct of the local Council, in her affidavit of 17 March 2016. There she describes the following duty: "The NSW Government, through the Minister for Local Government, and the Ombudsman for New South Wales Government, has a duty to ensure fair treatment is given to citizens by local Councils, by providing oversight of Local Councils, and by considering concerns of citizens about inequalities in treatment of citizens from their local Councils, and by responding by taking action to redress inequalities."
The State contends that the alleged duty would involve it taking steps to control the Council that would be inconsistent with the statutory scheme existing under the Local Government Act 1993 (NSW) because under the Act, the State has no general power of direction or control over councils.
The State in its supplementary submissions provided an extensive summary of the key provisions of the Act which provide for involvement by the State government in the activities of a Council through the Minister, Governor and Departmental Chief Executive (Chief Executive of the Office of Local Government). The State contended that the most important of those provisions were Chapter 13, Parts 6 and 7 of the Act, which provide for a Minister to issue a mandatory performance improvement order specifying actions to be taken by a Council or to temporarily suspend a Council for up to six months and appoint an interim administrator. The State submitted that these provisions are directed at only enabling the State's intervention in the affairs of a Council only to address serious collective dysfunction and poor performance on the part of the Council. These provisions are not consistent with the existence of a duty of care of the kind Ms Wedding now alleges, which assumes that the State can intervene in the day-to-day affairs of the Council.
The State submitted that the principles stated in Sydney City Council v Reid (1994) 34 NSWLR 506 ("Reid") at 519-20 are applicable to this alleged duty of care. In Reid, Kirby P referred to the Minister's powers under the Act as "highly particularised" and noted that Councils were "guaranteed a very high measure of independence and self control". Kirby P stated at 519-520: "Local government authorities are, and should be, independent of the Executive Government to the highest degree possible. That view is consonant with their place in the Constitution Act 1902 (Cth). It is also consistent with the highly particularised list of powers of ministerial interference in the Local Government Act. Those powers do not reach down to the kind of ministerial control of employees which was found to exist in respect of area health services in Mounsey. On the contrary, local authorities and their councils are guaranteed a very high measure of independence and self control by the Local Government Act. Nowhere more so than in respect of any "senior staff" who are to have a high level of personal managerial responsibility. Whilst local government is indeed a form of government, it is also a creature of statute. Out of recognition of the imperatives of democratic self government, the statutory provisions have enacted the creation of largely independent corporations accountable (in the ordinary course) not to the minister (that is, the Crown), but to the people who elect them. In this sense, the high measure of independence of statutory corporations, by which local government is ordinarily carried out, is inconsistent with viewing their employees as servants of the Crown. The exceptional powers of ministerial intervention remain that: exceptions. For the purpose of characterisation of the nature of the service, it is more appropriate to catalogue it as being "in the service of local government authorities" and not "in the service of the Crown".
The State contended that the duty of care relationship between the State and the Council was relevantly decided Lobsey v Liverpool Plains Shire Council [2014] NSWSC 446 ("Lobsey"), which applied the principle in Reid. Even though the Local Government Act has changed since 1993, I accept the State's submission that the additional provisions of Chapter 13, Parts 6 and 7 do not diminish the separation of the State from day-to-day control over the Council. In Lobsey claims against the State were dismissed, on the basis that the State was not vicariously liable for the conduct of Liverpool Council or its employees.
In my view, the State's argument is persuasive. The postulated duty of care against the State in respect of the conduct of the Council is inconsistent with the statutory separation of the Council from the State and fails Step 6 in Crimmins. The relations between the two are governed by legislative provisions which established authority such as Reid and Lobsey has clearly indicated do not found a duty of care on the part of the State to control the conduct of councils or their officers.

A duty to ensure the Police give fair treatment to citizens

Ms Wedding describes the duty of care she asserts in relation to the Police in her 17 March 2016 affidavit. She describes it in the following terms: "The NSW Government, through the Minister for Police, has a duty to ensure fair treatment is given to citizens by Police, by providing oversight of LAC [Local Area Command] and local Police, and by considering concerns of citizens about inequalities in treatment of citizens from Police, and by responding by taking action to redress inequalities. The Police force has a mission and a duty to provide to protect life and property of citizens, and to detect and prevent crime."
In her Statement of Claim (at [6]) Ms Wedding alleges that the Police Force has a duty to take reasonable care to protect her property and person, to use her own words "as they do for all citizens" and that they did not provide her "with protection from ongoing damage to property and private nuisance". And in her initial submissions on this motion, Ms Wedding stated that "[t]he Police as an arm of the Government has a stated duty or mission to protect both people and their property".
Ms Wedding also contended in her submissions that a reasonable person would expect the Minister for Police to "motivate LAC [Local Area Command] and local Police to support fair treatment of all citizens".
Ms Wedding submitted, and the State accepted, that the State is vicariously liable under the Law Reform (Vicarious Liability) Act 1983, ss 6 and 8 for the negligence of police officers in the course of their duties: see also New South Wales v Ibbett (2006) 229 CLR 638, at [5].
But the State submitted that on the facts pleaded in this case, to the extent they can be ascertained, the police owed no duty of care to Ms Wedding. I find this contention persuasive. In Rickard v State of NSW [2010] NSWSC 151 [43] - [67] ("Rickard") R.A. Hulme J, after an extensive review of applicable authority, held that a police officer does not ordinarily owe a duty of care to a citizen in respect of the exercise of the police officer's functions to investigate and suppress crime. Rickard is one of a long line of cases in Australia applying the principles stated by the House of Lords in Hill v Chief Constable of West Yorkshire [1989] AC 53 ("Hill") in which the House of Lords held as a matter of public policy that police were substantially immune from actions of negligence in respect of their activities in the investigation and suppression of crime. Hill has been cited with approval in Australia on a number of occasions at a high level: D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [101] per McHugh J ("D'Orta"); State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 per Spigelman CJ at [115] and Tame v NSW (2002) 211 CLR 317 ("Tame").
But the principle in Hill was not a blanket immunity for police, who could still be liable for some other torts committed in the course of their investigatory functions, such as the torts of assault, unlawful arrest, wrongful imprisonment, malicious prosecution and the like: see Rickard at [52] and Hill at [59]. But in my view, no such circumstances are pleaded here. Nor is there any plea that some other special circumstances take this case outside the principle in Hill, D'Orta, Tame and Rickard.
Therefore the decisions in D'Orta, Tame and Rickard are sufficient to dispose of this part of Ms Wedding's case. The Police owe no duty of care to citizens such as Ms Wedding in respect of the exercise of their investigative functions. And the plaintiff's pleadings construed at their widest do not identify any special circumstances indicating a potential liability in tort by reason of the conduct of Senior Constable Burton or those who supervise him. At their highest the alleged circumstances in this case were a routine call-out to an allegation of criminal trespass to property, which then became the subject of a brief police investigation. To the extent that the pleadings also mention "inequality of treatment" of the plaintiff that contention appears to flow from the failure of police to follow up their investigation in the plaintiff's interests and does not raise anything outside D'Orta, Tame and Rickard.
The State advanced other arguments in relation to the liability of the State for the conduct of the police. The State submitted that a duty of care to provide oversight of the police would be inconsistent with the scheme set out in Part 8A of the Police Act 1990 (NSW) which provides that complaints against police officers are to be investigated by the Commissioner for Police, Police Integrity Commission or Ombudsman.
The State also noted s 8(1) of the Police Act, which provides that: "The Commissioner is, subject to the direction of the Minister, response for the management and control of the NSW Police Force".
The State submitted that, in accordance with Griffiths v Haines (1984) 3 NSWLR 653 at 661 (which dealt with statutory provision analogous to s 8(1)), that s 8(1) would not give rise to a form of control in the Minister to support the existence of the alleged duty of care. It submitted that the provisions of the Police Act "plainly do not give rise to any form of control in the Minister over the conduct of police officers in undertaking their duties that would support the existence of the alleged duty of care owed by the Plaintiff".
But the Law Reform (Vicarious Liability) Act, which imposes statutory vicarious liability on the State displaces the need to consider the control issues discussed in Haines. But as indicated D'Orta, Tame and Rickard are a sufficient answer to the plaintiff's alleged duty of care.

A duty to ensure the Minister for Planning gives fair treatment to citizens

Ms Wedding described her alleged cause of action against the Minister for Planning in her 17 March 2016 affidavit, as follows: "The NSW Government, through the Minister for Planning, LPI, and Department for Planning, and associated Departments to whom the Minister makes referrals, has a duty to ensure fair treatment is given to citizens who purchase property, by providing reasonably accurate plans and maps of property and access roads, and by considering concerns of citizens about inequalities in treatment from their local Councils regarding variances to plans, maps, property, roads, and lack of access, and by responding by taking action to redress inequalities".
Ms Wedding submitted that the "NSW Government did not give adequate consideration to the plaintiff's emailed attempts to provide evidence, negotiate and mitigate, such as offers to meet and view the property, and to donate part of it to help widen Hardy St". This was first in substance an allegation that the Minister for Planning had failed to engage with Ms Wedding in relation to her plans for access to the Property and to take steps to facilitate proper access to her land through Hardy Street.
There are several problems with founding a duty of care on these contentions. Whatever duties the Minister for Planning owed, they were not duties the Minister especially owed to engage with the plaintiff or a specific class of which she is a member. But they were duties the Minister owed to the general public. So, in my view, looking at the Minister as a public authority the postulated duty must fail on the second step in Crimmins.
But there may be another way of interpreting Ms Wedding's case. The wording of the duty in the 17 March 2016 affidavit is one to provide "reasonably accurate plans and maps of property and access roads". This might possibly lead to a contention that the Minister had assumed responsibility in a particular case to provide an accurate plan or map to the plaintiff and instead was supplied with an inaccurate plan of the property such as might raise the existence of a duty of care.
The only inaccuracy that seems to be identified in the plaintiff's case and relevant to the time that the plaintiff purchased the Property is set out in her 17 March 2016 affidavit, "When the plaintiff bought the property government maps and plans and internet photos showed it as bordered by roads 'one chain wide' not joined to any properties". There is a plan of subdivision for Deposited Plan 1460 which created the lots comprising the Property. But it is not at all apparent what the contention of inaccuracy is in the plan of subdivision statement, "all roads are expressed one chain wide". In my view Ms Wedding has failed to trace out the basic ingredients of a cause of action based on such a duty of care.
A possible inaccuracy is perhaps that Hardy Street is not a road one chain wide, because in physical terms it is not a formed road. But that was not clearly articulated in the materials Ms Wedding provided. It is not up to the Court to try and construct from the range of materials that Ms Wedding has provided a cause of action for her. The Court must view the materials as the Court finds them and in my view there is no comprehensible allegation of relevant breach on this subject.
The State also submitted that there was no duty of care because there was no evidence of reliance on or an assumption of responsibility about the accuracy of the map: Dansar at [171]-[172]. But it is not necessary for the plaintiff to show evidence of reliance or assumptions of responsibility about the accuracy of the map. That would be a matter for trial. And in any event, it may be sufficient for the present purposes to assume in the plaintiff's favour that the Minister has functional responsibility for the plan and has relevantly assumed responsibility for its accuracy.
In my view, the plaintiff has failed to identify any recognisable duty of care or cause of action exists on this subject.

A duty to ensure the Minister for Roads gives fair treatment to citizens

Ms Wedding sets out in her affidavit the duty of care she alleges the State owes in respect of the actions of the Minister for Roads and Crown Lands. She alleges that: "The NSW Government, through the Minister for Roads, and the Minister for Crown Lands, have a duty to ensure fair treatment is given to citizens, by considering concerns of citizens about inequalities in treatment, and by responding by taking action to redress inequalities. The Minister for Roads and the Minister for Crown Lands have a duty to liaise and communicate with each other in an intelligent process so that a citizen with a complaint does not undergo prolonged delays and confusion with referrals backwards and forwards between them and associated Departments to whom the Ministers referred a citizen's complains".
The State submitted that the content of this asserted duty, especially insofar as it requires liaising and communicating, would be "very difficult to formulate".
This submission is persuasive. The pleaded content of this duty appears to be little more than an exhortation for better Government administration. As pleaded, it is not a duty to take reasonable care to avoid foreseeable damage or loss to Ms Wedding or a class that includes her. The Court must take Ms Wedding's pleading as the Court finds it. The Court does not have to attempt to construct a duty of care out of the materials Ms Wedding has supplied. Moreover, it is difficult to give any practical content to the duty she describes here for the purpose of measuring the performance of the Minister or any other public authority: Crimmins at [5] and Dansar at [150].

A duty to ensure that Members of Parliament give fair treatment to citizens

Ms Wedding contended that her local member of Parliament representing the electoral area where the Property is located owed her a duty of care. The member of Parliament concerned has not been joined as a party. The precise allegations pleaded against the member of Parliament are obscure and difficult to extract from the material Ms Wedding has advanced, as is the relationship she alleges between the member of Parliament and the State.
The way to best appreciate the nature of the case Ms Wedding advances in respect of this alleged duty of care is to look at how she formulates it in her own words. Ms Wedding contended in her 17 March 2016 affidavit that: "The NSW Government, through its local members, ie the Member for Bega, has a duty to attempt to attempt to [sic] ensure fair treatment is given to citizens who request help from their local members, if that local Member is presented as being concerned with the local people and their interests. The local Member can reasonably be expected to have a duty to consider concerns of local citizens about inequalities in treatment (from their local Councils, Police and other local citizens) and to respond by referring, consulting, or taking action to redress inequalities".
The State put a very broad submission at the hearing that "the policy reasons for denying existence of such a duty (based on the separation of powers) are clear and overwhelming". The submissions the State made on this issue were not much more specific than this.
The facts sought to be established by Ms Wedding here seem to be no more than that Ms Wedding raised with the local member the failure of other local authorities, including the Council and the police, to take up the issues which she had raised with them about the Property and that he did not do anything for her. These background facts, together with the allegation set out in Ms Wedding's 17 March 2016 affidavit make it reasonably clear that she is complaining about the discharge of his functions as a local member towards her, alleging that he owes her a duty of care in the discharge of those functions.
There is nothing present in this case such as was present in the Court of Appeal's decision in Sneddon which dealt with the issue of the State's vicarious liability for the conduct of a member of Parliament in relation to an employee in the member's electoral office. Sneddon engaged questions of whether the member of Parliament was acting in those circumstances as a delegate of the Speaker of the Parliament for the purposes of the application of Law Reform (Vicarious Liability) Act, s 8. But Sneddon did leave open the possibility that Law Reform (Vicarious Liability) Act, s 8 might expose the State to liability for the conduct of a member of Parliament in the discharge of his or her ordinary functions as a member of Parliament in dealing with constituents, without upsetting the constitutional balance, see Sneddon at [70] - [72] per Basten JA; although Meagher JA took a different view (at [216] - [227]) on this issue.
But the plaintiff's pleaded claim can be dealt with on this question at a more basic level. The duty that Ms Wedding alleges is one not for the member to take reasonable care to avoid economic or physical harm to the constituent. Rather her claim is one for the Government to ensure that the member treats New South Wales citizens fairly. Whilst it is the expectation of all citizens that local members of Parliament will treat them fairly, Ms Wedding did not assist the Court with any authority to suggest that the executive government had a duty to take reasonable care to ensure that Members of Parliament provide fair treatment to citizens in their electorates.
Moreover, it is difficult to formulate the practical content of the duty the plaintiff postulates, in order to measure the performance of a member of Parliament if the member is to be treated as some kind of public authority for Crimmins' purposes: see Crimmins at [5] and Dansar at [150]. What may be fair to one constituent may be quite unfair to another. A duty for a local member to act in the interest of one constituent such as the plaintiff, when the local member no doubt also represents all the plaintiff's neighbours as well, is not a realistic candidate for a duty of care.
In my view, this part of the plaintiff's claim can be dismissed.

Conclusion and Orders

For the reasons given the Court concludes that the plaintiff's claim as pleaded in her Summons and Statement of Claim fails to disclose a reasonable cause of action. The Court will therefore give the summary relief sought and dismiss these proceedings generally pursuant UCPR, r 13.4(1)(b).
The Court therefore orders that: 1. These proceedings be dismissed generally; and 2. The plaintiff pay the defendant's costs of these proceedings. 3. That exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2016

Government and Crown Suits Act 1912(NSW)

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Environment Administration Act 1991(NSW)

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