Julia Wedding ATF The Julia Wedding Super Fund v Attorney General for NSW on behalf of State of NSW Government

Procedural Background

1. On 2 February 2016 the applicant filed a summons with a return date of 26 February 2016, together with an undated affidavit, commencing proceedings in the Equity Division of the Supreme Court against "the Attorney General of New South Wales on behalf of the State of New South Wales Government."
2. On the return date of the summons, Darke J granted leave to the respondent to file a notice of motion to strike out or dismiss the summons. The matter was stood over until 8 April 2016 in his Honour's Real Property list.
3. The respondent filed its notice of motion on 4 March 2016 seeking an order for summary dismissal. The motion was listed for hearing before Darke J on 8 April 2016.
4. On 8 April 2016, at the hearing of the motion, the applicant filed an affidavit sworn on 17 March 2016 purporting to identify causes of action, breaches and damage she asserted she had suffered "because of negligence by the NSW Government". A proposal emerged to argue the motion in the context of a fully pleaded case. In order to facilitate this objective, Darke J granted the applicant leave to file a statement of claim, and stood the respondent's motion over to the Registrar's list on 7 June 2016 who subsequently set down the motion for hearing on 17 August 2016.
5. On 25 May 2016 the applicant filed a statement of claim, on this occasion nominating the "State of New South Wales Government" as the defendant, seeking what she describes as "compensation" for the loss of value to her property in Hardy St, Cobargo, costs, interest, expectation loss and various other alleged non-economic losses.
6. The respondent's motion was heard on 17 August 2016. In dealing with it, the primary judge had regard to the summons, the statement of claim and the applicant's affidavit.

Factual background

1. The applicant's case revolves around her purchase in May 2010 of a property "at Hardy St", the Cobargo property (the Property) which she bought as trustee for her self-managed superannuation fund. The Property is situated within the shire administered by the Bega Valley Shire Council (Council), and comprises some 18 separate lots.
2. In short, the applicant's complaint is that, although "at the time she purchased the Property, Hardy St was clearly shown on NSW Government maps and plans (and consequently on internet advertising) as a road one chain wide running between the Plaintiff's property and her northern neighbour's property" her access to the property has been "blocked", [4] preventing her from accessing much of her property, as a consequence of which she alleged she suffered economic and non-economic loss. [5] It appears that after she purchased the property, the applicant was informed by the Department of Primary Industries that "Hardy St" was a "private road", a status subsequently confirmed by the Department of Transport and Roads. [6] The applicant alleged in her statement of claim that she "work[ed] towards her reasonable expectation that Hardy St would eventually be opened in accordance with Government maps and plans".
3. The applicant appears to have been prompted to make inquiries about the status of "Hardy St" after a dispute developed with a neighbour who sought 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, whereas she preferred to improve "Hardy St", on the northern side of the Property, which she alleged was also a Crown road and would provide access to all and not just some of the lots on the Property. [7]
4. Thereafter, the applicant alleged, disputes arose with her southern (and, in due course it appears her northern) neighbours, including incidents of trespass which the Police refused to investigate, or did not adequately investigate and "the Council [refused to] … unblock Hardy St". [8] The applicant made numerous other complaints to the Council and many other public authorities, (including the local police, two Government Ministers and her local Member of Parliament) none of whom the applicant complains adequately addressed, let alone resolved, the issues she raised. [9] It should be emphasised that the applicant's allegations are precisely that. They are only identified in these reasons to seek to determine the application for leave to appeal.

Primary judgment

1. In her summons, the applicant 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." [10]
2. In the statement of claim, the applicant alleged breach of various duties of care she asserted were owed to her by numerous government entities and persons in governmental positions (including local councils) which duties were summarised by the primary judge 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." [Emphasis added.] [11]
3. Each duty of care was described in the applicant's 17 March 2016 affidavit in terms his Honour considered in determining the motion.
4. The applicant submitted that, in respect of each of the five duties, 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." [12]
5. As the primary judge understood her claim, the applicant appeared "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". [13]
6. The respondent's primary submission before the primary judge was that the applicant's action in negligence was "doomed to fail" and that it did not owe any of the duties of care listed above, as those duties, if they existed, would be owed to the public at large, not to the applicant, would be inconsistent with applicable legislation and were unsupportable at general law. [14]
7. The respondent also submitted that the applicant's pleaded duties of care were defective in that she had failed to show the respondent had a duty to control any of the other actors she identified and it would be difficult to formulate the practical content of such a duty to take reasonable steps to avoid foreseeable risks of harm, "for the purpose of measuring the performance of the Minister or any other public authority". [15]
8. In summarily dismissing the applicant's proceedings, the primary judge exercised his power to do so pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 13.4(1)(b). His Honour recognised that that power should be exercised with the utmost caution and only in very clear cases. [16]
9. The primary judge analysed the five duties of care the applicant propounded as set out below.

Duty to ensure fair treatment is given to citizens by the Local Council

1. The applicant articulated this alleged duty in her affidavit of 17 May 2016 in the following terms: "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." [17]
2. The primary judge accepted the respondent's "persuasive" argument on this point that, in essence, the postulated duty of care against the respondent regarding the Council's conduct was inconsistent with the "statutory separation" between the Council and the respondent as imposed by the Local Government Act 1993 (NSW). [18] Rather, "[t]he relations between the two are governed by legislative provisions which established authority … 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." [19]

Duty to ensure the Police give fair treatment to citizens

1. The applicant articulated this alleged duty in her affidavit of 17 May 2016 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." [20]
2. The primary judge described the circumstances relating to this duty of care as being, at their highest, "a routine call-out to an allegation of criminal trespass to property, which then became the subject of a brief police investigation." [21] His Honour held that, whilst the Police does not enjoy any kind of "blanket immunity", in these circumstances, the Police does not owe any duty of care to citizens such as the applicant in respect of the exercise of their investigative functions. It was accepted by the parties that the respondent is vicariously liable under the Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6 and 8, for the negligence of police officers in the course of their duties. But this was not such a case. [22]

Duty to ensure the Minister for Planning gives fair treatment to citizens

1. The applicant articulated this alleged duty in her affidavit of 17 May 2016 in the following terms: "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". [23]
2. The applicant's core contention in respect of this duty of care was that the Minister for Planning "failed to engage with [the applicant] in relation to her plans for access to the Property and to take steps to facilitate proper access to her land through Hardy Street." [24]
3. The primary judge considered there to be several problems with founding a duty of care on these contentions. The overarching issue appeared to be that any duties owed by the Minister for Planning were not especially owed to engage with the applicant or a specific class of which she is a member. Rather, the duties would be owed to the general public. [25] Insofar as the applicant appeared to rely on a contention that the Minister had assumed responsibility to provide accurate plans or maps to the applicant, the primary judge concluded it was not possible to identify any inaccuracy. Accordingly she had "failed to trace out the basic ingredients of a cause of action based on such a duty of care." [26]

Duty to ensure the Minister for Roads gives fair treatment to citizens

1. The applicant articulated this alleged duty in her affidavit of 17 May 2016 in the following terms: "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." [27]
2. The primary judge again found the respondent's submission, that the content of this asserted duty would be "very difficult to formulate", persuasive. No recognisable duty of care or cause of action could be identified as, in his Honour's opinion, the "pleaded content of this duty appear[ed] to be little more than an exhortation for better Government administration." As such, "it [was] not a duty to take reasonable care to avoid foreseeable damage or loss to [the applicant] or a class that includes her." [28]

Duty to ensure that Members of Parliament give fair treatment to citizens

1. The applicant articulated this alleged duty in her affidavit of 17 May 2016 in the following terms: "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". [Emphasis in original.] [29]
2. The existence of this duty was also rejected by the primary judge. His Honour considered that the background facts "made it reasonably clear that [the applicant] is complaining about the discharge of [the local member's] functions as local member towards her, alleging that he owes her a duty of care in the discharge of those functions." [30] His Honour considered the precise allegations pleaded against the Member of Parliament (who had not been joined as a party to the proceedings) to be "obscure and difficult to extract from the material [the applicant] has advanced". Critically, his Honour characterised the applicant's claim as "one for the Government to ensure that the member treats New South Wales citizens fairly." His Honour accepted that "… it is the expectation of all citizens that local members of Parliament will treat them fairly." Nevertheless, the applicant 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. In addition, the content of such a duty would be difficult to formulate. [31]
3. Accordingly, on 30 September 2016 the primary judge held that the applicant's claim as pleaded in both her summons and statement of claim failed to disclose a reasonable cause of action in tort. His Honour ordered that the proceedings be generally dismissed pursuant to UCPR r 13.4(1)(b) and that the applicant pay the respondent's costs of the proceedings. [32]

Issues on proposed appeal

1. On 12 October 2016 the applicant filed and served a notice of intention to appeal and, on 30 December 2016, filed a summons seeking leave to appeal.
2. The primary judge described the applicant's approach to pleading as "somewhat unconventional": "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." [33]
3. The applicant's proposed approach to her appeal is no more conventional. The draft notice of appeal is prolix, contains material more appropriate to an affidavit, assertions of factual error on the part of counsel for the respondent before the primary judge and, in addition to identifying what the applicant contended were "a few major errors" in the primary judgment, seeks compensation for the "ongoing distress at the ineffective Decision of J Slattery" [emphasis in original].
4. We have already commented on the prolixity of the notice of appeal. The orders sought are as verbosely described in the summons as are the grounds of appeal. Primarily, the applicant seeks leave to have her case heard by this Court. She complains that "there was never a hearing where the six years of evidence [referring to a folder she had filed in court] was fully investigated or the facts and events of the case argued." She also seeks orders "resolving ownership of the land upon which Hardy Street" is situated, for "compensation" for both economic and non-economic loss resulting from "suffering due to negligence", and finally that the order for allocation of costs take account of the applicant's attempts to mitigate.

Applicant's submissions

1. In essence, the applicant has maintained her allegations of negligence on the part of the respondent, claiming "ongoing suffering" caused by the inaction of the Police and Government. The applicant submitted that her loss includes personal distress and financial losses.
2. The applicant's summary of argument sets out various "unresolved issues" and "questions involved" in the leave application all with the same factual substratum we have earlier identified. These issues and questions are wide-reaching and drafted at a higher level of generality, many repetitive of the nature of the issues considered by the primary judge, others raising issues ranging from Torrens Title to human rights and international law, the extent of Crown Immunity, the Government's alleged duty to mitigate super fund losses and to provide compensation.

Respondent's submissions

1. The respondent opposes the grant of leave primarily on the basis that the applicant has not demonstrated an arguable case that the primary judge was "even arguably wrong" in summarily dismissing the proceeding below let alone any error in the House v The King sense. [34] The respondent submitted that the appeal would be doomed to fail.

Determination

1. In this Court, the applicant commenced her submissions by handing to the Court a statement to which she spoke. It commenced, relevantly, with a statement that she hoped "to see justice in this case where [she is] seeking fair treatment from the NSW government [and] the usual rights of property owners in Australia." This is a succinct statement of the five duties of care the primary judge identified as those the applicant seeks to propound.
2. It is, regrettably, apparent from the applicant's document that she has not appreciated that general statements about citizens' expectations of the polity's responsibilities to the citizenry may be a justifiable political aspiration, but do not identify a cause of action susceptible to legal remedy.
3. The applicant's complaints are founded in part, as we have said, on what she alleges were matters disclosed to her concerning access to the Property prior to its purchase and, further, by allegations made about the actions of locals in and about her property and her access to it. One might think, in the ordinary course, that any remedies the applicant might have in these respects are to be found in private actions against those who sold her the property or the locals of whose conduct she complains. That is not a course the applicant has apparently chosen to pursue.
4. In so saying, we should not be seen as in any way endorsing the proposition that the applicant may have any such claims, not least because of the time which has passed since her purchase of the Property. Nevertheless, we make this point to distinguish what may be private rights of action in contrast to those the applicant seeks to propound against the "NSW Government" to enforce the various duties identified by the primary judge all, in essence, founded on the notion that "fair treatment is given to citizens."
5. Generally speaking, it is only appropriate to grant leave to appeal in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable. [35]
6. Courts have an overriding duty to ensure that a trial is fair which, in the context of an unrepresented litigant, requires that a person does not suffer a disadvantage from exercising the litigant's right to be self-represented. However, even reading the draft notice of appeal in recognition that it is not drafted by a lawyer, we cannot discern any proposed ground of appeal which identifies an issue of principle, question of public importance or any substantial injustice suffered by the applicant (other than one(s) she subjectively perceives) which would warrant a grant of leave to appeal.
7. In our view, for the reasons the primary judge gave, no such duty of care was identified by the applicant in any of the documents the primary judge considered. The applicant has not demonstrated any basis upon which leave to appeal should be granted.
8. We dismiss the application for leave to appeal with costs.

Endnotes

1. Julia Wedding as trustee for the Julia Wedding Super Fund v Attorney General for New South Wales [2016] NSWSC 1379.
2. Primary judgment (at [43] - [48]).
3. Supreme Court Act 1970 (NSW), s 101(2)(e).
4. Primary judgment (at [12]).
5. Particulars of the non-economic loss suffered included "loss of faith in the Government's ability to ensure justice for an ordinary citizen": primary judgment (at [31]).
6. Primary judgment (at [19]).
7. Ibid (at [11]).
8. Ibid (at [14]).
9. Ibid (at [13] - [22]).
10. Ibid (at [26]).
11. Ibid (at [33]).
12. Ibid (at [59]).
13. Ibid (at [25]).
14. Ibid (at [35]).
15. Ibid (at [88]), citing Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 (at [5]) per Gleeson CJ; Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1; [2014] NSWCA 364 (at [150]).
16. Primary judgment (at [50]) referring to Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 (at [196] to [200]) per Gleeson JA; see also Collier v Lancer (No 2) [2013] NSWCA 186 (at [9] - [11]).
17. Ibid (at [61]).
18. Ibid (at [66]).
19. Ibid, referring to Sydney City Council v Reid (1994) 34 NSWLR 506 (at 519 - 520) per Kirby P; Lobsey v Liverpool Plains Shire Council [2014] NSWSC 446.
20. Ibid (at [67]).
21. Ibid (at [73]).
22. Ibid (at [77]).
23. Ibid (at [78]).
24. Ibid (at [79]).
25. Ibid (at [80]).
26. Ibid (at [82], [85]).
27. Ibid (at [86]).
28. Ibid (at [88]).
29. Ibid (at [90]).
30. Ibid (at [92]).
31. Ibid (at [89], [94], [95]).
32. Ibid (at [97] - [98]).
33. Ibid (at [23]).
34. (1936) 55 CLR 499; [1936] HCA 40.
35. The Age Company Ltd v Liu [2013] NSWCA 26 (at [13]) per Bathurst CJ (Beazley and McColl JJA agreeing). 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: 05 April 2017