Julia Wedding ATF The Julia Wedding Super Fund v Attorney General for NSW on behalf of State of NSW Government - [2017] NSWCA 70 - NSWCA 2017 case summary — Zoe

NSWNSWCA

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

[2017] NSWCA 70

Court of Appeal (NSW)|2017-03-27|Before: McColl JA, Slattery J, Darke J

View original source

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2017-03-27

Before

McColl JA, Slattery J, Darke J

Catchwords

[1999] HCA 59 Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1
[2014] NSWCA 364 House v The King (1936) 55 CLR 499

Source

Original judgment source is linked above.

Catchwords

[1999] HCA 59 Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1[2014] NSWCA 364 House v The King (1936) 55 CLR 499

Judgment (15 paragraphs)

[1]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[2]

Judgment

THE COURT: The applicant, Ms Julia Wedding, in her capacity as trustee for The Julia Wedding Super Fund, seeks leave to appeal from a decision of Slattery J in which his Honour summarily dismissed the proceedings she brought against the respondent, the State of New South Wales, on the basis that her summons and statement of claim failed to disclose a reasonable cause of action. [1]
Although the applicant variously named the "Attorney General of NSW on behalf of the State of NSW Government" and, in subsequent court documents, "the State of New South Wales" as the defendant responsible for the negligence she alleged, the primary judge "assume[d] that the joinder intended [was] of the State", on the basis that that was the approach the parties had adopted and it was consistent with the Crown Proceedings Act 1988 (NSW). [2]

[4]

Factual background

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.
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".
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]
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.

[5]

Primary judgment

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]
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]
Each duty of care was described in the applicant's 17 March 2016 affidavit in terms his Honour considered in determining the motion.
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]
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]
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]
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]
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]
The primary judge analysed the five duties of care the applicant propounded as set out below.

[10]

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

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]
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]
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]

[14]

Determination

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.
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.
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.
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."
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]
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.
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.
We dismiss the application for leave to appeal with costs.

[15]

Endnotes

Julia Wedding as trustee for the Julia Wedding Super Fund v Attorney General for New South Wales [2016] NSWSC 1379.
Primary judgment (at [43] - [48]).
Supreme Court Act 1970 (NSW), s 101(2)(e).
Primary judgment (at [12]).
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]).
Primary judgment (at [19]).
Ibid (at [11]).
Ibid (at [14]).
Ibid (at [13] - [22]).
Ibid (at [26]).
Ibid (at [33]).
Ibid (at [59]).
Ibid (at [25]).
Ibid (at [35]).
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]).
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]).
Ibid (at [61]).
Ibid (at [66]).
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.
Ibid (at [67]).
Ibid (at [73]).
Ibid (at [77]).
Ibid (at [78]).
Ibid (at [79]).
Ibid (at [80]).
Ibid (at [82], [85]).
Ibid (at [86]).
Ibid (at [88]).
Ibid (at [90]).
Ibid (at [92]).
Ibid (at [89], [94], [95]).
Ibid (at [97] - [98]).
Ibid (at [23]).
(1936) 55 CLR 499; [1936] HCA 40.
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

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

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (15 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (12)