Lawrence v Arambasic

Background

1. On 19 June 2019, Mr Lawrence and Dr White, the plaintiffs, filed a statement of claim seeking relief based on causes of action in trespass to land, trespass to persons and trespass to goods, which were alleged to have occurred during the eviction of the plaintiffs from a property in Lightning Ridge (the Lightning Ridge property) on 18 December 2018. The plaintiff sought relief against the registered proprietor of the Lightning Ridge property, the first defendant Mr Arambasic, and the Sheriff of New South Wales, the second defendant.
2. The Lightning Ridge property has a somewhat tortuous history, which provides the backdrop for the tortious conduct alleged in the plaintiffs' statement of claim. On 18 August 2014, Sackville AJA made orders in previous proceedings (2013/312662) concerning the Lightning Ridge property, giving judgment for possession of the property in favour of Mr Arambasic against the defendants in that case, Ms Veza and Mr Griffiths, who were in occupation of the Lightning Ridge property at that time: Arambasic v Veza (No 4) [2014] NSWSC 1109 at [175]. The factual basis for those proceedings was summarised concisely by Beech-Jones J in Arambasic v Veza (No 3) [2014] NSWSC 621 at [5] - [7]: "5 By way of brief summary, Ms White was the original registered proprietor of the [Lightning Ridge] property. She entered into an agreement with the defendants [Ms Veza and Mr Griffiths] described as a form of instalment purchase agreement in or about September 2005 (the "instalment agreement"). Under that agreement the defendants agreed to pay her a deposit of approximately $10,000 and to pay 1,308 instalments of principal and interest of $150 per week. The property was not transferred to the defendants. It was not intended that it would be transferred until they completed the purchase of the property. The instalment agreement conferred upon the defendants a right of possession of the property during its subsistence. 6 As noted by Davies J in Arambasic (No 1) at [3], at some point the instalments ceased to be paid. The affidavit evidence reveals a sharp disagreement about the circumstances in which that occurred and whose fault it was. 7 At a later time, Ms White "sold" the property to Mr Arambasic. Apparently the transfer records a purchase price of $1. However, the affidavit evidence reveals that the purchase price was $70,000 on what is described as an "as is" basis, namely Mr Arambasic taking the property, knowing that it was occupied by the defendants. Upon becoming the registered proprietor, Mr Arambasic filed proceedings seeking possession."
3. In those previous proceedings, Mr Arambasic and Dr White were co-plaintiffs with a common cause, although as Sackville AJA noted in Arambasic v Veza (No 4) at [8], their interests were "not necessarily identical".
4. From 11 December 2014 until 22 October 2017, Mr Arambasic resided at the Lightning Ridge property, which, as a result of the transfer executed on or about 19 December 2012, was, and remains, registered in his name. It appears, from the material before me, that on or around 8 September 2016 Dr White provided Mr Arambasic with a default notice for the $70,000 loan agreement referred to above and proceeded to demand possession of the Lightning Ridge property. It also appears that in or around December 2016, Dr White and Mr Arambasic began cohabitating in the premises, albeit with distinct living quarters separated by a protective lock. During the course of this living arrangement, on or around 29 November 2017, an interim apprehended domestic violence order was made as a result of an assault by Mr Arambasic on Dr White which resulted in the imposition of a bond without conviction. Subsequently, a final apprehended violence order was made. While this apprehended violence order did not require Mr Arambasic to live elsewhere than at the Lightning Ridge property, he vacated the premises shortly afterwards and lived overseas for a period of time before returning to Australia where he began squatting in a mining hut in Lightning Ridge.
5. On 24 October 2018, a writ of possession for the Lightning Ridge property was issued by this Court in favour of Mr Arambasic. The procedural history leading to the issuance of that writ was unclear on the material before me. However, based on the information contained at par 11 of the affidavit of Mr Malachi Dutschke sworn 23 September 2020, there appears to have been a notice of motion filed in the previous proceedings on or about 23 October 2018 to obtain a writ of possession in favour of Mr Arambasic against Dr White. In any event, a writ of possession was indeed issued by this Court on 24 October 2018 entitling Mr Arambasic to possession of the Lightning Ridge property.
6. On 28 November 2018, Dr White filed a notice of motion seeking a stay of the enforcement of the writ of possession which this Court had issued. I pause, at this point, to note that Dr White must necessarily have been aware of the existence of the writ of possession in order to file a notice of motion seeking that it be stayed. In any event, the hearing of Dr White's stay application came on before Rothman J on 14 December 2018.
7. In an unreported ex tempore judgment delivered that same day, Rothman J noted that the circumstances of Dr White and Mr Arambasic's arrangement were somewhat unusual but observed that the loan agreement between the two parties had never been enforced in this Court. His Honour concluded his judgment dismissing the stay application with the following comments: "In the meantime, I have a registered owner [Mr Arambasic] who is entitled to live in his property and I have a person [Dr White] who has other property and I do not see any overwhelming case of hardship that would require the Court to stay the execution of the writ of possession."
8. It should also be noted at this point that, on 21 October 2019, Mr Arambasic commenced proceedings (DUC403/2019) by way of an Initiating Application (Family Law) in the Federal Circuit Court seeking a property settlement in relation to the breakdown of his and Dr White's de facto relationship. A hearing in relation to the threshold question of whether the parties were ever in a de facto relationship, which it is anticipated will determine whether the Federal Circuit Court has jurisdiction in respect of this matter, has been set down for 15 March 2021. If this question is answered in the affirmative and the Federal Circuit Court finds that it has jurisdiction, under the Part VIIIAB of the Family Law Act 1975 (Cth), to declare and adjust the rights to property of parties formerly in a de facto relationship, it is likely that the Mr Arambasic's and Dr White's rights in respect of the Lightning Ridge property will ultimately be determined in those proceedings.
9. I should remark further that there is also a separate notice of motion in proceedings (2019/47932) in this Court filed by Dr White on 9 March 2020, seeking default judgment in respect of her statement of claim filed on 13 February 2019 seeking possession of the Lightning Ridge property. The determination of that notice of motion was stood over by Campbell J on 9 October 2020 to 29 March 2021, in order to allow time for the hearing of the jurisdictional question in the Federal Circuit Court proceedings to occur.

Three notices of motion

1. Three notices of motion came before me on 26 November 2020. The first was a notice of motion filed by the plaintiffs, Mr Lawrence and Dr White, on 3 December 2019, which sought to extend the operation of a caveat which Campbell J had earlier granted Dr White leave to lodge in his judgment of White v Arambasic [2020] NSWSC 1376 on 9 October 2020. The second was a notice of motion filed on 10 July 2020 by Mr Arambasic, the first defendant, seeking either summary dismissal under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or, in the alternative, a strike out of the plaintiffs' statement of claim. And the third was a notice of motion filed on 3 July 2020 by the Office of the Sheriff of New South Wales (the Sheriff), the second defendant, also seeking either summary dismissal or, in the alternative, a strike out of the plaintiffs' statement of claim.
2. At the commencement of the hearing of these motions, I canvassed with the parties my concerns regarding the interrelation between these proceedings (2019/190613) and those proceedings (2019/47932) which Campbell J had adjourned until 29 March 2021. My primary concern was that given that the jurisdictional question concerning the de facto relationship between Dr White and Mr Arambasic which could affect rights to the Lightning Ridge property would be dealt in Federal Circuit Court in March 2021 and Campbell J had already adjourned Dr White's claim for possession of the Lightning Ridge property until after the hearing in the Federal Circuit Court, there seemed to me to be great sense in having the aspects of these proceedings that involved the disputes between Dr White and Mr Arambasic about the Lightning Ridge property stood over until 29 March 2021 as well. Both the plaintiffs and Ms Power of counsel, who appeared for the first defendant, agreed to this course, and accordingly I made orders giving effect to this in relation to the first and second notices of motion referred to above.

The remaining notice of motion

1. The remaining notice of motion before me was that brought by the second defendant, the Sheriff, filed on 3 July 2020. That notice of motion sought orders in the following terms: "1. The proceedings against it be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005. 2. In the alternative, the plaintiffs' Statement of Claim filed on 19 June 2019 be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005. 3. The plaintiffs pay the costs of the Motion. 4. The plaintiffs pay the second defendant's costs of the proceedings. 5. Such further or other order as the Court may deem fit."
2. Since nothing in that notice of motion was likely to turn upon the outcome of the proceedings in the Federal Circuit Court, I determined to deal with that application on 26 November 2020 and not stand it over with the other of the applications.
3. Since the substance of the Sheriff's application was that the proceedings and the statement of claim failed to disclose a reasonable cause of action against her, it is necessary to consider that pleading in some detail. The parts of the plaintiffs' statement of claim, including the coversheet, relevant to their claims against the second defendant included the following: "TYPE OF CLAIM Tort - Trespass to land - Trespass to persons, personal goods and items, defendants have wrongfully evicted the plaintiffs from their land/home that the plaintiffs had legal right to, located at [XXX] Lightning Ridge, NSW, 2834. The defendants also have wrongfully destroyed plaintiff's property, goods and items and the defendants have wrongfully caused physical and mental injuries to the plaintiffs as a result the plaintiffs have suffered severe mental and physical pain. Plaintiffs are claiming: 1. Recovery of possession the house at [XXX] Lightning Ridge NSW 2834 and also claiming 2. Damages from the defendants for all of the above wrong doing by the defendants on the plaintiffs. PLEADINGS AND PARTICULARS: 1. The first and second plaintiff had rightful legal possession/ownership of the land the house ("the property") along with all the goods and items inside that house "the property" situated at and known as, [XXX] Lightning Ridge NSW 2834 by virtue of their loan agreement mortgage deed and a current lease agreement for the property. 2. The defendants have wrongfully evicted the plaintiffs from their above mentioned property/home and the defendants also have wrongfully destroyed many of plaintiffs' personal goods and items those were located inside "the property" that belonged to the plaintiffs. … 7. In early December 2018, while 2nd plaintiff had to go to Sydney to run her court cases in Supreme Court of NSW regarding the possession of the same house at [XXX] Lightning Ridge, 2nd plaintiff rented the house to the 1st plaintiff with $100/per week rent & she left all her possessions, pets and gardens of the same house in first plaintiff's care and custody. The first plaintiff needed a place to live at that time and he was happy to take care of all of the 2nd plaintiff's pets and gardens etc. 8. 2nd plaintiff had legal right to rent the house to the first plaintiff and she signed on 6th of December 2018 a rental agreement with the first plaintiff for a period of one year, the first plaintiff paid to 2nd plaintiff 4 weeks rent in advance and 2 weeks bond money in accordance with the residential tenancy agreement on the same day of signing the tenancy agreement and the 1st plaintiff started to live in the house permanently since 6th of December 2018. 9. On 18th of December 2018, the first and the 2nd defendants wrongfully evicted the 1st plaintiff from the house at [XXX] Lightning Ridge and the 1st defendant forcefully/wrongfully took possession of the same house and in that way that 1st defendant got hold onto all of the above mentioned possession and goods and items of the 1st and 2nd plaintiffs'. 10. Since having his wrongful possession of that house by 1st defendant on that day 1st defendant have wrongfully damaged/ destroyed all of the above mentioned goods, items and possession of 1st and 2nd plaintiffs. 11. As a result of their wrong doing the 1st and 2nd defendant has caused a massive damage to the 1st and 2nd plaintiff and as result the plaintiffs have suffered a lot of physical and mental injuries from those wrongful actions by the defendants. 12. Due to their severe financial hardships the first and 2nd plaintiff are self-representing in this court case matter and filing this statement of claim into this honourable court is their only way of seeking some kind of justice from the honourable courts as this is the only way the plaintiffs can try and access some kind of justice for themselves for all the wrong doing that the defendants has done to the plaintiffs that has caused a lot of damages and physical and mental injuries to the plaintiffs."

The evidence

1. The second defendant's evidence contained in the affidavit of Amy Lee sworn 3 July 2020 provided some of the procedural history of the matter and established that the plaintiffs had been invited a number of times to withdraw their claim against the Sheriff or file an amended statement of claim. In doing so, the solicitors for the Sheriff had outlined in correspondence the perceived problems with the statement of claim in its current form. Despite orders being made on a number of occasions by the Registrar allowing the plaintiffs to file an amended statement of claim, the plaintiffs eventually indicated that they did not consider that any amendment was required.
2. A copy of the writ of possession in respect of the Lightning Ridge property issued on 24 October 2018 and a copy of Rothman J's judgment of 14 December 2018 refusing to stay the execution of the writ were annexed to the affidavit. The writ appeared valid on its face and it has never been set aside.
3. Annexed to Ms Lee's affidavit was also a document headed "Process record" dated 18 December 2018, which was the Sheriff's officer's record of the execution of the writ of possession on 18 December 2018 at 1 pm. Among other things, the officer recorded under the heading "Action": "Occupant Ted Lawrence refused to open gate. Locksmith opened gate. Eviction completed 13.45".
4. The "Completion Type" was recorded as "Forcefull".
5. The evidence of Mr Lawrence in his affidavit sworn 12 October 2020 relating to the Sheriff's execution of the writ of possession was relevantly as follows: "5. While getting evicted I received ill treatment from the evicting sheriff lady that heart my feelings, they cut the lock of my front gate without my consent, the sheriff lady was ordering me and telling me to pack my thing quickly & get out of the place, I became very fearful of them and I packed whatever I could find in a hurry in my back pack & I walked to the deep four mile opal mining field. 6. Due to the sheriff rushing me I was unable to pick up my personal valuable item such as my, family album, and my very precious scrapbook collection, sheriff lady allowed the 1st defendant to get access to my person goods and items, I have seen Mr Arambasic using extracts from my scrapbook, he is showing them to other people and I have seen him submitting extract from my scrap book in the local court of Lightning Ridge that caused me humiliation. …"
6. Similarly, Dr White's evidence concerning the Sheriff's officer's execution of the writ was that: "27. On 18th of December 2018, the 1st defendant [Mr Arambasic] wrongfully evicted me from my home with the help of sheriff's office and they cut the locks and the 1st defendant got access to my side of the house and he damaged all of my personal goods and items, he also destroyed all of my personal properties, he killed my chickens and he destroyed all my plants and my vegetable garden, he destroyed my garden beds, watering systems and my fruit trees, 1st defendant also broke into my bedroom into my filing cabinet got hold onto my financial documents and my personal bank account details and then he gave them to his ABB solicitors to garnish my bank account and they took all of my money from my pension account leaving minus -$292 in my bank account as a result there was no money left for my direct debiting for my electricity account, phone account and Internet account. …"
7. It can be seen that the plaintiffs' evidence in relation to the actions of the Sheriff's officer is effectively that the officer had the lock on the premises cut and encouraged Mr Lawrence to leave quickly. It is not suggested that the Sheriff's officer destroyed, damaged or detained any property of the plaintiffs, apart from the lock. Nor is it suggested that the Sheriff's officer touched Mr Lawrence or created in him an apprehension of imminent harmful or offensive contact.

Submissions on behalf of the Sheriff

1. Ms Thomas of counsel, who appeared for the Sheriff, submitted that the statement of claim filed by the plaintiffs did not disclose any reasonable cause of action against the second defendant and should be summarily dismissed. Insofar as the pleading or evidence disclosed a potential cause of action in tort against the Sherifff in trespass to land or trespass to goods, Ms Thomas submitted that on 18 December 2018, a sheriff's officer attended the Lightning Ridge property, to execute a writ of possession that had been granted by this Court to Mr Arambasic, and that that writ was duly executed.
2. More particularly, it was submitted that the conduct of a Sheriff's officer in respect of the execution of writs of this kind is governed by s 7A of the Sheriff Act 2005 (NSW), which provides legal authority for a sheriff to enter premises and use such force as is reasonably necessary to gain entry to the premises.
3. In respect of the trespass to goods claim, it was submitted that while the plaintiffs' statement of claim alleged that "the defendants" had wrongfully destroyed the plaintiffs' "personal goods and items", there were no particularised allegations relating to the intentional damage or destruction of property that related to conduct of the sheriff's officer, as opposed to Mr Arambasic.
4. Ms Thomas submitted further that the conduct complained of in Mr Lawrence's affidavit of 12 October 2020, which has been quoted above, depicted actions which fell squarely within the rights and duties conferred on a sheriff by the Sheriff Act. Turning to the grounds for summary dismissal, Ms Thomas submitted that: first, pursuant to rr 13.4(1)(b) and 14.28(1)(a) of the UCPR, the proceedings and the pleading failed to disclose a reasonable cause of action against the Sheriff; and secondly, pursuant to r 14.28(1)(b), the pleading had a tendency to cause embarrassment.
5. The relevant principles stated in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1964] HCA 69 Preston v Star City Pty Limited [1999] NSWSC 1273 at [37] and Frazer v SR7 Pty Limited and Ors [2013] NSWSC 820 at [3] were relied upon.
6. Ms Thomas submitted that if the Court was not minded to summarily dismiss the plaintiffs' statement of claim, then the Sheriff sought that the pleading be struck out for embarrassment owing to: the plaintiff's failure to plead, in any coherent way, the essential ingredients of the tort of trespass to land; and, the absence of any particularised allegation of trespass to goods or chattels belonging to the plaintiffs by the Sheriff's officer.

The plaintiffs' submissions

1. Dr White made submissions on behalf of both plaintiffs. Her submissions focussed first on the writ of possession, which, it was asserted, was defective for a number of reasons. The plaintiffs submitted that the writ of possession which had been issued on 24 October 2018 was not valid because it was still the subject of an appeal.
2. I note at this point that this submission is not sustainable. Dr White acknowledged that her application for a stay of the writ of possession had been rejected by Rothman J but stated that she had filed a Summons Seeking Leave to Appeal, which had not yet been dealt with by the Court and was still pending. It appears, on the material before me, that after initially filing a Notice of Appeal on 14 December 2018, and having that document rejected for lack of compliance with r 51.12 of the UCPR, Dr White sent a new Summons Seeking Leave to Appeal to the Court, which was received by the Supreme Court Registry on 19 June 2019 and contained grounds of appeal against Rothman J's decision in the following terms: "1 His honour justice Rothman made a lot of errors while making that order dated 14/12/2018, that order was made basing upon many false and untrue and misleading evidences filed by the defendant on that day without giving any chance to the applicant to answer those false and untrue evidences filed by the respondent. 2 The defendant did not obey court orders made by that lower court and they did not file and serve pursuant to those court orders on the applicant those false evidences that the defendant filed on the last minute of the hearing as a result blocking the applicant from placing her answers to those false evidences by the defendant, as a result a lot of error was made by his Honour while he made those orders. 3 Due to her severe financial hardship the appellant is self- representing in the courts, she is obeying all the court orders made by the honourable court regarding all the filing and servicing requirements by the parties, defendants lawyers and barristers on the other hand using unfair tactics, they are not obeying the court orders made by the court regarding the filing and servicing requirements and they are wrongfully blocking the appellant from placing her case, so the hearing on that date 14/12/2018 was very much prejudice against the appellant, and orders were was made full of errors basing upon many false and untrue evidences placed by the defendant on that hearing day and appellant was not grant leave to file and serve her answers to those false evidences file by the defendant on that hearing day on 14/12/2018, as a result serious injustice is done to the applicant with that order that is full of many errors made by his honour making that order."
3. On 10 September 2019, the Registry notified Dr White by way of a Notice of Rejection that the document she had lodged with the Court was said not to comply with r 51.12 of the UCPR. It appears from the Court records that there is no appeal of Rothman J's decision currently pending. Further, and in any event, the writ of possession has not been set aside.
4. The plaintiffs' second submission focussed on the service of the writ of possession. Dr White argued that she had not been served with the writ of possession, but rather the eviction notice. Consequently, it was said that the writ was not validly executed on 18 December 2018. As noted above, Dr White must have been aware of the writ of possession prior to her making her application to stay the execution of the writ, which application was heard by Rothman J on 14 December 2018.
5. The plaintiffs' third submission related to a duty of care on the part of the Sheriff to serve them with the writ of possession. Dr White submitted that a duty of care arose from her basic human rights to have the writ of possession physically served on her, and that because this did not occur the actions of the sheriff who executed the writ were not lawfully justified.

Relevant provisions of the UCPR and principles

1. Rule 13.4 of the UCPR relevantly provides: "13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
2. Rule 14.28 of the UCPR empowers the Court to strike out pleadings in whole or in part as follows: "14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out in the pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of process of the court."
3. The general principles to be applied when considering an application for summary dismissal on any of the grounds laid out in r 13.4(1) of the UCPR are as follows: 1. It must be a very clear case to justify the summary intervention of the court to prevent a plaintiff submitting the case for determination in the appointed manner by the court and once it appears that there is a real question to be determined, whether of fact or law, and the rights of the parties depend upon it, then proceedings should not be dismissed as frivolous, vexatious or an abuse of process: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (Dey) at 91 (Dixon J); [1949] HCA 1. 2. Such a question will be a "real question" unless the defendant can show that is so certain that the question must be answered in the defendant's favour that to allow the action to go forward for determination would amount to an abuse of process Dey at 90; Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 (Spencer) at [54] (Hayne, Crennan, Keifel and Bell JJ); 3. In substance, the test to be applied is that the case of the plaintiff must be so clearly untenable that it cannot possibly succeed: General Steel Industries Inc. v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 130 (Barwick CJ); [1964] HCA 69. In other words, exceptional caution should be exercised, and only if there is a demonstrated certainty of the outcome of the litigation should the proceedings be summarily dismissed under r 13.4(1): Spencer at [55]; Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [30] (Leeming JA).
4. In Young v Hones [2013] NSWSC 580 at [82], Garling J approved what had been said in the Supreme Court of Victoria by Bongiorno J in Gunns v Marr [2005] VSC 251 at [7], with respect to both a plaintiff's formulation of their pleading and the Court's measuring of an insufficiency because of which it may have to intervene, by way of dismissal: "Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly."
5. It should be borne in mind that the hurdle for any applicant seeking summary dismissal of proceedings is not a low one, and the Court is not to look simply to the form a plaintiff's claim may take but the substance buried within the pleading. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3], Macfarlan JA (Beazley P and Ward JA agreeing) made the following remarks on the correct approach for the Court: "The High Court decision in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application: (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid). (c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24])."
6. The principles concerning whether a reasonable cause of action is disclosed for the purposes of a summary dismissal application are also generally applicable, mutatis mutandis, to an application to strike out a pleading on the basis that it discloses no reasonable cause of action.

Trespass to land

1. The first cause of action relied upon by the plaintiffs is trespass to land. In order to disclose a reasonable cause in trespass to land against the Sheriff, the pleading and the claim must in substance allege in a case such as this a direct interference with the plaintiffs' possession of land by the Sheriff's officer in question without the plaintiffs' consent: Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 at [383]. The difficulty for the plaintiffs in the present case is that there will be no trespass to land, if the Sheriff's officer interfered with the plaintiffs' possession with lawful authority in the sense that the entry onto the land was authorised or excused by law: Halliday v Nevill (1984) 155 CLR 1 at 10-11; [1984] HCA 80. Such authority is positively conferred by s 7A of the Sheriff Act when a Sheriff's officer is executing a writ of possession, as in the present case. Section 7A relevantly provides: "(1) A sheriff's officer executing a writ or warrant for possession of land may do any of the following - (a) enter the premises and take all reasonably necessary steps to enforce the writ or warrant, (b) use such force as is reasonably necessary to enforce the writ or warrant, (c) obtain the assistance of a police officer. (2) A police officer may, at the request of a sheriff's officer, assist the sheriff's officer to enforce the writ or warrant. (3) The Sheriff must give the occupier of land subject to a writ of possession of land or a writ for the levy of property that relates to land not less than 30 days notice to deliver up possession of the land. … (5) In this section - writ or warrant for possession of land means - 1. a writ of possession of land, or …"
2. As noted above, as at 18 December 2018 there was a writ of possession, valid on its face, in respect of the Lightning Ridge property, which had not been set aside or stayed. Dr White also gave evidence in her affidavit, and accepted during submissions, that she had received an eviction notice on 12 November 2018. It was as a result of this that she made her application to stay the execution of the writ, which was heard and rejected by Rothman J on 14 December 2018. Consequently, there does not appear to be any reasonable basis to contend that s 7A(3) of the Sheriff Act was not complied with in this case.
3. Furthermore, it is true that if the right or authority to enter is limited in scope, then an entry which is unrelated to the right or authority will amount to a trespass: Barker v The Queen (1983) 153 CLR 338 at 341; [1983] HCA 18. There was, however, nothing in the pleading or in the evidence relied upon by the plaintiffs in this case to suggest that the Sheriff's officer's actions went beyond, or were unrelated to, what was authorised and permitted by s 7A.
4. Thus, in my opinion, the plaintiffs' claim against the Sheriff based on trespass to land by the Sheriff's officer on 18 December 2018 is bound to fail as the Sheriff's officer's actions were authorised and permitted by law. Accordingly, I am satisfied that the plaintiffs' proceedings and their statement of claims disclose no reasonable cause of action in relation to that claim. Thus, to that extent, the proceedings against the Sheriff may be dismissed and the part of the statement of claim relating to that claim may be struck out.
5. For the sake of completeness, I make the following comments in relation to the plaintiffs' submission concerning their human rights to receive a copy of the writ of possession itself and not merely an eviction notice. Section 7A(3) of the Sheriff Act establishes a requirement for occupier's land to be given not less than 30 days' notice to deliver up possession of land that is subject to a writ of possession. This enables occupiers such as the plaintiffs to seek to have the writ set aside or stayed before it is executed. Dr White availed herself of that opportunity but was unsuccessful. It cannot, in those circumstances, be legitimately suggested that there has been some breach of other rights to be served with a writ of possession which would confer on the plaintiffs a cause of action to recover damages or the other relief sought in the statement of claim. Further and in any event, such a cause of action is not pleaded and there is no reasonable prospect that such a cause of action whether based on trespass to land or some other basis recognised at law could be pleaded in this case.

Trespass to persons and goods

1. There were no allegations in the statement of claim of any conduct by the Sheriff's officer that amounted to a pleading of trespass to person by the Sheriff's officer. Mr Lawrence's evidence relevantly contained only the following material concerning what was done by the Sheriff's officer: "the sheriff lady was ordering me and telling me to pack my thing quickly & get out of the place". Given the provisions of s 7A(1) of the Sheriff Act and the fact that there was nothing to suggest that the officer's actions were inconsistent with what was required for enforcement of the writ of possession, this evidence would not be sufficient to sustain a claim of trespass to person in the circumstances, even if it had been pleaded.
2. As to the claim based on trespass to goods, the damage pleaded in the plaintiffs' statement of claim and the evidence of the plaintiffs referred to above mention damage to and loss or destruction of, the plaintiffs' personal goods and items which were located inside the Lightning Ridge property. As I have already observed, however, there is no allegation that the Sheriff's officer was directly involved in any way with the loss or destruction of those items, except for the lock which was cut. In relation to the lock, cutting it was authorised by s 7A(1)(a) and (b) of the Sheriff Act. As a result, there would be no reasonably arguable cause of action in trespass to goods against the Sheriff disclosed in that regard, even if such a claim were specifically pleaded.

Duty of care owed by the Sheriff

1. At times, the plaintiffs in their submissions invoked a "duty of care". For example, Dr White submitted at one point: "… Why they [the Sheriff's officer] allowed him [Mr Arambasic] to go and kill my chickens. They had a duty of care, the justice system had a duty of care to take care of my chickens. I had my plants, I had my veggie garden, I had all this, I had my video tapes. I am dying. This was their job to know that, okay, the pets are taken care of. … They let him in, they let the monster in and it is negligence on the part of the justice system. I have taken the justice system to court."
2. The statement of claim did not identify negligence as a cause of action relied upon and there was no pleading which suggested that it was. The evidence of the plaintiffs did not establish that the Sheriff's officer was in any way responsible for the alleged conduct of Mr Arambasic in relation to the plaintiffs' goods or personal property. Nor did it establish that the Sheriff's officer when enforcing the writ owed to the plaintiffs a duty of care to prevent Mr Arambasic from interfering with the plaintiffs' goods or personal property.

An additional provision

1. In addition, whatever tortious causes of action were sought to be relied upon against the Sheriff, s 15 of the Sheriff Act may be relevant. That section provides: "An act or omission of the Sheriff, the Sheriff's alternate, a sheriff's officer or any other person acting under the direction of the Sheriff or a sheriff's officer does not subject the Sheriff, Sheriff's alternate, sheriff's officer or person so acting personally to any action, liability, claim or demand if the act or omission was done, or omitted to be done, in good faith for the purpose of executing this Act."
2. There was no allegation or suggestion in the evidence that the Sheriff's officer in the present case was not acting in good faith in enforcing the writ on 18 December 2018.
3. This provision was not raised by any party during the hearing. In these circumstances and since the parties have not made submissions on its effect, it is not appropriate for me to express any concluded view upon the effect of s 15. Nonetheless, it may be a further obstacle standing in the way of the plaintiffs propounding any arguable cause of action against the Sheriff in this matter, if it were to continue against her.

The power to dismiss the proceedings and dismiss the statement of claim

1. For the reasons set out above, in my view the power of the Court under r 13.4(1)(b) of the UCPR to dismiss the proceedings in relation to the claim against the Sheriff and the power under r 14.28(1)(a) to strike out the part of the statement of claim relating to the claim against the Sheriff are engaged in the present case.

Self-represented litigants

1. It is necessary to express some degree of caution when it comes to summarily dismissing a claim that has been brought, as in this case, by two litigants in person, who have not had the benefit of a legal education or training. A useful consideration of the allowances that may appropriately be afforded to an unrepresented litigant or litigants, was provided by McCallum J, as her Honour then was, in Seidler v Carroll & O'Dea [2013] NSWSC 338 at [8] - [10], in a matter that concerned an application for leave to amend a pleading to expand claims against an existing defendant and add a further defendant. The following passage is particularly relevant: "9. The fundamental importance of facilitating equal access to justice warrants the giving of close consideration to the terms of a pleading in order to discern, with an open mind, whether there is a reasonable cause of action nestling within obscure or difficult language used by a self-represented litigant. 10. Conversely, however, a misconceived or poorly-pleaded claim imposes considerable stress on the due administration of justice and ought equally to be guarded against. The same vigilance must accordingly be exercised not to suffer the court to become a forum for the agitation of grievances which lack any juridical foundation."
2. In this case, I have attempted to discern not only from the pleading but also from the plaintiffs' evidence and their submissions whether there is likely to be any reasonable cause of action upon which they could rely against the Sheriff. I am satisfied that there is no such reasonable cause of action disclosed in the material relied upon by the plaintiffs.

Discretionary considerations

1. Bearing in mind the principles set out above, including in particular the comments in O'Brien v Bank of Western Australia Ltd, as well as the proper degree of latitude to be afforded to unrepresented litigants, I am of the view that there are no discretionary considerations which tell against dismissing the claims against the Sheriff.
2. Further, it appears to me to be consistent with the requirement to give effect to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings to dismiss the claim against the Sheriff. Similarly, consideration of the objects in s 57(1) and the dictates of justice as referred to s 58(2)(b), in particular subpars (v) and (vi), of the Civil Procedure Act, in my view, support such an approach.

Conclusion

1. For all of these reasons, I propose to order under r 13.4(1)(b) of the UCPR that the proceedings in so far as they relate to any claim for relief against the second defendant be dismissed. This being so, it is unnecessary to grant the alternative relief sought of striking out the parts of the statement of claim that relate to the claim against the second defendant.

Costs

1. Ms Thomas sought an order that the plaintiffs pay the second defendant's costs of these proceedings. The general rule, as provided in r 42.1of the UCPR, is that costs follow the event in a case such as the present. The event in this case is that the second defendant has been successful in her application to have the proceedings against her dismissed. There are no circumstances which were brought to my attention which would render it inappropriate to order the plaintiffs to pay the second defendant's costs of these proceedings, particularly in light of the correspondence between the parties, in which the difficulties with the plaintiffs' claim were pointed out, and the plaintiffs' decision to continue to press their claim against the second defendant. As a result, it appears to me to be appropriate to order that the plaintiffs are to pay the second defendant's costs of and incidental to these proceedings, which includes the second defendant's costs of this application.

Orders

1. Accordingly, the orders of the Court are: 1. Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings in relation to any claims against the second defendant are dismissed. 2. The plaintiffs are to pay the second defendant's costs of and incidental to these proceedings.

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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: 18 December 2020