Maresch v State Debt Recovery Office

The proceedings to date 28 By amended summons filed 29 July 2008, the plaintiff seeks the following relief:

"1. Immediate re-instatement of NSW Drivers Licence;

4. Removal from Databases of all Addresses Pertaining to Plaintiff Except XX XXXX XXXX Lane Cove;

5. Costs." 29 In determining this application, I have taken the plaintiff's case at its highest. I have had regard to the pleading and the matters raised in his affidavit and oral submissions with a view to ascertaining whether the pleading could be amended to plead a cause of or causes of action. 30 In support of the summons, the plaintiff filed an affidavit, filed 29 July 2008. "Annexure B" to the plaintiff's affidavit filed 29 July 2008 sets out the costs claimed by the plaintiff. The plaintiff is a gardener and needs his motor vehicles to work. Included is compensation for some of the out of pocket expenses associated with the actions of the defendant including compensation of $1000 for each day he was unable to drive as a result of the four licence suspensions as well as costs involved with bringing the current proceedings. In oral submissions, the plaintiff stated that at the time his licence was cancelled, he had 100 clients and employed one employee. During the period when his licence had been cancelled, he has lost his clients. He says he should have about 200 clients but now has 65 and no employee. 31 Given the nature of relief sought, a statement of claim is the appropriate originating process pursuant to rule 6.3(b) of the Uniform Civil Procedure Rules. At a directions hearing on 22 August 2008, Registrar Bradford, made an order under rule 6.6(2) of the Uniform Civil Procedure Rules that the proceedings be treated as though they had been commenced by statement of claim and that the plaintiff's affidavit filed 29 July 2008 stand as the pleadings for the matter. 32 While it is trite law, I remind myself of what is the purpose of a pleading and what it should contain. A pleading is to contain, and contain only, a statement in a summary form of the material facts on which the applicant relies. The material facts are all those facts necessary for the purpose of formulating a complete cause of action - see Bruce v Odhams Press Ltd (1936) 1 KB 697 at 712; Pinson v Lloyds and National Provincial Foreign Bank Ltd (1941) 2 KB 72 at 75; and Bega Co-operative Society Limited v The Milk Authority of the Australian Capital Territory (Federal Court, Neaves J, 12 May 1992, unreported; 325 FC 39). Not only must all material facts be pleaded but they must be pleaded with a sufficient degree of specificity, having regard to the general subject matter, to convey to the opposite party the case that party has to meet - see Ratcliffe v Evans (1892) 2 QB 524 at 532; Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at 417. A pleading must state the facts, that if not specifically pleaded might take the opposing party by surprise. In short, the purpose of a pleading is to inform the other party of the case it has to meet. 33 On the current motion, the SDRO seeks to summarily dismiss the amended summons pursuant to rule 13.4 of the Uniform Civil Procedure Rules or, in the alternative, strike out the plaintiff's amended summons filed 29 July 2008 and such of the plaintiff's affidavit filed 29 July 2008 which is to stand as the plaintiff's pleadings in these proceedings pursuant to rule 14.28(1) of the Uniform Civil Procedure Rules. 34 The plaintiff's submissions do not refer to any cause of actions mentioned in the defendant's submissions. Mr Maresch states: "The attempt by the defendant to complicate this manner with specious precedent can only be described as pettifogging. The defendant's submission makes no mention of the 35 letters sent to the defendant, some to Ministerial level, as well as phone calls and emails, in an attempt to solve this matter. " 35 The plaintiff's submission centres on the incorrect address held by the RTA and the delay to rectifying this despite the continued efforts by the plaintiff. The plaintiff claims, "every company, statutory authority, individual, and government department has a responsibility to ensure the accuracy of its information."

Summary judgment and strike out defence 36 Rule 13.1(1) of the Uniform Civil Procedure Rules provides: 13.1(1) If, on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief: (a) there is evidence of the facts on which the claim or part of the claim is based, and

(b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,

the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires." 37 Rule 13.4(1) of the Uniform Civil Procedure Rules provides that the court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious; or, if no reasonable cause of action is disclosed; or, if the proceedings are an abuse of the process of the court. 38 Rule 14.28(1) of the Uniform Civil Procedure Rules provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court. 39 Rule 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under sub-rule (1). 40 In Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370, Beazley JA with whom Mason P agreed said: "11 The general principles relating to the summary disposal of proceedings are well-known: see General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 at 129. If it is demonstrated that there is a real question to be tried, the matter is inappropriate for the entry of summary judgment: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62. The tests stated in the authorities as to whether it is appropriate that a case be disposed of by the entry of summary judgment include statements such as that the matter is "so obviously untenable that it cannot possibly succeed"; "manifestly groundless" or "would involve useless expense": see General Steel Industries at 129.

12 The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no triable issue is demanding: Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported). In Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ said at 602: "… the issue before the learned Master on the application for summary judgment was not whether [the plaintiffs] would probably succeed in their action against [the defendant]. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried." (Citations omitted)"

Relief Sought 41 The first order sought by Mr Maresch is for the re-instatement of his driver's licence. The statutory provisions under which the SDRO has purported to act are ss 65 and 66 of the Fines Act. These relevantly provide: "65 When enforcement action taken under this Division

(1) Enforcement action is to be taken against a fine defaulter under this Division if: (a) the fine defaulter has not paid a fine as required by the notice of the fine enforcement order served on the fine defaulter or… (2) The Roads and Traffic Authority is to take that enforcement action when it is directed by the State Debt Recovery Office to do so.

(1) The Roads and Traffic Authority must, without further notice, suspend any driver licence of a fine defaulter against whom it is required to take enforcement action for the balance of the period of the licence..." 42 The defendant submitted that there are only two statutory preconditions for the issuing of a court fine enforcement order. They are that the fine defaulter has not paid a fine; and that the court fine enforcement order has been served on the defendant. 43 Suspension of the plaintiff's licence was due to his failure to pay court fine enforcement order 238785922. It is not in dispute that this amount remains unpaid. Essentially, the plaintiff submitted that there was no service of the notice of the fine enforcement order on him due to error by the defendant. 44 The SDRO submitted that although the plaintiff may contend that he was not served with court fine enforcement order 238785922 on the date it was originally issued (10 July 2007), there is clear evidence that he was subsequently served with notice of the enforcement order on the following instances: s On around 15 July 2007 - a copy of the enforcement order (with the handwritten annotations for the waiver of the RTA sanction fees) was sent to the plaintiff at the Lane Cove address and the plaintiff admitted that he received this order on 15 July 2007 in his affidavit filed 29 July 2008; s On 31 August 2007 the SDRO sent the plaintiff an email which set out in some detail the particulars of the enforcement order; s On 2 May 2008 - a copy of enforcement order 26887631 providing details of the outstanding fines was included with Mr Gillam's letter. 45 In any event, the plaintiff admits he owes $727 and that he has not paid this sum. Sections 66 and 67 of the Fines Act are clear that if a fine is not paid, the driver's licence will be suspend or cancelled. 46 The second order sought by the plaintiff is that the SDRO provide him with the correct amount owing to them. The SDRO submitted that the amount presently owing is $817, being $727 in fines imposed by the court, a $50 enforcement fee that arises with the issuance of a court fine enforcement order; and a further $40 fee for enforcement action taken by the RTA on 19 June 2008. The SDRO submitted that the order is futile, as the plaintiff was notified of this by way of letter from the Crown Solicitors Office dated 18 August 2008. This submission is correct.

47 Further, the SDRO contended that the plaintiff is prevented from disputing the amount as s 16(2) of the Fines Act and cl 4(1) of the Regulation give the SDRO power to charge fees for the taking of further enforcement action and for directing the RTA to take further enforcement action. 48 In relation to the third order sought it is the position of the defendant that, other than the suspension of the plaintiff's drivers licence (which was temporarily lifted on 1 September 2008) no further enforcement conditions exist and as such the order sought by the plaintiff, that all RTA restriction be removed has no utility. However, if the plaintiff does not pay the amount due, the licence may be suspended for a fifth time. 49 The fourth order sought by the plaintiff is that all addresses except the Lane Cove address be removed from the databases. The defendant submitted that this Court has no jurisdiction to make such order nor could principles of judicial review operate. This is correct. More importantly, the current records of the SDRO indicate that the Petersham address recorded for the plaintiff has been removed and his correct address (the Lane Cove address) is recorded in its database. 50 The final order sought by the plaintiff is "Costs". If one refers to Annexure "B" to the plaintiff's affidavit filed 29 July 2008, this order is for compensation for certain expenses incurred by him because of the actions of the defendant. Annexure B reads: "Costs claimed

2 days re-registering my vehicles $800 Correspondence to various departments $1500 Day in Court re Unregistered vehicle $300 Half day for mention (Ryde) $150 Solicitor's fees $450 Annulment application Downing Centre (24/4/07) $400 Time with local member $1200 Annulment application fee $250 Time taken for this appeal $5500 Supreme Court Filing fee $780

$11330 Additionally $1000 per day (of licence suspension for loss and damages to business."

51 The defendant submitted that given the nature of the relief claimed, the plaintiff would need to make good a cause of action in tort. Accordingly, the pleadings as they presently stand disclose no cause of action. Further, the defendant submitted that the plaintiff should not be permitted to replead, as no amendment reasonably available to him would be capable of giving rise to a good cause of action. 52 If the plaintiff sought to replead his action as one of negligence, this would require him to show that the SDRO owed him a duty of care and had breached its duty in the exercise of its power to direct the RTA to suspend his driver's licence. 53 Firstly, the defendant submitted that no such duty exists and alternatively, if such a duty exists, the plaintiff would not be able to demonstrate its breach. The defendant says that so far as it is aware, in the present circumstances, no duty of care has ever been recognised and the plaintiff would be required to persuade the Court to recognise a novel category of duty of care. The defendant submitted that this would be unlikely given the nature of the SDRO whose functions include the collection of public revenue owed to an individual debtor. 54 Secondly, the defendant submitted the plaintiff must meet the objection that the conduct complained of was taken by it in the purported exercise of a statutory power. Courts have traditionally been reluctant to make the exercise of an administrative decision the subject of a duty of care in negligence as it causes tension with the nature of the Court's role in judicial review of exercise of administrative power (see State of New South Wales v Paige [2002] NSWCA 253 per Spigelman CJ at [172]-[173]). 55 Reference was also made to Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 443 and X v Bedfordshire County Council [1995] 3 All ER 353 at 368 which were adopted by the Court in Paige. The defendant submitted that a duty of care imposed on an administrative decision maker in relation to a statutory discretion would lie where the action purportedly taken pursuant to a statutory discretion was not "reasonably referable to the exercise of [that] statutory power" (Paige at [170]). The defendants also note that Spigelman CJ held that the principles enunciated by Dixon J in R v Hickman Ex Parte Fox and Clinton [1945] 70 CLR 598 at 615 would be of assistance in determining whether an action was so referable (at 170). 56 The defendant further submitted there could be no suggestion, on the evidence before the Court, that any of the three Hickman principles were not met. There is no indication that the SDRO acted otherwise than in good faith. Its decision to suspend the plaintiff's licence in circumstances where he had not paid an outstanding enforcement order relates to the subject matter of the Fines Act and is reasonably capable of reference to the power given to the SDRO by s 66 of that Act. Accordingly, the defendant submitted, the action is "reasonably referable" to the Fines Act and no duty of care lies in respect of it. 57 The defendant also observes that where a statutory body is obliged by statute to take certain administrative action, it follows that there can be no duty of care which would preclude it from taking that action as this would be inconsistent with statute - see Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 per Gaudron J at [27]. Therefore, regardless of whether s 66 is characterised as a statutory duty or discretion, the defendant submitted that no duty of care could be recognised. 58 Thirdly, the defendant submits that the duty the plaintiff would need to establish would not be found to arise as it would be inconsistent with the Fines Act - see Paige at [93]; Crimmins, at [3] and [27]; Sullivan v Moody (2001) 207 CLR 562 at [60]. 59 Section 114 of the Fines Act sets out the functions of the SDRO. The Fines Act confers on the SDRO certain powers. It is given coercive powers exercisable for this purpose including s 66. The defendant submitted that any common law duty imposed on the SDRO would need to be consistent with this Act and the functions that Act imposes on the SDRO. 60 First, the defendant noted that the common law duty for which the plaintiff would need to contend would make the SDRO responsible for ascertaining the correct address of the plaintiff independently of the RTA and the Court that issued the fines. The defendant submitted that such a duty would be inconsistent with, (i) s 28(2)(b) and s 61(3)(b); (ii) s 14(2) and 61(2); and (iii) s 17(2) and 59 of the Fines Act. 61 Section 28(2), which deals with the issuing of penalty reminder notices, provides:

"28(2) The address for service of any such penalty reminder notice includes: … (b) if the relevant penalty notice was served on the person in his or her capacity as owner of a vehicle or vessel or was served by being left on a vehicle or vessel - the address shown in the records of the Roads and Traffic Authority or other public agency as the address of the owner of the vehicle or vessel at the time the relevant penalty notice was served" 62 Section 61(3)(b) (which applies to penalty notice enforcement orders) is in the same terms as s 28(2)(b). 63 In the present case, the evidence establishes that, until 2 December 2004, the RTA recorded the mailing address for the plaintiff as the Petersham address. 64 Section 61(2) provides:

"The address for service of any such notice of a court fine enforcement order includes the address for service of the person in connection with the proceedings in which the fine was imposed" 65 Further, the defendant submitted that the Fines Act makes it plain that the SDRO is entitled to rely on the information provided to it by the Registrar of the Court responsible for issuing the fine. Section 14(2) provides: "The State Debt Recovery Office is not required to inquire into whether this section authorises the making of an order in a matter referred to it by the registrar of a court." 66 The defendant submitted that a duty of care that would make the SDRO liable to pay damages for simply using information provided to it by a Local Court and the RTA would be inconsistent with the above provisions of the Fines Act. 67 Secondly, the Fines Act already provides for remedies to a person who believes that the SDRO has erred. Specifically, these are ss 48-49, which allows for the annulment of a penalty enforcement order and s 17, which provides that the SDRO must cease enforcement action in relation to a court fine upon the direction of the Registrar. The SDRO had advised the plaintiff on a number of occasions to approach the Local Court if he wished to continue disputing the fines. The defendant submits that this statutory remedy leaves no room for the imposition of a common law duty. I agree. 68 The reason court fine enforcement order 265887631 was sent to the Petersham address is because this was the address provided to the defendant by the Court. The evidence does not disclose how this came about however; this is not an action of the SDRO. 69 The plaintiff took exception to the defendant's submission that given the volume of work, the SDRO is required to process, it would not have been possible or reasonable for it to individually check that the enforcement order had been sent to the correct address. 70 The defendant submitted that upon realising each of the penalty enforcement orders and the court enforcement may have been sent to the wrong address it took all steps that a "reasonable person" in its position would have taken. On 13 July 2004, 16 August 2004, 21 February 2005, 12 April 2006, 3 May 2006 respectively the defendant sent copies of each of the penalty enforcement orders and a description of the offences to which they related to the plaintiff at the Lane Cove address. The defendant also advised the plaintiff that he could apply to have the enforcement orders annulled and it stayed enforcement action on a number of occasions to enable him to arrange to dispute the fines or to pay them. 71 In relation to court fine enforcement order 265887631, following its realisation that there was a chance that the order had been sent to the wrong address, the defendant sent copies of the enforcement order to the plaintiff at the Lane Cove address on 15 July 2007; sent an email to the plaintiff outlining the details of the offences on 31 August 2007; advised the plaintiff on 31 August 2007, 7 September 2007, 19 September 2007 and 2 May 2008 to contact the Registrar of the Local Court to get advice as to whether he could appeal the Court's order and stayed enforcement action pending a Ministerial investigation into these issues. 72 The defendant's final submission is that the plaintiff may attempt to replead to bring a claim of misfeasance in public office, which requires an intentional element. That is, liability requires the tortfeasor to commit an act which he or she knows to be beyond power and which involves a foreseeable risk of harm (Northern Territory v Mengel (1995) 185 CLR 307) at [61] per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ). 73 The defendant submitted that there is no serious suggestion in the evidence before the Court that any officer at the SDRO acted knowingly beyond power. Accordingly, he should not be permitted to replead in this way. 74 While this Court can understand the plaintiff's frustration, what has transpired since the RTA entered an incorrect address into its database for all of Mr Maresch's vehicles and the havoc it has caused to his life and business, the case as currently pleaded does not disclose a reasonable cause of action. 75 The defendant's submissions, as to whether there are any other causes of action that could be repleaded, essentially cover the same possible causes of action as this Court has envisaged, namely breach of statutory duty and negligence. 76 While the current pleading discloses no reasonable cause of action, there is no utility in granting leave to replead. The plaintiff has indicated that he does not wish to retain any legal representation, nor does he intend to replead his claim. 77 The summons does not disclose a reasonable cause of action. The defendant is entitled to summary judgment. In these circumstances where the plaintiff does not wish to amend or replead his claim the amended summons filed 29 July 2008 is dismissed. The defendant is not seeking costs to date.

(1) The amended summons filed 29 July 2008 is dismissed.

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