Masood Falamaki v Wollongong City Council & anor

Background 4 The plaintiff is the owner of a parcel of land at 12 Arter Avenue Figtree. The land is within the boundaries of Wollongong City Council (the Council). It is the statutory authority responsible for the administration within its area of the Local Government Act 1993. The plaintiff, who is an engineer by profession, made application to the Council for approval to erect a three-story dwelling house on his land. The application was supported by a geotechnical report of Coffey Partners dated 30 October 1995. 5 On 8 December 1995 the Council issued an approval for the erection of the dwelling house subject to conditions that included: "6. All proposed building works must comply with the geotechnical engineer's report No SCL 5000/1-65 dated 30 October 1995. 7. Before construction is commenced, plans and specifications prepared and endorsed by a suitably qualified and approved structural engineer shall be submitted to, and approved by Council for all reinforced concrete floor slabs, the footings of the proposed structure, the proposed retaining walls, the proposed works required to stabilise the rock and excavation and all structural steel work." Plans denoted as structural plans were lodged with the Council on 22 October 1996 and approved by an authorised Council officer on 23 October 1996. 6 Work on the site commenced during December 1996. The first work undertaken appears to have been an excavation down to a depth of between seven and eight metres. Amended foundation plans were lodged with the Council in February 1997. These were approved by Council officers. However, in the week following their approval the Council wrote to the plaintiff requesting him to provide an engineer's certificate in relation to the footings and retaining walls. After receipt of such letter, but before providing the certificate that had been requested, the plaintiff completed 21 pad footings and a number of foundation beams and he commenced erection of supporting columns for the building in April 1997. On 17 April 1997, the Council informed him that an inspection had revealed that the works that had been carried out were not in accordance with the building consent issued by the Council and that there were serious concerns about the extent of the excavation that had been carried out. Following a meeting on 18 April 1997 the plaintiff was advised that Coffey Partners had assessed the risk of slope instability at the site as high, and the land as subject to land-slip. This, he was informed, may give rise to major property damage and even loss of life. 7 The plaintiff appears not to have accepted the situation as stated by the Council and proposed to continue with the work. As a consequence the Council sought relief in the Land and Environment Court. This consisted of a declaration that the plaintiff was in breach of condition 6 of the Council's consent and an order that the plaintiff carry out certain nominated remedial works. 8 The proceedings in the Land and Environment Court were heard between 1 and 5 June 1998 by Talbot J. On 19 June 1998 Talbot J delivered his judgment in which he, inter alia, was critical of an expert, Mr Thomas, who had been retained by the Council and called as an expert on its behalf in the proceedings. Notwithstanding such criticism Talbot J held that the Council had proved its case and, subject to the exercise of the Court's discretion, was entitled to the declaration and other relief claimed. Thus breach of condition 6 was determined against the plaintiff. However Talbot J expressed the view that the structure could be completed in a way that ensured that the loads were supported and the site made safe from land-slip. Accordingly he determined that: "The application will be dismissed if, before 30 September, the (plaintiff) furnishes to the council a design certification by Peter John Yttrup, or such alternative structural engineer who is acceptable to the council, other than Dennis Thomas, in the following form: That the structure and associated retaining system and details have been designed to support the adjacent land to the level of risk of landslip equivalent to the current condition of 'medium risk' in terms of the AGS Guidelines. The building shall have a performance expectation similar to normal residential building construction. The structural system shall comply with relevant design codes." 9 The matter came before Talbot J again on 3 and 5 November 1998 on which last mentioned date His Honour observed that "the parties still find it difficult to have an amicable and mutually satisfactory relationship in regard to the prospect of the structure being completed in a way which is satisfactory, both from a practical point of view and from a legal aspect." The upshot of the further evidence and argument before Talbot J was that on 5 November 1998 he made orders as follows: "1. That the building partly constructed on the property known as number 12 Arter Avenue, Figtree be demolished and the land restored to its pre-development condition. 2. Order 1 is suspended and to have no effect until further order provided the (plaintiff) complies with the following directions and orders: 1. That a certificate in the form of the certificate dated 4 November 1998, comprising part of exhibit 17, with the calculations and design documents referred to therein attached, be submitted to the Council of the City Wollongong by 4.00pm on 12 November 1998. 2. Working drawings for the proposed residence to be lodged with the Council of the City of Wollongong on or before 4 December 1998 and to be accompanied by a certificate by a suitably qualified and independent structural engineer. That the working drawings are in accordance with the certified calculations and design documents for the proposed residence. 3. All structural works necessary for the support of the adjacent land to be completed on or before 5 April 1999, subject to any reasonable extension of time to take account of only wet weather. 4. That the (plaintiff) provide a clearing certificate to the Council of the City of Wollongong. The certificate is to be by a suitably qualified and independent structural engineer and to the effect that the structural works have been erected in accordance with the certified working drawings." 10 The matter came back before Talbot J yet again in February 1999 and on 17 February, 1999 Order 2 that had been made on 5 November 1998 was varied so as to provide that the order for demolition and restoration of the land should take effect in default of compliance with the following directions and orders: "(i) working drawings for the floor slabs of levels 1 and 2 confined within the retaining walls of the structure to be lodged with Wollongong City Council on or before 3 March 1999 and to be accompanied by a certificate by a suitably qualified and independent structural engineer that: (a) the working drawings are in accordance with the certified calculations and design documents for the proposed residence; and (b) the works when carried out in accordance with the working drawings for the floor slabs of levels 1 and 2 confined within the retaining walls of the structure and the working drawings of the proposed retaining walls and drainage shown in Drawing No. 979-1, 979-2 and 979-3 dated 25 January 1999 together with the existing structure will retain the surrounding lands. (ii) Working drawings for the remainder of the proposed residence to be lodged with Wollongong City Council on or before 31 March 1999 and to be accompanied by a certificate by a suitably qualified and independent structural engineer that such working drawings are in accordance with the certified calculations and design documents for the proposed residence. (iii) The (plaintiff) shall commence retaining works on site within one month of lodgment of the working drawings and certificate referred to in Order 2(i) subject only to any reasonable extension of time to take into account of wet weather. (iv) All structural works necessary for the support of the surrounding lands to be completed within six months of the date of lodgment of the working drawings and certificate referred to in Order 2(i) subject only to any reasonable extension of time to take account of wet weather. (v) A clearing certificate by a suitably qualified and independent structural engineer that the structural works referred to in Order 2(iv) have been erected in accordance with the certified working drawings be provided to Wollongong City Council by the respondent within one month of the completion of those works." 11 At the hearing of the present application the plaintiff gave evidence that he has complied with orders 2(i)(a) and (b) and 2(ii). This was confirmed in correspondence passing between him and the Council and was not challenged. However the plaintiff also gave evidence of his non-compliance with orders 2(iii), (iv) and (v), the basis for such non-compliance being his claimed impecuniosity. 12 The plaintiff took the proceedings that had been commenced against him by the Council in the Land and Environment Court to the Court of Appeal by which, on 4 April 2001, he was refused leave to appeal and his appeal was dismissed as incompetent. Notwithstanding an admonition by the Court of Appeal to the effect that the plaintiff "should have accepted the decision (of Talbot J) and got on with the job of complying with the spirit, if not the letter, of the Judge's requirement", the plaintiff continued along the path of argumentation and applied for Special Leave to Appeal to the High Court. It was refused on 17 September 2002. The plaintiff then filed a Statement of Claim in this Court on 29 October 2002 in which he joined the Council, Talbot J and the Australia and New Zealand Banking Group Limited (the Bank) as defendants. Subsequently, on 5 March 2003, the action was discontinued as against the Bank. Talbot J has filed a submitting appearance, other than in respect of costs. 13 On 26 June 2003 the plaintiff filed a requisition for a trial with a jury.

The Pleadings - Amendment 14 Part 20 Rule 1 of the Supreme Court Rules confers a wide power on the Court to grant amendments at any stage of proceedings. Part 20 Rule 1(2) provides that: "All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or avoiding multiplicity of proceedings." 15 The power to grant leave to amend involves the exercise of a judicial discretion which is generally exercised in favour of allowing amendments, but such an exercise of discretion is subject to the following considerations: (i) The proposed amendment must not be so obviously defective or futile as would render it liable to be struck out had it appeared in the original pleading; (ii) The amendment must be for a proper purpose, that is, sought bona fide for the purposes of the proceedings; (iii) The amendment must not be such as to cause prejudice to the other party of a kind that cannot be compensated for by appropriate ancillary orders; (iv) The amendment must not be contrary to the interest of the administration of justice. 16 The Statement of Claim filed on 29 October 2002 alleged the building approval by the Council, the approval of the plaintiff's structural plans, the concerns expressed by the Council as to the stability and safety of the excavation and then pleaded that on 7 May 1997 an agreement had been made between the Council and the plaintiff concerning the verification of the stability of the building and as to the design carried out by the plaintiff. The Statement of Claim then alleged that the Council had committed defaults under the agreement "by seeking a way to stop his construction". 17 The Further Amended Statement of Claim that was ultimately proffered does not assert any agreement between the plaintiff and the Council, nor does it plead a cause of action in breach of contract. The Further Amended Statement of Claim (FASC) alleges negligence. This is put in alternative ways. The first is that the Council was negligent in issuing a stop work order on 17 April 1997, because it had approved the excavations which the plaintiff asserts he had carried out in conformity with the Council's approval. Secondly the Statement of Claim asserts that the Council was negligent in approving the plaintiff's foundation plans and details on 23 October 1996 and the construction of the pad footings in February 1997. 18 The particulars of negligence pleaded in respect of the claim based on the stop work order were initially circular - it being alleged that the defendant was negligent in stopping the excavation in that "through negligence" it halted the excavation. A like circularity was included in the particulars relating the second basis of claim. However the circularity was later avoided by the deletion of the assertion of "negligence" in the particulars and the pleading as finally proffered in effect asserts in respect of the negligence referred to in paragraph 17 above (FASC paras 8.1, 8.2): 1. That having approved the foundation plan and the construction of the pad footings the Council was negligent in preventing the work from proceeding in a way which the Further Amended Statement of Claim characterises as being "in conformity with" the relevant approval. 2. Alternatively the Council was negligent in approving the foundation plans and pad footings and its preventing the plaintiff carrying out work "in conformity with the Council's approval" constituted a breach of duty owed by it to the plaintiff. 19 In my opinion, although somewhat inelegantly expressed, there is a cause of action in negligence pleaded against the Council. As pleaded it is not so obviously futile as would be liable to be struck out, it is bona fide for the purposes of the action, to allow it would not be contrary to the good administration of justice and there is not relevant prejudice that would be suffered by the Council. Accordingly I allow the amendments in paragraphs 8.1 and 8.2 of the Further Amended Statement of Claim. I order that a fresh engrossment of such paragraphs, with the deletions referred to above having been effected, be filed within 21 days from the date hereof. 20 The plaintiff further seeks to sue the Council for having engaged Mr Dennis Thomas in May 1997 as its consulting structural and civil engineer to prepare a report in relation to: (i) the correlation between the work approved by the Council in its building approval and the work carried out by the plaintiff; (ii) whether the excavation and other work by the plaintiff had been carried out in a proper and workmanlike manner; and (iii) whether the structure erected by the plaintiff would fail. 21 The Further Amended Statement of Claim asserts that in commissioning and relying on Mr Thomas' report the Council was negligent because it knew or should have known that the retainer was beyond Mr Thomas' expertise and that his report was unreliable. However, as emerges from a later paragraph of the Further Amended Statement of Claim (FASC para 12), the proceeding in the Land and Environment Court had been commenced by the Council against the plaintiff on 24 April 1997. So the allegation in relation to Mr Thomas, particularly when read against the background of the judgment of Talbot J of 19 June 1998, appears to be an allegation of negligence in relation to the retainer of an expert for the purposes of the litigation in the Land and Environment Court. If that be so the paragraphs of the Further Amended Statement of Claim that deal with Mr Thomas (FASC paras 9, 10 and 11) would not in my opinion give rise to an arguable cause of action and should not be allowed. However it may be that the pleader really wishes to allege, for example, that (if it be the fact) the retaining of Mr Thomas was not for the purposes of the litigation in the Land and Environment Court but for the purposes of informing the Council quite independently of the existence of such litigation. Accordingly I give to the plaintiff, if so advised, liberty to bring in within 21 days a further amendment relating to an alleged cause of action based on the commissioning and reliance by the Council on the report of Mr Thomas for purposes other than the litigation in the Land and Environment Court. 22 The plaintiff also asserts three other particulars of negligence against the Council related to the proceedings in the Land and Environment Court. Such claims in negligence are dependant on the Council having asserted a breach of condition 6 of the building approval when the plaintiff claims, notwithstanding the decision of Talbot J, that no such breach had occurred. They are further dependant on delay on the part of the Council "from the building approval through to the final hearing of the proceedings" in the Land and Environment Court. This is said to have been effected by the Council procrastinating in answering questions raised by the plaintiff and in giving essential particulars. In essence this is an allegation in relation to the way in which the plaintiff acted in the lead up to and in the conduct of the litigation in the Land and Environment Court. In my opinion these allegations do not give rise to an arguable cause of action. Furthermore the third particular of negligence is circular in that it alleges, as a particular of negligence, that the Council was "negligent". Its form is such as to be likely to give rise to embarrassment and delay in the conduct of the action. The fifth particular of negligence relates to a requirement by the Council to supply information which is asserted to be "irrelevant for the purpose for which it (was) sought". Again this appears to relate to the litigation and in any event does not on its face give rise to a cause of action. As a consequence none of these particulars should be allowed. I disallow paragraphs 14, 15, 16, 17 and 18 of the Further Amended Statement of Claim. 23 There is one further particular of negligence pleaded. It appears to be unrelated to any allegation of fact made in the Statement of Claim. That particular of negligence is as follows:

"16. FOURTH PARTICULARS OF NEGLIGENCE: In October 1997 the defendant negligently and * incorrectly certified to Workcover that the columns of the plaintiff's building on the property would collapse under wind loading. This caused Workcover to place a stop-work order on the building work." (* deleted by the plaintiff's solicitor during the course of argument)

This allegation is not a particular of negligence in relation to any matter previously pleaded as negligence in the Further Amended Statement of Claim. With appropriately pleaded supporting facts it may found an arguable cause of action. However in its present form, standing alone, it does not do so. An incorrect certification may not constitute negligence, depending upon the surrounding circumstances. Such circumstances need to be pleaded. In this regard I give leave to the plaintiff, if so advised, to further amend the Further Amended Statement of Claim within 21 days from the date hereof so as to plead such facts as he asserts support a cause of action of the kind outlined in particular 4 referred to above. 24 It is noted that in the final form of the Further Amended Statement of Claim proffered to the Court on 22 September 2003, Talbot J is not named as a defendant, no facts are pleaded in relation to him and no relief is claimed against him. However, no Notice of Discontinuance has been filed in respect of Talbot J. If, as I apprehend, it is not now intended to proceed against Talbot J then it will be necessary for the plaintiff to file the appropriate process in the Registry.

Application for a jury 25 As indicated above the plaintiff filed a requisition for a trial with a jury on 26 June 2003 and argued at the hearing of the motion that, if he was not entitled to a jury as of right, an order should nonetheless be made for a trial with a jury. 26 The determination of issues of fact by juries in common law actions for negligence was the norm for the greater part of the life of the Supreme Court. Such a mode of trial has a very long history in our system of law. Indeed the method of trial in civil cases in England up to 1854 was by jury. As Lord Denning MR pointed out in Ward v James (1966) 1 QB 275 at 290, there was no other mode of trial available. Such a mode of trial was described by Blackstone as "the sacred bulwark of the nation" (Commentaries, Book IV, 349-50); (Wilson v NSW Land and Housing Corporation ([2002] NSWSC 506, 6 June 2002, unreported)). 27 In relatively recent times Parliament has enacted legislation that has fundamentally changed the long-standing right to a jury trial in a civil action in New South Wales. Amendments to the right to trial by jury effected by the Supreme Court Act 1970 (ss 85-89) mandated a trial of the bulk of civil actions by a judge sitting without a jury. However, provided that a requisition was filed by the appropriate time, a jury trial could be obtained as of right. 28 By the Courts Legislation Amendment (Civil Juries) Act 2001 (that was assented to on 19 December 2001 and commenced on 19 January 2002) the provisions of ss 85-89 of the Supreme Court Act 1970 were repealed and relevantly a new s 85 was introduced. It provides that: "(1) Proceedings in any Division are to be tried without a jury unless the Court orders otherwise." The power of the Court to order a trial by jury in a civil action (other than for defamation) is dependant on the Court being satisfied "that the interests of justice require a trial by jury in the proceedings". 29 In the Second Reading Speech on the Courts Legislation Amendment (Civil Juries) Bill 2001 the following was said: "… The Government recognises that jury trials can be more costly and time consuming than trials before a Judge alone. If resources are diverted to a long jury trial then other cases may have to wait longer to come before the Court";

and: "… it is intended that these amendments will restrict the use of civil juries to those cases where a special need is demonstrated";

and: "… Courts need to be able to efficiently manage their lists and resources and lawyers should not be able to requisition jury trials simply to gain a tactical advantage…"; and: "It is intended that the amendments will require parties to demonstrate to the Court that there is a special need for a jury trial …" (Second Reading Speech, Hansard, 13 December 2001). 30 Although the legislation as it now stands does not contain any provision that requires an applicant for a jury in a civil trial having to establish a "special need" before a jury can be ordered, there is an onus cast on an applicant who seeks to displace the norm provided for in s 85(1) of the Supreme Court Act, 1970. 31 Section 85 as it now stands establishes quite a high threshold for the making of an order that the trial of a civil action be with a jury. It should be noted that it is not sufficient that the making of such an order would be "consistent with the interests of justice", or that it would be "in the interests of justice", rather the interests of justice must "require" trial of the particular proceedings with a jury. 32 The present action was commenced after ss 85-89 of the Supreme Court Act 1970 had been amended so as to delete the right to trial by jury where the appropriate requisition had been filed within the requisite time. The requisition for a jury, was filed well after that date. Although there is a discretion in the Court to order a trial by jury, that discretion is conditioned by the provision in s 85(1)(b) that the Court must be satisfied that " the interests of justice require a trial by jury in the proceeding". 33 I am not satisfied that the interests of justice require a trial by jury of the present action. The action is an ordinary action for negligence against a statutory corporation that is a local Council. The issues of fact involved are not complex but they are interrelated with a number of questions of law that will undoubtedly arise in the course of the trial. Such questions of law include the ambit of the duty owed by the Council to the plaintiff in connection with its development and subsequent approvals. They also include the ambit of the Council's liability and for any damages related to the proceedings in the Land and Environment Court and the course taken by the plaintiff in relation to them - including the references back to the Land and Environment Court and the engagement by the plaintiff in the appellate process. These questions will be relevant to questions of delay and consequent costs. There are other issues of law which will arise and will depend on particular findings of fact. Furthermore the history of the matter, as detailed above, strongly supports a conclusion that if tried with a jury the proceedings will take longer than if tried without a jury, will involve increased costs for the parties and the diversion of Court time and resources to a greater extent. These considerations militate in favour of a trial without a jury, that is they support the trial being conducted in accordance with the norm provided for in s 85(1) of the Supreme Court Act 1970. 34 Other than the fact that the plaintiff wants a trial by jury and that the action is against a local government entity, no reason for ordering a jury trial was advanced on behalf of the plaintiff. As I have indicated above I am not satisfied that the statutory precondition to the ordering of a trial by jury in the present proceedings has been made out. 35 The decision in Wilson v NSW Land and Housing Corporation (supra) was relied on by the plaintiff. I do not think that what was said or decided in that case is of assistance to the plaintiff in relation to the present proceedings. Unlike the present proceedings the action by the plaintiffs in Wilson v NSW Land and Housing Corporation (supra) was commenced before ss 85-89 of the Supreme Court Act 1970 were amended in 2001. Furthermore the requisition for a jury in that case had been filed prior to such amendments being enacted. In addition the application was by the defendant in the action. The application by it sought to displace the norm of a trial by jury that had been obtained by the plaintiffs as a consequence of having filed the relevant requisition within the prescribed time. Finally the legislation that governed the situation in Wilson v NSW Land and Housing Corporation (supra) was quite different from that which governs the present proceedings. 36 For the foregoing reasons I am of the opinion that the application by the plaintiff for an order that there be a trial by jury in the proceedings fails and should be dismissed. I order accordingly.

Costs 37 Although s 76 of the Supreme Court Act 1970 gives to the Court a discretion in relation to costs and confers full power to determine by whom and to what extend costs are to be paid, the discretion must be exercised judicially. The ordinary rule is that costs follow the event. The discretion ought not ordinarily be exercised against a successful party. However, where there is material before the Court that indicates that it would be just to depart from the ordinary rule, the Court has power to do so. In the present matter, some Court time was taken and some costs for the Council were incurred as a result of the form of the Statement of Claim as it stood immediately prior to the Notice of Motion. Further Court time was taken and further costs were incurred by the Council as a result of the original form of the Notice of Motion. Such Notice of Motion was so structured by the plaintiff as to enable him to argue high constitutional matters. The relief sought required a Notice to be given under s 78 B of the Judiciary Act 1903. This was done on 30 June 2003. That notice resulted in the intervention by the Attorney General. Furthermore, a number of inappropriate amendments to the Statement of Claim were proffered during the course of the hearing of the motion. Even in its final form much of the Further Amended Statement of Claim did not survive. The application for trial by jury failed entirely. In these circumstances I do not think that it would be just to order the Council to pay the costs of the motion, indeed in my opinion the appropriate order in relation to the costs to date is to the contrary. In the light of all the factors to which I have referred and the quite limited success of the plaintiff I am of the opinion that the appropriate order is that the plaintiff pay three quarters of the Council's costs of the Notice of Motion. As the Attorney General has indicated that he does not seek costs against the plaintiff, I make no order as to the costs of the Attorney General.

Summary 38 I make orders as follows: (i) I grant leave to the plaintiff to file a Further Amended Statement of Claim that includes paragraphs 7, 8.1 (deleting the words "through negligence" in paragraph 8.1.1) and 8.2 (deleting the words "negligently" and "unaware of the negligence" in paragraph 8.2.1). (ii) I disallow paragraphs 9, 10 and 11 of the Further Amended Statement of Claim proffered on 22 September 2003 but give leave to the plaintiff, if so advised, to bring in within 21 days any further amendment that he may wish to make relating to a cause of action based on the commissioning of and reliance by the Council on the report of Mr Thomas for purposes other than the litigation in the Land and Environment Court between the Council and the plaintiff. (iii) I disallow paragraphs 14, 15, 16, 17 and 18 of the Further Amended Statement of Claim proffered on 22 September 2003. (iv) I give leave to the plaintiff, if so advised, to effect within 21 days an amendment in relation to the Fourth Particular of Negligence included in the Further Amended Statement of Claim proffered on 22 September 2003 so as to plead facts which support a cause of action of the kind outlined in such particular. (v) Any Notice of Discontinuance in relation to any claim against Talbot J is to be filed not later than 17 October 2003. (vi) The application for an order that the proceedings be tried with a jury is dismissed. (vii) The plaintiff is to pay three quarters of the Council's costs of the Motion. (viii) No order as to costs of the Attorney General. (ix) Further hearing of the Motion in relation to the possible amendments referred to in orders (ii) and (iv) above adjourned until 23 October 2003 at 10am. **********

Last Modified: 10/23/2003 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.