The plaintiff, by amended statement of claim filed on 30 August 2024, brings proceedings against Central Coast Council for "public nuisance" and orders of a mandatory injunctive nature, which are set out in the pleading as follows:
1. That all instances of this style of bus shelter shown in the photographs in annexure A be removed" (a map of the locations of these bus shelters is attached).
2. These bus shelters be replaced with the most appropriately styled bus shelters.
3. Costs.
The defendant, by amended notice of motion filed on 27 August 2024, seeks summary dismissal of these proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") rr 13.4 and 14.28.
The defendant provided written submissions and on 4 September 2024 Mr Fraser of Counsel addressed the court. The plaintiff, who at all relevant times has appeared for himself, appeared via AVL and responded orally to the defendant's submissions.
I have made orders in accordance with the defendant's notice of motion. These are brief reasons for the making of those orders.
[2]
Other proceedings for the same remedy
By way of background, this is not the first time that the plaintiff has sought relief of this kind against the defendant. The plaintiff commenced proceedings in the Local Court at Wyong on 5 October 2020, served by post on the Council on 20 October 2020, seeking the following relief:
"Installation of normal bus shelters, not blue ones with suggestive patterns."
On 19 November 2020, the defendant filed a notice of motion in the Local Court at Wyong (2020/00286639) seeking an order for dismissal of the proceedings pursuant to UCPR rr 12.11(a) and (g).
The defendant informed me that orders were made by the Local Court dismissing the claim. The plaintiff gave a different version of what happened, which is set out in paragraph 6 of the statement of claim he filed in the Land and Environment Court on 4 December 2020:
"After 28 days they rang to affirm that they would be applying to set aside the default judgement and did so hours before I could apply for the default judgement, thereby achieving their aim on the basis that the court had no jurisdiction over the Central Coast Council."
Neither of these accounts of the court orders is correct. To assist the parties, I have been able to obtain a copy of the orders made on 23 November 2020 from JusticeLink, which were:
"Notice of Motion is dismissed. Orders sought cannot be made by the court. Further there is no affidavit in support filed which is required when any notice of motion is sought."
The Local Court JusticeLink orders show that the proceedings terminated because the statement of claim was "discontinued/withdrawn" by the plaintiff on 27 November 2020. The plaintiff told the Court that shortly afterwards he commenced proceedings in the Land and Environment Court (by statement of claim filed on 4 December 2020) because he thought that would be a better forum. In the Land and Environment Court, the plaintiff sought the same relief again, namely:
"1.The removal of the blue bus shelters with bizarre and ambiguous patterns installed on the Central Coast by the Central Coast Council and normal and most [sic] appropriate bus shelters be installed.
2. An order be made that the Central Coast Council comply with the Local Government Act.
3. Costs"
Damages and filing fees totalling $501,000 were claimed.
The defendant had been unaware of Land and Environment Court proceedings until these proceedings were commenced. The plaintiff told the Court he had sought a waiver of the filing fees but was unsuccessful, so he had never served the claim on the defendant.
There is a time gap of nearly four years between these earlier proceedings and his current claim. The plaintiff sets out in the amended statement of claim that, during this time, he had health and accommodation issues (paragraphs 8) and refers to his fear of harassment and "civil unrest" (paragraph 9).
[3]
The applications before the court
The defendant's application for summary dismissal came before me for allocation of a hearing date during the Gosford sittings of this Court commencing on Monday 26 August 2024. On that date, the defendant sought leave to file an amended notice of motion clarifying the provisions of the UCPR under which relief was sought and the plaintiff sought leave to file an amended statement of claim to plead, inter alia, public nuisance, and indicated he wished to proceed with the claim. Orders were made to this effect.
The defendant's notice of motion was listed for hearing before me on 4 September 2024. Orders are sought dismissing the claim pursuant to UCPR r 13.4 on the basis that the proceedings are embarrassingly pleaded and r 14.28 on the basis that the claim is an abuse of process. The plaintiff opposed this application and opposed the making of any costs orders.
[4]
Summary judgment applications
The granting of summary dismissal of proceedings is an order that should be made only in the clearest of cases. This has been the case for proceedings brought both before (Jackamarra v Krakouer (1998) 195 CLR 516 at [32]) and after (Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405) the Civil Procedure Act 2005 (NSW) was enacted. The court must also take into account the overarching provisions set out in ss 56 - 62 of that Act: Simmons v New South Wales Trustee and Guardian at [196] - [201].
Where there is a challenge to pleadings, a plaintiff is entitled to seek leave to amend, the remaining issue being determination of arguments concerning the costs thrown away. That is particularly the case where a plaintiff is a litigant in person. In such circumstances, the order generally made is that the application is adjourned while the plaintiff amends or, alternatively, that a fresh application may be brought if the amendment does not cure the part or parts of the pleadings that are the subject of challenge.
To date the plaintiff has only sought leave to amend on one occasion; the result is the current statement of claim. However, there is no predetermined number of times that a plaintiff may be granted leave to amend. Where the hopelessness of a pleading is self-evident, the pleadings may be dismissed after only one grant of leave (as occurred in McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133).
However, after hearing the submissions of Mr Fraser, the plaintiff told the Court that he did not seek leave to amend. He did not consent to the proceedings being dismissed, but he saw no point in amending. He understood that if I accepted Mr Fraser's submissions, that would be the end of his claim. He thought that this was unjust, but the claim was too difficult for him as a non-lawyer to reformulate. He indicated that he would be assisted if I set out reasons for the dismissal in writing.
[5]
No cause of action and embarrassing pleadings
Pursuant to UCPR r 13.4, the defendant challenges the whole of the pleading as failing to disclose any cause of action known to the law.
The following paragraphs from the pleading identify a cause of action based on "misconduct" and "corruption" by the defendant:
1. Paragraph 1: "The Central Coast Council has engaged in misconduct and is causing harassment." (The words "corrupt conduct" previously appeared, but have been ruled through).
2. Paragraph 2: "This is in contravention of its obligations under the Local Government Act 1993 (NSW) ("LGA") and the adopted 'Model Code of Conduct' enacted by s 440 of LGA."
3. Paragraph 6: "Since then further complaints have been made via phone, email and the online portal all of which resulted in further corrupt conduct by the Central Coast Council." (It should be noted that, although the reference to "corrupt conduct" had been ruled through in paragraph 1, the plaintiff still claims that in paragraph 6 the council has engaged in "further" corrupt conduct.)
The plaintiff's pleaded causes of action are breach of statutory duty and public nuisance.
[6]
The breach of statutory duty claim
The defendant submits that the plaintiff's pleading of breach of statutory duty, based on claims of corruption and breaches of the Local Government Act ("LGA"), is misconceived.
Firstly, corrupt conduct is not of itself a cause of action. While the plaintiff may make a complaint to the Independent Commission Against Corruption under s 20 or s 20A of the Independent Commission Against Corruption Act 1988 (NSW), he may not bring a civil claim for damages or other relief on such a basis, including an application for a permanent injunction of the kind sought here. It is also objectionable in form; to bring a claim of "corruption", as a cause of action, without more, is not only meaningless but arguably scandalous: Munsie v Dowling (No 4) [2015] NSWSC 37.
Secondly, the allegation of a breach of the LGA and the Model Code of Conduct similarly cannot identify a cause of action known to the law. Leaving to one side the uncertainty as to which code of conduct is referred to (i.e. the Model Code or the Procedures Code), alleging misconduct amounting to a breach of the code constitutes a cause of action for damages and an injunction is without any basis in law. An asserted breach of the LGA can only give rise to a cause of action as set out in s 674 of the LGA. There is no jurisdiction conferred upon this Court (or, for that matter, the Supreme Court) to remedy or restrain a breach of the LGA; any such action under s 674 must be commenced in the Land and Environment Court: s 674(1).
[7]
The public nuisance claim
The plaintiff refers to a claim for public nuisance in paragraph 10 of the amended statement of claim.
In Onus v Telstra Corporation Limited [2011] NSWSC 33 at [111] ff, Price J set out the three ways in which a claim of public nuisance can be brought. As the plaintiff brings his claim for injunctive relief without obtaining the Attorney General's fiat, it is necessary for him to establish that he has standing to bring such an action. To do so, he must establish "particular" damage where he has suffered injury or inconvenience which is a direct and not merely consequential result of the public nuisance, where this is of a substantial character so as to distinguish it from the inconvenience suffered by the public at large.
This is a very high onus of proof which the plaintiff, when asked to describe the harm, acknowledged he could not do. He said that the pattern design on the walls was "a suggestive form of art" which "suggested things about me to everyone" and that this was linked to harassment that he had suffered. This is his personal reaction to artwork on the bus shelter, not evidence of any damage, injury or inconvenience of the kind described in Onus v Telstra Corporation Limited.
[8]
No jurisdiction for the relief sought
The relief sought is in the form of a mandatory injunction which this Court cannot grant (Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150 at [84]) and the proceedings would have to be transferred to the Supreme Court. However, the nature of this Court's power to transfer proceedings to the Supreme Court under s 144 of the Civil Procedure Act 2005 (NSW) is predicated upon there being a cause of action of some kind capable of being identified, so the concerns raised in Mahommed v Unicomb [2017] NSWCA 65 (as to which, see Mahommed v Unicomb (No 2) [2018] NSWSC 1450) would not apply.
The plaintiff did not have any substantive answer to these submissions.
[9]
What should the plaintiff's next step be?
As is set out above, each of the objections raised by the defendant under UCPR r 13.4 to the pleaded cause(s) of action is made out. The defendant ought not to be required to plead to the statement of claim in its present form.
As Adamson J explains in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [42]:
"The real issue is what ought flow from this. The two options are, in substance, first, to strike out the defective pleading and provide the plaintiff with another opportunity to re-plead his case; or, second, to dismiss the proceedings for want of due despatch or because they amount to an abuse of process."
There is no properly pleaded cause of action and no basis upon which the defendant could be held liable. There has been substantial delay in commencement. These would have been strong arguments against any further grant of leave to amend, which the plaintiff acknowledges he does not seek.
The second basis for dismissal, pursuant to UCPR r 14.28, as an abuse of process.
[10]
Abuse of process
The three broad categories of abuse of process are identified by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491. However, the categories of abuse of process are not closed (Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [9]).
The issue of UCPR r 14.28 relief was dealt with only briefly by Mr Fraser, who submitted that the nature of the claim brought - damage or harm caused by seeing the design pattern on the back wall of the bus shelters - not only failed to give rise to any cause of action but was fanciful (see McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 at [52] where a claim was described as "ridiculous").
I am satisfied that the defendant's claim of abuse of process is made out on this ground.
[11]
Costs
The defendant's submissions seek an order for the payment of its costs of the notice of motion and of these proceedings and Mr Fraser sought an order accordingly.
The plaintiff stated that he is in no position to pay, but impecuniousness is not a reason for failing to make an order for the payment of costs. The plaintiff also stated that it did not seem fair that he, a person of limited means, should have to pay costs to a council with significant assets. He acknowledged that his claim was perhaps "silly", but did not feel that it warranted a costs order.
Costs follow the event: UCPR r 42.1. The defendant is entitled to seek such an order, and it will accordingly be made.
This is not an uncommon problem for litigants in person to have to confront. In Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100 at [2] - [6], the Full Court of the Federal Court stated that it has become "increasingly common" for litigants to appear in person and that such persons "often disturb the normal conventions of the courtroom" because they are "classic outsiders". The end result for these self-represented litigants is often not merely financial hardship but bankruptcy proceedings, creating a further burden on court time as well as distress for the bankrupt.
Some statements of claim, such as the present, are obviously hopeless on their face. They often come to the registry's attention because a fee waiver is sought, so they are not difficult to find. There is in fact a procedure in the Supreme Court of Western Australia (O 67 r 5(1) of the Rules of the Supreme Court 1971 (WA)) for such pleadings to be examined by the court before permitting filing, in order to determine whether such a claim should be permitted to go forward. Such matters are determined ex parte by the Court, which means that the opposing party does not incur costs: see Re State of Western Australia; ex parte K [2018] WASC 15. There is also a right of appeal (Re State of Western Australia; ex parte K was affirmed in Ex Parte K [2018] WASCA 144). Perhaps courts in this jurisdiction could consider a procedure of a similar kind. Such a procedure would only capture a small number of obvious claims, but that is better than the current situation.
This plaintiff is an intelligent man who is preoccupied with justice issues. Unfortunately, his anxieties and preoccupations have to date resulted in his commencing unmeritorious proceedings in three courts in this State. The concerns that drove him to this litigation are now likely to increase, as he also faces a costs order which will result in further litigation. If some form of court case management can be put into place to avoid this occurring, it would be to the benefit not only of the parties but also of the Court.
[12]
Orders
1. Statement of Claim struck out; proceedings dismissed.
2. The plaintiff is to pay the defendant's costs of the notice of motion and of the proceedings.
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Decision last updated: 06 September 2024