Transport for NSW v Boensch

Supreme Court of NSW|2023-09-05|Before: McGrath J

Franz Boensch (First Defendant) Go Green Systems Pty Ltd (ACN 115 997 192) (Second Defendant) Representation: Counsel: G Keesing (Plaintiff) F Boensch (Self-Represented) (Defendant)

Solicitors: Holding Redlich (Plaintiff) File Number(s): 2021/00186631 Publication restriction: Nil

INTRODUCTION

The plaintiff/cross-defendant, Transport for New South Wales (TfNSW), is the registered proprietor of the land in Certificate of Title Volume 5018 Folio 1, commonly known as Sydney Harbour. Sydney Harbour is a body of tidal water, which includes all bays, rivers and tributaries, within the tidal boundaries. Parramatta River is a river which forms part of Sydney Harbour. Subiaco Creek, at least up to the point at which it passes under Victoria Road at Rydalmere, is a tidal tributary of the Parramatta River. As a result, the tidal portion of Subiaco Creek forms part of Sydney Harbour.
The first defendant/cross-claimant, Franz Boensch, is the registered proprietor of Certificate of Title Folio Identifier 38/14244, known as 255 Victoria Road, Rydalmere, New South Wales (Rydalmere Property). The Rydalmere Property adjoins Subiaco Creek.
The second defendant, Go Green Systems Pty Limited trading as Big Toys, is a corporation that carries on business from the Rydalmere Property and has not played an active role in the proceedings.
The claims by TfNSW against Mr Boensch and Big Toys are now made in the further amended statement of claim filed 4 August 2023 (FASC). They concern alleged trespass to the bank of Subiaco Creek by Mr Boensch and Big Toys, which TfNSW alleges forms part of Sydney Harbour and is its land.
In the defence to the amended statement of claim filed 21 October 2021, amongst other matters, Mr Boensch has raised issues concerning the boundary between Subiaco Creek and the Rydalmere Property.
In the statement of cross-claim filed 15 September 2021, Mr Boensch has also raised issues concerning the boundary between Subiaco Creek and the Rydalmere Property and has alleged breaches of duty by TfNSW arising from alleged flooding events that have affected the Rydalmere Property.
I have dealt with the matters raised by the FASC, the defence and the cross-claim in significantly more detail below.
The applications to be determined by me in these proceedings were made by TfNSW in two notices of motion, which can be summarised as follows: 1. notice of motion filed 26 May 2023 by TfNSW seeking an order setting aside the notice to produce dated 4 May 2023 (notice to produce) issued by Mr Boensch to TfNSW (Notice to Produce Motion); and 2. notice of motion filed 14 July 2023 by TfNSW seeking an order that the cross-claim brought by Mr Boensch be summarily dismissed, permanently stayed or struck out (Dismissal Motion).
At the hearing, Ms G Keesing of counsel, instructed by Holding Redlich, appeared for TfNSW. Mr Boensch was self-represented.

EVIDENCE

TfNSW relied on the following evidence: 1. affidavit of Millie Josephine Clayton affirmed 26 May 2023 and the exhibit to that affidavit; 2. affidavit of Bede Gerard Haines affirmed 30 June 2023 and the exhibit to that affidavit; and 3. affidavit of Bede Gerard Haines affirmed 14 July 2023.
Mr Boensch relied on the following evidence: 1. affidavit of Franz Boensch sworn 19 June 2023 and the exhibit to that affidavit; 2. affidavit of Franz Boensch sworn 27 July 2023 and the exhibit to that affidavit; 3. affidavit of Franz Boensch sworn 15 September 2021 and the exhibit to that affidavit; 4. affidavit of Franz Boensch sworn 2 March 2022 and the exhibit to that affidavit; 5. affidavit of Robert Gordon Harrison sworn 20 October 2022 and the exhibit to that affidavit; 6. affidavit of Franz Boensch sworn 27 October 2022 and the exhibit to that affidavit; 7. affidavit of Franz Boensch sworn 5 July 2023 and the exhibit to that affidavit; 8. further materials contained in a folder, including written submissions filed 22 March 2022 and 27 October 2022, and a letter dated 19 October 1995 from John Ireland to Harrison Freedmann and Associates Pty Ltd; and 9. a bundle of documents, including a map of Subiaco Creek and a map of a portion of the intersection of Victoria Road and Subiaco Creek.

THE SUBSTANTIVE PROCEEDINGS

Before considering each of the motions, I will outline the issues that are raised in the substantive proceedings.
The substantive proceedings were first commenced by TfNSW filing the statement of claim on 29 June 2021.
The principal issue in the substantive proceedings is the location of the boundary between Subiaco Creek and the Rydalmere Property. This issue has a long and hard-fought history between the parties.
The location of that boundary was the subject of an application in 1996 by Mr Boensch to the Registrar General of New South Wales for a determination under Part 14A of the Real Property Act 1900 (NSW) (RPA) of the position of the common boundary between TfNSW's land and the Rydalmere Property.
On 10 July 1996, the Registrar General determined the boundary to be the position ascertained by the ground survey undertaken in 1952 by the Maritime Services Board (a predecessor in title to Sydney Harbour), whereby the common boundary was found as being the mean high-water mark (MHWM) as identified in the Maritime Services Board Field Book 199 at pages 128-140, particularly at page 133 (1996 boundary determination).
Section 135K(1) of the RPA provides: (1) When the position of a boundary is determined under this Part, the Registrar-General - (a) is to make such notations and entries on any plan or other document registered or recorded under this Act or the Conveyancing Act 1919 as may be necessary to show the position of the boundary determined, and (b) may cause to be so registered a plan showing the position of the boundary determined.
Section 135J(3) of the RPA provides a 28 day period within which particular persons dissatisfied with the 1996 boundary determination (including Mr Boensch as an owner of land adjoining the boundary) could request that the Registrar General refer the matter to the Land and Environment Court (LEC) for determination of the position of the boundary by the LEC. No such referral to the LEC in relation to the 1996 boundary determination was sought by any party.
Section 135L of the RPA provides: (1) A determination of the position of a boundary under this Part takes effect when the position of the boundary is shown as referred to in section 135K (1). (2) Once the determination takes effect, the boundary is for all purposes to be taken to be in the position so shown despite any discrepancy with any plan of survey or other plan or any other record. (emphasis added)
Despite the 1996 boundary determination and the operation of s 135L of the RPA that it is to be taken as determined "for all purposes", Mr Boensch continued (and continues) to contend that the boundary is the toe of the bank of Subiaco Creek, which is below the MHWM.
On 1 March 2022, Mr Boensch filed a notice of motion in these proceedings seeking various orders, including for the hearing of preliminary questions concerning the position of the common boundary between Subiaco Creek and the Rydalmere Property (March 2022 Notice of Motion).
On 6 May 2022, Darke J made orders (by consent) to resolve the March 2022 Notice of Motion, requiring Mr Boensch to seek a determination under s 135B of the RPA from the Registrar General of the common boundary between Sydney Harbour and the Rydalmere Property. Those orders included the provision that if the Registrar General refused to make a new boundary determination on the basis that there was no doubt as to the position of the boundary, then the motion would be dismissed.
On 8 June 2022, Robert Harrison, a registered surveyor acting for Mr Boensch, applied to the Registrar General for a boundary determination in respect of the common boundary.
On 14 July 2022, TfNSW provided material to the Registrar General setting out its position on the common boundary.
On 29 July 2022, the Registrar General informed the parties that in accordance with s 135D(2) of the RPA, he refused to make a determination because the boundary had previously been determined in the 1996 boundary determination and there was no new information provided which would compel the Registrar General to reconsider the 1996 boundary determination (2022 boundary refusal).
On 25 August 2022, Mr Boensch commenced proceedings in the LEC seeking leave to appeal the 1996 boundary determination, an appeal against the 2022 boundary refusal, and various other orders (LEC proceedings). TfNSW and the Registrar General applied for orders that the LEC proceedings be summarily dismissed pursuant to r 13.4 of the UCPR.
On 23 July 2023, the LEC proceedings were dismissed by Robson J on the basis that they did not disclose a reasonable cause of action: see Boensch v Transport for NSW and Registrar General of New South Wales [2023] NSWLEC 82. There is no evidence before me of any appeal of that decision by any party.
The claims made by TfNSW are now expressed in the FASC. In summary, TfNSW alleges that it is the registered proprietor of Sydney Harbour, the boundary of which is up to and including the MHWM where Subiaco Creek adjoins the Rydalmere Property, and Mr Boensch has trespassed by placing a number of items (including shipping containers, a metal shed, car parts and other miscellaneous items) and erected a retaining wall on TfNSW's land (Retaining Wall).
The relief sought in the FASC is damages and that between Mr Boensch and Big Toys they must within 28 days remove the items and the Retaining Wall from the bank of Subiaco Creek adjacent to and contiguous with the Rydalmere Property, remediate TfNSW's land, and be enjoined from placing any further items on TfNSW's land.
The latest form of the pleadings which have been filed by Mr Boensch are contained in each of the defence and the cross-claim.
Mr Boensch continues to contest the location of the common boundary in the substantive proceedings. The cross-claim seeks extensive declaratory relief relating to the position of the common boundary, and claims that TfNSW has neglected to maintain Subiaco Creek and is consequently liable for damage to the Rydalmere Property.
The substantive proceedings have not yet been listed for hearing.

THE INTERLOCUTORY PROCEEDINGS

On 4 September 2023, in advance of the hearing, Mr Boensch foreshadowed that he would be making an application to adjourn the hearing of the Dismissal Motion and the Notice to Produce Motion on the basis that the Court Book was not served on him with sufficient time to adequately prepare for the hearing. Mr Boensch also raised various complaints about the conduct of TfNSW's solicitor, including that they were deliberately withholding his evidence.
The adjournment application was heard by me on 5 September 2023, on which occasion I gave an ex tempore judgment refusing the adjournment - Transport for NSW v Boensch [2023] NSWSC 1200.
I then proceeded to hear the two notices of motions concurrently.
By the Notice to Produce Motion, TfNSW seeks the following orders: 1. The third sentence of the first paragraph of the notice to produce be set aside. 2. The balance of the notice to produce be set aside, being paragraphs 2 to 13. 3. Mr Boensch pay TfNSW's costs.
The notice to produce was served on TfNSW on 4 May 2023. The third and final sentence of paragraph 1 of the notice to produce and paragraphs 2 to 13 seek production of TfNSW's records, including records: 1. going back to the 1950s; 2. relating to a bridge being built in the 1960s; 3. concerning stormwater run-off; 4. concerning maintenance of Victoria Road, insofar as its gutters drain into Subiaco Creek; 5. concerning stormwater run-off from the trial overpass to the Clyde Street, Rydalmere intersection; and 6. showing historic disturbances to Subiaco Creek's banks.
The Dismissal Motion seeks the following orders in relation to the cross-claim: 1. summary dismissal pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and/or the court's inherent jurisdiction; or 2. alternatively permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (CPA) and/or the court's inherent jurisdiction; or 3. alternatively struck out pursuant to r 14.28 of the UCPR and/or the court's inherent jurisdiction.
I will deal with the issues raised by the Dismissal Motion before turning to consider the Notice to Produce Motion because the manner in which I propose to deal with the Dismissal Motion affects the scope of the issues to be determined in relation to the Notice to Produce Motion.

Legal principles

The court's power to summarily dismiss proceedings is contained in r 13.4 of the UCPR. Relevantly, subrr 13.4(1) and (2) provide: 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 - … (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).
For many decades, the shorthand expression of the applicable principles for the determination of an application to summarily dismiss proceedings has been described as the "General Steel test", which derives from the decision in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129; [1964] HCA 69, in which it was held by Barwick CJ that: …the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion….The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57], Gaudron, McHugh, Gummow and Hayne JJ commented on the General Steel test in the following way: Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
This expression of principle was endorsed in Batistatos v Roads & Traffic Authority New South Wales (2006) 226 CLR 256; [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ at [46] (where it was also said that the General Steel test should not be given "canonical force") and Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, by French CJ and Gummow J at [24].
In Shaw v State of New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ in CL agreed) at [32] elaborated on the relevant General Steel test for summary dismissal as follows: "The question is...whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated."
This assessment is to be made taking the party making the claim at its highest, meaning that the party applying for summary dismissal must accept the truth of all allegations in the claim, and the ranges of meaning which assertions in the claim are capable of bearing: see Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405, Gleeson JA (with whom Beazley P and Barrett JA agreed) at [200], citing Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].
The recent Court of Appeal decision in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 similarly dealt with an interlocutory application for summary dismissal, with Adamson JA observing at [123]: A plaintiff is not obliged to substantiate the allegations made in support of the claim in order to resist summary dismissal of the proceedings. Issues of fact are pre-eminently matters for final hearing. Summary dismissal will be refused if there is a triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA); [1992] NSWCA 272.
The power of the court to strike out the whole or any part of a pleading is contained in r 14.28(1) of the UCPR, which provides: 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: (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 the process of the court.
In relation to the power to strike out a pleading, the court must give consideration to the importance of pleadings for the conduct of a case, particularly to enable the opponent to know the case they have to meet. But the court does not treat them as rigid boundaries beyond which the parties may never stray.
In Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490; [1916] HCA 81, Isaacs and Rich JJ at 517, wrote (reading past the gender inappropriate use of "man" from more than 100 years ago): Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.
These themes were emphasised in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, Dawson J at 296-297, who stated (authorities omitted): It is, of course, the purpose of pleadings to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings upon trial may be conducted in an orderly fashion by reference to those issues. The defined issues provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance. But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings. It is incumbent upon the trial judge to see that the pleadings or particulars are amended so that the record reflects the proceedings as they have been conducted, but his failure to do so will not result in the invalidity of those proceedings.
In Banque Commerciale, Brennan J added at 288: When the pleadings bring the parties to the issue, the court's function is to determine that issue and to grant relief founded on the pleadings unless the parties are allowed to alter the issues at the trial without amendment of the pleadings…
Pleadings not only inform the opponent of the case to be met but also facilitate the just, quick and cheap determination of the real issues in the proceedings.
These matters were emphasised by Adamson J (as her Honour then was) in Dickens v New South Wales (No 3) [2018] NSWSC 485 at [36] and [38]-[39]: 36 The importance of pleadings ought not be underestimated. A statement of claim serves a number of functions. It indicates, to the Court and to the defendant or defendants, the basis of the plaintiff's claim for relief. The statement of claim must set out, in numbered paragraphs, the material facts on which the plaintiff relies (UCPR rr 14.6 and 14.7). Where the rules require that certain matters be particularised (such as allegations of fraud or states of mind), the statement of claim must contain those particulars. It is an aspect of natural justice that the defendant be apprised of the case it has to meet by a properly pleaded statement of claim: Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [25] (French CJ, Gummow, Hayne and Kiefel JJ). Where unparticularised allegations of fraud and intention are made, there can be a tendency for the deficient pleading to amount to an abuse of process. Pleadings must be consistent, except where allegations are expressed to be in the alternative: UCPR 14.18. A pleading must not be "embarrassing" in any of the senses set out by Tamberlin J in Shelton v NRMA Ltd [2004] FCA 1393; 51 ACSR 278 at [18]: 'Embarrassment' in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. … 38 Where a statement of claim is deficient, in that it does not identify the connection between allegations of fact and causes of action alleged; contains a discursive narrative, the relevance of which can only be the subject of conjecture; and makes generalised allegations which could not sensibly be the subject of a response in the defence, it cannot be allowed to stand, if objection is taken. Although there are occasions where a defendant, for forensic reasons, might not take objection to a deficient pleading and prefer to conduct the proceedings on that basis, a defendant who approaches the Court to enforce its rules regarding a pleading is entitled to have the Court require compliance: Northam v Favelle Favco Holdings Pty Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 7 March 1995). 39 The matters to be taken into account in determining which order to make are set out in Part 6 of the Civil Procedure Act 2005 (NSW), the overriding purpose of which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56. A properly pleaded statement of claim is, in my view, a prerequisite for the just, quick and cheap resolution of the real issues in the proceedings.
The concept of whether a pleading is embarrassing has also been the subject of extensive judicial consideration, drawn together in McGuirk v The University of New South Wales [2009] NSWSC 1424, Johnson J at [32]-[35], as follows: 32 A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at 5-6). 33 Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 at 417-418. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: Trade Practices Commission v David Jones (Aust) Pty Ltd (1985) 7 FCR 109 at 112-114. 34 Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Ltd [1960] VR 473 at 476; H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 at 186. 35 It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Ltd (1974) 131 CLR 69 at 72 87-88 and 97-98; Gunns Limited v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 at [55].
The court may receive evidence on the hearing of an application for a summary dismissal under r 13.4 of the UCPR or the strike out of a pleading under r 14.28 of the UCPR: r 13.4(2) and r 14.28(2) of the UCPR.

TfNSW's submissions

TfNSW submits that the cross-claim does not disclose a reasonable cause of action, seeks relief which is beyond the jurisdiction of the Court and otherwise contrary to law, and is bound to fail.
Drawing on r 13.4(2) of the UCPR, TfNSW also submits that in determining the Dismissal Motion, the court should have regard to the 1996 boundary determination as evidence in that the document is incorporated in the pleadings and goes to the reasonable prospects of the cross-claim.
TfNSW's primary submissions on the Dismissal Motion are as follows: 1. Where the boundary has been determined by the Registrar General, it is for all purposes to be taken to be in the position shown on the necessary notations and entries made by the Registrar General, regardless of any discrepancy with any plan of survey or other plan or record: ss 135K and 135L of the RPA. It follows that a declaration that the boundary is otherwise than as shown would be contrary to law. 2. The court's jurisdiction to make declarations regarding MHWM boundaries is confined by s 28 of the Coastal Management Act 2016 (NSW). 3. To the extent that claims in the cross-claim imply "a lurking negligence claim", they are statute barred under s 14 of the Limitation Act 1969 (NSW), having occurred some 30 or more years ago. 4. The just, quick and cheap resolution of the proceedings does not favour granting Mr Boensch leave to replead as the cross-claim has no prospects of success.
The crux of TfNSW's argument is that in seeking relief (particularly declaratory relief) in relation to the location of the boundary, the cross-claim amounts to a collateral attack upon the 1996 boundary determination.
It should also be noted that in its defence to the cross-claim, TfNSW pleaded the following, or words to the following effect, in response to majority of Mr Boensch's allegations: …the paragraphs are embarrassing, improperly pleaded and liable to be struck out including because they fail to articulate any contention to which the cross-defendant can respond, and are otherwise unintelligible or confusing…

Mr Boensch's submissions

Mr Boensch's submissions on the Dismissal Motion can be summarised as follows: 1. TfNSW (and its predecessor) withheld information from the Registrar General regarding the 1996 boundary determination and the 2022 boundary refusal. 2. Under s 28(3) of the Coastal Management Act, the Registrar General did not have the power under Part 14A of the RPA to make a determination concerning a water boundary that would increase the area of land to the landward side of the water boundary. 3. TfNSW incorrectly relies on a MHWM survey conducted in 1952, being either outdated or "completely wrong". 4. TfNSW has been ignorant, negligent and failed to maintain Subiaco Creek, causing damage to the Rydalmere Property and Mr Boensch's business (including vehicles, vehicle parts, equipment and machinery). The alleged damage includes flooding and water flow onto the Rydalmere Property in 2007, 2012, 2016, 2020 and 2022. 5. Claims outside the statutory limitation should be addressed at a hearing and/or treated under an exception. 6. TfNSW's legal representatives lack understanding of the cross-claim. 7. It is difficult for a litigant in person to articulate their claim in legal form. This is not sufficient to render a claim "illegitimate or hypothetical".

Supplementary submissions

On 23 September 2023, Mr Boensch sent an email to my chambers providing the citation to a judgment handed down by Richmond J in separate proceedings involving himself: Boensch v Bingham [2023] NSWSC 1152. Mr Boensch said that he believed the judgment would be of guidance in these proceedings and in a second email that same day, specifically noted Boensch v Bingham at [47]-[48], [50]-[54] and [93]-[94]. In those paragraphs, Richmond J drew attention to the application of striking out principles in the case of a self-represented litigant in following way: 48 Rule 14.28 permits the striking out of the whole or part of a pleading. As a general principle, the power to strike out should only be exercised in plain and obvious cases and if a defect in a pleading can be cured by amendment then it is appropriate to grant leave to amend the pleading rather than to strike it out or summarily dismiss the proceedings: Peter Taylor SC et al, Ritchie's Uniform Civil Procedure NSW (LexisNexis) [14.28.25]. … 50 The need for the court to consider whether a defect in a pleading can be cured by amendment is particularly relevant in the case of self-represented litigants. In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536 Kirby P (with whom Hope and Samuels JJA agreed) said (emphasis added): Thirdly, the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out. Unrepresented litigants present our courts with significant difficulties. Particularly is this so where the court is as busy as the duty judge in the Equity Division typically is. The appellant complained that she was limited in oral presentation of her case before Young J. But it is clear from his judgment that his Honour had before him all of the material which was later placed before this Court. He admitted the material, over the objection of the respondent. He considered it, although not convinced that much of it was strictly admissible. He did so in order to approach the case in the way most favourable to the appellant and to test the material on which she relied in order to see whether, additionally to the statement of claim, there might be derived from it a cause of action. If such a viable cause of action could be found, although not stated properly in the statement of claim, it could give rise to leave to amend and the avoidance of the peremptory termination of the litigation sought by the respondent. 51 It follows that a court should in the case of a self-represented plaintiff take care to ensure that if it can identify a viable cause of action in a defective pleading which could with appropriate amendment and a little assistance from the court be put into proper form, the plaintiff should be given that opportunity. 52 The need for the court to provide some assistance to self-represented litigants arises from the duty of the court to ensure procedural fairness to all litigants, and in the case of a self-represented litigant the extent of the assistance which can be given depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case: Minogue v HREOC (1999) 84 FCR 438; [1999] FCA 85 at [27] -[29] . However, it is important to ensure that in providing assistance to the self-represented litigant the court does not thereby confer an advantage on the self-represented litigant and cease to maintain its impartiality. The extent of the assistance provided must be proportionate in the circumstances and cannot extend to giving legal advice: Dickens at [46]. 53 A balance needs to be struck, therefore, between the need to avoid procedural unfairness and the need to avoid a compromise of judicial impartiality, which was emphasised by Samuels JA in Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 (in a passage approved by Sackville, North and Kenny JJ in Minogue at [28]): 54 In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. In these days of reasonably available legal aid, a litigant in person is becoming increasingly uncommon. At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. It may add weight on the unrepresented party's side of the scale; it must not lighten the other. An unrepresented party is as much subject to the rules as any other litigant. … 93 As the Solicitor submitted, this part of the ASOC does not disclose a cause of action and should be struck out. Further, it appears to be linked to the relief claimed in prayer 4 of the ASOC which alleges "a conspiracy … amounting to fraud". An allegation of fraud must be clearly pleaded and properly particularised, by specifically alleging the acts involved and that they were done in a manner that involves fraud: UCPR r 14.14. That has not been done. Accordingly prayer 4 should be struck out. Conclusion 94 The proceedings should not be struck out because there are causes of action which are capable of being identified: see [75], [78] and [84] above. However, the ASOC is clearly defective in a number of ways, in particular it fails to identify the required connection between allegations of fact and the causes of action alleged and as indicated above, there are various parts which should be struck out. I will grant leave to the plaintiff to file and serve a further amended statement of claim. However, as the plaintiff has already had a number of opportunities to replead his case, I indicate that he should not assume that if the next pleading is defective that the proceedings will not be dismissed with costs
On 4 October 2023, TfNSW sent an email to my chambers requesting an opportunity to provide short written submissions in the event that I proposed to consider Boensch v Bingham in any adverse way to TfNSW.
On 5 October 2023, I granted leave to both parties to prepare short written submissions addressing the effect (if any) of the principles identified in the relevant paragraphs from Boensch v Bingham. These were received in due course.
Mr Boensch's supplementary submissions are grounded in the principle that the court's power to strike out or summarily dismiss a pleading should be exercised cautiously, particularly in proceedings involving a litigant in person. Mr Boensch makes specific reference to the cases cited in Boensch v Bingham that support the principle that the court should grant leave to amend a defective pleading in circumstances where a viable cause of action can be identified. Mr Boensch submits that the court should be guided by the decision in Boensch v Bingham in granting him leave to amend the cross-claim, re-iterating his submissions on the Dismissal Motion as evidence that the cross-claim is not "manifestly groundless".
In TfNSW's supplementary submissions, it embraces the principles outlined in the relevant paragraphs of Boensch v Bingham but maintains that the cross-claim is "manifestly groundless" and cannot be cured by amendment. TfNSW's arguments can be summarised as follows: 1. The court does not have jurisdiction to overturn or circumvent the effect of the 1996 boundary determination, such that the cross-claim cannot succeed regardless of how precisely it is framed. 2. The cross-claim does not identify facts capable of establishing a cause of action. 3. Any claim for loss suffered by Mr Boensch would be statute barred.
Separately, TfNSW submitted that Boensch v Bingham revealed that Mr Boensch has been subject to numerous bankruptcy petitions, both before and after he filed the cross-claim and if he was, or is, a bankrupt, is precluded from bringing or maintaining the cross-claim: see Bankruptcy Act 1966 (Cth) ss 58, 59 and 60(2)-(3).
In response, Mr Boensch submits that there are no records indicating that he is, or was, a bankrupt over the course of these proceedings.
I do not propose to make any determination in relation to this new issue of Mr Boensch's alleged bankruptcy. Should TfNSW wish to pursue the matter, it is open to them to bring an application to the court with appropriate supporting material.

Determination

In applying the General Steel test as described in Shaw of "whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial", I am conscious that the cross-claim is drafted by a litigant in person.
The court's role in dealing with litigants in person is a careful balancing act. At the forefront of the court's duty is judicial impartiality and procedural fairness. It is not for the court to assist in formulating a party's case, nor is it the court's role to confer a positive advantage over the represented opponent: see Boensch v Bingham at [54]. However, it is recognised that litigants in person, being persons unfamiliar with the drafting of pleadings in permissible legal form, may suffer from a significant disadvantage so as to deprive them of the opportunity to have their claim determined according to law: see Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536, cited in Boensch v Bingham at [50]. In such circumstances, courts should be mindful to carefully consider the question of whether a defective pleading can be cured by amendment.
This was observed by Kirby P (as his Honour then was) in Wentworth at 536 in the following emphasised passage in Boensch v Bingham at [50]: Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put in proper form.
Courts dealing with litigants in person must always be conscious that "concealed in the lay rhetoric and inefficient presentation may be a just case": Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138, Kirby P at [2].
To apply the relevant principles, it is necessary to consider the cross-claim in detail. The cross-claim is in the following terms: RELIEF CLAIMED 1 Declaration that the Cross-Defendant is responsible to maintain the tidal section of Subiaco Creek from joining into Parramatta River up to the tidal limit on the south side of Victoria Road Bridge, Rydalmere NSW 2116., next to defendant's property. 2 Declaration that the Cross-Defendant has neglected its duties to maintain the tidal section of Subiaco creek, including but not limited the section subject to these proceedings. 3 Declaration that the Cross-Defendant has failed to maintain a sufficient and effective cross section for any known, expected or surveyed runoff of rain water and or storm water and to allow these waters to pass freely and safely into Parramatta River and to avoid subsequent damming and or partial restricting and damming these waters causing property flooding upstream. 4 Declaration that the Cross-Defendant is liable for any damage and loss (as assessed) due to the failed or inadequate maintenance of the tidal section of Subiaco Creek, it is responsible for, causing damming of the water and subsequently flooding properties, in particular but not limited to the Cross Claimant property, upstream. 5 Declaration that the Cross-Defendant is responsible for any damage and loss caused to the property of the Cross-Claimant, Tenants and Customers related to 255 Victoria Road Rydalmere, NSW 2116 and affected by flood damage. 6 Declaration that the Cross-Defendant is responsible and liable to pay the Cross Claimant the outlay in material and effort and time spend to maintain the tidal section of the creek for and on behalf of the Cross Defendant, in particular but not limited to the urgent maintenance the Cross-Defendant neglected and required urgently attention to avoid greater damage to the Cross-Claimants property and or property the Cross-Claimant is responsible for. 7 Declaration that the Cross-Claimant is entitles to be paid and or compensated for such damage, loss to property and maintenance outlined above. 8 Declaration, the Cross-Defendant is liable in particular but not limited to for the cost of building the protection wall subject of these proceedings. 9 Declaration that it was the Cross-Defendants duty to protect the Cross-Claimants land from water coming from the Cross-Defendant side of the property eroding the Cross-Claimants land and endangering live(!). 10 Order that the Cross-Defendant pay the Cross-Claimant such money as assessed to compensate for loss, damages of property, compensate of work and material spend to carry out urgent emergency maintenance, and other loss, cost and expenses related to the above. 11 A declaration that such claim and compensation is not limited by the general statute of limitation as the Cross-Claimant only now became aware that the Cross Defendant admits responsibility previously refuted on approach after each event by the Cross Claimant. Further 12 A declaration that the Cross-Defendant's property boundary is not governed by width and length as a normal land boundary is defined, but by the rising and falling of the water level to establish the MHWM as the effective and legal Boundary. 13 A declaration that the Cross-Defendant has no jurisdiction above the MHWM and in particular is not entitled to make a claim of trespass "above" the MHWM. 14 A declaration that the mean High Water Mark (MHWM) is equal or has the same hight level as the "Toe of the Bank" at, or when close, to the tidal limit. 15 A declaration that the mean High Water Mark (MHWM) is equal or close to the same as the "toe of the bank" in particular along the Cross-Claimants eastern boundary, the MHWM boundary. 16 A declaration that the MHWM on the eastern boundary of the defendants property is close to or the same as the 1973 survey of the MHWM or "Toe of the bank" carried out by John Ireland, known to the Cross-Claimant as a surveyor in the employ of the Cross-Defendant. 17 A declaration that the 1973 survey of the MHWM or "Toe of the bank" is the true MHWM boundary and that the area on the land side of this 1973 survey line is the true property and was always the property of the Cross-Claimant. 18 A declaration that the block wall is built on the land side of the 1973 Survey line and so are the location of the containers. 19 A declaration that a large part of the Block wall is well within the land side even of the 1952 line shown in a survey overlay over an aerial photo in particular were the containers are located. This survey was carries out by Harrison and Friedman dated 18 Sep 2018 for a survey regarding access to the rear of the Cross-Claimant property. PLEADINGS AND PARTICULARS 1 The Cross-Claimant migrated to Australia in 1988 and bought the place in Rydalmere in about 1990 2 The land of the land side of the 1973 survey line (MHWM or Toe of bank) is in that position since or before 1950. But at least since about 1960 on the Cross Defendants own evidence. 3 That is the land is in that position as today at least since 61 years, or at least 33 years before the Cross-Claimant arrived in Australia in 1988. MEAN HIGH WATER MARK (MHWM): 4 The MHWM governing the boundary between the parties is the average of the highest High Water Marks and the lowest High Water Marks (not the low water mark or the High Water Mark). 5 The MHWM is at different heights to the land level depending to the locations. At the Cross-Claimants location it is the toe of the Bank due to the tidal limit next to the Cross-Defendants property. FLOODING: 6 For a 1 in 100 flood or 1 in 20 flood to occur in the location of the Cross-Claimants property requires an "extreme Ocean King Tide" to push the water level back and up Parramatta River and into all creeks (including Subiaco Creek). The water level next to the Cross-Claimants property would then be some 3.5m high in the channel and the whole area of Parramatta would have the same level. That would create some kind of "lake" as there are limited or no ocean waves and almost no flow at some point because of back up water push from the ocean tide against the natural flow. Heavy rain creating a large body of "stormwater runoff" usually going down Subiaco Creek, in turn would be prevented to exit into Parramatta River and increase the water level to the 1 in 20 or in more extreme circumstances as described, to 1 in 100 flood. 7 The tides (incl. king tides) oscillate in an about 6 hrs cycle (High tide to low tide). 2 high tides and 2 low tides in an about 24 hr cycle. 8 We never had such "natural flood" involving a "King tide" were the flood water remained to about 4 hours let alone 6 hours. 9 We have been flooded more then 5 times in the last 30 years, but all these floods were based on a lack of maintenance of the cross section to the creek required. 10 The Cross-Claimant observed in each of these flooding events that the water level dropped from about 1.5 meters (about 5 m water level in the creek bed) above the lower property floor to the bottom of the creek bed in almost precisely 45 minutes on each occasion, indicating that the water of Parramatta River are not restricting the water to flow out (6hr cycle if this was governed by tides), but that the restriction is in fact upstream and involves the maintaining of a sufficient cross section of the creek bed in Subiaco Creek. To maintain a sufficient cross section for such known body of water is the responsibility of the Cross-Defendant. That is a drop from about 5m in the creek bed to less then 500mm in the creek bed in 45 min. 11 The Cross Claimant also observed that that the water building up in these flood events is running backwards (upstream) other then in the actual channel as if the water was dammed downstream. 12 The Cross-Claimant was actioned by Parramatta Council to provide a flood study that the cross section of the creek bed along the wall is sufficient to allow this known body of water to pass the Cross-Claimants property without breaking (or spilling over) the Bank, before approving the wall to remain. This survey was provided to council to comply with that request. 13 Further Parramatta Council instructed then, to finish the wall at the south end before continuing with the building work, to avoid further erosion. 14 It is bewildering that the Cross-Defendant had not done its duty to ensure the same further downstream. 15 On one occasions after a flood, the Cross-Claimant observed trees (3) had fallen and slid with a whole section of the bank into the creek creating a 3.5m-4m high dam wall. A complaint to MSB and Parramatta Council resulted in unresponsive action and the Cross claimant was forced to clear the creek bed with hand tools and small machinery as weather predictions forecasted another rainstorm which would have flooded the Cross-Claimant property again. This was a risky undertaking but had to be done, since the action by the Cross- Defendant remain wanting. The Cross-Claimant was occupied with the momentous clean up after the flood and was forced to interrupt this clean up and attend to this imminent thread to avoid further flooding. 16 After this section of the opposite bank slid into the cleek it exposed hazardous asbestoses demolition material in the opposite site of the Bank. A complaint about that to Parramatta Council went without action other then to say they will get in contact with the Cross-Defendant. 17 Further investigation about the opposite bank revealed that the whole bank opposite of the Cross-Claimant property was made up of demolition material and that the trees are largely supported by a 500mm soil cover "only", and are all vulnerable to fall over. 18 A complaint of another section next to the 3 trees can be observed sliding currently down the bank into the creek. Potentially creating another dam with about 2 large trees. A complaint about that also went into no actual action. 19 A usual response of the Cross-Defendant is, that it is the Councils responsibility and visa versa Parramatta Council responds that it is the MSB's responsibility. 20 I made recent photos of the section downwards the creek last Sunday the 21 Sept 2021. This revealed that currently a tree is across the creek need to be removed as it is potentially creating a dam in a downpour of rain. The photos of that day also show that down stream properties also have secured their land with concrete walls and other material. 21 This dispute is a matter concerning the whole creek and all properties down stream, but it appears that only the Cross Claimant is singled out for prosecution. In the absence of any evidence to the contrary, the Cross-Claimant alleges that it singled out, personally victimised and persecuted with the Cross-defendants statement of claim. TREES -1952 and 1973 survey: 22 On the land side of the 1973 survey line (MHWM or Toe of bank), the Cross claimants land, are several large and rather old trees at the south east end of the Cross-Claimants property. 23 Some of these trees referred to in the 1952 survey as plotting points and still standing. 24 The root systems of these trees are at a hight of about 1m minimum and up to 4.5m hight above the toe of the bank. 25 To be a true guide for the MHWM, the 1952 survey, this line would need to be at the toe of the bank in this area and not at a hight of 1 to 4.5 meters above the creek bed. 26 If the 1952 line would represent the MHWM or toe of the bank as alleged by the Cross Defendant, these trees and root systems would then grow in airspace between the 1952 and 1973 survey line as the land between 1952 and 1973 allegedly is none existing in 1952 according to the Cross -Defendant argument. The Cross-Defendant alleges that the area between the 1952 and 1973 line was water at the creek bed level. 27 This is one reason the Cross-Claimant says the Claim by the Cross-Defendant has no merits, because in 1952 the MHWM or "Toe of Bank" was about at the same level as the 1973 survey indicates. 28 The 1952 survey is a survey which either has: a) surveyed the highest possible water mark, b) a flood level of a flood in 1952, or c) The Top of the bank. It has not surveyed the 1952 MHWM or "Toe of the Bank" relevant in this particular area. 29 The block wall is also build on the land side of the 1973 Survey line and does not interfere with the Cross-defendants property. 30 In correspondence from Harrison Friedman Surveyors to the chief surveyor of the MSB dated 5 May 1995 on page 2,.he says: "I realize there is a dispute with evidence from your department, and I cannot explain those "discrepancies". However the weight of other evidence seems to "overshadow" those measurements". 31 A letter from the Paul Robertson (Manager, Property and assets) of the MSB dated 10 Nov 1995 conceded somewhat to the weight of other evidence by saying: Whilst having regard to the evidence presented by Apex Arborcare and aerial photography supplied by Quasco Pty Ltd. I am not convinced that the ground survey by our surveyor in 1952 should be disregarded". "In order to resolve this matter, I (Paul Robinson) suggest that you advise your client, Mr Franz Boensch, that he may approach the Land Titles Office to make a determination in this regard" 32 Some of the possible resolution to the confusion of the 1952 survey may be found in a letter dated 4 July 2018 send by Ryan Fifield, Survey Manager to the Cross Claimant. This letter is also referenced in the Statement of Claim by the Cross Defendant. The letter seems to see a difference between surveys referring to "MHWM" and to others surveys referencing to "The toe of Bank" in this section of Boundary. However all experts I dealt with over the years, agree that the MHWM is at the "Toe of the Bank" along the Cross-Claimant boundary with the Cross- Defendant. That is because of the tidal limit (going across the creek bed) next to the Cross-Defendants property. STORMWATER DRAIN (Just southeast of the Cross-Claimants property) 33 According to evidence of both parties a stormwater drain outlet into Subiaco Creek was build in or about 1950. Both parties agree with that in correspondence, but no absolute documents or records could be provided by either side as yet. 34 This storm water outlet is located at the south eastern point of the Cross Claimant's property. 35 This storm water outlet is shown in all available surveys from at least 1973, to align with the 1973 Survey line produced by the Cross-Defendant. It also matches with the 1973 survey line in all Cross-Claimants surveys. 36 This stormwater outlet matches the existing creek bank today as it did in 1950 with its concrete reinforced outlet. Shown in Photos taken on 12 Sept 2021. 37 Also noticeable is some erosion washing out underneath the bank. This erosion is about 500mm of the creek bed, indicating that the bank is compressed naturally to a stage were it can overhang and support itself. 38 There is a red container in the background of the storm water outlet in some of the photos. The back wall of this red container lines up approximately with the 1952 survey line. The back wall of this container is about 5m in the background of the stormwater outlet and about 4m above the level of the Storm Water outlet. 39 As indicated in surveys, the allegations of the Cross-Defendant must fail, as it put the storm water pipe in the open, reaching uncovered into the creek by about 5 meters from the 1952 survey line and have the bricked and concreted outlet build like an island in the middle of the creek. 40 This is another reason the Cross-Claimant says the allegations by the Cross Defendant surrounding the 1952 survey line have no merit. And that the creek bank was in this current shape since about the Storm Water pipe was build in about 1950. 41 The 1952 and 1973 survey lines can both be seen in the 1973 survey. They can be seen to go well past the Cross-claimant's property. The 2 survey lines can be seen to go at least passed No 9 Bridge Street (at least 5 properties creek downward) and most likely to the outlet of Subiaco Creek into Parramatta River. 42 The lack of maintenance of the Subiaco Creek bed by the Cross-Defendant is also demonstrated by a Shopping trolley resting next to the Cross-Claimants property for some 10 years now.
At the hearing, I was informed by TfNSW that it was served with a proposed amended cross-claim on which Mr Boensch no longer intends to rely. Mr Boensch invited me to consider a further proposed amended cross-claim contained in the exhibit to the affidavit of Franz Boensch sworn 27 July 2023. In his written submissions, Mr Boensch stated that his causes of action were "clarified" in the further proposed amended cross-claim. However, Mr Boensch did not submit that he intends to put that exhibit in proper form or file an amended cross-claim.
Whilst the form and structure of the further proposed amended cross-claim appear different to the cross-claim, the substance is very similar. The most prominent difference appears to be that Mr Boensch has articulated the legal cause of action underpinning each of his claims. I have set out my observations on them below: 1. Section A is entitled "Case of the boundary" and pleads a more explicit claim in negligence for TfNSW's failure to "adjust the correction of the MHWM level on its title to the 1967 level for the MHWM", resulting in substantial loss, cost and damage to Mr Boensch. 2. Section B is entitled "Approval of Wall" and pleads a breach of contract. This is a newly formulated claim contending that TfNSW's predecessor and Mr Boensch entered into a contract for the erection of the Retaining Wall to secure the creek bank. Mr Boensch alleges that TfNSW breached the contract by requiring him to remove the Retaining Wall and by commencing the current proceedings. 3. Section C1 is entitled "Flooding creek water" and pleads a more explicit claim in negligence but is in substantially similar terms to what was pleaded in the cross-claim, merely providing greater detail. 4. Section C2 is entitled "Flooding creek waters" and pleads a claim in nuisance, alleging that TfNSW interfered with Mr Boensch's enjoyment or use of the Rydalmere Property through allowing flooding and consequent damage. This includes details of the stormwater drain, as pleaded in the cross-claim. 5. Section D is entitled "Flooding waters of Victoria Road" and pleads a claim in nuisance, overlapping with sections C1 and C2. 6. Section E is entitled "Persecution, Harassment and Vexatious Proceedings" and reiterates the claim that TfNSW has failed to update the location of the boundary "in accordance with new MHWM information in about 1967", leading to these proceedings and resulting in material and personal damages. 7. Section F is entitled "REMEDY Save-guarding the defendants Property to trespassing floodwater" and claims that TfNSW should bare all costs for "flood proof enclosure" of the Rydalmere Property.
On this application, I only propose to decide the Dismissal Motion as it applies to the cross-claim, not the further proposed amended cross-claim. As such, it is not necessary to evaluate the further proposed amended cross-claim in any greater detail, given Mr Boensch's lack of any expressed intention to seek to file it.
It appears that the relief sought in the cross-claim (under the heading "Relief Claimed" nearly all of which is expressed as declarations) can be divided into two distinct sections. The first section deals with what seems to be claims in the nature of negligence (paragraphs 1 to 11) and the second section disputes the location of the boundary (paragraphs 12 to 19). I will assess the two sections (and their associated parts of the pleadings and particulars) respectively.
As is evident, paragraphs 1 to 9 and 11 of the relief claimed in the cross-claim broadly seek declaratory relief arising from the alleged failure of TfNSW to maintain the tidal section of Subiaco Creek, resulting in flooding and consequent damage to the Rydalmere Property. Paragraph 10 of the relief claimed in the cross-claim seeks an order for the payment of money by TfNSW to Mr Boensch in the nature of compensatory damages. The relief in paragraphs 1 to 11 appears to be supported by paragraphs 6 to 21 and 42 under the heading "Pleadings and particulars".
More specifically, paragraphs 1 and 9 of the relief seem to allege that TfNSW owed a duty of care to Mr Boensch, paragraphs 2 and 3 identify the ways in which TfNSW allegedly breached that duty, and paragraphs 4, 5, 6, 7, 8 and 10 claim damages for the losses allegedly suffered as a result of the alleged breaches. This loss is alleged to extend to material, time and effort spent maintaining the tidal section on behalf of TfNSW, including emergency maintenance of Subiaco Creek, as well as the building of a "protection wall", being the Retaining Wall erected by Mr Boensch (which TfNSW says has been placed on its land without consent).
Paragraphs 6 to 21 of the pleadings and particulars in the cross-claim are under the heading "Flooding" and convey information about flooding and tides at Subiaco Creek. Paragraph 42 of the pleadings and particulars concerns an alleged lack of maintenance of Subiaco Creek demonstrated by the presence of a shopping trolley for 10 years. Whilst they are somewhat lacking in particularity, as submitted by TfNSW, they function to support paragraphs 1 to 11 of the relief claimed and plead TfNSW's alleged failure to maintain the "cross section" of Subiaco Creek.
Whilst the claims in this first section are somewhat disorganised, discursive, overlapping and repetitive at times, to my mind, they reflect a lay person's description of a cause of action in negligence against TfNSW for multiple flooding events that are said to have impacted on the Rydalmere Property and Mr Boensch. On all the evidence before me, I am not satisfied that there is a high degree of certainty that the claims made in paragraphs 1 to 11 of the relief and paragraphs 6 to 21 and 42 of the pleadings and particulars in the cross-claim will fail, nor do they stand to involve useless expense.
I note that paragraphs 6 to 21 and 42 of the pleadings and particulars in the cross-claim are not substantial or particular, but I consider that they have within them sufficient material to lay the ground for the alleged legal liability of TfNSW for the flooding events to be properly considered at trial. However, as presently drafted, they have a tendency to cause embarrassment, given the general and discursive narrative of them that would make it very difficult for TfNSW to appropriately respond by way of defence and would cause undue delay and expense, contrary to the objective for the just, quick and cheap resolution of the real issues to be determined in the proceedings. It is not the function of the court to re-draft or settle a further form of the cross-claim.
I propose to strike out paragraphs 1 to 9 and 11 of the relief claimed in the cross-claim and paragraphs 6 to 21 and 42 of the pleadings and particulars in the cross-claim pursuant to r 14.28(1)(b) of the UCPR but grant Mr Boensch leave to re-plead them within a reasonable period of time.
As to TfNSW's submission that any claim in negligence against them by Mr Boensch would be statute barred under s 14 of the Limitation Act, having occurred some 30 or more years ago, it is generally undesirable that contested issues of this nature be dealt with on an interlocutory basis. In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533; [1992] HCA 55, Mason CJ, Dawson, Gaudron and McHugh JJ said: We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.
In all of the circumstances, I do not consider this to be the clearest of cases. There appears to be some dispute as to when the cause of action accrued, particularly given that Mr Boensch contends that flooding occurred across multiple years, including in 2020 and 2022. In the event that the damage occurred outside the limitation period (which may or may not be the case in respect of flooding alleged to have occurred in 2007, 2012 and 2016), there is also insufficient material before me to determine whether Mr Boensch has an answer to any limitation defence that might be raised by TfNSW.
Given that I consider that Mr Boensch has articulated a reasonable cause of action in paragraphs 1 to 11 of the relief claimed and paragraphs 6 to 21 and 42 of the pleadings and particulars in the cross-claim (albeit it is one which must be re-drafted in an amended form), it would be inappropriate to speculate when and how the damage was caused to the Rydalmere Property and whether separate causes of action arise in respect of each flooding event. As the caution of Adamson JA in GR reminds me, issues of fact are pre-eminently matters for final hearing.
I consider that buried in "lay rhetoric and inefficient presentation" is a triable issue to be determined. Any limitation defences are properly matters for final hearing.
Accordingly, I consider that: 1. paragraphs 1 to 11 of the relief claimed and paragraphs 6 to 21 and 42 of the pleadings and particulars of the cross-claim do disclose a reasonable cause of action and therefore are not liable to be summarily dismissed under r 13.4(1)(b) or struck out under r 14.28(1)(a) of the UCPR on that basis; and 2. paragraphs 1 to 9 and 11 of the relief claimed and paragraphs 6 to 21 and 42 of the pleadings and particulars of the cross-claim have a tendency to cause embarrassment and delay in the proceedings and should be struck out pursuant to r 14.28(1)(a) of the UCPR, with leave granted to Mr Boensch to replead them in an amended version of the cross-claim.
Moving to the second section of the cross-claim, paragraphs 12 to 19 of the relief claimed in the cross-claim under the heading "Further" are all dependent on the issue of the location of the boundary between Subiaco Creek and the Rydalmere Property. They appear to derive from the content in paragraphs 1 to 5 and 22 to 41 of the pleadings and particulars in the cross-claim.
As outlined above, the location of the boundary is an issue that has been previously litigated and is the essential integer in the second section of claims. It was first addressed in the 1996 boundary determination, followed by the 2022 boundary refusal, with both decisions sought to be appealed in the LEC proceedings. I have had regard to the 1996 boundary determination in considering the prospects of the cross-claim, as pressed by TfNSW.
Relevantly, in the LEC proceedings, Robson J held that: 1. Mr Boensch did not have standing to appeal the 2022 boundary refusal under s 135J of the RPA: Boensch v Transport for NSW and Registrar General of New South Wales at [77]; and 2. the Court did not have discretion to vary the 28-day limitation period prescribed by s 135J(3) of the RPA to appeal the 1996 boundary determination: Boensch v Transport for NSW and Registrar General of New South Wales at [80]-[90].
Mr Boensch has exhausted several avenues for review as to the position of the common boundary between Subiaco Creek and the Rydalmere Property. In essence, what Mr Boensch is seeking to do in the second section of the cross-claim is to overturn the already litigated and final 1996 boundary determination. The legality of the 1996 boundary determination and the 2022 boundary refusal were properly matters for the LEC proceedings. Mr Boensch did not seek to appeal the decision of Robson J in the LEC proceedings.
Should Mr Boensch have wished to appeal the decision in the LEC proceedings, s 48 of the Supreme Court Act 1970 (NSW) dictates that the appropriate forum is the Court of Appeal of this court. I do not understand the approach taken by Mr Boensch in the cross-claim to be one where he is endeavouring to appeal the decision in the LEC proceedings, as it was filed well in advance of the 2022 boundary refusal and the determination in the LEC proceedings. Instead, Mr Boensch is seeking to persist in claims about the boundary between Subiaco Creek and the Rydalmere Property which have now been resolved against him and from which he did not appeal.
Accordingly, unlike the characterisation of what was sought by GR to "impugn" guardianship orders made (see GR at [152]-[153] (Basten AJA)), there is nothing in the language of paragraphs 12 to 19 of the relief claimed in the cross-claim that would suggest that Mr Boensch seeks to avail himself of the right to appeal the decision in the LEC proceedings. Rather, the declaratory relief sought in paragraphs 12 to 19 only speaks to the incorrect location of the boundary. It is not appropriate for me to suggest any reformulation of the substance of the pleadings on this application to, in effect, craft a legal cause of action. To do so would confer positive advantage to Mr Boensch of the kind discouraged in both Wentworth and Boensch v Bingham.
Here, the difficulty facing Mr Boensch extends beyond mere "lay rhetoric and inefficient presentation". Mr Boensch is effectively seeking to ignore the 1996 boundary determination, the 2022 boundary refusal and decision in the LEC proceedings. This court is not the appropriate forum to review any of these decisions. It is also not for this court to re-determine the location of the boundary as it sees fit.
The 1996 boundary determination has taken effect, so the boundary is "for all purposes to be taken to be in the position so shown": s 135L of the RPA. Amongst "all those purposes" are the determination of these proceedings.
Paragraphs 1 to 5 and 22 to 41 of the pleadings and particulars in the cross-claim concern the location of the boundary and face the same flaws identified in relation to paragraphs 12 to 19 of the relief claimed in the cross-claim. The issues with these paragraphs can be summarised as follows: 1. Paragraphs 1 to 5 are all precursors to challenges to the 1996 boundary determination, contesting the location of the boundary based on the MHWM from the 1952 survey; 2. Paragraphs 22 to 32 are under the heading "Trees - 1952 and 1973 survey" and convey information about the trees and root systems at the south-east end of the Rydalmere Property to dispute the correctness of the 1952 survey in that it failed to survey the 1952 MHWM or "Toe of the Bank". This functions to contest the location of the boundary. 3. Paragraphs 32 to 41 are under the heading "Stormwater Drain" and detail the presence of a stormwater drain outlet into Subiaco Creek. Again, the stormwater drain is used to contest the location of the boundary.
In effect, these pleadings function both as a defence to the FASC, and a cross-claim. They are defective in both substance and form, failing to disclose a reasonable cause of action against TfNSW and being an abuse of process because they are seeking to dispute a matter which can no longer be the subject of dispute in this court.
Accordingly, I find that paragraphs 12 to 19 of the relief claimed and paragraphs 1 to 5 and 22 to 41 of the pleadings and particulars in the cross-claim fail to disclose a reasonable cause of action in the General Steel sense. They are properly an abuse of process and should be summarily dismissed.

NOTICE TO PRODUCE MOTION

I will now consider the Notice to Produce Motion.
The notice to produce is set out below: 1 The documents provided by the Plaintiff to the Registrar in about 2022 in response to Registrar General Application AS198355/2022. These are the documents/evidence referred to in the Plaintiffs letter to the Registrar General dated 14 July 2022 responding to the application AS198355/2022. A copy with highlights of this letter and following a list of documents, referred to in this letter as provided to the Registrar General which is annexed hereto and marked "A", which were not provided by the Plaintiff to the Defendant. 2 The documents and evidence provided by the MSB in about 1995-96 to the Registrar General in response to application 0878893-1995. 3 Any survey, on or after 1950, of the bridge at Victoria Road, Rydalmere, Subiaco Creek Bridge (the former bridge) prior to construction in 1963 of the current bridge at that location. 4 Construction plans or other plans created between 1950 and 1963 showing the foundations of the former bridge. 5 Any document, record, instruction, data relating to the 1952 Subiaco Creek MHWM survey by E.J. Moore (FB199/133) (the 1952 survey). 6 Any document containing Australian Height Datum (AHO) or other height level data for the 1952 survey. 7 Any document recording when the tidal limit line, shown on the RMS/Parramatta Plan M128 and Plan P.J.369 as the "Tidal Limit" MHWM boundary line "1967" across Subiaco Creek bed near Victoria Road Bridge, was created. 8 Any document recording the AHD that tidal limit line was based on. 9 Any document recording the location, prior to 1967, of the tidal limit MHWM boundary line. 10 Any document recording the AHD that pre 1967 tidal limit MHWM boundary line was based on. 11 Any report or other document recording assessments or calculations of storm water runoff into Subiaco Creek at the location of the former bridge and the current bridge and the capacity of Subiaco Creek to absorb that runoff. 12 Any document recording maintenance of Victoria Road (Main Arterial Road) storm water runoff gutter drains into Subiaco Creek since 2010 13 Any document recording the design and suitability of the current Victoria Road (Main Arterial Road) storm water runoff gutter drains directed into Subiaco Creek from the rail overpass to the Clyde Street, Rydalmere intersection.
The notice to produce relates to both sections of the cross-claim, namely, the claim in negligence and the disputed location of the boundary.
At the hearing, Mr Boensch submitted that even if the cross-claim were to be summarily dismissed, the documents in the notice to produce are nonetheless required for his defence in the substantive proceedings.
I will consider this issue in greater detail below when I address the specific paragraphs in the notice to produce.

Legal principles

Rule 21.10 of the UCPR governs the ability of parties to require production of documents pursuant to a notice to produce. The rule is set out below: 21.10 Notice to produce for inspection by parties (1) Party A may, by notice served on party B, require party B to produce for inspection by party A - (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.
Rule 21.1(2) clarifies that: …a document is taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.
In Norris v Kandiah [2007] NSWSC 1296, Brereton J (as his Honour then was) at [5] observed that it was not the intent of r 21.10 to enable notices to be given requiring production of classes of identifiable documents, as distinct from specific identified documents. In The Owners Strata Plan 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502, Stevenson J at [4]-[6] made clear that a notice to produce served pursuant to UCPR r 21.10 must identify specific documents, rather than merely classes of documents, no matter how specifically those classes are described.
The requirements under r 21.10(1)(b) that there be a "specific document" and that it be "clearly identified" were explained by Young CJ in Eq (as his Honour then was) in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182 at [8]-[9]. The words "clearly identified" mean that there must be something more than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The word "specific" denotes something which is identified and not merely identifiable.
Drawing on this, in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [11], Barrett J concluded: It is thus clear that, in rule 21.10, the combination of "specific document" and "clearly identified" means that a notice can relate only to a document describe by means of characteristics peculiar to itself, such as a letter of a given date written by X to Y, or the minutes of a meeting of directors of Z Limited held on a given date. A notice relating to all letters written by X to Y in 2008 or the minutes of all meetings of the directors of Z Limited held in 2008 would not be permitted because referring to a class of document as distinct from what Harrison AsJ in Douglas Corporation v Currico Nominees [2007] NSWSC 113 termed "the individual document sought" is not a permissible course.
Where a notice to produce is otherwise valid, it may still be set aside if it is oppressive. As Brereton J said in Azzi v Volvo [2006] NSWSC 283 at [6]: The exercise of deciding whether a subpoena is or is not oppressive is a multifactorial balancing one. Where the documents called for have a high degree of apparent relevance to issues in the proceedings, the court will not shrink from requiring third parties to undertake considerable burdens to search for and produce such documents. On the other hand, where the documents are of slight or little apparent relevance, the extent of the burden cast on the party called to produce documents will weigh much more heavily against allowing the subpoena to stand [Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710].
The party issuing the notice to produce bears the onus of establishing a legitimate forensic purpose: see Rinehart v Rinehart [2019] NSWSC 759 at [27].

Submissions

TfNSW opposes the orders in the Notice to Produce Motion on the bases that: 1. the impugned paragraphs seek documents that are not relevant to facts in issue in the proceedings; 2. the impugned paragraphs seek production akin to discovery, rather than the production of specific documents or things that are clearly identified in the notice to produce; 3. the impugned paragraphs of the notice to produce seek a very broad range of documents including documents dating back some 70 years, such that it would be unduly burdensome and oppressive for TfNSW to be required to identify and produce such documents; 4. TfNSW has already produced to Mr Boensch those documents which are relevant to facts in issue in the substantive proceedings; and 5. to the extent Mr Boensch claims that the documents sought are relevant to facts in issue in his cross-claim, the cross-claim does not disclose any reasonable cause of action and should be summarily dismissed.
At the hearing, TfNSW also submitted that the notice to produce was a fishing expedition.
Mr Boensch's submissions can be summarised as follows: 1. TfNSW is erroneously and knowingly misleading him by alleging that all the requested documents have been provided; 2. TfNSW had withheld production of certain documents to suit its pleadings; and 3. prior requests for TfNSW to provide documents have either not been complied with or have been denied.
The balance of Mr Boensch's submissions re-iterate the substance of his cross-claim and are not relevant to the determination of the Notice to Produce Motion.

Determination

Paragraph 1 refers to "highlights" of TfNSW's letter to the Registrar General dated 14 July 2022 and "following a list of documents," being Annexure A. I infer that the list of documents in Annexure A captures the documents being sought in relation to the letter.
Annexure A lists a series of documents that are inextricably linked to Mr Boensch's contention that the 1996 boundary determination was incorrect. This is also true of paragraphs 2 and 5 to 10 of the notice to produce which similarly pertain to the location of the boundary. For the reasons stated above, I have summarily dismissed the relevant portions of the cross-claim that relate to this contention and they are therefore not relevant to a fact in issue arising from the cross-claim.
Mr Boensch contends, however, that the documents in the notice to produce are relevant to his defence in the substantive proceedings. In effect, the defence pleads a case in substantially similar terms to that contained in the cross-claim by disputing the location of the common boundary and asserting that the 1996 boundary determination is wrong. In light of the 1996 boundary determination, the 2022 boundary refusal and the decision in the LEC proceedings, none of those parts of the defence can be maintained. As a result, the documents sought in the third and final sentence of paragraph 1 (including Annexure A) and paragraphs 2 and 5 to 10 of the notice to produce have no relevance to a fact in issue and cannot be required to be produced.
For that reason, the third and final sentence of paragraph 1 (including Annexure A) and paragraphs 2 and 5 to 10 of the notice to produce must be set aside.
Paragraphs 3 and 4 of the notice to produce concern the "Subiaco Creek Bridge" that existed prior to the construction of the new bridge in 1963.
Mr Boensch articulated the relevance of the documents in paragraphs 3 and 4 of the notice to produce as follows: Documents under NTP Poin#3 [sic] and #4 are required to establish how the new Victoria Road bridge design has changes, if any, in about 1960 to direct the water flow more towards the defendant's property causing erosion which required [sic] to build the block wall in the first place.
This was further clarified by Mr Boensch's oral submissions at the hearing. The relevant extracts are provided below: …the water coming through the bridge, hitting our property and then getting directed away along the creek. So this is the biggest area of turbulence, and that is actually where we had a huge erosion occurring, where my daughter actually fell into the creek. So that was the accident I'm referring to. The bank was washed out underneath, so you couldn't see it. My daughter went there, wanted to have a look. That was next day, when there was no water in the creek. And the bit of the bank broke off, and she basically fell into the creek. [1] … Now, this is the reason actually why the wall was built. [2] … And now it is, as you can see on the survey, it's actually the water is directed straight on to our land. So the direction of the bridge has actually changed, without any consideration by the authorities of our land. Now, it wasn't our land back then in 1963 but that's what actually happened. So I'm asking to make that argument and make a proper argument. I asked the surveyor, "How can we address that?" And he says, "Well, I can't go just on the pictures, I need the foundation from the bridge." So that's why I'm asking for that. Not because I want it or because I want to annoy the plaintiff, but because the expert here, the surveyor, wants those details so he can address the issues for the court and how to remedy those issues. [3] …
From these matters, it can be inferred that Mr Boensch seeks to rely on documents relating to the new bridge to explain the source of flooding and justify the building of the Retaining Wall in his negligence claim against TfNSW.
The documents in paragraphs 3 and 4 of the notice to produce are specifically identified in the Penrith Rugby sense, being surveys and construction plans for the former Subiaco Creek Bridge within a specific period of time. The language used is distinct and free from confusion, imposing no difficulty, other than the task of retrieving the documents, on TfNSW.
TfNSW have suggested that the material requested would expose them to burdensome costs and time in searching for the documents, particularly given the archived records are offsite and would need to be located, reviewed and collated. There is no further evidence as to the extent of the burden cast on TfNSW in undertaking this process.
Contrary to TfNSW's submissions, I do not believe the mere age of the documents, dating back some 70 years makes them unduly burdensome or oppressive to TfNSW to produce.
Regardless, applying the test in Azzi, the documents appear to possess a high degree of relevance to the issues in the proceedings as the bridge is an integral part of Mr Boensch's claim that the flooding caused damage to the Rydalmere Property. Accordingly, I have determined not to set aside paragraphs 3 and 4 of the notice to produce.
Paragraphs 11 to 13 of the notice to produce seek documents that concern: a) The stormwater drainage system and maintenance on Victoria Road, a Main Arterial Road under the control of TfNSW and b) The stormwater disposal system and maintenance using the creek channel as part of the stormwater run off system.
Again, the documents in paragraphs 11 to 13 of the notice to produce appear to be relevant to Mr Boensch's claim in negligence and more specifically, the flooding of the Rydalmere Property.
Mr Boensch articulated the basis for seeking the documents as follows: …to ascertain what calculation; engineering is behind the stormwater design if any, and if it is sufficient and compliant with town planning requirements.
The references to "any report or document" in paragraph 11 and "any document" in paragraphs 12 and 13 are somewhat vague in identifying specific documents, or rather, could be deemed as referring to a class of documents. The test in Patonga Beach requires documents to be identified by characterises peculiar to themselves. The descriptions of the documents in paragraphs 11, 12 and 13 of the notice to produce do not do this and so should be set aside.

CONCLUSION

I make the following orders: 1. Pursuant to r 14.28(1)(a) of the UCPR, paragraphs 1 to 9 and 11 of the relief claimed and paragraphs 6 to 21 and 42 of the pleadings and particulars of the statement of cross-claim filed 15 September 2021 (cross-claim) are struck out, with leave granted to the defendant/cross claimant to replead them within 21 days. 2. Pursuant to r 13.4(1)(b) and (c) of the UCPR, paragraphs 12 to 19 of the relief claimed and paragraphs 1 to 5 and 22 to 41 of the pleadings and particulars in the cross-claim are summarily dismissed. 3. The third and final sentence of paragraph 1 (including Annexure A), paragraph 2, and paragraphs 5 to 13 of the notice to produce dated 4 May 2023 are set aside.
On a date to be fixed, I will hear the parties in relation to the period within which TfNSW is to produce the documents falling within paragraphs 3 and 4 of the notice to produce.
On the same date to be fixed, I will also hear the parties in relation to costs.

Endnotes

Tcpt, 5 September 2023, p 36(39)-(49)
Tcpt, 5 September 2023, p 37(31)
Tcpt, 5 September 2023, p 37(41)-(50), p 38(1)-(2) 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: 09 November 2023

Uniform Civil Procedure Rules 2005(NSW)rr 13.4, 14.28, r 21.10

Bankruptcy Act 1966(Cth)ss 58, 59

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (18 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (46)

Cited By (2)