Vassallo v Deitz

Supreme Court of NSW|2023-09-14|Before: Chen J

Solicitors: Bartier Perry (first and second defendant) File Number(s): 2023/71776 Publication restriction: Nil

Introduction

This is an application by the defendants, by notice of motion filed 25 May 2023, for summary relief: the defendants seek an order that the plaintiff's amended summons filed 8 May 2023 be summarily dismissed, under r 14.28 or 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ('the UCPR').
The defendants read, in support of the orders sought, affidavits of Maja Podinic sworn 26 May 2023 and 13 September 2023.

Background

The background facts are within narrow compass. I will briefly deal with them, across three parts: first, the events giving rise to the alleged offending; secondly, the hearing of the offence in the Local Court; and, thirdly, a short description relating to the commencement of the proceedings in this Court.

The land clearing investigation and offending

The underlying proceedings arise out of an investigation by Campbelltown City Council ('the Council') into unauthorised clearing of land - including the removal of trees and vegetation - at a property in Wedderburn, NSW ('the property') in July 2021.
On 6 December 2021 a search warrant issued, pursuant to cl 6(1)(d) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and s 9.19 of the Environmental Planning and Assessment Act 1979 (NSW) ('the EPAA'), authorising an officer from the Council and/or accompanying officers of the NSW Police Force to enter the premises (including the dwelling upon it) and to search the property in order to identify breaches of the EPAA and gather evidence relating to the unapproved removal of trees and vegetation.
On 7 December 2021 a Council officer, assisted by NSW Police, attended the property and executed the warrant. On that day, the plaintiff was issued with an electronic penalty infringement notice (No. 3211699471).
The penalty notice stated the offence as: "Failed to comply with requirement of investigation officer - individual", and there was also recorded an offence code: "91967".
The offence described by that code is an offence under s 9.25(1) of the EPAA. That section provides: A person must not, without reasonable excuse, fail to comply with a requirement made of the person by an investigation officer in accordance with this Division.
The conduct that is said to give rise to a contravention of this provision is also set out in the notes contained in the penalty notice. Those notes provide: On the 7 December, 2021 Council authorised officers executed a search warrant on the home of the offender in relation to illegal land clearing. A direction was given to the offender under the environmental planning and assessment act requiring him to answer questions put to him regarding the land clearing. He was warned that by not answer (sic) the questions he was committing an offence. The offender, refused to answer any questions put to him.
Following the issuing of the penalty notice the plaintiff lodged a number of requests for review. Being dissatisfied with the responses received, the plaintiff lodged a Court Election Form dated 15 March 2022.

The proceedings in the Local Court

Having made that election, a hearing of the offence charged took place on 3 February 2023 in the Local Court at Campbelltown before Magistrate McLennan.
After an exchange between the plaintiff and the Magistrate, the Magistrate proceeded on the basis that the defendant entered a plea of not guilty.
The Magistrate found the plaintiff guilty and imposed a fine of $3,000. The Magistrate also ordered the plaintiff to pay the Council's costs of $11,772.

The proceedings in this Court

By summons filed 3 March 2023, the plaintiff sought a range of orders with respect to the decision of the Local Court.
The summons was drafted without legal assistance.
By the orders in that summons, the plaintiff sought a stay of the orders requiring the payment of the fine, and the legal costs (order 1), an "order quashing both the decision and proceedings" (order 3), and an order "that the defendants may not recover costs from the plaintiff" (order 4).
The plaintiff has identified 41 "grounds" of review. Those grounds are altogether not easy to follow.
On 8 May 2023 the plaintiff filed an amended summons. It appears that the only amendment to the summons, from the earlier one filed, is the removal of the order that sought a stay of the Local Court proceedings (order 2).

Legal principles

The relevant legal principles that apply to pleadings are well-established.
In an application under rr 14.28(1)(a)-(c) of the UCPR, it is generally appropriate in an application of this kind to consider at least three of them.
The first are the general principles that inform the nature and function of a pleading. In Young v Hones [2013] NSWSC 580 at [79]-[80], Garling J succinctly summarised the function of pleadings: [79] The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirements of procedural fairness, namely that a party should have the opportunity to meet a case against him or her: Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286, 296, 302-3. As well, the issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] HCA 70; (1982)148 CLR 658 at 664. [80] Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005; McGuirk v The University of NSW [2009] NSWSC 1424 at [24] per Johnson J.
A number of these principles are reflected in the UCPR: see rr 14.6-14.20. In the context of proceedings for judicial review, they are reflected in r 59.4. In particular that rule requires that any summons in proceedings for judicial review "must state … with specificity, the grounds on which the relief is sought": r 59.4(c). The importance of compliance with this requirement has been repeatedly emphasised: Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113 at [68]; CSR Limited v Ewins [2020] NSWSC 511 at [69].
The second are the more specific principles that apply to particular claims. For example, certain matters must be specifically pleaded "that, if not pleaded, may take the defendant by surprise": r 14.14 of the UCPR. These are not presently relevant.
The third relates to the function of the Court. It is not the role of the Court to assist parties in drafting pleadings which comply with the UCPR: Gunns Ltd v Meagher [2005] VSC 251 at [57] ('Gunns'); McGuirk v The University of New South Wales [2009] NSWSC 1424 at [35]. Rather, as noted in Gunns at [57], the Court is concerned with ensuring that pleadings are within the rules and fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent and intelligible statement of its case …

The rules and principles: an overview relating to summary relief

Rule 13.4(1) of the UCPR provides: 13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3) (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-- (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim.
A purpose of r 13.4 is to "save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings" and to protect "the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications": Ugur v Attorney-General for NSW [2019] NSWCA 86 at [70].
The relevant principles that govern summary relief are settled: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; [1949] HCA 1; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129; [1964] HCA 69 ('General Steel'). In General Steel, Barwick CJ explained the principles in these terms (at 129): 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'. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.
The Court of Appeal summarised the relevant principles in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200]: [196] It is not in dispute that 'great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal': General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ). [197] More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]: '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.' [198] Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24]. [199] In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]: '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.' [200] Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: 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].
It is sufficient simply to note that an order under r 13.4(1) is not appropriately made except in the clearest of case, and the power that is available is to be exercised sparingly and with restraint.
Rule 14.28(1) of the UCPR provides: 14.28 Circumstances in which court may strike out pleadings (cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3) (1) 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.
When a pleading is "unintelligible, ambiguous, vague or too general", the rule typically employed in those circumstances is r 14.28(1)(b): Gunns at [57]. The rule is also available when a pleading does not comply within the general or specific principles of pleading such as those set out in rr 14.6-14.20 of the UCPR: Clarke v State of New South Wales (No 4) [2015] NSWSC 1054 at [33]-[45]. Generally speaking, in these situations, where a deficiency in a pleaded claim is curable by amendment, the Court may strike out the proceeding and grant a party leave to replead.
Here, as the proceeding by the plaintiff was commenced by summons, and not a statement of claim, r 14.28 of the UCPR does not strictly apply: that is because Part 14 applies to "proceedings commenced by statement of claim and to proceedings in which a statement of claim has been filed": r 14.1 of the UCPR; Hassan v Sydney Local Health District [2022] NSWSC 954 at [81]. Notwithstanding, the Court has, as an incident of its jurisdiction, the power to control its own proceedings and procedure: as was said in Global Partners Fund Ltd v Babcock & Brown Ltd (In Liq) (2010) 267 ALR 144; [2010] NSWSC 270 at [77], the Court thus has … the power to, and will, strike out a pleading which discloses no reasonable cause of action or defence, or which has a tendency to cause prejudice, embarrassment or delay in the proceedings or which otherwise is an abuse of the process of the Court, applies … with no less force albeit Pt 14 UCPR does not strictly apply … As with summary dismissal, the power to strike out pleadings because they disclose no reasonable cause of action should only be exercised in a plain and obvious case.

Discussion and consideration

As I have earlier noted, the defendants seek summary relief relying upon rr 14.28(1) and 13.4 of the UCPR.
The essential argument of the defendants is that, in order for this Court to have jurisdiction under s 69 of the Supreme Court Act 1970 (NSW), it is necessary that the grounds identify a "question of law" - but the summons uniformly fails to do this (defendants' submissions at [17]).
Subject to one matter, I accept this submission.
The reservation - which is modest - is this. The supervisory jurisdiction of the Court, under s 69 of the Supreme Court Act, is available to correct jurisdictional error, or error of law on the face of the record, and only errors in fact-finding when the error is within one of these categories: Folbigg v Attorney General of New South Wales [2021] NSWCA 44 at [12]. That is, the grounds are not required to identify a "question of law", but error of law (or jurisdictional error as a category of error of law: Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 at [9]). Nevertheless, as I have indicated, I accept the broad thrust of the defendants' submission: nothing that appears in the plaintiff's amended summons turns upon any fine distinction between an error of law, and a question of law.
The manner of expression of the "grounds" of review would make summarising them difficult. There is, however, little point in attempting that unenviable task because what is alleged in the amended summons, in my respectful view, patently fails to clearly identify any error of law - or anything approaching it. There is, contrary to r 59.4(c) of the UCPR, no specific identification of the grounds relied upon to support the relief sought. Given that error of law forms the subject matter of the application for judicial review, the grounds of appeal are unquestionably required to explicitly identify the error of law raised: Ferella v Chief Commissioner of State Revenue (2014) 96 ATR 875; [2014] NSWCA 378 at [6] and [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [26].
The defendants submit that the amended summons is "convoluted, disorganised, ambiguous and contains allegations spread across some 41 grounds" and otherwise makes allegations that are "unspecified, bare and provide insufficient details". I agree.
During submissions, the plaintiff argued that the essence of his complaints extended to the fact that there was no offence; that there were "faulty" warrants - including one which he alleged was fabricated; that the transcript of the proceedings in the Local Court was also "faulty"; and that the defendants failed to comply with a notice of discovery. These submissions only reinforce the gravamen of the defendants' complaints, in my view.
The defendants further submitted that the plaintiff has erroneously sought judicial review when a statutory right of appeal is available - and this provides a further ground upon which to exercise summary relief. I will explain this.
The offence for which the plaintiff was convicted is an environmental offence (as to which see s 9.57 of the EPAA) - with the consequence there is no appeal as of right conferred by s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ('the CAR Act'). That section provides: (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.
Rather, as an environmental offence, the defendants submitted that, the plaintiff's right to challenge the decision of the Magistrate was by appeal under (and confined by) s 53(2) of the CAR Act and, separately, not by way of judicial review. Section 53 provides: (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves - (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. (2) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (3) Any person against whom - (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court.
By its terms s 53(2) imposes two restrictions on any appeal to this Court - first, the appeal is limited to a ground that involves "a question of law alone"; and, secondly, any appeal is by way of leave of the Court.
The defendants also argue that, by this statutory right of appeal, the plaintiff is required to identify, with precision, the "question of law alone", but has failed to do so. For the reasons earlier given, I accept that submission.
The defendants further argued that any application for leave to appeal this decision would be in breach of the time stipulation in Part 51B r 5(3) of the Supreme Court Rules 1970 (NSW) (namely, 28 days from the decision of the Local Court). Strictly, this argument is correct. Notwithstanding, I do not accept the submission. As to it, I would simply observe that the plaintiff did file a summons in this Court on 3 March 2023 and I would not be prepared to entertain summary relief on the basis of any suggested improbability of the plaintiff securing an extension of time to file a summons in the appropriate form or that there could be no arguable basis for a grant of leave to appeal if the plaintiff could do so.
For these reasons, the defendants are entitled to an order striking out the amended summons.
For completeness, I add the following. The defendants did not argue that there had been any improper bifurcation by the filing of the summons for judicial review rather than pursuing (and only pursuing) an appeal under the CAR Act - in particular, the defendants did not contend that the plaintiff sought judicial review, rather than an appeal under the CAR Act, in order to gain a juridical advantage (the most obvious being the circumvention of any requirement to secure a grant of leave to bring an appeal). Issues of that broad kind were considered in Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [6]-[14] and Benjamin & Benjamin v Geneville Constructions Pty Ltd [2022] NSWSC 982 at [33]-[37]. Given no issue was raised, it is unnecessary to deal with it further.
The defendants sought, in the alternative, an order that the proceedings be dismissed under r 13.4(1) of the UCPR. In short, it was argued that, given the nature of the offence, it is almost inconceivable that an error of law could possibly arise. There is some force in that submission. Nevertheless, I am not persuaded to make that order, for the following reasons. First, although I entertain some considerable doubt about this, particularly given the plaintiff has already filed a summons and an amended summons has been filed, I cannot exclude the possibility that there is the kernel of a claim that is capable of being advanced by the plaintiff - and, given the degree of caution and restraint required in exercising summary relief, I am not presently disposed to grant summary relief notwithstanding the reservations that I have. Secondly, even if I were to dismiss the proceedings, the plaintiff would, in the absence of an order to the contrary effect, be entitled to file further proceedings having regard to s 91 of the Civil Procedure Act 2005 (NSW).

Orders

For the above reasons I make the following orders: 1. Order that the amended summons filed 8 May 2023 be struck out. 2. Order the plaintiff to pay the defendants' costs of and incidental to its notice of motion filed 25 May 2023, and of the proceedings. 3. Direct that any further application by the plaintiff for leave to file an amended summons be filed and served by 26 October 2023, 5 pm. 4. Direct that any notice of motion filed in accordance with order 3 be listed for directions before the Common Law Registrar on 2 November 2023. 5. In the event that no notice of motion is filed by 26 October 2023, 5pm, order that the proceedings be dismissed under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).

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: 14 September 2023

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