Von Reisner v Commonwealth

Federal Court of Australia|2007-11-30|Before: Gyles J, Flick J

REASONS FOR JUDGMENT 1 On 7 August 2007 the Applicants commenced proceedings in this Court against the Commonwealth as First Respondent and the State of New South Wales as Second Respondent. An Affidavit in support of the Applicants' case was filed on 13 August 2007.

THE PRESENT PROCEEDINGS 2 Presently before the Court are three Notices of Motion, one filed on behalf of the Applicants, one filed on behalf of the First Respondent and one filed on behalf of the Second Respondent. 3 At the outset of the proceedings the First Applicant foreshadowed that she wished to amend both the Application and the Statement of Claim. The position of the First and Second Respondents was that there were Motions before the Court seeking orders under s 31A of the Federal Court of Australia Act 1976 (Cth), or in the alternative, O 20 r 5, of the Federal Court Rules 1979 (Cth). The Respondents asked for the Court to hear their Motions. 4 Also at the outset of the proceedings, an Application was made by the Applicants to adjourn the hearing of the Respondents' Notices of Motion. That Application to adjourn was refused. There was little evidence before the Court as to what steps had been undertaken by the Applicants subsequent to the filing of their proceedings on 7 August 2007. There were assertions, however, that the Applicants had made freedom of information requests, presumably to the Commonwealth. Irrespective of what steps have been taken subsequent to 7 August, the Respondents' Motions were set down for hearing by Gyles J and for hearing today. The first intimation that an Application would be made to adjourn the hearing of those Motions was at the outset of these proceedings. The Application to adjourn was therefore refused. Also relevant to whether the proceedings should be adjourned or not was reservation as to whether the Application or Statement of Claim could be amended so as to plead a viable cause of action as against either Respondent. 5 In support of the Motion filed on behalf of the First Respondent was an Affidavit of Gregory George Katener sworn on 14 September 2007. There was an objection to that Affidavit by the First Applicant, but it is unnecessary to resolve that objection for the purposes of these proceedings. 6 In support of the Motion filed by the Second Respondent was an Affidavit sworn by Tracy Jane Emmanuel on 10 September 2007. Again, there was objection to parts of that Affidavit by the First Applicant and again it is unnecessary to resolve those objections for the purposes of the present hearing. 7 The First Applicant, in opposition to the Motions, read her Affidavit of 13 August and an Affidavit dated 30 November 2007. The First Applicant is a resident at premises at 26/14 Wauhope Crescent, South Coogee, NSW. She has been a resident since 21 September 1998. The First Applicant, who appeared unrepresented, also sought to be heard on behalf of the Second Applicant. There was no objection to that course by either Respondent. 8 The ownership, management, care and control of those premises most probably rests with the New South Wales Land and Housing Corporation ('the Corporation'). Such evidence as has been filed on behalf of the Respondents asserts that the Commonwealth Government has not had any involvement in the funding, design, construction, maintenance or management of those premises. The Affidavit of Mr Katener relevantly states: The first respondent was not involved in the funding, design, construction, maintenance or management of the premises situated at 26/14 Wauhope Crescent, South Coogee. That was a part of the Affidavit to which the First Applicant objected. Her first Affidavit sworn on 13 August 2007 asserts that the First Respondent: "Financed, built and managed" the premises or provided "funds and instructions in 1967 or about". Objection was taken to that part of the Affidavit by the Respondents. It is unnecessary to resolve that factual dispute, indeed it would not be appropriate to do so on the hearing of the present Motions. 9 The First Applicant maintains that the building contains inter alia asbestos and lead paint. The Application filed on 7 August 2007 states: The nature of the subject Application is to move the Court for an orders as to against the Commonwealth of Australia, the signatory to the International TREATIES with Statutory duty of care and the State of New South Wales as the managing agent, to pay certain sums of money from the FUND as stated in the Commonwealth Housing Agreement Act 1996 or any other Acts related to elliminate asbestos, poisons, dust and fibre contamination and nuisance caused by this poisons including lead dusts and other dusts of the Applicants own personal property contaminated by the Commonwealth's own toxins. To move the Court for injunctions and declarations of rights, payments of the work costs; Enforcement of NATIONAL Asbestos Law and Codes 2005; Privacy rights; and related injunctions; enforcement of rights and entitlements pursuant to the Treaties on Human Rights directly and under the Commonwealth Legislation as stated below. 10 It should further be noted at the outset that the proceedings as filed in this Court are not the first proceedings commenced by the first Applicant. On 1 June 2005 Ms Von Reisner commenced proceedings in the Equity Division of the Supreme Court of New South Wales. On 9 June 2005 Windeyer J in that Court made consent orders that the Corporation decontaminate the First Applicant's premises. On 17 July 2006 Beasley J, in the Court of Appeal of New South Wales, dismissed an appeal by the First Applicant against the orders made in her favour. There are also proceedings which were originally in the Common Law Division of the Supreme Court of New South Wales. 11 It is considered that the proceedings should be dismissed.

12 The Federal Court Act 1976 (Cth) and the Federal Court Rules 1979 (Cth) provide for applications to be made for summary judgment or the summary dismissal of proceedings. Section 31A of the 1976 Act confers a discretion upon the Court to enter judgment if it is satisfied that a party has "no reasonable prospects of success". 13 Section 31A was inserted on 1 December 2005. The provision strengthens the power of the Court to enter summary judgment where it is satisfied that there are "no reasonable prospects of success". For this purpose a proceeding or part of a proceeding need not be "hopeless" or "bound to fail". Section 31A, it has been accepted, introduces a lower standard for strike-outs than that previously laid down by the High Court decisions in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries v Commissioner for Railways (1964) 112 CLR 125, namely that allegations are "So clearly untenable that they cannot possibly succeed". See also Hicks v Ruddock [2007] FCA 299 at [12]-[13], 156 FCR 574. A party can establish that a case has "no reasonable prospects of success" where there is a defect in the pleadings which cannot be cured, or alternatively, by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established: see Fortron Automotive Treatments v Jones [2006] FCA 1401 at [20] per French J. 14 Order 20 r 5 provides for the stay or dismissal of proceedings as follows: (1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding: (a) the proceeding or claim is frivolous or vexatious; or (b) the proceeding or claim is an abuse of the process of the Court. (2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief. (3) The Court may receive evidence on the hearing of an application for an order under subrule (2). The meaning of the phrases "frivolous or vexatious" and "an abuse of process" has been extensively canvassed and the present proceedings are not the occasion for yet a further discussion of well established principles. For present purposes a limited overview of the authorities is sufficient to resolve the Notices as Motion as filed by the Respondents in their favour. 15 In Morning Star Research v Fiduciary [2003] FCA 870, 131 FCR 236, Hely J observed: [19] `Abuse of process' denotes that the process is employed for some purpose other than the attainment of the claim in the action: Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 91 per Isaacs J, extracted in Williams v Spautz (1992) 174 CLR 509 at 524. Accordingly, it is prima facie vexatious or oppressive to commence and prosecute a second proceeding on the same subject matter where the remedy sought in the second proceeding is obtainable in the first and there is no reason why it could not be sought in the first; Moore v Inglis (1976) 9 ALR 509 at 513, 515 per Mason J. See also Ogawa v The University of Melbourne [2005] FCA 1139 at [76]. "What amounts to an abuse of Court process is insusceptible of a formulation comprising closed categories. Development continues": Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [9] per Gleeson CJ, Gummow, Hayne and Crennan JJ, 226 CLR 256.

16 In Spalla v St George Motor Finance [2004] FCA 1699, French J usefully summarised the approach to be taken by the Court and matters to be taken into account when forming a view as to whether conduct constitutes an abuse of process: [67] The considerations of public policy which underlie res judicata and issue estoppel help to define the scope of abuse of process by relitigation generally. As Lord Hoffman said in Arthur JS Hall & Co v Simons [2000] 3 WLR 543 at 572, the underlying policies are that a defendant should not be troubled twice for the same reason and that there is 'a general public interest in the same issue not being litigated over again'. Lord Hoffman observed that the second rationale could be used to justify the extension of the rules of issue estoppel to cases in which the parties are not the same but the circumstances are such as to bring the parties within the spirit of the rule. The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in and respect for the authority of the Courts. 17 The power to strike out a Statement of Claim or to dismiss an Application as an abuse of process is to be exercised sparingly and upon an examination of the relevant circumstances of the particular case before the Court. As Gyles CJ said in State Bank of New South Wales v Stenhouse (1997) Aust Torts Reports 81-423: [64, 089] … whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice… His Honour set out a non-exhaustive list of matters relevant to the determination whether there was an abuse of process in connection with the issues to be litigated in the second proceedings. These factors were: (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of - (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process. 18 The approach to be taken when entertaining Motions under s 31A or O 20 r 5 are not in dispute. The discretionary power to make orders under those provisions, it should be recalled, is a power to be exercised sparingly.

19 The manner in which this Court's jurisdiction is attracted and, once attracted, the involvement of the Commonwealth in the First Applicant's concerns as to the contamination of her home both remain elusive. The jurisdiction of this Court which is being invoked remains unclear. This Court is a creature of statute and has such jurisdiction as is vested in it by statute: see Federal Court of Australia Act 1976 (Cth) s 19(1). 20 The Application as filed by the Applicants makes reference to "international treaties with statutory duty of care" but no treaty of its own force is capable of conferring jurisdiction on this Court. Reference was usefully made by the First Applicant to the recitation of international conventions in the preamble to the Housing Assistance Act 1996 (Cth), but the Court has no jurisdiction to implement or give effect to treaties per se. 21 There is also a reference in the Application to the "Commonwealth Housing Agreement Act 1996." That presumably is a reference to the Housing Agreement Act 1956 (Cth). Reference is also made to the Housing Assistance Act 1996 (Cth). The objects of the 1996 Act make it clear that it is an Act to facilitate the making of Commonwealth financial assistance to the States for the purpose of ensuring that people can obtain housing that is "affordable, secure and appropriate to their needs." The Applicants do no more to establish how that legislation may be of relevance to the proceedings other than to assert that "all sections of the Act" provide a "legislative basis for the orders in the claim." 22 The Statement of Claim does not comply with the rules of this Court. It does, however, assert that the Commonwealth owned property at South Coogee and further asserts that the Commonwealth provided funds and that it was "the co-builder and owner of residential public housing estate at South Coogee, Sydney." Those facts, even if they be accepted, do not clearly attract any jurisdiction of the Court. 23 There is also a reference in the Application, without being exhaustive, to "privacy rights" and the "Commonwealth duty of care to the Australian residents in relation to the poisons in the materials the Commonwealth has installed." Reference is made in the Application to s 98 of the Privacy Act 1988 (Cth). That section does provide that this Court has jurisdiction and may grant injunctive relief where a "person has engaged, is engaging or is proposing to engage in any conduct that constituted or would constitute a contravention of this Act." The "conduct" and the "contravention" have not been identified. None of the matters mentioned in the Application, it is considered, clearly confer jurisdiction on this Court. 24 Questions of jurisdiction, however, can be left to one side. Were the Court to have jurisdiction, it is considered that the proceedings should be dismissed. Even if the Statement of Claim is construed in the most beneficial manner possible, such facts as may be distilled from it do not give rise to any cause of action against the Commonwealth. Thus, for example, the Statement of Claim further claims that the Commonwealth has "a statutory duty of care to the occupier of the South Coogee housing estate and to the Applicants and to the Applicants' children." The source of that duty has not been identified and no factor has been identified which could be construed as a breach of any duty, even if one could be established. 25 Upon the materials presently pleaded, it is concluded that the case as against the First Respondent has "no reasonable prospects of success." Consideration could be given to invoking s 31A of the 1976 Act. It is, however, considered that the proceedings against the Commonwealth are "frivolous or vexatious" within the meaning of O 20 r 5. There is no identifiable fact in the purported Statement of Claim which can be construed as exposing the Commonwealth to liability. The assertion that the Commonwealth "provided funds", for example, is not such a fact. 26 Reference may also be made to the litigation successfully pursued by the First Applicant in the Supreme Court of New South Wales. Even if there be factual differences as between the conduct of the two Respondents, and assuming those facts are identified, the interests of the First Applicant have been fully addressed and resolved in her favour by the Supreme Court of New South Wales. 27 Considerable reservation is expressed as to whether there could be any amendment of the Application or Statement of Claim as against the Commonwealth which could overcome the difficulties confronting the Applicants. Matters mentioned by the First Applicant at the outset of the proceedings do nothing to allay that reservation. Indeed, the foreshadowed amendment to make the existing proceedings representative proceedings and brought on behalf of other members of the Estate seems questionable. In such circumstances, it is considered that the appropriate order is that the proceedings against the First Respondent be dismissed.

THE POSITION OF THE STATE 28 The State of New South Wales also seeks an order that the proceedings as against it be dismissed pursuant to s 31A and/or O 20 r 5. 29 This Court has no general jurisdiction to entertain claims against the State of New South Wales. In some circumstances, the State may be involved in proceedings in this Court where the Court has jurisdiction in respect to an identifiable "federal matter". This Court would then retain jurisdiction even if the matter which attracted its jurisdiction was disposed of: see Moorgate Tobacco Company v Philip Morris (1980) 145 CLR 457 at 472 per Gibbs J. 30 The present proceedings against the Commonwealth are but a colourable attempt to attract the jurisdiction of this Court. The dismissal of the proceedings against the Commonwealth alone deprives the Court of jurisdiction to entertain the balance of any case as against the State. There are, however, additional reasons to dismiss the proceedings against the State. 31 The State is in a different position to the Commonwealth with regard to its involvement in the Applicant's claim as alleged. It admits that Corporation has the "ownership, management, care and control of the premises located at 26/14 Wauhope Crescent, South Wales." The State's position is also different to that of the Commonwealth in that the proceedings have previously been commenced by the First Applicant against the Corporation. In the proceedings before Windeyer J in the Supreme Court his Honour there held: In this matter, Mr Licha appears pro bono for the plaintiff. Counsel for the defendant has informed the Court that the defendant, without admissions, is prepared to consent to all the relief which the plaintiff seeks in the summons other than the restraint orders, which are clearly not necessary because the defendant is prepared to consent to mandatory orders which are stronger than the restraint orders. In those circumstances, as that is the position, it is apparent that either the plaintiff wishes to proceed with the summons, or she does not. If she does not, it can be dismissed. If she does, she is getting all that she is seeking under the summons. The orders made by his Honour on that occasion incuded:

(2) An order that the Defendant, without seven days, decontaminate and remove all asbestos particles from the Plaintiff's premises. (3) An order that the Defendant pay for such incidental expenses as are incurred to accommodate the Plaintiff during the time when the Defendant is undertaking the decontamination of demised premises. (5) An order that the Defendant, within seven days, rectify defective electrical systems in the kitchen and provide power to the stove and appliances. (6) An order that the Defendant pay the Plaintiff's costs. 32 Insofar as the Second Respondent is concerned in these proceedings, the Application as filed in this Court may potentially be construed as asserting some claim for breach of duty owed to the Applicant. Left unspecified in any meaningful manner are such matters as the source of any such duty, the identity of the person or instrumentality that may owe the duty, or the facts which are said to be a breach of the duty. In respect to the State it may have been possible to amend the Statement of Claim to plead a viable cause of action against the State, or perhaps one or other of its entities. 33 Leaving aside questions as to the jurisdiction of the Court, the entry of judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) may thus have been questionable. However it is not considered that the same reservation should be expressed in the making of the order for the dismissal of the proceedings pursuant to O 20 r 5. 34 The issues sought to be pursued in this Court, to the extent that they can be identified with any precision, seem to be the same as, or substantially the same as, those previously pursued to judgment in the Supreme Court. The Defendant to those proceedings may be different to the present Second Respondent, but the issues sought to be litigated are the same or substantially the same. To permit the same issues to be relitigated in this Court would be an abuse of the processes of the Court. It would also be prima facie vexatious or oppressive to allow it to continue.

THE RESPONDENTS' MOTIONS 35 Both Respondents if successful on their Motions sought an order for costs. Both Respondents also accepted that the Applicants have a right to amend both the Application and the Statement of Claim. Both Respondents, however, insisted that their Notices of Motion, having been listed for hearing, should be resolved by this Court. 36 Considerable reservation was expressed as to the utility of hearing those Motions given the acceptance by the First Applicant that the Application and Statement of Claim should be amended. The Motions were, however, heard both because they were listed for hearing, and because it was further considered that such guidance as could he provided to the Applicant by reasons for decision may be of utility to her.

ORDERS 37 The orders of the Court are:

The Application and Statement of Claim, as against the First Respondent, be dismissed.
The Application and Statement of Claim, as against the Second Respondent, be dismissed.
Costs are reserved.
Any Amended Application and any Amended Statement of Claim is to be filed and served by 5 pm on 29 February 2008.
The matter stood over for mention at 9.30 am on 10 March 2008. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

First Applicant Self represented

Solicitor for the First Respondent: G Curtis (AGS)

Solicitor for the Second Respondent: C Courtenay (McCabe Terrill)

Date of Hearing: 30 November 2007

Date of Judgment: 30 November 2007

Federal Court Rules 1979(Cth)

Federal Court Act 1976(Cth)

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