von Reisner v State of NSW

Supreme Court of NSW|2010-11-19|Before: Ball J

CITATION : von Reisner v State of NSW [2010] NSWSC 1356

DECISION : The proceedings be dismissed with costs.

CATCHWORDS : PROCEDURE - civil - summary disposal - dismissal - whether pleadings disclose reasonable cause of action. PROCEDURE - civil - parties - representative proceedings - whether proceedings should continue as representative proceedings - suitability of representative. PROCEDURE - civil - jurisdiction - whether lower courts or tribunals more appropriate venues for proceeding

Consumer, Trader and Tenancy Tribunal Act 2001 Local Court Act 2007 LEGISLATION CITED : Residential Tenancies Act 1987 Residential Tenancies Regulation 2006 Supreme Court Act 1970 Uniform Civil Procedure Rules

CASES CITED : NSW Land & Housing Corporation v von Reisner [2009] NSWSC 128

PARTIES : Koidu von Reisner (Plaintiff) State of New South Wales (Defendant)

COUNSEL : In Person (Plaintiff) Ms E Elbourne (Defendant)

SOLICITORS : In Person (Plaintiff) McCable Terrill Lawyers (Defendant)

1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2010/133526 KOIDU VON REISNER v STATE OF NEW SOUTH WALES JUDGMENT 1 The plaintiff, Ms von Reisner, is a resident of a unit in an apartment block owned by the New South Wales Land & Housing Corporation, which is incorrectly sued as the State of New South Wales. Ms von Reisner entered into a residential tenancy agreement with the Corporation on 21 September 1998. 2 Ms von Reisner has commenced a number of proceedings in this and other courts and tribunals including the Consumer, Tenancy and Trade Tribunal (CTTT) in relation to her unit and the apartment block of which it forms part. These proceedings are the latest in that line of cases. 3 The present proceedings have their genesis in proceedings commenced by Ms von Reisner in the District Court on 9 September 2009 in relation to a number of complaints she had about the state of the public areas of the apartment block in which she lives and an adjacent block and about defects or problems associated with her own unit. In relation to complaints concerning the public areas, those proceedings were brought as a representative action on behalf of a number of other residents in the block. The relevant residents each signed a document headed "Notice of Consent to be a Group Member". Each document was in the same form. Each contained under the heading the following statement: "(Condition - - no costs implications to the members)" 4 A pre-trial conference was held in the District Court proceedings on 25 November 2009. That conference was adjourned until 8 February 2010 to permit Ms von Reisner to file and serve an amended statement of claim. No amended statement of claim was filed and the proceedings were further adjourned to 9 March 2010 and Ms von Reisner was ordered to file and serve an amended statement of claim within 21 days. Ms von Reisner did not comply with that order and did not appear on 9 March 2010, apparently due to ill health. There was a further directions hearing on 1 April 2010 which was adjourned to 23 April 2010. Ms von Reisner was given 7 days to file an amended statement of claim. Ultimately, the amended statement of claim was filed and served in court on 23 April 2010. In the meantime, the Corporation filed a motion to have the proceedings dismissed. 5 The matter came back before the District Court on 20 May 2010 to deal with the Corporation's motion. Ms von Reisner said she was not in a position to deal with the Corporation's motion because the affidavit on which the Corporation relied had not been served on her, although there was evidence that it had been sent to her home address by registered post. In any event, it was common ground between the parties that the District Court did not have jurisdiction to deal with a number of issues raised by the amended statement of claim. In those circumstances, the proceedings were adjourned to permit Ms von Reisner to make an application for transfer of the proceedings to this court. That application was made by summons filed in this court on 28 May 2010. 6 On 25 August 2010, the Corporation filed a motion seeking an order that, in the event that the court granted leave to transfer the proceedings to this court, the proceedings be dismissed pursuant to UCPR r 13.4(1) or alternatively r 12.7. Rule 13.4(1) provides: "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."

Rule 12.7 permits the court to dismiss proceedings which are not prosecuted with due dispatch. 7 In the alternative, the Corporation sought an order pursuant to UCPR rr 7.4(2) and (4D) that Ms von Reisner not be permitted to continue these proceedings as a representative action. UCPR r 7.4(2) provides: "Proceedings to which this rule applies may be commenced and, unless the court orders otherwise, carried on by or against any one or more persons as representing any one or more of them."

UCPR r 7.4(4D) provides: "Without limiting subrule (2), the court may, on application by the defendant or of its own motion, order that proceedings no longer continue under this rule where it is satisfied that it is in the interests of justice to do so because: (a) the costs that would be incurred if the proceedings were to continue are likely to exceed the costs that would be incurred if each represented person conducted separate proceedings, or (b) where the relief sought is the payment of money, the cost to the defendant of identifying the represented persons and distributing to them the amounts ordered to be paid to them would be excessive having regard to the likely total of those amounts, or (c) all the relief sought can be obtained by means of proceedings other than proceedings under this rule, or (d) the proceedings will not provide an efficient and effective means of dealing with the claims of all represented persons, or (e) a representative party is not able to adequately represent the interests of the represented persons." 8 The summons and motion came before me on 19 November 2010. On that date, I made the order for transfer. Ms von Reisner then submitted that the notice of motion filed by the Corporation had not been served and she sought an adjournment of it. The evidence was that the motion had been sent to her by registered mail at her home address and that she had received and was familiar with the contents of the supporting affidavit. In those circumstances, I refused the adjournment, but gave Ms von Reisner an hour to consider the motion and supporting affidavit. It was clear from subsequent submissions made by her (including written submissions) that she was not disadvantaged by my refusal to grant an adjournment. 9 It is not easy to follow the summons and amended statement of claim filed by Ms von Reisner. It is, however, possible to discern a number of factual matters about which Ms Von Reisner complains. Those matters can be divided into two categories. The first category consists of matters which affect all residents and in respect of which Ms von Reisner seeks to bring a representative action. The second category consists of matters which affect Ms Von Reisner personally. 10 There are four factual matters about which Ms Von Reisner complains and in respect of which she seeks to bring a representative action. 11 First, Ms Von Reisner says that the Corporation has failed properly to maintain the main access way into her building and the adjacent one. According to her, the access way is dangerously eroded and tree roots have caused damage in the area in front of one of the buildings. Ms von Reisner seeks orders requiring the Corporation to repair the access way and compensation for loss of enjoyment of it. 12 Second, Ms von Reisner claims that the telephone lines to the building that contains her unit are not in a safe, technical and proper working order. She also claims that the plastic insulation wiring is chemically decomposing and that the telephone lines are accessible to telephone interceptors (as the control board is open to the public) with the result that the rights of the residents to have private telephone communications are violated. Ms von Reisner seeks orders that the telephone lines and main telephone board be replaced. She also seeks damages in relation to the loss of functioning telephone facilities. 13 Third, Ms von Reisner makes a number of complaints about the garbage bins. She claims that the concrete platform originally designed to accommodate the garbage bins is now too small for current purposes. As a result, some bins have been placed elsewhere. She says that their placement gives rise to health and safety concerns. Although it is less clear, Ms von Reisner also appears to complain about the placement of bins in the street and the fact that they create a traffic hazard. She seeks orders that the Corporation build a new waste disposal area and she also seeks damages for the inconvenience that the current arrangements have caused. 14 Finally, Ms Von Reisner claims that some of the common areas of her building and the adjacent one contain paint which is contaminated by lead and she seeks removal of that contaminated paint. 15 Ms von Reisner makes a number of complaints in her personal capacity. 16 First, Ms von Reisner complains that the Corporation has not complied with a judgment given by the CTTT on 19 January 2009 requiring it to make repairs to her unit and she seeks orders requiring compliance with that judgment. 17 Second, Ms von Reisner complains that her unit is contaminated with lead paint, flakes and dust. She seeks orders requiring removal of the lead based paint by an expert and compensation for the fact that the Corporation has failed to keep her unit fit for safe habitation as well as compensation for work carried out at her expense and reimbursement for the costs of a paint testing kit which she purchased in 2009. 18 Third, Ms von Reisner seeks compensation for loss of her hot water supply for 3 months in 2009 and seeks compensation for costs incurred by her in repairing the hot water service herself. 19 Fourth, Ms von Reisner makes a claim in respect of a broken toilet. 20 Fifth, Ms von Reisner claims that the Corporation has detained a significant quantity of her goods. 21 Ms von Reisner relies on various legal bases for the claims that she makes. It seems clear that that Ms Von Reisner claims that the conduct about which she complains involves a breach by the Corporation of the residency tenancy agreement between her and it and between the other tenants and the Corporation. Ms von Reisner also claims that the Corporation's conduct amounts to a nuisance. She does not, however, plead the essential elements of a nuisance and it is not obvious how much of the conduct about which she does complain could amount either to a private nuisance or a public nuisance in respect of which she is entitled to sue. It is also possible, although not clear, that Ms von Reisner alleges that the Corporation owes the residents of the blocks of units a duty of care that it has breached. Finally, Ms von Reisner relies on various international treaties. 22 In my opinion, the summons and amended statement of claim are an abuse in their current form. I say that for two main reasons. 23 First, some of bases on which Ms von Reisner has sought to bring a claim are misconceived or not sufficiently clear. In particular, international treaties are not part of the domestic law of New South Wales and consequently cannot give rise to a cause of action. It is not at all clear to me how much of the conduct complained of by Ms Von Reisner could give rise to a claim in nuisance. Ms von Reisner does not plead sufficiently clearly how her or the other tenants' property rights have been unreasonably interfered with by Corporation or, to the extent that she relies on a public nuisance, how her or the other tenants' public rights have been unreasonably interfered with by the Corporation in a way which has caused her or them special damage. Some of the complaints, if made out, may involve a breach of the residential tenancy agreement between the Corporation and Ms Von Reisner or the other tenants. I am conscious that Ms von Reisner is a self represented litigant without legal training and she cannot be expected to plead her claim as a lawyer would. However, it seems to me that Ms von Reisner must at least identify clearly the conduct of the Corporation about which she complains and, in the case of each matter, identify the provision of the tenancy agreement which she says has been breached as a result of that conduct. The current pleading does not do that. 24 Secondly, some of the relief sought by Ms von Reisner is not relief that this court can give. In particular, it is not clear on what basis this court could require the Corporation to comply with an order made by the CTTT. The Consumer, Trader and Tenancy Tribunal Act 2001 (CTTT Act) provides its own mechanism for enforcement of orders made by the CTTT. If a party has obtained an order in the CTTT and the order is not complied with, that party can apply to the CTTT to renew the proceedings (if 12 months have not expired since the order was made, leave must be obtained): CCCT Act, s 43. An order of the CTTT for payment of money can be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate. That order then operates as a judgment of that court: CCT Act, s 51(3). Failure to comply with an order of the CTTT is also an offence: CCT Act ss 52, 82. 25 In addition, I do not think that the court should permit these proceedings to continue as representative proceedings. There are a number of reasons for that. 26 First, I do not think Ms von Reisner is an appropriate person to bring representative proceedings. It is clear that Ms Von Reisner has embarked on something of a crusade against the Corporation. She has brought a number of proceedings which have failed. I do not think that it is necessary for me to set out the details of them in this judgment. They are covered in some detail by Matthews AJ in NSW Land & Housing Corporation v von Reisner [2009] NSWSC 128. Those proceedings involved an application by the Corporation seeking an order pursuant to s 84(2) of the Supreme Court Act 1970 that Ms Von Reisner be declared a vexatious litigant. Although her Honour was not prepared to make that order, her Honour said (at [61]): "[T]his is by no means a clear cut case, and I must give Ms von Reisner a strong warning that, if further proceedings are instituted against the Corporation of a similar nature to those previously commenced by her, then she runs a serious risk of facing a successful application under s 84. My determination in the present case by no means bans the Corporation from making a further application under s 84 should circumstances change."

It seems clear that Ms von Reisner is now personally and emotionally involved in proceedings against the Corporation. That involvement makes her an inappropriate representative. In addition, Ms von Reisner is a self-represented litigant who has considerable difficulty in pleading a proper claim against the Corporation and has been guilty of substantial delay in pursuing that claim. That also, in my opinion, makes her an inappropriate representative. 27 Second, I do not think that it is appropriate for Ms Von Reisner to combine representative proceedings with personal proceedings. Ms Von Reisner sought to overcome this objection by saying that the court could deal with the proceedings so far as they concerned the representative action separately. However, I do not think that that is possible. Necessarily, the court will deal with the different aspects of the case together; and, if it did not, it is difficult to see what advantage there is in combining the two claims. 28 Thirdly, it appears that the persons who have consented to Ms Von Reisner representing them believe that no costs order can be made against them and have given their consent on that basis. That belief is incorrect. UCPR r 7.5(1) provides: "A judgment or order made in proceedings in which a party has, pursuant to rule 7.4 , represented a number of persons binds all of those persons, but is not enforceable against any of those persons who is not a party except by leave of the court."

If the Corporation is ultimately successful, there can be no certainty that it would not seek leave to enforce a costs order obtained by it against the representative parties and there can be no certainty that the court would not make that order. 29 For the reasons that I have given, the summons and statement of claim should be struck out. The question is whether Ms von Reisner should be given leave to file an amended summons and further amended statement of claim or whether the proceedings should be dismissed generally. 30 In my opinion, the appropriate order is to dismiss the proceedings generally. I have concluded that Ms von Reisner is not an appropriate person to bring representative proceedings. That position cannot be cured by giving leave to replead. Apart from the claim for wrongful detention of her goods, it seems to me that all Ms von Reisner's other claims are essentially claims relating to alleged breaches by the Corporation of Ms von Reisner's residential tenancy agreement. As I have pointed out, Ms von Reisner has sought to put those claims in other ways - such as nuisance and breach of international treaties. However, the problems with the claims based on breaches of international treaties cannot be overcome by giving leave to replead. Ms von Reisner has now been given considerable time to plead the other claims but has failed to do so in a way which is acceptable. I doubt that further opportunities to replead will overcome this problem. 31 To the extent that Ms von Reisner's claim involves an allegation that the Corporation has breached terms of Ms von Reisner's residential tenancy agreement, it seems to me that those proceedings are better brought in the CTTT. Ms von Reisner took issue with that proposition. She pointed out that s 16(1) of the Residential Tenancies Act 1987 provides: "If a landlord or a tenant under a residential tenancy agreement claims that a breach of a term of the agreement has occurred, the landlord or the tenant may, not later than 30 days after becoming aware of the breach, apply to the Tribunal for an order in respect of the breach."

Ms von Reisner accepts that she has been aware of the breaches about which she complains for more than 30 days. Consequently, she says that she could not bring a claim in the CTTT and that therefore she ought to be permitted to pursue her claim in this court. 32 I do not accept that submission. It is not clear to me that Ms von Reisner should be permitted to bring a claim in this court because she is out of time in bringing a claim in what would otherwise be a more appropriate tribunal. In any event, the CTTT has a broad power to grant extensions of time under s 81 of the CTTT Act. In those circumstances, I do not think s 16(1) of the Residential Tenancies Act provides a reason for giving Ms von Reisner leave to amend her claim in this court. 33 The CTTT has broad powers under s 16 of the Residential Tenancies Act 1987 in respect of breaches of a residential tenancy agreement. It is true that the CTTT may not order the payment of more than $10,000 or order work to be done that costs more than $10,000: see Residential Tenancies Act 1987, s 85(3); Residential Tenancies Regulation 2006, reg 31. However, it is not clear that any order to which Ms von Reisner may be entitled in a personal capacity would exceed the jurisdictional limits of the CTTT. If the CTTT concluded that it did not have jurisdiction to make an order to which it believed Ms von Reisner was entitled, it has power to refer the proceedings to an appropriate court: see CTTT Act s 23. 34 That leaves Ms von Reisner's claim that the Corporation has some of her goods. Very little information is contained in the amended statement of claim in relation to that claim. The goods, for example, are not identified. I do not think that that claim alone provides a reason for giving leave to Ms von Reisner to replead her claim in this court. The Local Court has jurisdiction to hear and determine proceedings on any money claim or to recover detained goods or the assessed value of detained goods where the amount claimed or the value of the goods does not exceed $60,000: see Local Court Act 2007 ss 29, 30. There is nothing to suggest that the value of the goods in respect of which Ms von Reisner makes a claim exceeds that limit. In my opinion, if Ms von Reisner has a legitimate claim in relation to this aspect of her case, then the Local Court would be a more appropriate forum to deal with it. 35 The proceedings, therefore, should be dismissed with costs.

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