YAU HANG CHAN v KERRY REYNOLDS; YAU HANG CHAN v DEPARTMENT OF HOUSING & ANOR

Supreme Court of NSW|2009-07-27|Before: McCallum J, Callum J

CITATION : YAU HANG CHAN v KERRY REYNOLDS; YAU HANG CHAN v DEPARTMENT OF HOUSING & ANOR [2009] NSWSC 792

(1) I note that proceedings 20392/08 were transferred from the Administrative Law List (where they had been identified as proceedings 30022/08) pursuant to an order made on 29 August 2008. (2) The plaintiff's application by notice of motion dated 10 October 2008 for leave to amend the amended statement of claim in proceedings 20392/08 is refused. (3) Pursuant to rule 13.4(1) of the UCPR, I order that proceedings 20392/08 be dismissed. DECISION : (4) I order the plaintiff to pay the defendants' costs of proceedings 20392/08. (5) In proceedings 20332/08, the plaintiff's oral application made in Court on 27 July 2009 for leave to amend the amended statement of claim is refused. (6) I order that proceedings 20332/08 be dismissed. (7) I order that the plaintiff pay the defendant's costs of those proceedings.

Residential Tenancies Act 1987 LEGISLATION CITED : Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005

Nationwide News Pty Ltd v Naidu & Anor; ISS Security Pty Ltd v Naidu & Anor [2007] NSWCA 377 CASES CITED : State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Tame v State of NSW [2002] HCA 35; (2002) 211 CLR 317

Yau Hang Chan (Plaintiff) (20332/08; 20392/08) PARTIES : Kerry Reynolds (Defendant 20332/08) Department of Housing & Anor (Defendant 20392/08)

COUNSEL : In Person (Plaintiff) V. McWilliam (Defendants)

SOLICITORS : Legal Services Branch, Department of Housing (Defendants)

23 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20392/08 YAU HANG CHAN v DEPARTMENT OF HOUSING & ANOR

JUDGMENT 1 HER HONOUR: Yau Hang Chan is a public housing tenant. He has commenced proceedings against the Department of Housing and, separately, against one of its employees citing a litany of complaints in respect of his tenancy. Mr Chan is not represented by a lawyer in either proceedings. 2 The proceedings against the Department of Housing were commenced by statement of claim filed on 6 March 2008. An amended statement of claim was filed on 4 April 2008, exhausting the entitlement of a plaintiff pursuant to rule 19.1 of the Uniform Civil Procedure Rules 2005 to amend a statement of claim once without leave. In the proceedings against the employee, Ms Kerry Reynolds, the statement of claim was filed on 13 August 2008 and amended on 9 September 2008. 3 On 9 October 2008, the Department filed a notice of motion seeking to have the proceedings against it dismissed pursuant to rule 13.4(1) of the UCPR on the basis that they are frivolous or vexatious, disclose no reasonable cause of action and are an abuse of the process of the Court. Alternatively, dismissal of the proceedings was sought pursuant to rule 12.7(1) of the UCPR for failure by Mr Chan to prosecute his claims with due despatch. Ms Reynolds filed an identical application in the proceedings against her. 4 On 10 October 2008, Mr Chan filed a notice of motion in the proceedings against the Department seeking leave to amend the pleadings and an order pursuant to Part 66A of the Supreme Court Rules 1970 for referral to a barrister or solicitor on the pro bono panel for legal assistance (Part 66A has since been repealed and replaced by Division 9 of Part 7 of the UCPR). 5 On 16 October 2008 the three motions were referred to me as Duty Judge. I determined that it was appropriate to deal first with the application for pro bono legal assistance. I referred Mr Chan for specified assistance under Part 66A including representation in respect of the balance of his notice of motion (the application for leave to amend). I stood that application, and the two defendants' motions, over for later hearing. 6 Mr Chan does not presently have legal representation pursuant to that referral. A barrister accepted the referral in early March 2009 but withdrew his assistance after a brief period. The three motions have since come before three different judges. On each occasion, the hearing of the motions has been adjourned, on the application of Mr Chan. 7 At the outset of the present hearing, Mr Chan sought a further adjournment to enable him to obtain legal representation. I refused that application (see judgment given 27 July 2009) and heard the outstanding applications, that is, the application of the Department and Ms Reynolds to have the proceedings dismissed and Mr Chan's application for leave to amend his pleadings against the Department. 8 This judgment deals with those applications, together with an oral application made by Mr Chan during the hearing for leave to amend his pleadings against Ms Reynolds. 9 In a letter sent to the Court after I reserved my decision in each application, Mr Chan asked that a separate judgment be delivered in each matter to avoid undue complication in the assessment of costs. I do not think separate judgments are necessary for that purpose, and I have accordingly determined to publish my reasons for each decision in a single judgment.

Mr Chan's proceedings against the Department of Housing - no. 20392/08 (formerly 30022/08 in the Administrative Law List) 10 The principles applicable to the present application are well known. The Court's power under rule 13.4(1) should not be exercised unless the absence of a cause of action is clearly established. 11 The amended statement of claim against the Department runs to 51 pages comprising 579 paragraphs. It contains many allegations that are repetitious and many that are wholly irrelevant to any cause of action apparently relied upon. It is appropriate, nonetheless, to approach the present task with patience and with an eye to determining whether there is a good cause of action nestling within the verbiage of the pleading. 12 The claims are brought against both the Department of Housing and the New South Wales Land and Housing Corporation. No issue was taken as to whether "the Department" was a proper defendant. Mr Chan refers to those entities collectively (see paragraphs 24 to 30 of the amended statement of claim) and it is convenient to adopt the same approach.

The back-dated lease 13 The first claim pleaded against the Department relates to the alleged backdating of Mr Chan's lease (paragraphs 3 to 21 of the amended statement of claim). He alleges that he signed his current lease on 18 January 2005, but that the Department insisted that it be backdated to 17 January 2005. He alleges that the reasons offered by the Department were that the Department found it convenient to calculate rent for every tenant starting on a Monday and, secondly, that the lease had already been recorded in the system to commence on 17 January 2005. 14 The relief claimed by Mr Chan in respect of those allegations is a declaration that the Department is not entitled to collect rent from him for 17 January 2005 and an order for restitution or a refund of the rent paid for that day (prayer 15). 15 In my view, that claim is frivolous and should be dismissed. Assuming the allegations are true, the obvious consequence is that Mr Chan should, at the conclusion of his tenancy, be required to pay rent only up to the day before he vacates the premises. In any event, the claim is trivial and does not warrant being litigated in this Court. I am satisfied that Mr Chan's claims for relief based on the matters pleaded in paragraphs 3 to 21 of the amended statement of claim should be dismissed.

The conditions report 16 The next series of claims relates to the contents of a "conditions report" dated 15 December 2004 in respect of the state of the premises leased by Mr Chan (paragraphs 22 to 227 of the amended statement of claim). Mr Chan alleges that, when he signed his lease on 18 January 2005, he was asked to check the accuracy of the report and to notify the Department of any disagreement with its contents. Mr Chan alleges that the report was materially inaccurate (paragraph 83) and that he informed the Department of the inaccuracies as requested (paragraph 59 to 62 and 84). 17 In respect of those matters, Mr Chan claims declaratory relief, compensation and damages (prayers 9, 10 and 18 to 20). During the hearing, Mr Chan explained that the claim for damages is for mental distress he has suffered due to the fact that the Department "refused to acknowledge obvious things, and pretending that they do not exist" (T29.46). 18 The Department contends that no reasonable cause of action is disclosed in support of those claims. The causes of action apparently relied upon by Mr Chan are fraudulent misrepresentation, fraud, negligence and breach of warranty. It is necessary to consider each in turn.

Fraudulent misrepresentation 19 The claim in fraudulent misrepresentation is pleaded principally in paragraphs 22 to 89 of the amended statement of claim. There, Mr Chan appears to contend that the "material inaccuracies" in the conditions report amount to fraudulent misrepresentations on the part of the Department. Some of the alleged inaccuracies, described by Mr Chan as "Notable Examples", are identified later in the pleading (in paragraphs 128 to 180). The alleged misrepresentations are not separately articulated. 20 In support of the contention that the misrepresentations were fraudulent, Mr Chan relies on a Minute of the Public Housing Customer Council meeting held 15-16 September 2004, which states: "A member raised the question of how to determine if damage is a result of tenant action or if it was present when the tenant first moved into the dwelling." 21 The Minute further states: "Some members noted that, in their experience, the property condition report for a new tenancy as completed by the client service officer can be very different to what the new tenant finds when actually occupying the property." 22 Mr Chan contends in paragraph 87 of the amended statement of claim that it can be inferred from those Minutes that the Department has made fraudulent misrepresentations of the relevant facts in the conditions reports for many of its new tenants. 23 I accept, as submitted on behalf of the Department, that those facts are incapable of sustaining the contention that the conditions report dated 15 December 2004 in respect of the premises later leased by Mr Chan made any fraudulent misrepresentation.

24 Accordingly, I am satisfied that Mr Chan's claims for relief based on the allegations of fraudulent misrepresentation pleaded in paragraphs 22 to 89 should be dismissed. Fraud and negligence 25 Separately, Mr Chan alleges that the Department has acted fraudulently and, alternatively, negligently in relation to the alleged inaccuracies in the conditions report (paragraph 88 and paragraphs 90 to 227). Those allegations appear in more than one place in the pleading, which is composed of a series of rambling, disparate complaints of doubtful relevance to the core claim. 26 The claim in negligence is pleaded, broadly, in paragraphs 88 to 113. Mr Chan alleges that the Department owes a duty of care to its tenants to provide them with a relevant property conditions report that is accurate (paragraph 90). The basis on which it is contended that such a duty is owed is that it is reasonably foreseeable that "troubles" can occur for new tenants, causing injury and damages if conditions reports are materially inaccurate, "even if it is assumed that [the Department] would eventually accept all relevant liabilities due to the said material inaccuracies" (paragraphs 91 to 94). Mr Chan alleges that the Department has known that fact at all material times and for many years before September 2004 (paragraph 95). 27 The core contention appears to be that, in breach of the alleged duty of care, the Department has refused to "properly deal with" the material inaccuracies in Department property conditions reports. That allegation is made in relation to Department tenants generally (paragraphs 96 to 98) and specifically in relation to Mr Chan. He alleges that the Department has acted fraudulently and, alternatively, negligently in relation to the material inaccuracies of the conditions report provided to him (paragraphs 99 and 100; the fraud allegation is repeated in paragraph 224). He alleges that Department staff have persistently refused to acknowledge that he is not liable for the inaccuracies. 28 Specifically, Mr Chan alleges that the person within the Department who was responsible for dealing with property management matters relating to the premises leased by Mr Chan, Ms Tina Pupualii (also the author of the conditions report), has refused to acknowledge that Mr Chan is not liable for the alleged material inaccuracies in the report. It is alleged that, by reason of her refusal to do so, the Department can "transfer the relevant liabilities to Mr Chan". That is alleged to amount to an unlawful transfer of liabilities (paragraphs 101 to 113). 29 The pleading creates the impression that Mr Chan seeks compensation in respect of the so-called transfer of liabilities or for any future liability imposed on him in the event that he is required to pay for damage to the premises which existed before he moved in but which was not recorded in the conditions report. It was submitted on behalf of the Department that the damage alleged was accordingly entirely hypothetical. In his oral submissions, however, Mr Chan indicated that he was not claiming that type of damage but, rather, damages for mental distress. 30 I am satisfied, as submitted by the Department, that the allegations made in support of the claim in negligence (pleaded in paragraphs 88 to 113) disclose no reasonable cause of action. The first difficulty is that the damage pleaded by Mr Chan is "mental distress". The pleading does not go so far as to allege that the Department's conduct has caused Mr Chan to suffer from any recognised psychiatric illness. It is well established that there is no entitlement to recover damages for negligence in those circumstances: see Tame v State of NSW [2002] HCA 35; (2002) 211 CLR 317 at [193] per Gummow and Kirby JJ. As noted by Gleeson CJ at [7], it was common ground in that case that, "save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognized psychiatric illness"; see also Nationwide News Pty Ltd v Naidu & Anor; ISS Security Pty Ltd v Naidu & Anor [2007] NSWCA 377 at [211] per Beazley JA. 31 Even if Mr Chan were to amend the pleadings so as to allege that his "mental distress" amounts to a recognizable psychiatric illness, I think his claim would still be doomed to fail. First, a reasonable person in the position of Ms Pupualii, the author of the conditions report, would not have foreseen that careless completion of the report involved a risk of causing a recognisable psychiatric illness to a future tenant of the premises: cf Tame at [29] per Gleeson CJ; at [63] per Gaudron; at [120] per McHugh J; at [232] per Gummow and Kirby JJ and at [300] per Hayne J. 32 Further, it is doubtful, in my view, whether employees of the Department of Housing owe a duty of care to tenants or prospective tenants in respect of the management and administration of properties leased by the Department in the circumstances pleaded by Mr Chan. It is now well established that the recognition of a new category of duty sounding in damages for negligence calls for a consideration of the compatibility of the duty alleged in the particular case with other duties of the defendant, including those imposed by statute: see, for example, the discussion in Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [50]; Tame at [231]; State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 at [78]-[131]. 33 A further difficulty for Mr Chan is that the pleading fails to identify any facts, matters or circumstances on the basis of which the (apparent) allegation of breach can reasonably be maintained. The allegation asserts the conclusion (that the Department ignored or refused "to properly deal" with the alleged inaccuracies) without identifying the factual premises on which that conclusion is based. Later in the pleading (at paragraphs 406 to 449) there is a specific complaint in respect of Ms Pupualii that she attended his premises on 8 March 2005 to conduct a property inspection but failed to bring a pen or any paper. I do not think that complaint is capable of sustaining a claim in negligence. 34 Mr Chan stated in oral submissions that he wishes to amend his claim for damages to make it clear that he alleges that the Department's conduct is the primary cause of his inability to obtain employment since January 2005 (T37). He later conceded that in fact he was already unemployed when he became a public housing tenant (T39). Accordingly, it seems doubtful that he would be able to establish the necessary causal link between the conduct complained of and his present inability to work. 35 I am satisfied that Mr Chan's claim for damages in negligence on the basis of the allegations pleaded in paragraphs 88 to 113 and 406 to 449 should be dismissed. 36 As to the alternative claim, based on the same allegations, that the Department has acted fraudulently, there is nothing whatsoever in the facts pleaded on the basis of which the Court could be satisfied that any matter recorded in the conditions report was deliberately false or that the author of the report or any other person ought to have known that any such matter was false. The claims in fraud based on those allegations should also be dismissed.

37 The next series of allegations appears to be a separate claim in fraud based on the contention that, as a consequence of the failure to prepare accurate conditions reports, the Department is unable to maintain proper quality control in respect of work performed on Department premises by sub-contractors. Mr Chan contends that the Department is, in fact, deliberately ignoring or refusing to do proper quality control of such work and that its failure to do so amounts to fraud (paragraphs 114 to 127). 38 The basis for the contention that the conduct is fraudulent appears to be that the refusal properly to monitor the relevant sub-contractors' performance must be deliberate because it has occurred after the plaintiff has given notice to the Department of the relevant issues (paragraph 124). Mr Chan further alleges, gratuitously, that the cause of the fraudulent behaviour is corruption inside the Department (paragraphs 126 and 160-161). 39 I am of the view that Mr Chan's contentions in that respect derive from perceptions held by him for which there is no objective foundation. In my view, paragraphs 114 to 127 manifestly disclose no reasonable cause of action. Any claim for relief sought to be maintained on the strength of those contentions should be dismissed. To the extent that what is claimed on that account is damages for "mental distress" (see paragraphs 163-165), the claim is untenable for the reasons already discussed above in respect of the claim in negligence. 40 Paragraphs 128 to 180 of the amended statement of claim recite a series of examples of the alleged material inaccuracies in the conditions report discussed above, and seek to explain how the conduct complained of has been a cause of mental distress to Mr Chan. In relation to those matters it is alleged variously that Ms Pupualii acted negligently (see paragraphs 147 and 189) and fraudulently (see paragraphs 143, 145, 179, 180, 196 to 198, 224 and 227). The damage alleged to have been suffered by Mr Chan as a result of the alleged fraud is addressed further in paragraphs 185 to 188 and, apparently, 199 to 223 and 225 to 226 of the amended statement of claim. 41 An alternative claim in negligence is sought to be maintained on the basis that Ms Pupualii owed Mr Chan a duty of care and that the Department is vicariously liable for her acts or omissions (paragraphs 189 to 198). A similar claim is made in respect of a later inspection carried out by Ms Pupualii (paragraphs 406 to 449 of the amended statement of claim). For the reasons discussed above in respect of the direct claim against the Department, I am of the view that this claim is unarguable and should be dismissed on the basis that no reasonable cause of action is disclosed. 42 To the extent that the allegation against Ms Pupualii is one of fraud, I am satisfied that Mr Chan's contentions are based on perceptions held by him for which there is no objective foundation. In my view, this claim should also be dismissed. Breach of warranty 43 There is a discrete claim in respect of the conditions report for breach of warranty (paragraphs 181 to 184). By paragraph 181 of the amended statement of claim, Mr Chan alleges "it is a [Department] warranty ("Warranty") in the lease that the Notable Examples do not exist". The pleading in that form is untenable. The contention makes no sense and, for that reason, fails in my view to disclose a reasonable cause of action.

Conclusion in respect of paragraphs 22 to 227 of the pleading 44 For those reasons, I am satisfied that Mr Chan's claims for relief on the basis of the matters pleaded in paragraphs 22 to 227 of the amended statement of claim should be dismissed.

Deed of Release 45 The next series of claims (paragraphs 228 to 454 of the amended statement of claim) is objected to by the Department on a different basis, namely, that the matters alleged in those paragraphs were the subject of multiple proceedings which were resolved by way of a deed of release dated 5 April 2006 between Mr Chan, the Department and the Housing Corporation. The Department contends, on that basis, that any attempt to re-litigate those matters is an abuse of process. 46 The deed of release was in evidence before me. By clause 4 of the deed, Mr Chan has, among other things, released the Department and the Housing Corporation from any cause of action he might otherwise have had "in relation to or arising out of any act or omission in any way relating to (a) the Proceedings and (b) the matters recited in this Deed." 47 The term "Proceedings" is defined to mean particular proceedings named in the deed "and all other legal proceedings whether known or unknown, foreseen of unforeseen, then existing or hereafter arising that relate to and arise from the matters referred to in the Recital to this Deed." 48 The matters referred to in the recitals are, relevantly: "A. On about 17 January 2005 Mr Chan as tenant entered into a residential lease with the Corporation as landlord of the Property. B. On about 21 March 2005 Mr Chan reported to the Department that a smoke detector at the Property was beeping. C. On about 22 March 2005 a contractor of the Department attended the Property to inspect the smoke detector. The contractor reported the smoke detector was working normally however there was no power to the smoke detector. D. On and after 22 March 2005 Mr Chan wrote to the Department concerning the smoke detector at the Property. E. On 13 April 2005 Mr Terry Barnes, in his capacity as Director General of the Department wrote to Mr Chan. F. Mr Chan claims the letter addressed to him dated 13 April 2005 defames him. The Department denies the allegation." 49 It is not clear to me whether paragraphs 406 to 449 of the amended statement of claim arise out of those events. Those paragraphs appear to relate to a discrete claim in respect of conduct on the part of Ms Pupualii, discussed above in the context of the claim in negligence. 50 Subject to that qualification, it is clear that the matters pleaded in paragraphs 228 to 454 of the amended statement of claim relate to or arise out of the matters recited in those paragraphs. Mr Chan did not contend otherwise, nor did he dispute that it would be an abuse of process to seek to re-litigate matters settled by the deed. He submitted, however, that the Department had not complied with the spirit or substance of the deed. He construes the deed as being in the nature of a cease-fire agreement and asserts, in effect, that the Department has "opened fire" and broken the cease-fire. 51 As I understood Mr Chan's submissions, two matters are relied upon, in particular, as amounting to breaches of the deed on the part of the Department. First, he asserts that, at the time the deed was executed, there was another proceeding outstanding which is not mentioned in the deed. Mr Chan stated that, in breach of good faith, the Department took advantage of that fact and "passed it off as a victory" against Mr Chan. 52 Secondly, Mr Chan alleges that the Department has breached the deed by subsequently commencing further proceedings against him in the Consumer Trading and Tenancy Tribunal. The commencement of those proceedings is said to constitute a breach of clause 7 of the deed or, alternatively, an implied term of good faith and fair dealing. The allegations of breach of the deed are also relied on as separate causes of action (paragraphs 455 to 478, discussed separately below). Clause 7 of the deed provides: " Bar To Proceedings 7. Upon execution of this Deed the parties are barred permanently from bringing fresh proceedings and continuing any extant proceedings, in respect of the matters set out in the Recital hereto and the matters that are the subject of the releases given by them herein."

The contention that that clause, on its proper construction, prohibits any subsequent proceedings seeking access to the premises is manifestly untenable. The bar is, in my view, clearly referable only to the past events recorded in the recitals.

53 Further, even if the Department had breached the deed, that would not bring its operation to an end. I am satisfied that the deed stands as a bar to the causes of action pleaded in paragraphs 228 to 454 of the amended statement of claim (with the possible exception of paragraphs 406 to 449, discussed above). Mr Chan's claims for relief sought to be maintained on the basis of the matters pleaded in those paragraphs are, accordingly, manifestly hopeless and should be dismissed.

Claims based on events after the execution of the deed 54 The next series of claims (at paragraphs 455 to 525 of the amended statement of claim) begins with the alleged breach of the deed by the commencement of proceedings in the CTTT. It appears that the Department wrote to Mr Chan in early 2008 seeking access to his premises in order to inspect his smoke alarm. In fact, the smoke alarm had already been inspected. That fact was overlooked and, in due course, the Department commenced proceedings (RT 08/09247) seeking access to the property in order to comply with its obligation to conduct an annual testing of all fire safety mechanisms. The error was discovered and the proceedings were subsequently discontinued.

55 Mr Chan alleges that the commencement of the proceedings constituted a breach of the deed of settlement. On that basis, he claims declaratory relief and damages for anxiety, mental distress and the expenses of having to deal with and defend himself against the Department in those proceedings (paragraph 477 of the amended statement of claim). 56 Those claims proceed on the premise that the deed of settlement was in the nature of a cease-fire agreement, precluding any further litigation between the parties. That, in my view, is a misconstruction of the deed. Accordingly, I have come to the conclusion that the claim for relief due to the alleged breach of the deed is manifestly hopeless. 57 A separate but related complaint is made in respect of a letter dated 24 May 2006 sent to Mr Chan by Ms Barraclough, an employee of the Department. The terms of the letter are set out, in part, in paragraph 496 of the amended statement of claim. Mr Chan alleges that the Department, by that letter, sought access to his home to complete a property assessment survey, stating: "This Survey is conducted so that future repairs to your dwelling can be identified and programmed such as the replacement of carpets, kitchens, bathrooms as well as internal/external painting and other smaller maintenance problems. This survey MUST be done to all properties in the Riverwood Department of Housing Area without exception. If access is not gained to your dwelling within the next by 2 nd June 2006 (sic) for the PAS then the Department of Housing will be forced to take further action in the CTTT. To discuss this matter further or to make an appointment you MUST contact one of the following Department of Housing staff before 30 th May .……..". 58 Mr Chan alleges that the Department was in breach of the deed by allowing that letter to be sent (paragraph 459). For the reasons discussed above, I do not think that claim has any prospects of success. 59 Separately, Mr Chan alleges that contravention or threatened contravention of the deed of settlement caused him mental distress. He alleges that the Department was negligent "if not in the alternative fraudulent" in allowing Ms Barraclough to send the letter (paragraph 508). Mr Chan also alleges that, by the letter, the Department contravened s 22(1)(b) of the Residential Tenancies Act 1987 (paragraph 525 of the amended statement of claim). That section provides: "(1) It is a term of every residential tenancy agreement that: (a) …. (b) the landlord or the landlord's agent shall not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the tenant in using the residential premises." 60 In my view, the proposition that the sending of a letter from a landlord to a tenant could amount to interference with the tenant's right to quiet enjoyment is not reasonably arguable. Otherwise, those allegations raise the same issues as are discussed above in respect of the conditions report. 61 For the reasons there given, I am of the view that Mr Chan's claims for relief on the strength of the allegations set out in paragraphs 455 to 525 are manifestly hopeless and should be dismissed. 62 The balance of the pleading sets out a series of communications between the plaintiff and various people including staff at the CTTT and the State and Commonwealth Directors of Public Prosecutions. I am unable to discern the relevance of any of that correspondence to any cause of action apparently relied upon by Mr Chan. 63 I am satisfied that Mr Chan's proceedings against the Department of Housing and the Housing Corporation must be dismissed.

Mr Chan's proceedings against Kerry Reynolds - no. 20332 of 2008 64 Kerry Reynolds is identified in the amended statement of claim as a client liaison officer of the Department. The first claim sought to be maintained against her (at paragraphs 10 to 41 of the amended statement of claim) is a claim for damages for defamation. The matter complained of is a letter sent by Ms Reynolds to Mr Chan dated 17 July 2008. The letter stated: "Housing NSW inspects and services all smoke alarms every 12 months. The work is important because smoke alarms help to protect the lives and property of tenants. …. We have been informed by our contractor that they have been unable to gain access to your home to undertake this work. Please contact Kerry Reynolds on 9268 3557 by Friday 25 July 2008 to arrange a suitable time for the contractors to carry out this service." 65 Mr Chan alleges that the letter conveyed the following imputations defamatory of him: "(a) The Plaintiff's landlord, "Housing NSW", was unable to access during the previous 12 months the Plaintiff's home "to undertake this work" so as "to protect the lives and property of tenants" in the Plaintiff's relevant neighbourhood. (b) The plaintiff is a danger to "the lives and property of tenants" in the Plaintiff's relevant neighbourhood. (c) The Plaintiff has broken a term of the Lease. (d) The Plaintiff has broken the law." 66 Those imputations are alleged to arise on the natural and ordinary meaning of the matter complained of and, alternatively, by reason of the following extrinsic facts:

(a) It is a term of the lease that the plaintiff should allow the landlord to access the plaintiff's home when the landlord has a proper reason under the lease to do so;

(b) It is the law that the plaintiff should allow the landlord to access the plaintiff's home when the landlord has a proper reason to do so under the New South Wales Residential Tenancies Act 1987. 67 It was submitted on behalf of the Department that the letter was not "published" since it was addressed to Mr Chan. Plainly, publication of the letter to the plaintiff himself could not give rise to a cause of action for defamation. Mr Chan alleges, however, that it was a natural and probable consequence of the existence of a typewritten copy of the letter that it would be published from time to time to other Department staff (paragraphs 38 to 40 of the amended statement of claim). That is an adequate averment of publication. 68 In my view, however, the claim in defamation in respect of that letter is manifestly hopeless. Imputation (a) fails to identify any act or condition attributable to the plaintiff. It is liable to be struck out on that account. Imputations (b), (c) and (d) are incapable of being conveyed by the matter complained of in its natural and ordinary meaning. Nor are those imputations capable of being conveyed to a person who knew the extrinsic facts set out above, since the letter does not identify any refusal on the part of Mr Chan to allow access to his premises as the reason the contractor is said to have been unable to gain access. Further, in order to succeed on the basis of true innuendo, it would be necessary for Mr Chan to identify a person to whom the matter complained of was published who knew the extrinsic facts. Accordingly, in my view, the claim for relief based on the first matter complained of must be dismissed. 69 The next series of claims against Ms Reynolds (at paragraphs 42 to 79 of the amended statement of claim) relates to the fact that, on 29 July 2008, proceedings were commenced in the CTTT (RT 08/38822) seeking an order for access to the premises on the basis that the request in the letter had not been complied with. The commencement of those proceedings was unfortunate, since the contention that the contractor had been unable to gain access to the premises was in fact wrong. The assessment had been carried out on 9 July 2008. It appears to be the second occasion on which such proceedings were commenced on an incorrect premise. 70 Mr Chan alleges that Ms Reynolds knew the letter was not true and therefore had an intention to injure him. The amended statement of claim alleges misfeasance in public office on that account, but Mr Chan stated at the hearing before me that he does not press that cause of action. 71 However, Mr Chan alleges in the alternative that Ms Reynolds was negligent, and that claim is maintained. Mr Chan contends that Ms Reynolds owed him a duty of care to check the facts before producing the letter and that it was reasonably foreseeable that he would suffer mental distress as a result of her production of the letter. 72 For the reasons discussed above in respect of the claim in negligence against the Department, I do not think those allegations disclose a reasonable cause of action. 73 In paragraphs 80 to 105 of the amended statement of claim, Mr Chan pleads a cause of action in defamation in respect of a second letter sent by Ms Reynolds to him. That letter was in the following terms: ""Housing NSW inspects and services all smoke alarms every 12 months. The work is important because smoke alarms help to protect the lives and property of tenants. …. We have been informed by our contractor that they have been unable to gain access to your home to undertake this work. Please contact Kerry Reynolds on 9268 3557 by Monday 8 September 2008 to arrange a suitable time for the contractors to carry out this service." 74 Mr Chan alleges that the letter conveyed the following imputations defamatory of him: "(a) The Plaintiff's landlord, "Housing NSW", was unable to access during the previous 12 months the Plaintiff's home "to undertake this work" so as "to protect the lives and property of tenants" in the Plaintiff's relevant neighbourhood. (b) The plaintiff is a danger to "the lives and property of tenants" in the Plaintiff's relevant neighbourhood. (c) The Plaintiff has broken a term of the Lease. (d) The Plaintiff has broken the law." 75 As in the case of the first matter complained of, those imputations are alleged to arise in the natural and ordinary meaning of the matter complained of and, alternatively, by reason of the extrinsic facts. The extrinsic facts identified are the same as those relied upon in respect of the first matter complained of. 76 The two claims in defamation are, for present purposes, identical in all relevant respects. For the reasons identified above in respect of the first matter complained of, I am of the view that the second claim in defamation is manifestly hopeless and must be dismissed. 77 In paragraphs 106 to 108 of the amended statement of claim, Mr Chan alleges that the two letters sent by Ms Reynolds constitute a breach of his right to quiet enjoyment of the premises contrary to s 22 of the Residential Tenancies Act. As already indicated, in my view, that claim is unarguable. A letter sent to a tenant's premises by a landlord could not on any view constitute an interference with the tenant's entitlement in respect of the use of the premises. 78 Paragraphs 109 to 117 of the amended statement of claim allege that the commencement of the proceedings in the CTTT (RT 08/38822) seeking access to the premises constituted a breach of clause 7 of the deed of settlement. As in the case of the claim against the Department, this claim is based on Mr Chan's construction of that clause as a complete prohibition on the commencement of any future litigation. As already indicated, the construction contended for by Mr Chan is, in my view, manifestly unarguable. Mr Chan's claims for relief sought to be maintained on the basis of breach of the deed must accordingly be dismissed.

Mr Chan's application for leave to amend the pleadings. 79 In support of his applications for leave to amend, Mr Chan read his affidavits sworn 20 July 2009, 21 July 2009, 22 July 2009, 23 July 2009 and 24 July 2009. Those affidavits summarise Mr Chan's claims and set out the evidence that would be relied upon by him in support of his proposed amendments. Mr Chan has not, however, provided a form of amended pleading. He has had ample opportunity to do so. He stated that he had an old draft but that it had become outdated by recent events. In the absence of any articulation of the proposed amendments, I do not think that it is appropriate to grant leave to amend the pleadings in either proceedings. Nothing in the affidavits read by Mr Chan persuades me that there would be any utility in affording further time for that to occur. 80 I make the following orders:

(1) I note that proceedings 20392/08 were transferred from the Administrative Law List (where they had been identified as proceedings 30022/08) pursuant to an order made on 29 August 2008.

(2) The plaintiff's application by notice of motion dated 10 October 2008 for leave to amend the amended statement of claim in proceedings 20392/08 is refused.

(3) Pursuant to rule 13.4(1) of the UCPR, I order that proceedings 20392/08 be dismissed.

(4) I order the plaintiff to pay the defendants' costs of proceedings 20392/08.

(5) In proceedings 20332/08, the plaintiff's oral application made in Court on 27 July 2009 for leave to amend the amended statement of claim is refused.

(6) I order that proceedings 20332/08 be dismissed.

(7) I order that the plaintiff pay the defendant's costs of those proceedings. **********

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.

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Cases Cited (7)