Solicitors:
In person (Plaintiff)
Crown Solicitor's Office (Defendants)
File Number(s): 2014/198018; 2013/249441
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Judgment
Introductory matters
On 10 March 2016, I heard three motions of Ms Maureen Young pertaining to her litigation with the Roads and Maritime Services of New South Wales (RMS) and the State of New South Wales. On the same day, I heard a motion brought by the defendants seeking orders against the plaintiff. I reserved my judgment with regard to all four motions.
Ms Young was unrepresented before me, though there is some evidence that she has received and paid for legal advice in the past.
Although Ms Young has played different roles in different parts of the litigation, it is convenient to refer to her as the plaintiff in this judgment. It is also convenient to refer compendiously to the defendants as "RMS", unless the context requires greater discrimination between the two of them.
A number of procedural and logistical matters were not in dispute between the parties. The first was that I should deliver one judgment that pertained to all four motions. The second was that, because the motions were brought variously in two separate proceedings before this Court featuring identical parties and arising from the same subject matter, I should deliver one judgment, but it should be delivered (identically) in each matter. The third was that costs should follow the determination of the motions, although the plaintiff submitted that, were she to succeed on any motion, she should have her costs forthwith.
Background
Reference should be made for matters of background to the judgment of Hidden J of 10 July 2015: Young v Roads and Maritime Services [2015] NSWSC 918, and to my judgment of 17 December 2015: Young v Roads and Maritime Services (No 2) [2015] NSWSC 1944. In the latter, I explained why I accepted the submission of the plaintiff that proceedings then pending in the Local Court should be transferred to this Court. It can be seen from my earlier judgment that I dealt only with that question, and explicitly left open the question of whether the pleadings of the plaintiff were vulnerable to further attack by RMS.
I shall not recount the history of the dispute between the parties in any detail in this judgment. It is enough to say the following.
The plaintiff purchased a houseboat from a private vendor in the vicinity of the Spit Bridge in the inner northern suburbs of Sydney in 1983. Thereafter it was moored in that location pursuant to an arrangement between the plaintiff (as purchaser of the houseboat) and RMS (perhaps as lessor or licensor).
In the year 2000, the plaintiff commenced proceedings against RMS (and in this context I do not include the second defendant in the proceedings before me) and a firm of solicitors. The nature of that claim has not been illuminated in the evidence that has been placed before me.
In 2009, those proceedings were settled by orders of this Court made with the consent of all parties. The orders were preceded by the preparation and execution of heads of agreement and a deed between the parties. The annexure to the deed entitled "Annexure B" was a lease.
Part of the settlement was the proposition that the plaintiff would be paid (without admissions) $700,000 by the other two parties; that occurred. Another part of the settlement was that the lease would be registered; some years later, in 2012, that also occurred.
In August 2013, RMS commenced proceedings against the plaintiff in the Local Court of New South Wales for rent that it alleged the plaintiff had failed to pay in accordance with the lease. In those proceedings, the plaintiff filed a lengthy cross-claim, whereby I understood her to be seeking to reopen the consent orders and to impugn the validity of the registered lease, on the basis that they had both been vitiated by fraud, due to a deliberate failure by officers of RMS to disclose documents in the process of discovery in the proceedings that were settled in 2009. There were other claims articulated, though they were more obscure to me: see [41] of my judgment of 17 December 2015. As can be seen from my earlier judgment, it was that general claim that I permitted to be transferred to this Court, not least because RMS conceded that the orders of this Court could not be impugned in the Local Court.
It is in that context that I turn to determine each of the motions.
Motion of plaintiff of 5 September 2014
The motion of the plaintiff of 5 September 2014 seeks default judgment against the defendants by way of order 1. By way of order 2, it seeks interim damages. RMS resisted both orders.
In oral and written submissions before me, the plaintiff explained that a stay had been granted by the learned Magistrate of the Local Court proceedings in which RMS sought rent, until the application for transfer to this Court was determined. Indeed, the application for a stay of those proceedings was made by the plaintiff, because she feared that the Local Court matter was "galloping" towards a judgment against her.
Her position on the motion, however, was that the stay did not relieve RMS of its responsibilities with regard to the litigation. They included, she submitted, the filing of a valid defence to the cross-claim that she had filed in the Local Court. No such document having been filed in the many months since her cross-claim had been filed and served, the plaintiff submitted that she was entitled to a default judgment on the cross-claim.
If she were successful in obtaining that order, the plaintiff submitted that she should thereafter be entitled to interim damages pending precise determination of their quantum. That is because, she submitted, a default judgment having been entered against RMS, the question of liability would no longer be disputable by RMS.
Turning to my determination of this motion, I do not accept the submission of the plaintiff that, even though the Local Court proceedings were stayed on her application, nevertheless it remained incumbent upon RMS to progress the litigation. Contrary to the position of the plaintiff, I consider that, once the proceedings were stayed, it was incumbent upon neither party to take steps within those proceedings; the position was different, of course, with regard to the separate application to have the matter transferred to this Court, which proceeded to hearing in the second part of last year.
In short, I do not accept that RMS was in default by failing to file a defence to the cross-claim in the Local Court during the many months when those proceedings were stayed by court order obtained by its opponent.
It follows that the claim of the plaintiff for default judgment fails at the outset. I repeat: that is because the stay that the plaintiff obtained relieved both parties from taking further forensic steps within those proceedings.
I therefore do not propose to enter default judgment against RMS.
Consequently, there is no basis upon which I should order interim damages in favour of the plaintiff, bearing in mind that the question of liability remains open, and is indeed firmly disputed.
In short, the motion of the plaintiff filed on 5 September 2014 must be dismissed. And there is no reason why the plaintiff should not pay the costs of that motion, albeit not forthwith.
Motion of plaintiff of 13 October 2015
At the hearing before me, the plaintiff explained that she was not pressing any of the 11 orders sought in her notice of motion of 13 October 2015. That was because the first of them had been made (either identically or in very similar form), and the rest of them had either become unnecessary or had been subsumed in other notices of motion.
She did, however, seek costs incidental to the making of order 1 in the past. That order in the notice of motion reads as follows: "Set aside Registrar Kenna's order and direction of 18 September 2015, being Order 3 in so much as to eliminate the requirement of a joint court book by the parties; to set aside the direction for there to be one joint court book only".
Documentary evidence was tendered before me of the background of that proposed order, and it was expanded upon orally by the plaintiff.
In a nutshell, on 18 September 2015, a Registrar of this Court made the following order with regard to the preparation of the motion that was heard by me on 20 November 2015: "Parties are to file a joint court book that has been indexed and paginated by 13/11/15… The direction is for the parties to file a joint court book. The parties are to discuss the contents of the court book and file one court book".
Subsequently, the plaintiff became concerned that she was being limited in the nature and amount of evidence that she could place before the court on that motion. In particular, she believed that the effect of the order of the Registrar was that she would be limited to filing evidence that was no more than half of one volume. She came to the view that the matter needed to be relisted so that her presentation would not be unjustly restricted in that way.
The matter returned before a Registrar on 20 October 2015. RMS was represented. On that day consent orders were made that were relevantly as follows:
2. Dismiss prayers 1, 4 and 5 of the motion filed 13 October 2015 and stand over the remainder of the motion (prayers 2, 3, 6-11) to 20 November 2015.
3. Note that the court book for 20 November will comprise more than one volume to accommodate the plaintiffs' evidence.
Order 3 allayed the concerns of the plaintiff about the court book.
In short the position of the plaintiff before me was that an inappropriate order had been made; that she was required to file a motion in order to correct it; and that, once the matter was listed for hearing, her opponent consented to the variation of the initial order of the Registrar. In those circumstances, she submitted, she should have her costs (limited to disbursements, in light of the fact that she is unrepresented) of that day.
That submission of the plaintiff must be rejected, for the following reason.
The plaintiff was labouring under a misapprehension about the meaning of the order. It was certainly the case that the Registrar ordered that there be one court book prepared, in accordance with long-standing practice. But that did not mean that the documentary evidence of the plaintiff was to be restricted to half of one volume. Rather, the Registrar meant that there should be a single convenient document available to the court, but that that single document could be as voluminous as the parties wished.
I accept that the plaintiff sincerely misunderstood what the Registrar meant to convey. But I do not consider that that misunderstanding on her part should entitle her to costs.
In short, I do not consider that the plaintiff should have her costs incidental to the making by consent of an order, some time in the past, in the nature of the first order sought in her notice of motion of 13 October 2015.
The plaintiff having failed on the discrete aspect of that notice of motion that was pressed, I propose to order that she must pay the costs of the hearing of that motion before me. Again, I do not consider that those costs should be payable forthwith by her.
Motion of plaintiff of 2 February 2016
The motion of the plaintiff of 2 February 2016 sought six orders.
It can be seen from its text that order 4 sought an urgent hearing about the quantum of interim damages. Because I have already rejected the threshold proposition that there should be any interim damages, on the basis that the question of liability remains unresolved, order 4 must be dismissed.
Order 5 sought an expedited hearing of the motion for default judgment. It became otiose by the time of the hearing of 10 March 2016 before me; in any event, for the reasons explained above, I have refused to enter default judgment against RMS.
Orders 1, 2 and 3 in the notice of motion of 2 February 2016 were explained as follows.
It will be recalled that the plaintiff succeeded on her summons to have the Local Court proceedings transferred to this Court. In accordance with the usual approach of costs following the event, on 17 December 2015 I ordered that RMS must pay the costs of that summons, in the form of her disbursements only. Before me, the plaintiff submitted that those costs should be payable forthwith; that there should be no delay by way of assessment of costs; and that I should make a gross costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). In support of her submissions, the plaintiff placed before me copies of various invoices that she submitted reflected disbursements connected to her successful summons. She explained that copies of other paid invoices had been destroyed through misadventure.
Counsel for RMS and the State explained that her clients are content to pay disbursements that can be verified by paid invoices, and that are sufficiently connected to the successful summons (as opposed to other forensic steps taken by the plaintiff since this litigation commenced) so as to be captured by my order of 17 December 2015. Counsel also accepted that, bearing in mind that the application for transfer was by way of a summons, as opposed to an interlocutory notice of motion, it is appropriate for those costs to be paid now.
Counsel submitted, however, that her clients should not be called upon to pay disbursements that cannot, for whatever reason, be verified by an invoice. She also submitted that a gross costs order in the sum of $25,000 or thereabouts (which is well beyond the amount able to be verified by invoices) would not be appropriate. Rather, she submitted that, if the dispute about the quantum of disbursements cannot be resolved between the parties, the matter should be referred for costs assessment in the usual way.
Turning to my determination of this question, I proceed on the assumption that RMS will promptly pay the invoices that were identified in the written submissions of its counsel as being accepted. But I do not propose to go beyond that by way of making a gross costs order payable forthwith. That is so for the following reasons.
First, disentangling the degree to which the various invoices (other than those accepted by RMS) are connected with the successful summons (as opposed to other forensic steps in which the plaintiff has not found success) will be a time-consuming and complicated task. On their face, many of the invoices placed before me appear to relate to other applications that did not succeed, and with regard to which the plaintiff is not entitled to costs. The process of disentanglement may well take many hours. I do not accept that that task should be undertaken by a judge of this Court as opposed to a costs assessor.
Secondly, to the extent that the plaintiff asserts that she has paid some invoices of which she has no copy (due to water damage), the same may be said: determining whether that is to be accepted or not will be a complicated process that should be undertaken by an expert costs assessor, not a judge.
Thirdly, the gross costs order that the plaintiff seeks is well beyond what can be substantiated by invoices that were placed before me on the hearing of the motion.
For those reasons, I do not propose to make proposed orders 1, 2 or 3 in the notice of motion of 2 February 2016 of the plaintiff. On the assumption that the accepted invoices will be paid promptly, there is no reason why the dispute about other disbursements should not be determined in the usual way by a costs assessor.
Turning to order 6, the plaintiff explained that the houseboat that stands at the centre of this dispute has become dilapidated and dangerous. Her concern is that a visitor to the houseboat could be injured, exposing her, perhaps, to very substantial damages. She submitted that it would be appropriate for me to order that she be indemnified by RMS for any liability that arises on her part as a result.
Turning to my determination of this question, if it is established in the future that the plaintiff has indeed been the subject of wrongdoing by RMS as she claims; and if it is established in the future that wrongdoing has led to the houseboat becoming dilapidated and dangerous; and if it is established in the future that the state of the houseboat causes the plaintiff to be liable to some third party in negligence or on some other basis; it is conceivable, perhaps, that some form of indemnity or recompense pursuant to some form of cross-claim of the plaintiff could be appropriate. But that proposition is predicated on acceptance of the underlying proposition of the plaintiff - firmly disputed by RMS - that RMS has committed wrongdoing against the plaintiff. It is that proposition that is the subject matter of the substantive proceedings: it cannot be determined as the foundation of a motion.
On the material placed before me, I do not accept that the plaintiff has established that RMS is responsible for the state of the houseboat, even assuming (for the sake of argument only) that it is dilapidated and dangerous. In those circumstances, I do not propose to order that RMS indemnify the plaintiff for any liability that she may have in the future to an injured visitor to the houseboat.
In summary, the notice of motion of the plaintiff of 2 February 2016 must be dismissed. Again, I propose to order that the plaintiff pay the costs of that motion, albeit not forthwith.
Motion of defendants of 22 February 2016
It can be seen, by its motion of 22 February 2016, that RMS has sought to have the defence and cross-claim of the plaintiff struck out. In a nutshell, it was said that the pleadings disclose no reasonable cause of action; that, as a whole, they are liable to embarrass RMS; that they contain inconsistent, confusing or irrelevant allegations; and that RMS is not able to understand from the pleadings the real nature of the plaintiff's case.
The position of the plaintiff was that she has sufficiently pleaded her causes of action in the amended cross-claim; that the claims are legally sustainable and factually intelligible; and that she should not have the door to the court shut to her at this stage.
The cross-claim of the plaintiff may be summarised as pleading the following causes of action against RMS and the State.
First, breach of the terms of the Deed of Release dated 18 September 2009 and failure by the defendants to meet "contractual obligations" (as set out in paras 15 and 16). The plaintiff outlined 22 alleged breaches of the Deed.
Secondly, the intentional tort of deceit, committed by omitting material facts and documents, and knowingly making misrepresentations to induce the plaintiff to act to her detriment in relation to the settlement and dismissal of proceedings (as set out in paras 17, 17A, 17B and 18). This pleading focuses on the process of discovery to which I have referred above.
Thirdly, misfeasance in public office and abuse of power committed by The Hon. Paul McLeay, MP, then Minister for Ports and Waterways (the Minister), between 8 December 2009 and 15 September 2010 (as set out in paras 18 and 21). It is also pleaded that misfeasance in public office and "malicious abuse of power" was committed by Mr Dunn, Officer and CEO (presumably of the RMS) during the period from July 2008 to 15 December 2009 (as set out in paras 23 and 24).
Fourthly, a breach of trust committed by the Minister, during the period February 2006 and 14 December 2009 (as set out in paras 20 and 21). This was alleged to be based upon a "Ministerial Trustee Duty".
Fifthly, a breach of fiduciary duty by the Hon. Paul McLeay, Minister for Ports and Waterways, during the period February 2006 and 14 December 2009 (as set out in paras 20 and 21).
Turning to my determination of this motion, reference to the transcript of the hearing before me shows that a whole day was set aside for the hearing of the four motions. The oral submissions about this notice of motion commence at page 30 of the transcript and conclude at page 69. The transcript shows that I repeatedly invited the plaintiff to explain orally the legal and factual bases of all of her claims. The plaintiff was unable to do so with regard to many if not all of them. That was despite the fact that there was ample time for discussion of all of the motions, and in particular of the one now under consideration.
It is convenient to discuss the various pleaded causes of action, and the explanations of them provided by the plaintiff, in an order slightly different from that in which I have set them out.
Turning first to the allegation of breach of fiduciary duty by the Minister, it is true that Ministers have specific duties, are accountable for their actions in public office, and cannot act ultra vires. But the plaintiff was not able to explain to me the legal basis upon which she asserts that a specific and enforceable fiduciary duty came to be owed by the Minister to herself. Neither by way of the pleading itself, nor by way of oral explanation of that document, could I understand the basis upon which it is said that such a relationship developed and was thereafter breached. I consider that that aspect of the claim must be struck out, on the basis of its unintelligibility.
As for the allegation of breach of trust by the Minister towards the plaintiff, the same problem arose: the plaintiff was unable to explain to me (or her opponent) how it was that she says that the legal relationship of trustee and beneficiary arose between herself and the Minister. That part of the claim must be struck out as well, on the basis of its unintelligibility.
As for the allegation of misfeasance in public office made against both the Minister, and Mr Dunn, it is an essential attribute of that intentional tort that acts or omissions be a consciously wrongful exercise of power by a public officer. There must be an intentional abuse of power, and the tortfeasor must be, at the least, reckless with regard to its consequences: see Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307; Little v Law Institute (Vic) [1990] VR 257. And yet, before me, the plaintiff was incapable of explaining the evidential basis upon which she asserts that anything was done, or omitted to be done, maliciously or recklessly. In oral submissions, the plaintiff submitted that she could show of the Minister that "at best he was reckless" (transcript of the hearing of motion on 10 March 2016 (TM) 48.23).
I do not accept that a serious allegation of an intentional tort, an element of which is a malicious or reckless act or omission, can be made without explicit pleading of the evidentiary basis for the allegation, in the hope that something may arise in the course of preparation for the hearing. The point having been taken by RMS, and the plaintiff having been given ample time to explain the basis of the claim, I consider that the allegations of misfeasance in public office must be struck out.
Turning to the allegation of deceit based upon documents having been deliberately withheld during the process of discovery that occurred before the 2009 settlement, with the asserted result that both the consent orders and the registered lease were vitiated by fraud.
As a general proposition, I accepted that that allegation should be transferred from the Local Court to the Supreme Court; as I have said, apart from anything else, counsel for RMS accepted that the Local Court had no jurisdiction to revisit orders made by this Court. But there are a number of undoubted problems with the claim.
The first is that the plaintiff has not pleaded the nature of the proceedings that culminated in the 2009 settlement. That has at least two consequences.
The first is that one cannot determine whether the documents said to have been deliberately omitted from discovery were in truth captured by that process. In other words, I do not consider that one can determine whether the documents should indeed have been discovered without some sort of understanding of the nature of those proceedings.
The second consequence is that one cannot understand the nature of the interest that the plaintiff asserts she held, and thereafter sacrificed or compromised to her disadvantage, by way of the settlement in 2009.
And a separate and overarching problem with regard to the entirety of the claims of the plaintiff, including the allegation that the deed has been "breached", is that, despite an extended period of oral submissions and discussions between the plaintiff and me, and which is reflected in the transcript, I regret that I remain unable to understand the real nature of the adverse consequences that the plaintiff claims that she suffered as a result of the settlement of 2009.
Of course, I make no personal criticism of the plaintiff for that, in light of the fact that she is a layperson appearing unrepresented in the Supreme Court. But a rereading on my part (since I reserved) of the pleadings, the written submissions of the plaintiff, and the transcript of her oral submissions leaves me unclear as to what the plaintiff says "went wrong" to her disadvantage, either at the time of the settlement or thereafter. I do not believe that I was able to "pin down" the complaint as being that the leased area of harbour bed is smaller than the area that the plaintiff agreed would be leased; or that the registered lease is of a different nature from the lease to which the plaintiff agreed; or that subsequent events have somehow unlawfully disadvantaged the plaintiff, financially or otherwise.
In short, I regret to say that I do not possess an understanding of the ways in which the plaintiff claims she was disadvantaged by the defendants, or by events under their control, before, during and (in particular) after the settlement of 2009. For that reason, I consider that the claim as a whole, including that part of the defence and amended cross-claim that focuses on the alleged fraudulent failure to discover documents in accordance with law should be struck out. I say that because I consider that the claim is embarrassing due to its incomprehensibility.
The defendants having succeeded upon their notice of motion of 22 February 2016, there is no reason why they should not have their costs from the plaintiff. Again, there is no reason why those costs should be payable forthwith.
The way forward procedurally
Counsel for the defendants accepted that it would be open to my discretion to put in place some regime that would permit the plaintiff another chance to formulate her claim, before a default judgment would become liable to be entered against her for the allegedly unpaid rent. I accept that submission.
Accordingly, I think that there should be a period of some weeks before the defendants should be permitted to apply for default judgment, there now being no defence or cross-claim of the plaintiff on foot. I propose to order that the defendants must not apply for default judgment before eight weeks from the date of this judgment.
Having said that, I think it appropriate that a degree of rigour be imposed upon the process of the unrepresented plaintiff re-pleading again. To my mind, the plaintiff should require leave of a judge of this Court before she files further pleadings.
I also think that that leave should be sought with some formality: the procedural steps that I consider appropriate are contained in my fifth and sixth orders.
Finally, because I have agreed to case manage this matter, the Registrar should be asked by the parties to consider placing any such application before me, subject to my availability.
Orders
I make the following orders:
1. The notices of motion of Ms Young of 5 September 2015, 13 October 2015, and 2 February 2016 are dismissed.
2. Ms Young must pay the costs of Roads and Maritime Services of New South Wales and the State of New South Wales of those three motions.
3. The amended defence of 10 July 2014 and amended cross-claim of Ms Young of 20 November 2015 are struck out.
4. Roads and Maritime Services of New South Wales and the State of New South Wales must not apply for default judgment before 8 weeks from today; that is, before 17 June 2016.
5. Ms Young must apply to a judge of this Court for leave to file any further pleading in either of the proceedings in this Court.
6. Any such application must be by way of a filed and served notice of motion, with affidavit evidence in support, and include drafts of all pleadings proposed to be filed.
7. Ms Young must pay the costs of Roads and Maritime Services of New South Wales and the State of New South Wales of the notice of motion of 22 February 2016.
8. The matter is listed before the Common Law Registrar at 9 AM two weeks from today; that is, on 6 May 2016.
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Decision last updated: 22 April 2016