Young v Roads and Maritime Services

Court of Appeal (NSW)|2019-10-24|Before: Macfarlan JA, Fagan J

Solicitors: Self-represented Applicant Crown Solicitor's Office (First and Second Respondents) File Number(s): 2019/290549 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC1014 Date of Decision: 13 August 2019, 30 September 2019, 12 April 2019, 21 May 2019 Before: Fagan J Registrar Bradford and Registrar Brown File Number(s): 2018/83808; 2013/249441

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

First proposed ground of appeal

Ms Young contended that despite the parties' execution and registration of a lease in respect of the property in 2012, she has tenure rights to it as "the successor in title under a treaty Agreement made between [the] [E]xecutive [G]overnment in 1945". She referred to the "existence of the executed treaty Agreement [as] coming under the ratified Commonwealth and States Housing Commission Agreement 1945". She did not ask this Court to adjudicate this claim. Rather, she sought a stay of proceedings in this Court to enable the High Court to do so in its original jurisdiction. Ms Young contended that the High Court has exclusive jurisdiction, presumably pursuant to s 38(a) of the Judiciary Act 1903 (Cth), which gives the High Court such jurisdiction in "matters arising directly under any treaty".
Ms Young did not provide any basis for this Court concluding that these contentions have any merit or that for any other reason a stay of proceedings in this Court should be granted. In particular she did not establish any connection between the subject property and the Commonwealth statute to which she referred (which was in fact repealed in 2014 by the Omnibus Repeal Day (Autumn 2014) Act 2014 (Cth)) or that there are "matters arising directly under any treaty".
It follows that she did not establish that Fagan J was not entitled to proceed as he did and that his decisions were therefore, as she asserted, "void", nor has she established any entitlement to a stay of the proceedings in this Court.
As a result, this proposed ground of appeal has no merit.

Second proposed ground of appeal

The heading to this proposed ground of appeal is "2018 Proceedings Errors - Bias - lack of Procedural Fairness - Misbehaviour". Assertions made by Ms Young under this heading included the following.
First, Ms Young said that the 2012 lease was a "recreational boat Domestic Lease" rather than a more valuable "proper Residential Lease". Neither in her amended draft Notice of Appeal nor in her submissions did Ms Young provide any sensible explanation as to how that proposition might provide her with a defence to the RMS's claims.
Secondly, Ms Young contended that she was entitled to credits against the rent claimed from her but again she did not provide any arguable basis for concluding why that might be so.
Thirdly, Ms Young alleged that she was exposed to "asbestos dust" by the "wanton neglect" of the RMS and also that the RMS failed to "ensure mandatory safety measures were in place surrounding the casualty directly next" to her. Ms Young did not however explain how these matters, if correct, would have provided her with a defence to the RMS's claims.
Fourthly, Ms Young contended that she has a "new" cause of action for fraud. She referred to that cause of action in her written submissions but provided no arguable basis for the Court concluding that it might be available to her. It may be that Ms Young asserts that the cause of action is based on the RMS allegedly obtaining default judgment for rent when it knew that no rent was owing to it, but an arguable factual basis for that allegation has not been demonstrated in these proceedings. Whether Ms Young may be able to pursue it in an action for damages against the RMS is referred to below in relation to the third proposed ground of appeal.
In her description of the second proposed ground of appeal, and in her submissions, Ms Young made various other allegations of improper conduct on the part of the RMS and on the part of Fagan J who she alleged was biased against her. These allegations were completely unsubstantiated.

Third proposed ground of appeal

The 2013 proceedings were commenced by the RMS in the Local Court against Ms Young for the recovery of unpaid rent in respect of a defined period. After Ms Young filed a defence, and then an amended defence, as well as a cross-claim, the proceedings were transferred to the Supreme Court.
On 22 April 2016 Button J, sitting in the Common Law Division, ordered that Ms Young's amended defence and an amended cross-claim be struck out ([2016] NSWSC 491). His Honour specified a date before which the RMS was not to apply for default judgment on its claim and directed further: "(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."
Leave to appeal to this Court against Button J's orders and direction was refused on 1 September 2016, save that leave was granted in respect of Orders (5) and (6) quoted above ([2016] NSWCA 238). Leave was granted in respect of those two orders as it was "at least arguable that they [were] beyond power" (at [66]). The RMS subsequently consented to the appeal against the making of those two orders being granted, with the result that they were set aside. The High Court subsequently dismissed Ms Young's application for special leave to appeal against the Court of Appeal's refusal of leave to appeal ([2017] HCASL 243).
As a result, the RMS entered default judgment on its claim for rent in the 2013 proceedings on 13 November 2017. This entry of a final judgment brought the 2013 proceedings, so far as the RMS's claim was concerned, to an end. Those proceedings have however arguably not been concluded so far as they related to Ms Young's cross-claim. Button J did not dismiss Ms Young's cross-claim or enter judgment for either party on it. Rather, he struck out the amended cross-claim on the basis that it was "embarrassing due to its incomprehensibility" (at [73]). He did not determine that there was no merit in the allegations that Ms Young attempted, albeit inadequately, to make in the cross-claim. Indeed, by saying that he thought it was "appropriate that a degree of rigour be imposed upon the process of the unrepresented plaintiff re-pleading again" (at [77]) and making Orders (5) and (6) quoted above, his Honour indicated that he contemplated that, as often occurs when a pleading is struck out, the party concerned would wish to file an amended pleading. The Court of Appeal considered that Orders (5) and (6) were too broad and, as I have indicated, these orders were set aside by consent. The general position however for which the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provided remained, that Ms Young required the court's leave to file an amended cross-claim because the circumstances in which she might have done so without leave were inapplicable (see r 9.1(1) of the UCPR).
As a result, Registrar Bradford was correct to refuse to allow Ms Young's further amended cross-claim to be filed as Ms Young did not have leave to file it. The Registrar's reasons for rejecting the filing do not appear from his order but if a reason was that the proceedings had concluded, that view was arguably erroneous and Ms Young was entitled to contest it before it was acted on. This possible error is not however of significance as an undoubtedly good reason for refusing the filing existed.
It remains open to Ms Young to apply in the 2013 proceedings for leave to amend her cross-claim. On such an application, Ms Young would have to persuade the court that her cross-claim proceedings were not impliedly terminated as a result of (i) the passage of time, (ii) the final disposition of the RMS's claim in the proceedings, and (iii) perhaps other facts.
If she surmounted this obstacle, Ms Young would at least have to proffer to the court a form of cross-claim that contained a properly pleaded, arguable cause of action. Other considerations that would also be relevant to the exercise of the court's discretion would include whether she was able to explain her delay in applying for leave and whether there would be any utility in allowing her to pursue a claim for damages by way of cross-claim in the 2013 proceedings, as distinct from her commencing fresh proceedings. Relevant to the last point may be questions of limitation of action bearing in mind that many of the matters raised by Ms Young date back to a decade or more.
On 21 May 2019 Registrar Brown declined to allow Ms Young to file a notice of motion dated 30 April 2019 on the basis that the 2013 proceedings were complete. As we have said, this was arguably not correct in relation to the cross-claim aspect of the proceedings. It is not however clear that the notice of motion related to the cross-claim. Indeed, a statement in the formal orders that "no further adjournment is warranted" suggests that it was not. In these circumstances, Ms Young has not established that the order was wrongly made.
For these reasons, the third proposed ground of appeal has no merit.

Conclusion

As none of Ms Young's proposed grounds of appeal have any prospect of success, her application for leave to appeal is dismissed with costs.
We add in conclusion that in an email sent to the Court after the hearing of her application, Ms Young drew the Court's attention to pages 290 to 292 of the appeal papers. Notwithstanding that she did not have leave to supply this reference, we have had regard to it.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2019

State Housing Agreement Act 1945(Cth)

Omnibus Repeal Day (Autumn 2014) Act 2014(Cth)

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