Alfaro v Mark White, Director, Office of State Revenue

[2017] NSWCA 198

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Alfaro v Mark White, Director, Office of State Revenue & Ors [2017] NSWCA 198
Hearing dates:	3 August 2017
Date of orders:	03 August 2017
Decision date:	03 August 2017
Before:	White JA at [1], [33]; Emmett AJA at [32]
Decision:	Summons seeking leave to appeal be dismissed with costs.
Catchwords:	CIVIL PROCEDURE — Court of Appeal — Leave to appeal — whether primary judge erred by striking out paragraphs of applicant’s statement of claim but with liberty to re-plead — no arguable error — no issue of principle — applicant failed to plead material facts giving rise to cause of action – whether applicant denied procedural fairness – no denial of procedural fairness - leave to appeal refused
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW) Crown Proceedings Act 1988 (NSW) Fines Act 1996 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW)
Category:	Principal judgment
Parties:	Pedro Alfaro (Applicant) Mark White, Director of the Office of State Revenue (1st Respondent) Paul Bimson (2nd Respondent) Roads and Maritime Services (3rd Respondent) Office of State Revenue (12th Respondent) State of New South Wales (13th Respondent) Allan Kearney (14th Respondent)
Representation:	Counsel: Self-represented (Applicant) R Lee (1st – 3rd; 12th – 14th Respondents)   Solicitors: n/a (Applicant) Crown Solicitors Office (Respondents)
File Number(s):	2017/69450
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: nil Date of Decision: 09 February 2017 Before: Dicker SC DCJ File Number(s): 2015/00326280

Judgment

1. WHITE JA:   This is an application for leave to appeal from a decision of the District Court of New South Wales (his Honour Dicker SC DCJ) given on 9 February 2017, ordering that all of the substantive paragraphs of the applicant’s statement of claim be struck out, but with liberty to replead. The applicant also seeks an order that his driver licence be reinstated.

2. When the application for leave to appeal was called on for hearing this morning the applicant did not appear. However, it is clear that the applicant was aware of today’s hearing. He was present in court when the matter was listed and he had written a letter dated 12 July 2017 to the Registrar quoting the text of correspondence from the Court of Appeal Registrar that included an order that the matter be listed for hearing of the application for leave today. The applicant in that letter took umbrage with various other orders that were made by the Registrar. It is quite clear that he was aware of today’s hearing.

3. The applicant has at all times represented himself. In his statement of claim filed in the District Court the applicant sought an order for the immediate reinstatement of his driver licence, damages in the amount of $750,000, exemplary and aggravated damages, interest and costs.

4. Although the relevant facts were not pleaded in his statement of claim, for the most part, the applicant’s claim arises from his convictions for four traffic infringements in the Local Court on 14 June 2009, 17 December 2010, 16 January 2013 and 7 March 2013. The first of these convictions was for proceeding through a red traffic light; the second for holding a hand-held mobile phone; the third for stopping in a loading zone; and the fourth for disobeying a No Stopping sign. The applicant did not appear before the Local Court in respect of the first charge. The matter was dealt with in his absence pursuant to s 196 of the Criminal Procedure Act 1986 (NSW). He applied to the Local Court for the conviction to be annulled pursuant to s 4 of the Crimes (Appeal and Review) Act 2001. The application was refused. He appealed to the District Court. He did not appear at the hearing of his appeal and on 30 May 2011 his appeal was dismissed. The applicant was convicted of the second offence in his absence. He appealed to the District Court but failed to appear. His appeal was dismissed on 10 February 2012. The applicant also appealed to the District Court in respect of his conviction of the third offence. Again, he did not appear. His appeal was dismissed on 11 October 2013. He was convicted in his absence of the fourth offence. He did not apply to have the conviction annulled. Nor did he appeal.

5. As a result of the fines imposed following those convictions various enforcement orders were made against the defendant and his licence was suspended (Fines Act 1996 (NSW) ss 65 and 66).

6. On 6 November 2015 the applicant filed a statement of claim in the District Court naming 18 defendants. Seven of the defendants were alleged to be a New South Wales police officer. In his reasons of 9 February 2017 the primary judge held that pursuant to s 9B of the Law Reform (Vicarious Liability) Act 1983 (NSW) a claim for damages for a tort allegedly committed by a police officer is to be brought against the Crown. It is only if the Crown denies vicarious liability for the acts of the police officer in the performance or purported performance of his or her duty that the police officer may personally be joined as a defendant. The causes of action alleged were causes of action in tort. His Honour ordered that the proceedings against those seven defendants be dismissed. In his summary of argument that was filed in support of his application for leave to appeal the applicant did not point to any arguable error in that decision.

7. The applicant also joined as defendants the “New South Wales Police Service”. The primary judge held that pursuant to s 5 of the Crown Proceedings Act 1988 (NSW) the appropriate entity to be sued was the State of New South Wales which was joined as the 18th defendant. No arguable error is shown in his Honour’s order striking out the joinder of the “New South Wales Police Service”.

8. The applicant also joined as a defendant the Office of State Revenue apparently on the basis that it was entitled to be paid the fines that the applicant had been ordered to pay. That was a misconception. The fines were payable to the Commissioner of Fines Administration. His Honour ordered that the Office of State Revenue be removed as a defendant. The description of the relevant defendant as the State Debt Recovery Office remained.

[Mr Alfaro appears.]

9. At the point referred to above the applicant appeared in this matter. He provided to the court a further summary of argument dated today. The further summary of argument had not been provided to the respondents. There was not an adequate explanation as to why the further summary of argument was not produced until this morning. Nonetheless, the respondents did not object to the court’s receiving the further summary of argument. It was received and has been considered. The applicant then withdrew from the further hearing. It is convenient to continue to deal with the substance of the arguments that have been raised in the applicant’s original summary of argument and as further elaborated upon in his latest written summary of argument.

10. After dealing with the misjoinder of defendants the primary judge dealt with the substance of the allegations in the statement of claim. His Honour first dealt with paragraphs 4 and 32-43 of the statement of claim in which the applicant alleged that a defendant named only as “Rebecca G” and her partner had joined in a conspiracy to injure and intimidate the plaintiff. The applicant alleged that Rebecca G was employed by the State Debt Recovery Office and her partner by the Fairfield City Council. The individuals were not identified in the pleading. In his latest summary of argument the applicant has identified the person named in the statement of claim only as Rebecca G.

11. The only facts alleged were that the defendant Rebecca and her partner had played loud music opposite the plaintiff’s bedroom from 10pm until 4.30am for which the police were called and that nothing was done before 4.30am. The applicant alleged that “in furtherance of the conspiracy to injure and intimidate the plaintiff” on 1 January 2013 the defendant Rebecca and her partner made threats of violence to him which he reported to the police at about 1am and the police did not attend in response to that threat until 2.30am. The content of the alleged threats was not pleaded. The delay was alleged to be the result of malicious intention to protect Rebecca and her partner. It was alleged that a parking officer for Fairfield City Council engaged in misfeasance in public office in issuing a parking notice against the plaintiff with malicious intention to protect Rebecca and her partner. Neither the facts relating to the parking notice, nor the facts relied upon to establish malicious intention, nor the facts relied on as to Rebecca’s involvement in the issue of the parking notice were pleaded. It was also alleged that on 16 January 2013 a defendant, Shenoda (another parking officer), who was known to Rebecca and her partner, engaged in misfeasance in public office by issuing a parking notice and making fraudulent, false and malicious allegations against the applicant to aid various police officers and the State Debt Recovery Office by taking a photo of the plaintiff’s vehicle parked in a loading zone which was fraudulent because the date was not displayed on the photo and for other unintelligible reasons. Again, the relevant facts were not pleaded.

12. The primary judge found that the pleading and such particulars as were provided did not identify the real substance of a claim against Rebecca G and were unintelligible and so imprecise as not to convey the real substance of any claim against her. His Honour ordered that those paragraphs of the statement of claim be struck out. As noted earlier, his Honour gave liberty to replead.

13. There is no arguable error in his Honour’s finding that the plaintiff failed to plead the material facts to establish any intelligible cause of action against the defendant identified only as Rebecca G.

14. I would add that the plaintiff needed to identify the defendant whom he named as Rebecca G if he were to commence a proceeding against her. It appears from his latest written summary of argument that he does know the identity of the person against whom he wished to make the claim. There is no proper basis for his not to have named the defendant whom he sought to sue.

15. The primary judge then addressed different conspiracies that the plaintiff alleged.

16. The applicant alleged (statement of claim para 20) that on or about 19 April 2010 a police officer and the Director for the State Debt Recovery Office and the State Debt Recovery Office combined in a conspiracy to injure him by making fraudulent, false and malicious allegations against him concerning a vehicle which he did not own and was not registered in his name. He gave no particulars of the false allegation. He said that the vehicle registration was owned by and registered in another name. He also alleged that the person in whose name the vehicle was registered had signed a false statutory declaration alleging that he was responsible for the vehicle on 14 June 2009. He did not plead that the police officer knew that the statutory declaration was false. He did not plead any material facts to establish any conspiracy as was alleged.

17. The primary judge ordered that these paragraphs be struck out on the basis that the allegations of conspiracy and misfeasance in public office had not been pleaded in an intelligible way. The material facts had not been alleged. There was no arguable error in that conclusion.

18. The applicant then alleged that in furtherance of the alleged conspiracy to injure him the two individuals and the State Debt Recovery Office engaged in a further conspiracy with the malicious intention of intimidating him by subjecting him to unspecified intimidations by “various individuals” and by his being threatened with physical violence by “individuals connected to the defendants”. The primary judge (at [74]) noted that in substance no material facts were pleaded for these allegations and ordered that the paragraph be struck out with liberty to replead.

19. Further allegations of conspiracy to injure and to intimidate the plaintiff were alleged in the statement of claim. They suffered from the same deficiency that the material facts alleged were not pleaded, and the alleged particulars of the allegation did not identify such facts. There was no arguable error in the way in which his Honour dealt with those allegations.

20. Some of the allegations (viz. those at paras 25 and 26 of the statement of claim) appear to be allegations in relation to other torts not dependent upon the alleged conspiracy. But again, the necessary facts for the establishment of such other torts were not pleaded.

21. There is no arguable error in relation to any of the reasons of the primary judge for striking out the remaining paragraphs. The primary judge referred to the lack of “particularisation” of the conspiracy that the plaintiff alleged. I would rather express the objection to the statement of claim in terms that the plaintiff failed to plead the material facts that might give rise to a cause of action.

22. The plaintiff’s first claim for relief was for an order for immediate reinstatement of his driver licence. The primary judge observed that the District Court had no power to grant such relief. In his proposed notice of appeal the plaintiff seeks the same order. This Court also would not have power to grant that relief. The suspension of the plaintiff’s licence arises from his convictions of the various traffic offences and his failure to comply with fine enforcement orders issued under the Fines Act. Those convictions and enforcement orders stand whatever the outcome of his District Court claim. As the primary judge observed (at [11]) the Fines Act governs what actions can be taken against a person who fails to pay fines or other amounts owed. Sections 65 and 66 require Roads and Maritime Services to suspend a fine defaulter’s driver licence if the Commissioner of Fines Administration directs it to take enforcement action after a fine defaulter has not paid a fine as required by the notice of a fine enforcement order. The Commissioner can direct Roads and Maritime Services to remove the suspension of a driver licence (s 66(3)).

23. There is no arguable error in the primary judge’s conclusion that the District Court would not have the power to grant the relief sought in relation to the suspension of his licence.

24. The applicant asserts that he was denied procedural fairness by the primary judge and that the primary judge was biased. Neither assertion has any substance. The primary judge dealt with the motions before him meticulously. His Honour had before him a notice of motion by the applicant for an order that his driver licence be immediately reinstated and that the State Debt Recovery Office and the State of New South Wales be restrained from sending what was called intimidating correspondence to him. The applicant also sought orders against various defendants in default of their filing a defence and sought orders that defences that had been filed be struck out. He failed to establish that any defendant who had not filed a defence had been served. The primary judge found, there was no basis for striking out the defences that had been filed. There was no arguable error in that conclusion.

25. The applicant complained that the defence of the first defendant had been filed out of time and without leave being granted for its being filed out of time. Had an extension of time for leave to file the defence been sought there was no reason to doubt that such an extension would have been granted. The primary judge was not obliged to strike out the defence because it was filed out of time. The defence put in issue the matters raised against the first defendant and also asserted that the allegations in the statement of claim were frivolous or vexatious or did not disclose a reasonable cause of action or were otherwise an abuse of process. The primary judge in substance found that the matters pleaded in the statement of claim did not disclose a reasonable cause of action because the material facts had not been alleged from which such a reasonable cause of action might be discerned. His Honour nonetheless gave the applicant the opportunity to replead the claim. The primary judge was not in error in finding that there was no basis for striking out the defences that had been filed.

26. The allegation of procedural unfairness in the conduct of the applications before the primary judge appears to arise in the following circumstances. The notices of motion were listed for hearing before his Honour, Judge Farmer on 14 June 2016. There had been an earlier directions hearing before Judge Williams on 1 February 2016 of which there was no appearance for the plaintiff. The plaintiff today tendered the transcript of the hearing on 1 February 2016. There was nothing in that transcript that materially affects any of the issues before this Court or that were before the primary judge. The applicant did not attend at the hearing before his Honour Judge Farmer on 14 June 2016. He sent a letter to the District Court registry providing an explanation of a kind for his non-attendance and advising that he relied upon his submissions (that had been filed) and two affidavits that he identified. Judge Farmer died on 22 August 2016. The matter was listed before her Honour Judge Wass for directions on 17 October 2016. The applicant attended on that directions hearing. The parties agreed that the matter be referred to another judge of the District Court to be decided on the evidence relied on, the submissions filed and the transcripts of the hearing. The orders of 17 October 2016 include “Associate to email parties regarding documents to read for judgment”. The applicant says that this was not done and the respondent does not contend to the contrary.

27. The matter was referred to Dicker DCJ. On 13 December 2016 his Honour’s associate sent to the applicant and to the solicitor for the respondents an email in which the associate advised that his Honour would review the papers and hand down his decision by the end of February. The applicant did not ask for the list of documents that had been before Farmer DCJ. Had Farmer DCJ not died, his Honour would have dealt with the matter on the materials before him. Dicker DCJ dealt with the matter on those same materials.

28. On 6 February 2017 Dicker DCJ’s associate sent an email to the parties indicating that his Honour would hand down his judgment on 9 February 2017. On 7 February 2017 the applicant objected on the basis that he had not been given a list of all of the documents in the court file so that he could check that all his documents and submissions had been taken into consideration. On 8 February 2017 he was told by Dicker DCJ’s associate that his Honour had taken into account certain documents that the associate then identified. The applicant did not suggest that there were any other documents to be taken into account that had not been referred to. Nor in his submissions on this application either in his summaries of argument or in response to a question asked of him when he appeared did the applicant identify any document that his Honour should have considered to which he did not have regard.

29. The applicant’s further summary of argument appears to contain a submission that he was denied procedural fairness because he was not given a transcript of the hearing dated 14 June 2016 before Judge Farmer. That transcript was included in the respondent’s supplementary white folder. The applicant’s complaint appears to be that it was not provided to him by the court. There was no denial of procedural fairness in this respect. The applicant, if he wished to obtain the transcript, could have ordered it. He would have been required to pay for it. Not having the transcript was not a denial of procedural fairness.

9. A further matter about which the applicant appears to complain in his further summary of argument dated today is, in substance, that the defendants did not adduce evidence on the applications that were before the primary judge to establish the facts that were the subject of the various convictions for traffic infringements. This submission misconceived the nature of the applications with which the primary judge was dealing.

10. In short, this is an application for leave to appeal on a question of practice and procedure. It raises no question of principle. The applicant has shown no arguable error in the decision of the primary judge. He has suffered no injustice. He was afforded the opportunity to replead his claim with judicial advice as to matters he would need to address. He has not been denied procedural fairness. I would refuse the application for leave to appeal and order that the applicant pay the respondents’ costs.

11. EMMETT AJA:    I would also refuse the application for leave to appeal and order that the applicant pay the respondents’ costs for the reasons formulated by Justice White.

12. WHITE JA:   Accordingly, the order of the Court is that summons seeking leave to appeal be dismissed with costs.

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Decision last updated: 11 August 2017