Allen v State of New South Wales - [2004] NSWSC 1243

No judgment structure available for this case.

CITATION: ALLEN v STATE OF NEW SOUTH WALES [2004] NSWSC 1243

HEARING DATE(S): 2 December 2003

JUDGMENT DATE:
17 December 2004

JUDGMENT OF: Hulme J at 1

DECISION: Refer to paragraph 129

PARTIES :
Plaintiff: Anthony Allen
Defendants: State of New South Wales
NRMA Insurance Limited
John Miller t/as Miller Goddard
Stephen Freeman
Gregory Russell Judd

FILE NUMBER(S): SC 20303/99

COUNSEL: Plaintiff: In person
Defendants: CA Webster
J Duncan
CE Tingey
BD Alder

SOLICITORS: In person
Crown Solicitor
Abbott Tout
Miller Goddard/Price Waterhouse Coopers
Ebsworth & Ebsworth

- 51 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

Friday, 17 December 2004

ANTHONY RICHARD ALLEN v STATE OF NEW SOUTH WALES AND ORS

JUDGMENT

1 HULME J: These Reasons arise out of Notices of Motion filed by the First, Third and Fifth Defendants seeking that the Plaintiff’s claim against each of them be dismissed or struck out, an oral application by the Seventh and Eighth Defendants to similar effect and an application by the Plaintiff for a further extension of time within which to file a Further Amended Statement of Claim in the proceedings. Determination of these applications requires some consideration of past history, both of the events which have inspired the Plaintiff’s claims and of the litigation itself.

2 So far as the first of these is concerned, the situation seems to be as follows. (In this connection I rely upon the allegations advanced by the Plaintiff in his pleadings including the Further Amended Statement of Claim and particulars. In an application such as this, I of course make no finding as to the accuracy of them.)

On 22 April 1986 the Plaintiff bought at auction the land and house at 13 Lower Beach Street Balgowlah. The land had been reclaimed with landfill some time before 1940 and was in fact the site of a gully. In 1957 the Manly Council had been asked whether there was any reason why a house should not be erected on the site and had said there was not. The Council then granted building approval for the erection of a house on the site in accordance with plans and specifications including specifications as to the foundations. The Council carried out certain inspections and its records show “satisfactory on final inspection”.

On 22 April 1986 the Plaintiff retained Blessington Judd Freeman & Lazarus to act for him on the purchase of the house. When the Plaintiff attended on that firm he spoke to Mr Judd who referred the Plaintiff to Mr Freeman who was said to be an expert in conveyancing. The solicitors did not seek a s317A Certificate and the plaintiff was not made aware that the Council had allowed the house to be improperly constructed, certified and approved and was at risk of subsidence.

The Plaintiff entered into a Home Building Replacement Insurance policy with NRMA Insurance Limited (to which it is convenient refer as “NRMA”.)

Subsidence occurred or was discovered in 1992 after which discovery the property was inspected by the Council and the NRMA. Some rectification work was done. A loss-assessor and later other representatives of the NRMA told the Plaintiff that he did not have a claim (presumably under the policy) but after further investigations, on 26 October 1992, representatives of the NRMA agreed that the Plaintiff did have a claim. There followed more investigations and discussions as to the extent of the claim and what should be done. Plans and proposals for rectification work were advanced. More lengthy and apparently complicated discussions between apparent experts, the Plaintiff and the NRMA followed and on about 23 December 1992 a Mr Cruickshank, a consulting engineer, whose client was the NRMA submitted a Building Application for the rectification work, including full underpinning. On 19 January 1993, the Manly Council granted Development Approval subject to conditions.

A builder, Mr Anglicas, was engaged and he commenced work on 2 February 1993. Mr Anglicas did not keep to the terms of his contract, including terms as to the work to be done and insurance. Discussions and correspondence between, inter alia, the Plaintiff, Mr Anglicas, Mr Cruickshank and the NRMA followed. It is clear that there were numerous points of dispute between two or more of these parties. On 30 March 1993, Anglicas claimed practical completion.

It appears that Mr Cruickshank and the NRMA were of the view that Practical Completion occurred on 3 April, although the Plaintiff disagreed. On 23 April the Plaintiff arranged for an inspection by a third party who may well have been an engineer. He found a number of defects. There was further disagreement between the Plaintiff and the NRMA and others. Other work seems to have been done and on 19 July 1993 the NRMA made what was said to be a final offer to settle the claim.

Another facet of the Plaintiff’s claim is to the following effect. In 1971 the Builders’ Licensing Board was established. By 1980 its annual report revealed a culture of claim minimisation and relatively little was paid out to claimants. In 1989 the Building Services Corporation Act came into effect, one of the objects of the Corporation being to protect owners and purchasers of dwellings. There were inquiries into the consumer adverse culture which had continued.

On about 13 July 1992, the Plaintiff made contact with the BSC and was advised by a Mr Chilvers that although he could not recommend engineers or builders, Anglicas was OK. Mr Chilvers did not advise the Plaintiff on matters such as his insurance rights under the BSC legislation, rectification orders or the availability of further information. On 8 February 1993, the Plaintiff made complaints to Mr Chilvers but Mr Chilvers did not offer to investigate or advise the Plaintiff of BSC”S obligations to investigate. On 15 April 1993, the Plaintiff again telephoned Mr Chilvers who recommended that the Plaintiff arrange for an independent engineer to inspect the site but said that the BSC would not get involved.

The Plaintiff made a formal complaint to the BSC on 27 July 1993 and a joint inspection by all or virtually all interested parties was held on 5 August. From a report of the BSC inspector, a Mr Petrie, it appears that he formed the view that the rectification work had been carried out satisfactorily. He reported that the house had been “jerry built” to start with. The BSC declined to issue a rectification order to Mr Anglicas and informed the Manly Council that Mr Anglicas’ contract had been adhered to.

In November 1994 the Plaintiff lodged another complaint with the BSC. The BSC had further investigations carried out but again failed to properly do so or use the information it received.

Mr Judd was a solicitor consulted by the Plaintiff in February 1994 and thereafter until September 1994. He is said to have advised that there were a number of parties who could be sued, including his own firm, but that it was best to sue only NRMA Insurance Limited. He is said to have not properly looked after the Plaintiff’s rights or interests.

Mr Miller was another Solicitor who was engaged by the Plaintiff. He was retained in May 1997 to act on the Plaintiff’s behalf in divorce proceedings and at least to some extent in connection with disputes between the Plaintiff on the one hand and the State of New South Wales and NRMA on the other. Mr Miller is said to have breached his obligations to the Plaintiff by some involvement with the Plaintiff’s ex-wife’s barrister, mis-statements in that regard, to have failed in his conduct of divorce proceedings, to have overcharged the Plaintiff and manipulated his calculations in charging the Plaintiff.

3 The proceedings themselves were commenced on 2 July 1999 against the “Building Services Corporation/Department of Fair Trading/NSW Government of the Day” as First Defendant, Manly Council as the Second Defendant and NRMA Insurance Limited as the Third Defendant.

4 On 1 September 2000 the Plaintiff filed a Further Amended Statement of Claim in which eight Defendants were named. In order they were:-

5 Applications to dismiss or strike out parts of this Statement of Claim and an application by the Fifth Defendant for a separate trial of what he asserted were claims against him unrelated to those against the other parties came before Newman AJ in August 2001 and, as appears from orders made and Reasons published on 7 September 2001, were in part successful. In arriving at the conclusions that he did, Newman AJ drew attention to a substantial number of deficiencies in the Further Amended Statement of Claim. In the case of some of the Defendants and some of the causes of action, Newman AJ gave the Plaintiff 28 days within which to re-plead. The Court records show that his Honour’s orders were entered on 8 October 2001.

6 An application by the Plaintiff for a stay of the orders of Newman AJ came before Stein JA on 29 October 2001 and was dismissed. The Plaintiff sought leave to appeal against some or all of the orders made by Newman AJ. On 30 July 2002 this Application was refused. Reasons given on that occasions re-affirm in a number of respects the deficiencies in the pleading to which Newman AJ had adverted.

7 On 14 October 2002 there came before me an application by the Plaintiff for, inter alia, an extension of time within which to comply with Justice Newman’s orders. In the course of that application I formed the view that the orders actually made by Justice Newman did not reflect the reasons which his Honour gave and on 15 October 2002 I made the following orders under the Slip Rule.

“Pursuant to Part 20 Rule 10, the orders of Newman AJ made herein on 7 September 2001 are varied as follows:-

(i) In so far as they rely on the First Defendant being responsible for the Law Society of New South Wales, and

(ii) In so far as they rely on the First Defendant being responsible for the Building Services Corporation.

are dismissed.

2. The Plaintiff’s claims against the Second and Sixth Defendants are dismissed. The Second and Sixth Defendants may enter judgment forthwith.

3. Save for the allegations founded in negligence and contract, the Plaintiff’s claims against the Third Defendant are dismissed.

4. Except insofar as claims have been dismissed, the further amended Statement of Claim of 1 September 2000 is struck out.

5. Grant liberty to the Plaintiff to replead the surviving causes of action against the First, Third, Seventh and Eighth Defendants within 28 days of September 2001.

6. Order that the proceedings against the Fifth Defendant be severed from action 2030 of 1999.

7. Grant liberty to the Plaintiff to replead his action against the Fifth Defendant within 28 days of 7 September 2001.

8. Order the Plaintiff to pay the costs of the First, Second, Third, Fifth and Sixth Defendants of the motions dealt with by Newman J and referred to in his Reasons of 7 September 2001.

9. Order the Plaintiff to pay the costs of the Second and Sixth Defendant of the proceedings

10. The Plaintiff’s Notice of Motion is dismissed with costs.

Further order:-

11. I extend for 28 days from today the time fixed in the preceding orders for the Plaintiff to replead against the First, Third, Fifth, Seventh and Eighth Defendants.

8 On further application, the Plaintiff was given another extension of time of 28 days from 20 November 2002. Further Notices of Motion seeking extensions of time were filed on 18 September 2002 and 21 February 2003.

9 Between then and 8 October 2003 a number of events occurred. In reasons given on that date I detailed this history as follows:-

“… the matter seems to have come before me on 7 and possibly 15 March. It was then stood over and arrangements were made for it to come back before me on 28 March. On 25 March I had my Associate write to the parties informing them I had been contacted by the Bar Association and advised that counsel had been selected to consider the matter on the plaintiff’s behalf. That person apparently had a conflict of interest and the Association indicated it was seeking someone else. I suggested that if all parties agreed then the matter could be adjourned without any one appearing on 28 March. That agreement was forthcoming.

On 26 June 2003 the Bar Association wrote to my Associate referring to that conflict of interest and that counsel had been unable to assist and that because of a misunderstanding between Mr Allen and the manager of the Bar’s Legal Assistance Referral Scheme, no further referral attempt had been made. The letter went on to advise that the manager was prepared to attempt to refer the matter again.

Such attempt was successful and the plaintiff met in conference with Mr Simon Kerr, Barrister on 29 July 2003.

An affidavit filed by the plaintiff today indicated that he took to Mr Kerr’s Chambers thirty-six lever arch files of documents, but,

“I was unable to understand his advice to me and for his part he said he was unable to rewrite for me any part of my cause of action.”

The plaintiff’s affidavit indicates that he has apparently, during the course of this year, also been involved in other litigation, one being by him against the Public Trustee, another being an application to set aside a bankruptcy notice, and another one involving or being a costs application involving some $50,000 which would seem from its description to arise in consequence of orders made in these proceedings.

In late August the plaintiff instructed Mr Knaggs, solicitor, to help him redraw the statement of claim and Mr Knaggs, who has appeared today, indicates he believes he would need another six weeks in order to do so.

I do not find that time estimate in any way unreasonable if, as I infer to be the case, the plaintiff has presented or is likely to present Mr Knaggs with thirty-six lever arch files.”

On 22 September the solicitors for the third defendant wrote to the Registrar seeking to have the matter re-listed before me to enable the notice of motion adjourned on 7 March 2003 to be determined.”

10 I declined at that stage to grant the extension of time sought. In lieu I adjourned the application to 27 November “in order to see whether by that time there is a statement of claim which is close enough to one in appropriate form to justify a grant of the extension of time”. I directed that on or before 20 November the Plaintiff serve on the First, Third, Fifth, Seventh and Eighth Defendants a copy of any proposed Amended Statement of Claim “in form appropriate for filing, having attached the appropriate certificate under s198L of the Legal Profession Act.” (I do not pause in these reasons to consider the need for such a certificate in the case of an unrepresented litigant.)

11 On 20 November 2003 Mr Knaggs wrote a letter to my Associate with a copy to the Solicitors for the First, Third, Fifth, Seventh and 8th Defendants. The letter, a copy of which was tendered in the proceedings, said:-

“I regret I will not be able to file and serve the amended Statement of Claim today as directed.

Mr Allen tells me today he has unearthed another area of claim for which he is now working non-stop on the particulars.

I can only say I am in his hands, and have stressed that he is stretching the goodwill of the Court and the parties.”

12 On 27 November I was still engaged in a trial in the country and the matter was re-listed for mention on 2 December 2003. On the application, or with the concurrence, of all parties represented on that day I heard the substance of the applications to which I have referred in paragraph 1 above.

13 On that day the Plaintiff, appearing for himself, presented a Further Amended Statement of Claim accompanied by a lever arch file by way of 492 pages of “particulars”. Perhaps unsurprisingly, the proposed Further Amended Statement of Claim did not have attached any certificate under s198L of the Legal Profession Act. It is convenient to refer to this proposed Further Amended Statement of Claim as “the proposed pleading”.

14 The lever arch file of particulars includes a detailed chronological history of events, including lengthy quotations from many of the documents which passed between the parties. I have not thought it necessary for the purposes of the applications with which I have to deal to attempt to read or understand all that is in the file but it is clear that it is not restricted to a statement of particulars but repeats matters of evidence and, at least in quoting documents produced by the Plaintiff, includes commentary. (I should add that while copies of the proposed Further Amended Statement of Claim and lever arch file were made available to the legal representatives of the Defendants during the hearing, obviously their capacity to deal with this bulk of material was heavily circumscribed by time. Some submissions were however directed to the substance of the proposed Further Amended Statement of Claim.)

15 The first thing to be noted on the Statement of Claim is its length. It is something of the order of 27 pages long with somewhere between about 9 and 20 paragraphs per page. Those matters are not, of course, themselves indicative of error but provide some indication of how oppressive the document may be if it does not comply with the requirements of a valid pleading. It is divided up into some 12 sections.

16 The second matter to be noted is that the Plaintiff has named in the title to the document the following persons as defendants (I include in italics notes endorsed by the Plaintiff on the document.):-

refer 7 and 8

dismissed,

A former partner of the Fourth Defendant,

(the former Building Services Corporation).

17 The third matter to be noted is that in paragraph 1.3 the Plaintiff recites the fact that Newman AJ made interlocutory orders that the Manly Council and the Commonwealth of Australia be dismissed from the proceedings and the action against Mr Miller be severed and, in paragraph 1.4, contends that the Council and Mr Miller ought to be joined or, in paragraph 1.5, that the matters ought to be consolidated and tried at the same time.

Section 2

18 Section 2 is headed “the Law”. The section is divided into a number of sub-sections, the first of which is headed “Australian Constitution”. In this section, containing paragraphs 2.1 to 2.19, the Plaintiff makes a number of assertions of which the following are examples:-

2.1 At all relevant times the fundamental law of this jurisdiction was the Australian Constitution, and the guarantees of due process of law contained therein, and the precedents created by the High Court of Australia are binding upon all citizens and are claimed accordingly.

2.2 At all relevant times the Plaintiff was the former owner of a house at Balgowlah in the municipality of Manly which had been built on foundations which do not and did not meet the specifications necessary for the quiet peace and enjoyment of that very substantial asset.

2.3 The House subsided and developed structural faults for which the Plaintiff was insured, and all attempts to have the faults rectified were met with obstruction and delay.

2.4 A culture developed in New South Wales from 1965 and 1970 until the present day, where public servants , officers of insurance companies, staff of councils, the members of the New South Wales Parliament, members of the Parliament of the Commonwealth, and the defendants specifically, have disregarded the provisions of Chapter II The Judicature, of the Australian Constitution, and failed to accord and the Plaintiff due process of law.

2.7 A contract exists and is implied by law, that the defendants will at all times avoid injuring the plaintiff’s interests.

2.8 In 1965, for the purposes of expediting asbestosis claims, the Parliament of New South Wales passed legislation allowing a single judge to exercise the powers of a court, when for the first sixty five years of the Federation, administrative power was conferred upon a judge, after a jury had found facts in New South Wales.

2.16 In Section 64 Judiciary Act 1903 the Parliament of the Commonwealth provides that in any suit in which a State or one of its agencies, or a person whose activities are regulated by a State, is a party, then the rights of the parties shall be as nearly as possible the same as was possible in a suit between subject and subject in 1903.

2.19 As a consequence any law repugnant to the Australian Constitution is void ab initio, no matter where made.

19 Section 2, sub-section 2 is entitled “Tort” and “Negligence”. It includes paragraphs 2.20 to 2.32 and contains a series of propositions most of which relate to the area of tort law. They include the following:-

2.24 A private duty of care between a public authority and an individual where a specific reliance or relationship exists as a general dependence on an authority’s performance. Generally the grant and exercise of powers designed to prevent or minimise a risk of personal injury or disability, recognised by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate legal steps for their own protection.

L Shaddock & Associates Pty Limited v Parramatta City Council (No.1)

Mutual Life & Citizens Assurance Co Limited v Evatt

Dorset Yacht Co Ltd v Home Office

Hill v Chief Constable of West Yorkshire

2.27 Section 42 of the Fair Trading Act 1987 (NSW) prohibits misleading and deceptive conduct in trade or commerce.

2.28 Insurers owe the insured certain duties including the duty of utmost good faith and fair dealing.

20 Section 2, sub-section 3 is entitled “Legal Practitioners”. It consists of paragraphs 2.33 to 2.40 and includes the following:-

2.34 In 1839, a solicitor was held liable in negligence for proceeding under a wrong section of a statute, in Hart v Frame (1839) 6 Cl & F, 193, and the solicitors defendant have failed to apply the fundamental Statute of Australia, the Constitution, and the Judiciary Act 1903 and pre-eminent statute for regulating transactions, to the Plaintiff’s problems with the other defendants.

2.38 The relevant date, upon which the liability of the defendants became complete, was the date of the sale on orders of the Family Court of Australia of the Plaintiff’s family home in 1998, following the breakdown in his marriage.

2.39 The defendants’ actions and omissions as set out in the Particulars of Fact have pressured him into the breakdown of his marriage causing him immense pain and suffering, and causing him to lose the solatium and consortium of his wife, and the joy of his children’s company.

2.40 And the Plaintiff claims:

(a) A jury trial by a twelve person special jury, as specified in the Jury Act 1912-57 New South Wales of the question of whether the State and Commonwealth owe me a duty of care to abide within the confines of the Constitution.

(b) Restitution in integrum, of all the loss and damage caused by the departure from the norms of the administration of justice, which are fundamental to the good government of Australia.

(c) The costs of the action as a jury shall determine.

21 To any one familiar with the practice of the law or even just the law of torts and the basic rules of pleading, it will be obvious that the paragraphs which I have quoted demonstrate the existence of many faults.

22 Particularly relevant in this connection, are a number of provisions of the Rules. In Part 15 they include the following:

7(1) A pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved.

(2) Subrule (1) has effect subject to this Part and to Part 7 … and to Part 16 (which relates to particulars).

8. A pleading shall be as brief as the nature of the case admits.

18. A party may by his pleading raise any point of law.

(a) disclosed no reasonable cause of action or defence or other case appropriate to the nature of the pleading:
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the Court

23 “Material Facts” in Part 15 Rule 7 are those which in combination constitute, or at least arguably constitute, a cause of action. When a point of law is to be raised as envisaged by Rule 18, this must be done clearly and explicitly.

24 Part 16, dealing with “particulars” includes the following:-

5A Where a party pleading claims exemplary damages, he shall give particulars of the facts and matters on which he relies to establish that claim.

5B Where a party pleading claims aggravated compensatory damages, he shall give particulars of the facts and matters on which he relies to establish that claim.

25 Although the Court has power to dispense with compliance of these Rules and not infrequently pleadings do not fully comply with them, the Rules are not mere technicalities. They exist so that issues may be properly and clearly defined for the purposes of selection of the evidence to be adduced and of decision.

26 Apparent in paragraphs 1.4 and 1.5 of the proposed pleading is a refusal to accept the decisions of Newman AJ and the Court of Appeal in 2001 and 2002 and an attempt, by an inappropriate method, to rejoin the Second and Fifth Defendants. I shall say more on this topic when I come to consider the parts of the document directed towards these particular Defendants.

27 Many of the paragraphs in that part of the proposed pleading as is entitled “Australian Constitution” do not comply with rules to which I have referred. Included in the criticisms which may be made of these paragraphs is the following:- (I do not find it necessary to deal with all of the examples I have quoted.)

2.1 Irrelevant, not a material fact.

2.2 Raises numerous matters contrary to rule 6(b).

2.3 Raises numerous matters contrary to rule 6(b); lacks specificity.

2.4 Lacks specificity.

2.6 States a conclusion and breaches Rule 7.

2.7 States a conclusion and breaches Rule7. To the extent to which it is said the suggested contract is implied by law, the assertion is clearly wrong. To the extent to which the paragraph suggests a contract to the effect pleaded may exist otherwise than by implication of law, the proposition is so improbable as to be inconceivable.

2.8 Clearly wrong.

2.19 Irrelevant to any claim by the Plaintiff against the Defendants which could possibly succeed.

28 I do not find it necessary to consider the paragraphs in sub-section 2. Of the paragraphs in sub-section 3 it may be said:-

2.34 Irrelevant. The Constitution and the Judiciary Act have no conceivable relevance to any claim the Plaintiff has against any Defendant.

2.38 As a matter of law this proposition is wrong

2.40 The claim that the State and Commonwealth owe the Plaintiff a duty of care to abide within the confines of the Constitution is bound to fail. Departure from the norms of the administration of justice does not constitute a cause of action and is not a component of any appropriate quantification of damages. It is not the proper function of a jury in an action to determine costs incidental thereto.

Section 3

29 Section 3 of the Statement of Claim is entitled “Declarations – Res Judicata, Estoppel, Documents”. It consists of 8 paragraphs and includes the following:-

3.1 The first and third defendants have paid monies to the Plaintiff in recognition of their liability to the Plaintiff and as such are estopped from pleading a defence save for quantum.

3.2 The plaintiff pleads the 1996 report of the Inquiry into the Aggrieved Victims of the Building Services Corporation (BSC Inquiry) (BSC Report) as if it was set out in full and is “res judicata” between these parties.

3.3 The subrogation of the council’s liability under the insurance claim accepted by the third defendant did not preclude the Council from failing to act on the Plaintiff’s complaints to the Council when the third defendant failed to comply with the approved building drawings and application including major structural defects, damage induced defects, incomplete work, specifically defined as breaches under s31 and s49 of the Building Services Corporations Act 1989, as amended.

3.5 The Plaintiff pleads Hansard and all Government reports, inquiries, royal commissions, transcripts, judgments, authorities, legal advices, editorial, plans and specifications, legislation, regulations, BSC Inspection Manual 1982 and the like in relation to the proceedings as if they were set out in full.

3.6 The Plaintiff has made, filed and served affidavits detailing his grievances in part dated …

3.7 Apart from the Council’s conduct in misleading and frustrating the Court at no time have the Defendants contested the contents of those affidavits and annexures, and the facts detailed in those affidavits and annexures which they have had a chance to rebut, are deemed to be admitted.

30 Included in the criticisms which may be made of the paragraphs just quoted are:-

3.1 The assertion of estoppel upon the basis (simply) of the payment referred to is, as a matter of law, unarguably wrong. There are insufficient matters pleaded to give rise to any estoppel.

3.2 The reference to the (whole of) the report of the Inquiry into the Aggrieved Victims of the Building Services Corporation is oppressive. It is not of such a nature as could form a “res judicata”.

3.5 The pleading of all of the documents referred to is oppressive. Indeed it is by far the most oppressive example of pleading I have ever seen. There is no attempt to identify which particular sections or parts are relevant, if indeed any are.

3.6 Irrelevant.

3.7 Irrelevant and, so far as the last proposition is concerned, clearly wrong.

31 It is apparent from what I have said that the vast majority of the paragraphs in section 2 and 3 of the proposed pleading cannot be allowed.

Section 4 – The State of New South Wales

32 I turn then to section 4 of the proposed Further Amended Statement of Claim. Consisting of paragraphs 4.1 to 4.41, it is entitled “The First Defendant – State of New South Wales” and includes:-

4.1 The First defendant is a corporation aggregate formed under Australia’s Constitution and charged with maintaining peace, order and good government in New South Wales.

4.2 The First Defendant is the regulator of Manly council, the Third and Ninth Defendants and created a Statutory Corporation to conduct the regulation.

4.4 At all relevant times the First Defendant knew or it was reasonable to expect for them to know that the Plaintiff was at risk of the failure of the Building Services Corporation to give effect to Parliament’s intentions of providing an effective and efficient safety net from incompetent or unscrupulous builders, engineers, local Councils, lawyers and insurance companies.

4.5 At all relevant times the First Defendant’s lawyers knew or it was reasonable to expect for them to know that the consumer adverse culture existed and to properly act on that knowledge.

4.7 At all relevant times the First Defendant was progressively becoming embarrassed by the growing consumer averse culture in the residential building industry resulting in the introduction of the BSC to replace the BLB and the legislation refer the Facts Section 4 (paras 4.9 to 4.13) that required the BSC to be a consumer protector, a building educator, an insurer and disciplinarian, generating major conflicts of interests. Refer the Facts Section 4.

4.8 At all relevant times the BSC’s 1992 Complaint Investigation and Resolution Manual provided the theoretical basis for complaint resolution but was not properly applied to the Plaintiff’s complaints. Refer the Facts Section 4 (para 4.18).

4.9 At all relevant times the First Defendant failed to halt the consumer averse culture despite a Royal Commission into the Productivity of the Building Industry, the Dodd Report and the inquiry by the Trade Practices Commission – refer Section 4 (paras 4.21 to 4.23) of the Facts.

4.10 The First Defendant was aware that residential building consumers such as the Plaintiff was at considerable financial and emotional risk but did not warn him nor properly protect him.

4.11 The conduct described in paragraphs 4.6 to 4.10 was deceitful.

4.14 At all relevant times the First Defendant was aware of the consumer averse culture and the requirement for the First Defendant to properly address the resolution of the culture’s victims including the legal submissions from Phillips Fox, Freehill Hollingdale and Page, and Minter Ellison.

4.16 At all relevant times the First Defendant’s Attorney General’s Department was aware or it was reasonable to expect it was aware of the consumer averse culture … .

4.20 The Plaintiff was an acknowledged victim of the consumer averse culture and presented his submission to the 1996 Inquiry into the Aggrieved Victims of the Building Services Corporation, who refused to inspect the site, which found in the Plaintiff’s case: Page 395 Facts.

(i) That the real problem was a defectively constructed house which inadequate works had not remedied. This was and is the responsibility of the NRMA not the BSC.

(ii) Even if the remedial work carried out in 1992 had been properly done (a the expense of NRMA) the house would still have been structurally defective.

(iii) Since about November 1994 the BSC has responded appropriately to the Plaintiff’s complaint and actions.

(iv) The Inquiry also found that the BSC did not issue to the underpinning contractor funded by the NRMA a rectification order requiring it to comply with the contract.

(v) The BSC accepted the NRMA engineer’s certification of structural soundness notwithstanding the builder’s failure to comply with the contract.

(vi) There was some substance to the Plaintiff’s complaint that the BSC did not exercise its statutory responsibilities in a way which would have allowed the Plaintiff to pursue entitlements against the builder and the NRMA.

(vii) If the BSC had been a “less then enthusiastic” consumer advocate during 1993, it is likely that you would have had either:

(a) appropriate rectification of the work contracted for, or

4.22 On 20 June 1998 the Plaintiff’s house was sold at “land value only” as a direct result of the Family Court proceedings that resulted from the First, Manly council, Third Defendant, Ninth Defendant and John Miller’s conduct.

4.23 At all relevant times the First Defendant, its employees, agents and directors have aggravated the proper and early resolution of the claim.

4.24 The First Defendant was able to pay out the Plaintiff his full entitlement of $340,000 by the BSC Inquiry which was not restricted to the $100,000 BSC insurance fund.

4.28 The Minister’s BSC Inquiry panel did not even inspect the site.

4.29 The conduct described in paragraphs 4.13 to 4.38 was deceitful.

4.32 At all relevant times the Plaintiff’s ex-wife retained the services of lawyers who in 1996 commenced proceedings in the Family Court of Australia against the Plaintiff.

4.34 At all relevant times it was reasonable to expect that the lawyers for both sides in the Family Law proceedings were aware of the consumer averse culture that involved the BSC, local councils, and third parties such as lawyers and insurers and the failure of the First Defendant to properly act against the other Defendants. At no time did the legal representatives make any effort to preserve the Plaintiff’s marriage per s.43 of the Family Law Act, and pursue the consumer averse culture which place such unconscionable stress on the Plaintiff and his family.

4.36 On or about 8 April 1998 the Plaintiff wrote to the First Defendant’s BSC Inquiry lawyer, Terence Lynch, advising he had no alternative but to accept the BSC’s offer and the Plaintiff marked the cheques as banked under duress and accepted only in part settlement of his claims against the First Defendant and the Ninth Defendant.

4.37 On or about April 30 1998 Mr Lynch wrote to the Plaintiff advising the Plaintiff and his ex-wife were now bound to the conditions of the original offer.

4.38 The conduct described in paragraphs 4.31 to 4.37 was deceitful.

4.40 By the First Defendant’s reckless, deceitful, arrogant, oppressive and negligent conduct in the circumstances described in paragraphs 4.11, 4.12, 4.29, 4.30, 4.38 and 4.39 hereof the First Defendant has exercised a contumelious disregard for the rights of the Plaintiff.

4.41 And the Plaintiff claims damages as set out in the Section 12 of these pleadings:-

33 The major component of the Plaintiff’s claim against the First Defendant seems to be as follows. By 1980 within the Builders Licensing Board, the forerunner of the Building Services Corporation, a culture of claim minimisation and trivialisation (or consumer averse culture) had developed in which consumers were forced into relatively small settlements. The First Defendant was aware and became progressively embarrassed by this resulting in the replacement of the BLB by the BSC which was required to be a consumer protector, a building educator and insurer and disciplinarian, tasks which generated major conflicts of interest. Nevertheless, the First Defendant failed to halt the consumer averse culture of which the Plaintiff was a victim.

34 The proposition seems to be that the State of New South Wales has some liability to the Plaintiff arising from its failure to exercise its governmental functions or control or restrict these statutory bodies. Absent legislation specifically imposing such duties – and none is nominated by the Plaintiff – there is no such legal obligation and paragraphs or parts of paragraphs which serve no other function should not be allowed.

35 Some specific criticisms which paragraphs in this section merit are as follows:-

4.1 The words after “constitution” are irrelevant except to the claim based on the failure to exercise governmental functions.

4.2 Irrelevant, except to the claim just mentioned.

4.3 “Accepts it (sic) liabilities” is a conclusion and a breach of Rule 7; “servants” lacks specificity.

4.4 Falls within the ground previously dealt with; whether “it was reasonable to expect for them to know” is not a material fact, as distinct from a matter of evidence, going to establish a cause of action.

4.5 The statement “it was reasonable to expect for them… to properly act on that knowledge” is not a statement of material facts as required by Rule 7 and insofar as the words purport to state a legal duty, it is not one known to the law. Nor is the knowledge of the Council’s lawyers relevant to the liability of Manly Council.

4.11 By its very nature awareness as alleged in paragraph 4.6, or embarrassment as alleged in 4.7, are not capable, of themselves, being deceitful as alleged in this paragraph. Deceit, which is another word for fraud or misrepresentation is a matter which Part 16 Rule 2 requires particulars to be given of and none have been identified. Furthermore, the description “deceitful” in its application to all of the matters referred to in paragraphs 4.6 to 4.10 without further identification of the characteristics said to make the conduct in those paragraphs deceitful is too vague to be a proper compliance with Part 15 Rule 7.

4.12 To a significant extent the comments made in relation to paragraph 4.11 may be made in relation to the allegations in this paragraph also. Furthermore the allegation that the conduct described in paragraphs 4.6 to 4.10 was “recklessly indifferent and arrogant” is an allegation which is irrelevant to any cause of action which could conceivably fall within the Plaintiff’s complaints against the First Defendant.

36 Many of these remarks in respect of paragraphs 4.1 to 4.12 apply to later paragraphs within Section 4 and need not be repeated. In summary, apart from some statements as to the conduct of other persons, some of which could possibly be excused as statements of background, but much of which is itself said to be deceitful or oppressive or the like – much of what is asserted is completely irrelevant to the complaint against the First Defendant.

37 Because it is referred to on a number of occasions later in the proposed pleading, paragraph 4.20 should be specifically mentioned. On one view, it simply refers to matters of evidence and to that extent offends Part 15 rule 7. If, on the other hand, the contents of the paragraph can be regarded as “material facts”, nowhere in section 4 is the significance of those facts made apparent.

38 The connection between the First Defendant and almost all of the conduct referred to in paragraphs 4.38 and 4.39 is nowhere apparent.

39 No particulars as required by Part 16 Rules 5A and 5B of the facts and matters relied on in support of the claims for aggravated and exemplary damages are expressly identified although it may be that, traced through paragraph 4.40 and the paragraphs referred to therein, it is all of the First Defendant’s conduct referred to in Section 4.

40 It may be acknowledged that there is a difference between the claim now made and that in the Statement of Claim which was struck out by Newman AJ. There the Plaintiff had asserted various misdeeds by way of action or inaction on the part of the BSC and alleged that the First Defendant was responsible for them. Because the BSC was a statutory corporation Newman AJ held that the First Defendant was not liable in law for its actions. However, although different, for the reasons I have indicated the current pleading against the State of New South Wales is insufficient also and should not be allowed.

Section 5 – Manly Council

41 The ground upon which Newman AJ dismissed the Plaintiff’s action against the Manly Council was that the action was statute barred. His Honour observed that the claim was founded on two bases viz:-

1. The Council’s failure in 1958 when the subject premises were constructed to properly inspect the works so that the faulty foundations were allowed to remain in place, and

2. The Council’s failure to properly supervise the underpinning works carried out in 1993.

42 Later His Honour recorded:-

“…. the work of underpinning which found the plaintiff’s second complaint against the Manly Council were completed prior to 2 July 1993. The plaintiff’s original statement of claim was filed in this Court on 2 July 1999. Indeed paragraphs 26 to 30 of the plaintiff’s affidavit sworn on 28 March 2001 indicate that the plaintiff was aware of deficiencies in the completed underpinning at least by the 15 June 1993 when he wrote to the council. This is not a case where either the original discovery of the deficiencies in the foundations in 1992 were of a minor kind or that the plaintiff was unaware that the deficiencies in the repairs undertaken were other than what they were.”

“On the Plaintiff’s own evidence, the Plaintiff was fully aware of the damage which founds any course of action he had against the Council more than 6 years before he issued his first Statement of Claim in this matter… Although the damage attributable to the building of the house in 1958 could properly be described at latent damage, the Plaintiff again was fully aware of the damage by 1992, i.e. 7 years or more before he issued his Statement of Claim.”

43 It is apparent that a deal of Section 5 of the proposed pleading, viz against the Manly Council, is contrary to this ruling.

44 The section is divided up into some introductory paragraphs and then further paragraphs included under one or other of 5 “Particulars of Negligence and Deceit”. In the first introductory group are paragraphs 5.1 to 5.9. They include:-

5.1 Manly council has been struck out as a defendant in an interlocutory order made by Newman, AJ on 7 September 2000 for which leave is sort to rejoin Manly council in these proceedings and were causes of action available to the Plaintiff in 1994 when the Plaintiff engaged the Seventh and Eighth Defendants and Mr Miller.

5.4 Standing behind the Council as a corporation aggregate is another corporation aggregate formed out of the entire New South Wales community of voters entitled the State of New South Wales.

5.5 The State of New South Wales, the First Defendant, delegates its powers of local government to the said corporation aggregate Council and is liable as a master for the negligence of its servants.

5.7 At all relevant times Manly Council knew or it was reasonable to expect for them to know that the Plaintiff was at risk of the failure of the Building Services Corporation to give effect to Parliament’s intentions of providing an effective and efficient safety net from incompetent or unscrupulous builders, engineers, local Councils, lawyers and insurance companies .

5.8 At all relevant times the Manly Council’s lawyers knew or it was reasonable to expect for them to know that the consumer averse culture existed and to properly act on that knowledge.

5.9 The Plaintiff was at all material times the owner of the Property and ratepayer to the Council.

45 With the possible exception of paragraph 5.9, these paragraphs go no way to establishing any cause of action the Plaintiff could have against the Manly Council and should not be allowed. Providing otherwise some significant part of the proposed pleading against the Manly Council is allowed, so also will be paragraphs 5.2 and 5.3 which I need not set out but are formal or introductory in nature.

46 Under the “First Particular of Negligence and Deceit” are a number of paragraphs the tenor of which is:-

(i) that Manly Council approved the development of the Property in 1957/58 in which fill was used as the support material in a location in the district which was a collection point for local stormwaters at the base of a hill.

(ii) At all material times Manly Council was aware, or should have been aware that the original construction of the House in 1957/58 was founded on fill.

(iii) the solicitors for prior purchasers had written to Manly Council seeking accurate advice as to the compliance of the Property to the building and subdivision ordinances on which to rely on for the purchase of the Property and the Council omitted to disclose those letters in responding to FOI requests in March and May 1995.

(iv) it was reasonable to expect the Plaintiff to rely on Manly Council to provide information that the property was at risk and Manly Council was recklessly indifferent and arrogant during the inspection process and approving the development of the Property with foundations based on fill.

(v) In some way – the paragraph reference in the proposed pleading seems wrong - Manly Council was recklessly indifferent and arrogant, and/or negligent.

47 Under the “Second Particular of Negligence and Deceit” the tenor of the paragraphs is:-

(ii) Manly Council had a private duty of care to warn the Plaintiff in that it was reasonable to expect Manly Council to know of the danger given the perilous nature of the construction of the footings and the fill material they relied on for support.

(iii) Manly Council had a private duty of care to warn the Plaintiff of the consumer averse culture involving the BSC, local Councils, engineers, builders, lawyers and others…but failed to do so.

(iv) The conduct just referred to was deceitful, recklessly indifferent and arrogant or negligent.

48 Although the Plaintiff does not attribute a date to all of the events to which he refers in these 2 parts of his pleading, enough appears to make it apparent that any significant default on the part of the Council of which he complains and which may have been productive of loss occurred more than 6 years prior to the filing of his Statement of Claim. The remarks of Newman AJ make it plain that the Plaintiff also knew of the defects in the house earlier than 2 July 1993. Thus, although the bases of claim are in some respects different from those dealt with by Newman AJ, both for the reasons his Honour gave, and because the Plaintiff’s entitlement to rely on the matters in these 2 parts of his pleading has been resolved against him, the paragraphs contained in the First and Second Particulars of Negligence and Deceit of the claim against Manly Council can not be allowed.

49 Under the “Third Particular of Negligence and Deceit” the tenor of the paragraphs is:-

(i) In May 1992, the Plaintiff discovered the problems including voids under the footings.

(ii) On or about 23 December 1992, Manly Council received a Building and Development Application from the Third Defendant’s engineer to fully underpin the house down to bedrock

(iii) Both before and after this there were a number of inspections by persons associated with the Council or there was awareness by such persons of the Plaintiff’s house problems.

(iii) “At all relevant times Manly Council could have issued a rectification order on the Plaintiff for the Third Defendant’s structural defects.”

(iv) “At all relevant times Manly Council accepted the Third Defendant’s engineer’s certificates knowing or that it was reasonable for them to know that the certificates were false and misleading.” – 5.37

50 As I have said, the proceedings were commenced on 2 July 1999. As Newman AJ has said, the work of underpinning was completed prior to 2 July 1993 and the plaintiff was aware of deficiencies in the completed underpinning at least by 15 June 1993. The failure of the Council to supervise the underpinning relied on prior to Newman AJ’s decision clearly was outside the limitation period. However, it is not immediately clear that the omission to issue rectification orders or the reliance on the Third Defendant’s engineer’s certificates occurred prior to 6 years prior to the commencement of proceedings. It would seem, from assertions in that part of the pleading as is against the Third Defendant, NRMA, that the structural defects to which the Plaintiff is referring are those arising from work carried out in about February to June 1993. Given the way the hearing before me occurred in consequence of the late service of the proposed pleading, the matter was not debated but it strikes me as not unlikely that any power the Council had to issue a rectification order continued for some time after 2 July 1993. It may be that the occasion for the issue of such a certificate was also after this date. Hence it does not seem to me that these claims were necessarily statute barred at the time of commencement of the proceedings.

51 Under the “Fourth Particular of Negligence and Deceit” the tenor of most of the paragraphs is:-

(i) At all relevant times the garage spandrel brickwork support walls were constructed on fill approved by Manly Council.

(ii) The Council failed to properly act on the Plaintiff’s concerns that the underpinning of the garage spandrel support walls was not done to bedrock and the garage spandrel brickwork was subsequently condemned.

(iii) At all relevant times Manly Council failed to make a rectification order on the Plaintiff regarding the underpinning work performed by the Third Defendant.

52 These allegations are affected by similar considerations to those I have expressed concerning the paragraphs under the heading “The Third Particulars …”.

53 Under the “Fifth Particular of Negligence and Deceit” the Plaintiff makes disparate allegations of representations by the person who was the local member of Parliament and a Manly Councillor, of the Local Federal Member at a public meeting condemning the original building work but making no comment in Federal Parliament, of a failure by a firm of solicitors to file a claim against the Council prior to it being statute barred, of Newman AJ’s order dismissing the Plaintiff’s claim on the basis it was statute barred and of the fact that the Council’s lawyers were pursuing a costs order against him and that those were the lawyers whose submissions to the State of New South Wales triggered the BSC enquiry.

54 It is asserted that Manly Council was empowered to breach its duty of care to the Plaintiff by the First Defendant’s failure to properly act against the BSC’s consumer averse culture.

55 These allegations neither raise or relate to any recognisable cause of action I can discern. They should not be allowed.

56 Under each of the 5 Particulars of Negligence and Deceit, it is alleged that Manly Council’s conduct was deceitful, recklessly indifferent and arrogant and/or negligent. Again no proper specificity of the deceit is given and a number of the matters encompassed by the allegation are inherently incapable of being deceitful. The allegation of deceit will accordingly not be allowed in its present form. Similarly a number of matters are inherently incapable of falling within the description of reckless indifference and arrogance and, although categorisation of the Council’s conduct by those terms is permissible in light of the claims for exemplary and aggravated damages the paragraphs alleging reckless indifference and arrogance should not be allowed in their wide present form. To some extent similar remarks may be made concerning the allegations of negligence but upon the basis that the generality does not prejudice the Council so far as the allegation of negligence is concerned, I would not disallow the proposed pleading in that respect.

57 There are also in the sections headed “Fourth Particulars ” and “Fifth Particulars” paragraphs which say “The Plaintiff repleads paragraph 4.20”. I have referred to this paragraph when dealing with section 4 and some of what I then said is relevant here too. Certainly in this section of the proposed pleading does the pleading of the contents of the paragraph seem to be a pleading of evidence. Paragraph 4.20 raises no matters relevant to the pleading against the Manly Council the repleading of paragraph 4.20 in Section 5 will not be allowed.

58 In summary, in this section of the proposed pleading, all of the allegations except some of those under the Third and Fourth Particulars and paragraphs 5.2 and 5.3 will not be allowed. There remain some allegations of failure to issue rectification orders and the acceptance of engineer’s certificates which conduct is said to be negligent and may well be within the 6 year limit for the making of claims.

59 The context in which these claims are now advanced must be recognised. The events relied on occurred in about the second half of 1993, about 10 years before the claim in respect of them appears in the proposed pleading. While to join of them in the existing suit would be likely to overcome the Limitation Act in that regard, the length of the intervening period argues against the exercise of any discretion the Court has to permit them to now be raised. Also relevant is the fact that they seem to have only been thought of after Newman AJ rejected, as doomed to failure, the claims earlier made.

60 But more significant are the terms of the orders that Newman AJ made vis a vis the Council. (The changes I made to these orders under the Slip Rule were simply changes of wording.)

61 The orders made by Newman AJ were entered on 8 October 2001. As entered that relevant to the Council was:-

“The Plaintiff’s claim against the First, Second and Sixth Defendants be dismissed with costs and those Defendants may enter judgment forthwith.”

62 So far as a search of the Court file reveals there has in fact been no other entry of judgment. However, it seems to me that I should proceed on the basis that judgment has been entered for the Council. Any rejoinder of the Council would thus first require the setting aside of the judgment which has been entered.

63 In fact, the Plaintiff has not actually applied for this. The Council did not appear on the hearing before me out of which these Reasons arise and, so far as I am aware, the Council was not advised of that hearing. It is unnecessary for me to consider whether the Plaintiff could succeed in having the judgment in favour of the Council set aside although there are obviously great difficulties in his way. Certainly, that part of the proposed pleading as relates to the Council could not be permitted at this stage.

Section 6 – NRMA Insurance Limited

64 Included in this Section are the following paragraphs

6.3 At all relevant times the Third Defendant knew or it was reasonable to expect for them to know that the Plaintiff was at risk of the failure of the Building Services Corporation to give effect to Parliament’s intentions of providing an effective and efficient safety net from incompetent or unscrupulous builders, engineers, local councils, lawyers and insurance companies.

6.4 At all relevant times the Third Defendant’s lawyers knew or it was reasonable to expect for them to know that the consumer averse culture existed and to properly act on that knowledge.

6.5 On 26 June 1989 the Plaintiff entered into a Home Replacement Insurance Policy No. …

65 From paragraph 6.7 this section of the document is broken up into the First, Second and Third “Particulars of Breach of Contract, Statute, Negligence and Deceit”.

66 Paragraph 6.7 to 6.19, part of the “First Particulars” consists largely of assertions of inspection of the Plaintiff’s property and what was found, conversations between the Plaintiff and employees of the Third Defendant one of whom, Mark Williams is said to have been the DY Claims Manager, a denial and then acceptance of liability by representatives of the Third Defendant. The proposed Further Amended Statement of Claim continues.

6.20 On 28 October 1992 Mr Blank met on site with the Plaintiff and Mr Blank said he wanted to underpin the house and then rectify the house damage. The Plaintiff said OK as long as the house can take a second story addition and rectified to obtain 317AE certification and the contractor must have appropriate Construction All Risk (C.A.R.) insurance cover. The C.A.R. requirement was never complied with.

6.21 The Third Defendant appointed Lloyd Anglicas from Lloyd Constructions and Underpinning Pty Ltd to place 5 emergency underpins under the worst area of the house with Mr Cruickshank (an engineer) to supervise the contractor.

67 There follow details of defects found or which were said to have developed for a variety of reasons including an allegation that “The contractor under the Third Defendant’s engineer caused builder-induced damage … due to a major structural defect in contravention to (sic) the Building Services Corporation legislation”. Paragraph 6.28 provides:-

“At all relevant times the Third Defendant engaged in unconscionable conduct embracing the consumer averse culture in the building industry in their attempts to avoid the claim and engaged in conduct to minimise and trivialise the scope of work.”

68 Under the heading of “Second Particulars”, the assertions include the following:-

6.32 On 22 December 1992 Mr Blank (one of the third Defendant’s assessors) insisted that the Plaintiff contract with Mr Anglicas…

6.33 On 23 December 1992 Mr Cruickshank filed a development application… with a scheme to completely underpin the whole house…

6.34 On 1 February 1993 the Plaintiff contracted for the underpinning work as instructed by the Third Defendant but included the fixed price for the provision of a basement slab at his own cost…

6.36 On 2 February after Mr Anglicas had taken possession of the site… Mr Anglicas presented the Plaintiff with a letter… that he was not prepared to build the slab as agreed.

6.37 Throughout the remainder of the work Mr Anglicas, under Mr Cruickshank’s supervision and empowered by the Third Defendant proceeded with the underpinning work… until Mr Anglicas claimed practical completion on or about 31 March 1993.

6.38 During the works several instances of significant builder-induced damage resulted.

(a) …

6.39 In April 1993 the Plaintiff was presented with site reports… and the last of the progress certificates to practical completion.

6.40 Mr Cruickshank assured the Plaintiff that the house was now underpinned to bedrock and that it was OK to proceed with removing the fill and placing the basement slab component of the contract abandoned by the contractor and that any defects would be rectified in June/July as part of the defects’ liability period.

6.41 The Plaintiff progressively discovered by chance in the excavation major structural defects: (there follows 7 sub-paragraphs listing these).

6.42 None of the underpins excavated and checked were to the specified bedrock. The progress claims certified by Mr Cruickshank are less than 50% of his own estimated depth.

6.43 On 4 June 1993 Mr Williams wrote to the Plaintiff:

6.45 The contractor under the third Defendant’s engineer caused builder induced damage… due to a major structural defect in contravention to the Building Service Corporation Legislation.

6.46 At all relevant times the third Defendant engaged in unconscionable conduct embracing the consumer averse culture in the building industry in their attempts to avoid the claim and engaged in conduct to minimise and trivialise the scope of work.

69 Under the “Third Particulars” the Plaintiff asserts he has pressed the Third Defendant to speedily and fairly resolve the claim resulting in many hundreds of pages of reports etc but key responses to the Plaintiff’s reports have been withheld “requiring the Plaintiff to openly challenge the then President of the Third Defendant at the annual general meeting…” In paragraph 6.54 the Plaintiff asserts that the Third Defendant has breached its contract of insurance and failed to act in the utmost good faith and fair dealing. The Plaintiff also asserts that all of the conduct in this section of the proposed Further Amended Statement of Claim was deceitful, recklessly indifferent and arrogant, and/or negligent, a breach of the Building Services Corporation Legislation and of the insurance contract. Under each Particular the Plaintiff “repleads paragraph 4.20”.

70 It is clear that again the Plaintiff has not come close to adhering to the strictures of Part 15 rule 7. Many of the facts pleaded do not even arguably constitute a cause of action and constitute at best evidence by which “material facts” as defined in the rules might be proved. Many of the matters are irrelevant to any cause of action of which I can conceive. On these or similar grounds the following paragraphs should not be allowed:-

6.3, 6.4, 6.7 (the second half), 6.8, 6.9 (the first part), 6.10, 6.12 – 6.15, 6.17, 6.19, 6.22 – 6.30, 6.31 (a), 6.32, 6.39, 6.40, 6.44, 6.46 - 6.48, 6.49(a), 6.50 – 6.53, 6.56, 6.57, 6.58 (a).

71 The following paragraphs should not be allowed in their current form although some of the matter in them might well be included in a properly drawn pleading or particulars incidental thereto:-

6.11, (possibly) 6.16, 6.18, 6.20, 6.21, 6.33 – 6.38, 6.41 – 6.43, 6.45, 6.54, 6.59, 6.60

72 There are few paragraphs in section 6 not listed in the preceding 2 paragraphs of these Reasons. They are significantly short of what is required to plead a cause of action.

Section 7 – Fair Trading Administration Corporation (formerly the Building Services Corporation)

73 The seventh section of the proposed Further Amended Statement of Claim is directed against the “Ninth Defendant – Fair Trading Administration Corporation (formerly the Building Services Corporation)”. Although the name of its predecessor the BSC was included as part of the title given to the First Defendant prior to Newman AJ’s decision and a number of the allegations in the Statement of Claim then dealt with were directed at the BSC’s conduct, that Statement of Claim asserted liability in the First Defendant for this conduct and neither the BSC nor Fair Trading Administration Corporation has ever been a party to the proceedings. The First Defendant was regarded as the State of New South Wales. In that situation the Plaintiff needs leave to add the BSC or its successor as a party. While, given the form the proceedings originally took, it may well be that such joinder would be granted, it is something which the Plaintiff must achieve before section 7 of the proposed pleading could be allowed. The Fair Trading Administration Corporation did not appear on the application to file the proposed pleading and there is nothing to suggest it was ever served with notice of the application. It is accordingly not possible to allow the filing of the proposed pleading against the Fair Trading Administration Corporation.

74 Nevertheless, and recognising that the Fair Trading Administration Corporation will not be bound by anything I say it seems to me that I should make some remarks about Section 7 of the proposed pleading. The introductory paragraphs of this section include the following:-

7.4 At all relevant times the fourth (sic) Defendant knew or it was reasonable to expect for them to know that the Plaintiff was at risk of the failure of the Building Services Corporation to give effect to Parliament’s intentions of providing an effective and efficient safety net from incompetent or unscrupulous builders, engineers, local councils, lawyers, and insurance companies.

75 Under “The First Particulars of Statutory Breach, Negligence and Deceit” it is asserted that a BSC inspector, Mr Chilvers advised that Anglicas was OK, that on 8 July 1993 the Plaintiff advised Mr Chilvers that Anglicas had damaged the house, failed to follow a specified sequence in program, was not properly supervising the works and guilty of other specified defaults. It is alleged that while Mr Chilvers gave certain advice he did not investigate the matter appropriately, did not advise the Plaintiff that the major structural defects and builder induced damage were serious breaches of the Act and did not advise the Plaintiff of the BSC’s obligation to protect the Plaintiff’s rights and did not advise the Plaintiff in other respects.

76 The pleading asserts that the BSC were obliged under the BSC legislation to properly investigate the complaint. It is said:-

7.15 The Plaintiff was not made aware of his rights nor of the consumer averse culture that had developed over the failure of the First Defendant to properly act until the Plaintiff met other consumers in a similar situation in late 1994.

77 In the “Second Particulars of Statutory Breach, Negligence and Deceit” the Plaintiff asserts that on 26 April 1993 he advised Inspector Chilvers of specified and major defects and builder induced damage with the work, that Anglicas had refused to complete the work and that the underpinning was not to the contracted specifications or drawings, that Mr Chilvers had advised the Plaintiff to get an independent engineer to inspect but that the BSC would not get involved.

78 In the “Third Particulars”, it is said, in effect:-

(i) that a BSC Inspector Col Petrie inspected the property, drawings and other documents,

(ii) that the Plaintiff pointed out to him major defects and damage,

(iii) that the Plaintiff informed Mr Petrie of a number of matters including that none of the bases of the underpins were found to be on bedrock and that the NRMA engineer had certified a total actual depth of underpinning less than 50% of his own estimated depth,

(iv) that Mr Petrie wrote to the Plaintiff advising that he was satisfied with Mr Anglicas’ conduct and that the work was completed and that he would take no further action,

(v) that Mr Petrie wrote to the Manly Council advising that he had found no defective work and that the contract had been adhered to,

(vi) that the BSC should have issued a recertification other on Anglicas and ensured that the whole work was reliably designed, constructed and certified, and

(vii) that the BSC breached its statutory duty of care to protect the Plaintiff .

79 It is difficult to adequately summarise the contents of the paragraphs contained in the “Fourth Particulars of Statutory Breach, Negligence and Deceit”, so I shall quote them at some length:-

7.34 On 8 November 1994 the Plaintiff lodged a second complaint with the BSC’s General Manager – Graham Mostyn and Inspector Schoenmaker together with reports from his geotechnical and structural engineers. – Section 10 (paras, 10.80 and 10.81) in the Facts.

7.35 This was the commencement of a drawn out exchange of letters intended to draw the Plaintiff into a Building Disputes Tribunal based on a BSC application in which the Plaintiff’s engineering reports were omitted as being known to the BSC. Refer Section 8.1 (para 10.8) and Section 11 in the Facts.

7.36 On 22 November 1994 the BSC’s Director of Special Enquiries – Robert Coles (Coles) inspected the site with the Plaintiff’s engineer who the Plaintiff discovered was also the BSC’s engineer. Mr Coles agreed there appeared to be structural defects and asked Mr Tyre what was needed to be done. Mr Tyre advised the meeting that each underpin had to be inspected from top to bottom to ensure they were down to bedrock, under walls, etc. pending a proper rectification of the underpinning.

7.37 Mr Coles did not agree and appointed the engineering firm of Ove Arup to inspect the property and report.

7.38 Ove Arup’s Ian Mackenzie did not open up the works but simply supplied a report based on assumptions together with its only diagram – of a non-representative underpin situation with the address at the base of the drawing giving the house next door.

7.39 On 6 April 1995 Mr Coles included the Ove Arup report in his application to the Building Disputes Tribunal but omits the Plaintiff’s reports from Mr Tyres and the Building Research Centre’s report from Unisearch at the University of New South Wales.

7.40 The BSC breached its statutory duty of care to protect the Plaintiff.

7.41 The Plaintiff repleads paragraphs 4.20

7.42 The conduct described in 7.34 to 7.41 above was deceitful.

7.43 Further the conduct described in 7.34 to 7.41 was

7.44 By the Fourth Defendant’s reckless, deceitful, arrogant, oppressive and negligent conduct in the circumstances described in paragraphs 7.17, 7.18, 7.23, 7.24, 7.32, 7.33, 7.42, and 7.43 hereof the Fourth Defendant has exercised a contumelious disregard to the rights of the Plaintiff.

80 In light of the way the hearing before me proceeded, no attention was given to the terms of the legislation on which the Plaintiff, in this section of the proposed pleading, relies. What follows must therefore be considered in that light. My own consideration of the Building Services Corporation Act 1989 leads me to the conclusion that the BSC may well have had statutory obligations to someone in the position of the Plaintiff such that breach of those obligations gave rise to a cause of action for breach of statutory duty or other tort. The decision in Pyrenees Shire Council v Day [1998] 192 CLR 330 lends support to the claim for the existence of such a cause of action.

81 If there is such a cause of action then many, perhaps the vast bulk, of the allegations in this section of the proposed pleading are appropriate. In that situation and in the absence of debate as to the detail, it does not seem to me desirable to attempt to consider the paragraphs individually except in the case of any which clearly should not be allowed. Paragraphs 7.4, and 7.5 fall into that category as do the various assertions that conduct was “deceitful” – paragraphs 7.17, 7.23, 7.32 and 7.42. When regard is had to the extent to which so much of the conduct of all of the defendants and their employees, officers or contractors is alleged to be recklessly indifferent, there is much to be said for the view that these allegations should also not be allowed until further particularity is given but because of the absence of debate on matters of detail and the absence of the Fair Trading Administration Corporation, I have decided not to adopt that approach.

Section 8 - Stephen Freeman

82 In this section of the proposed pleading, the Plaintiff alleges that the Seventh Defendant was at all material times a solicitor, that on 22 April 1986 the Plaintiff purchased the property which is the inspiration for the litigation, having inspected it first and that also 22 April 1986 he attended the offices of the Seventh and Eighth Defendants who agreed to be retained to convey the property. Paragraphs 8.2 and 8.7 are in terms:-

8.2 At all relevant times there was an implied term of the retainer paid to the Seventh Defendant that he would do all things necessary to prosecute the right on behalf of the Plaintiff and would do so and would advise the Plaintiff with all due professional care, skill and diligence.

83 The pleading then alleges that Manly Council supplied a s149 Certificate “but made no mention that the House on the Property was constructed on fill and was at risk of subsidence” and that, in breach of the said implied term the Seventh and Eighth Defendants failed to properly requisition information from the Council by way of letter and failed to obtain a s317AE certificate on the property, or reasons why the Council would not issue the Certificate. The pleading then alleges that as a result of the Seventh and Eighth Defendants’ failure to properly act the Plaintiff has suffered loss. The next few paragraphs are in terms:-

(e) interest from the date of purchase of the property to the date of judgment at such rate as may be determined pursuant to s94 of the Supreme Court Act (as amended).

84 Subject to the following remarks, this claim is properly pleaded. However, paragraphs 8.4 and 8.8 are surplusage and should not be allowed. The same applies to paragraphs 8.12 and 8.13 and the word “deceitful” in paragraph 8.15.

85 However, there is a more fundamental problem with the pleading. The contract relied on was in April 1986 and other parts of the pleading make it clear that the breaches of contract and negligence which are relied on in this section of the pleading must have occurred at about that time. Certainly they occurred much more than 6 years before the 1999 filing of the Statement of Claim which commenced these proceedings. Other sections of the proposed pleading make it clear that the Plaintiff’s knowledge of the defects which would or might have been discovered had the breaches by the Seventh and Eighth Defendants not occurred was also acquired more than 6 years before the proceedings were instituted. In these circumstances, it is certain that a defence under the Limitation Act will succeed. Given the nature of the dispute and the history of the litigation, I regard it as certain that the Statute of Limitations will be pleaded and thus that the claim is bound to fail. In these circumstances, allowing section 8 of the proposed pleading would be futile and should not occur.

Section 9 – Greg Judd

86 In paragraph 9.1 the Plaintiff pleads that the Eighth Defendant was a solicitor; in paragraph 9.2. alleges, in the same terms as paragraph 8.2, “At all relevant times that there was an implied term of the retainer …” and in paragraph 9.3 asserts:-

9.3 At all relevant times the Eighth Defendant knew or it was reasonable to expect for him to know that the Plaintiff was at risk of the failure of the Building Licensing Board/Building Services Corporation to give effect to Parliament’s intentions of providing an effective and efficient safety net from incompetent or unscrupulous builders, engineers, local Councils, lawyers and insurance companies.

87 To this stage in the section there is no allegation of any retainer or when any retainer occurred. Although in paragraph 9.5 there is an allegation which could be so regarded, the form of the pleading is such that it is not possible to regard paragraph 9.2 as founded on the retainer implicitly alleged in paragraph 9.5. Without an allegation of retainer, paragraph 9.2 cannot be allowed. In paragraph 9.3, the reference to “At all relevant times” is sufficiently uncertain in the context of the whole pleading as to be embarrassing. In the circumstances, those words should not be allowed and greater specification required. Nor should the words “it was reasonable to expect for him to know” etc. be allowed. Even if that were the fact, given what it was that it is alleged it was reasonable for Mr Judd to know, no duty arises in consequence.

88 In paragraph 9.4 which is the only paragraph pleaded as the “First Particulars of Negligence” the Plaintiff “repleads paragraphs 8.2 to 8.16”. It will be apparent from what I have said when considering section 8 that there are some matters in paragraphs 8.2 to 8.16 that make their repleading as a group defective. It is not possible within paragraph 9.4 to sever the good from the bad and paragraph 9.4 cannot be allowed.

89 Under the “Second Particulars of Negligence and Deceit”, the allegations are:-

9.5 On 3 February 1994 and at all relevant times the Plaintiff took his problems of the conveyance set out in 8.2 to 8.14 together with his subsequent problems with the First, Second, Third and Ninth Defendants to the Eighth Defendant for legal assistance.

9.6 The Eighth Defendant advised the Plaintiff there were several parties he could sue including the Eighth Defendant’s own firm.

9.7 The Eighth Defendant advised it was best to sue only the Third Defendant otherwise the bureaucrats would destroy the Plaintiff’s marriage.

9.8 At all relevant times the Eighth Defendant should have sent the Plaintiff away for independent legal advice.

9.9 The conduct described in 9.5 to 9.78 above was deceitful.

90 The general tenor of paragraph 9.5 is clear. However, in its lack of particularity as to the “relevant times” and the “problems” the subject of instructions, the paragraph is embarrassing and should not be allowed. For reasons given in relation to similarly worded paragraphs elsewhere, the allegation in paragraph 9.9 of conduct being “deceitful” will not be allowed. Paragraph 9.10 is nonsensical in its reference to paragraph 9.5.

91 Under the “Third Particulars of Negligence and Deceit” the allegations are:-

9.11 The Plaintiff repleads all paragraphs for the First Defendant, Manly Council, the Third, Ninth, Seventh Defendants and John Miller being paragraphs 4.1 to 8.15.

9.12 At all relevant times the Eighth Defendant failed to properly protect the Plaintiff from the conduct and damages that the Plaintiff had suffered and stood to suffer from the parties in 9.11.

9.13 On 28 September 1994 the Eighth Defendant notified the Plaintiff he would cease to act and left the Plaintiff to his fate.

9.14 The conduct described in 9.11 to 9.13 was deceitful.

92 Paragraph 9.16 follows a similar form to paragraph 8.15 and paragraph 9.17 is the usual claim for general, special, aggravated and exemplary damages and interest from the date of purchase of the property.

93 The breadth of paragraph 9.11 makes it impossible to respond to. It will not be allowed. The rejection of paragraph 9.11 means that the reference in paragraph 9.12 to paragraph 9.11 is inappropriate or inadequate but, if otherwise the proposed pleading is allowed, paragraph 9.12 could be readily repleaded or amended.

94 It is unclear whether paragraph 9.13 is intended simply as a statement of history and irrelevant (but harmless) or a complaint for which the Plaintiff seeks redress. It will not be allowed. For reasons given above in relation to similarly worded paragraphs, paragraph 9.14 and the word “deceitful” in paragraph 9.16 will not be allowed.

95 The only paragraphs that remain unscathed in this examination are paragraphs 9.1, 9.6 to 9.8, 9.12, 9.15 although paragraphs 9.3, 9.5, 9.10, 9.12 and 9.16 require only minor changes. Replacement of one or more of the paragraphs which I have said cannot be allowed is necessary for the section to constitute an adequate pleading against the Eighth Defendant.

Section 10 - John Miller

96 As has been said, Newman AJ ordered that the Plaintiff’s proceedings against Mr Miller be dealt with separately. His Honour’s reason for so deciding was that “the proceedings against the fifth defendant are so distinct from the proceedings the plaintiff wishes to bring against the other defendants are such that justice demands that such an order be made” (sic).

97 In section 10 of the proposed pleading the Plaintiff acknowledges the order of Newman AJ but seeks leave to rejoin Mr Miller. Although there are some appreciable differences between the pleading against Mr Miller considered by Newman AJ and that now proposed, the distinction which Newman AJ relied on remains. Accordingly there is no basis for permitting the Plaintiff to rejoin Mr Miller.

98 This conclusion makes it unnecessary for me to consider individual paragraphs within section 10 of the proposed pleading. It is appropriate however to record that, even had I not reached the conclusion expressed in the immediately preceding paragraph, many of the paragraphs in this section of the pleading would, because of their own individual defects, not have been allowed.

Section 11 - All the Defendants

99 The proposed pleading continues with a section entitled “All the Defendants” and which contains the following paragraph:-

11.1 In light of the above, all defendants, who are either artificial persons, corporations aggregate, or natural persons, are caught by either section 3, Fair Trading Act 1987, or section 44 Fair Trading Act 1987, and are obliged not to mislead and deceive the plaintiff, or this Court, and by the application of Section 68 Fair Trading Act 1987, are obliged to pay to the plaintiff, all the damage caused by their deceit.

100 The lack of specificity in the paragraph is gross and such that the paragraph cannot be allowed. It is unnecessary for me to determine whether the paragraph suffers from other defects also.

Damages

101 The final section of the proposed pleading, apart from 2 introductory paragraphs, is divided up into sub-sections headed “General Damages”, “Special Damages”, Aggravated Damages”, “Exemplary Damages”. What I regard as a fair sample of the allegations under the first of these headings and included in paragraphs 12.3 to 12.23 is as follows:-

12.3 On page 6 of the 1996 BSC Report it found that the Ninth Defendant had developed practices that established a corporate culture strong enough to transcend major changes in legislation, procedures, Ministers, senior management and organisational structure.

12.4 On page 19 of the 1996 BSC Report it found that citizen’s lives have been made wretched, their health and happiness and the stability of their home lives affected.

12.5 The Defendants, Council and Mr Miller are estopped from denying the allegation of mental shock by the findings of the Inquiry into the Aggrieved Victims of the Building Services Corporation (the BSC Inquiry).

102 Reference, with quotes from what appears to be a headnote, is made to the decision of the High Court in Pyrenees Shire Council v Day [1998] HCA 3; [1998] 192 CLR 330. “Sutherland Shire Council v Heyman etc” is referred to and the proposed pleading continues:-

and in the Plaintiff’s case, more damaging than fire

12.11 This decision binds the Court in its exercise of jurisdiction absolutely, and if the Defendants accept that fact, then the undisputed facts of subsidence of the plaintiff house at Balgowlah, then the only matter that can be in dispute between the parties is the amount of compensation to which the Plaintiff is entitled, with the question of apportionment of that amount left to be defined between the Defendants.

103 The paragraphs I have quoted are sufficiently embarrassing and contain a sufficient number of propositions which are clearly wrong as to make it both unnecessary that I deal with those paragraphs individually. The same may be said of other paragraphs in the “General Damages” section. These paragraphs are not limited to allegations as to the suffering of damage which, under Part 15 rule 20, need not be pleaded to. Accordingly the totality of the General Damages section should not be allowed.

104 The “Special Damages” section, containing paragraphs 12.24 to 12.42, makes it clear that the Plaintiff is claiming for a loss of income said to be due to having to deal with the problems arising from the state of his house and the actions of the Defendants about which he complains, for the break-up of his marriage, for stress and nervous shock. In support he pleads a number of facts on which he presumably relies to demonstrate the consequences he has suffered.

105 If one concludes or assumes that the Plaintiff has an arguable case for the damages in this regard that he seeks, then most of the other matters pleaded can probably be justified as matters which, if not specifically pleaded, may take the defendants by surprise. The remainder are not such as to merit singling out.

106 Although I have grave doubts whether the Plaintiff, even if otherwise successful, is entitled to much of the damages he claims under this section, this issue was not the subject of debate. This part of the pleading will not cause the Defendants any difficulty in pleading to and in the circumstances, as a matter of discretion I would not be inclined to disallow it if otherwise it is appropriate to allow a substantial portion of the proposed pleading. However further particulars of some of the matters, such as the claimed $120,000 in out of pocket expenses would be required.

107 Paragraphs 12.43 to 12.46 are included under the heading “Aggravated Damages” and paragraphs 12.47 appears under the heading “Exemplary Damages”. Part 16 rules 5A and 5B require that a party claiming exemplary or aggravated damages provide particulars of the facts and matters on which he relies to establish the claim.

108 Much of paragraph 12.43 is a repetition of other parts of the proposed pleading. The matters referred to in the paragraph, even if arguably relevant to the existence of a cause of action, are either sufficiently vague as to be embarrassing or could not go to support a claim for aggravated damages. This paragraph cannot be allowed.

109 Paragraph 12.44 is in terms:-

12.44 The Plaintiff claims an amount for the pain and suffering caused by 10 years of unconscionable and negligent conduct by all the defendants in an amount to be determined by a jury if not agreed.

110 Paragraphs 12.45 and 12.46 follow the same form but the words “the pain and suffering” are replaced by, respectively, “aggravated damages” and “punitive damages”. The references in all 3 paragraphs to “unconscionable” is repetitious and the reference to “10 years” unnecessary and therefore embarrassing. These passages will not be allowed. Other objections which might be made to the terms of paragraphs 12.44 and 12.45, viz. that the Plaintiff cannot recover for pain and suffering, and the reference to “determined by a jury” is inappropriate are not of such a nature as would argue against allowing the proposed pleading.

111 The claim in paragraph 12.46 to “punitive” damages, in contradistinction to “aggravated” and “exemplary” damages is also embarrassing in that there are not 3 such types of damages. Accordingly paragraph 12.46 in totality cannot be allowed.

112 There is also much to be said for the view that the Plaintiff has given no “particulars of the facts and matters” referred to in Part 16 rules 5A and thus no particularised basis for the claim for Aggravated Damages. However, when attention is given to the sections of the proposed pleading directed to individual defendants, a picture seems to emerge that the basis for the Plaintiff’s claims for aggravated damages against each defendant lies in all of the individual defaults attributed to that defendant. Whether those bases are sufficient to justify any award of aggravated damages must be regarded as doubtful but there seems no point in just having those matters repeated under the “Aggravated Damages” heading. The absence of any additional particulars limits the Plaintiff to the matters which are pleaded. Accordingly, I do not regard the absence of further particulars as a reason for not allowing that part of the proposed pleading as claims such damages.

113 Paragraph 12.47 is in terms:-

Lamb v Cotogno

114 The paragraph breaches Part 15, rule 6(b): It starts with a characterisation of (the whole of all of) the Defendants’ conduct, then asserts a proposition of law and then contains a prayer for relief, largely repetitious of an earlier claim for compensatory damages for the break up of the Plaintiff’s marriage. It contains no particulars of the facts and matters referred to in Part 16 rules 5A and 5B. However many of the remarks made above in relation to the claim for aggravated damages apply to this claim also and I do not regard the defects or deficiencies in paragraph 12.47 as arguing against allowing the pleading.

Conclusions

115 It is convenient to recapitulate the conclusions expressed above on the basis of the various sections of the proposed pleading being considered individually. In summary, they were:-

(i) That the vast majority of the paragraphs in sections 2 and 3 of the proposed pleading cannot be allowed – see paragraph 31 above.

(ii) Section 4, the proposed pleading against the State of New South Wales is insufficient and should not be allowed – see paragraph 40 above.

(iii) The Manly Council is not presently a party to the proceedings and section 5 of the proposed pleading could not be allowed unless the Council were joined. If it were, all of the allegations in section 5 (against Manly Council) except some of those under the Third and Fourth Particulars and paragraphs 5.2 and 5.3 would not be allowed. There remain some allegations of failure to issue rectification orders and the acceptance of engineer’s certificates which conduct is said to be negligent which might well be within the 6 year limit for the making of claims and allowable – see paragraph 63 above.

(iv) There are only a few paragraphs in section 6, the proposed pleading against NRMA Insurance Ltd which could be allowed in their current form. They are significantly short of what is required to plead a cause of action – see paragraph 72 above.

(v) The Fair Trading Administration Corporation is not a party and unless and until it is, section 7 of the proposed pleading cannot be allowed. The Plaintiff may well have a cause of action against the Fair Trading Administration Corporation as pleaded in section 7 of the proposed pleading and the vast bulk of the paragraphs in this section may well be appropriate pleading in pursuit of that cause of action – see paragraphs 73-81 above.

(vi) Allowing section 8 of the proposed pleading would be futile and should not occur – see paragraph 85 above.

(vii) In section 9, replacement of one or more paragraphs is necessary for the section to constitute an adequate pleading against Mr Judd. Some paragraphs cannot be allowed. Amendment to others is needed – see paragraph 95 above.

(viii) There is no basis for permitting the Plaintiff to rejoin Mr Miller as is sought to do in section 10 – see paragraph 97 above.

(ix) The one paragraph in section 11 should not be allowed – see paragraph 100 above.

(x) Paragraphs 12.3 to 12.23 under the heading “General Damages” should not be allowed – see paragraph 103 above.

(xi) Paragraphs 12.24 to 12.42 in the “Special Damages” section are allowable – see paragraph 106 above.

116 It follows from the number of deficiencies identified that the document advanced by the Plaintiff cannot be allowed to be filed. Should the Plaintiff be given a further chance to prepare an acceptable document, should the proceedings be dismissed, or should some other order or orders be made?

117 In approaching these questions, I acknowledge that someone in the Plaintiff’s position, who on the material before me would seem to have suffered significant loss, should prima facie be allowed to litigate an arguable claim for recovery of such loss. Furthermore, some allowance should be made for the fact that the Plaintiff is unrepresented, particularly when it seems likely that the matters about which he complains are at least a partial explanation for an apparent inability to engage private lawyers. On the other hand, it must also be recognised that at least in part the absence of legal representation may be due to a degree of obsessiveness on the part of the Plaintiff. He himself has said in paragraph 12.41 of the proposed pleading that “The Plaintiff was so distressed by the failure of the Defendants that he became obsessed an unable to work, as before”.

118 I do not ignore the cause the Plaintiff attributes to his obsessiveness but to arrive with 36 lever arch files at an initial conference with someone who has indicated a willingness to act pro bono is certainly calculated to discourage any such assistance.

119 On the other hand, defendants in such litigation also have rights. One is not to be put to expense and delay in connection with such litigation which can fairly be described as unreasonable or unnecessary to the proper conduct of litigation, particularly when there is no guarantee that, even if successful, such expense will be recoverable.

120 On the topic of delay it is appropriate to bear in mind that, even without claims which are statute barred, if allowed to proceed the litigation is likely to involve consideration of the state of the Plaintiff’s house and the land on which it was built at least as long ago as May 1992 and possibly much earlier. In part the passage of time is due to the Plaintiff electing to delay the institution of proceedings until July 1999. Another year went by before the Further Amended Statement of Claim pleaded against the original 3 and another 5 defendants was filed. Something over another year went by after Newman AJ, in August 2001 dismissed part, and struck out the balance, of the Further Amended Statement of Claim and gave the Plaintiff a month to replead while the Plaintiff pursued an unsuccessful appeal and the like. Then after, in October 2002, I gave the Plaintiff another 28 days to replead, another year went by without the proceedings progressing to any significant degree. When in September 2003, the Plaintiff was given another 2 months to produce an acceptable document, nothing was forthcoming until 2 December 2003. Throughout virtually the whole of these periods the Plaintiff has been subject to time limits imposed in various directions which have been made and he has consistently breached them.

121 In drawing attention to that last mentioned matter, I do not ignore the fact that the task undertaken by the Plaintiff, particularly given he is not a lawyer, has been difficult and daunting. However, it is an inevitable inference that part of the cause of this must lie in his unwillingness to let go of anything he sees as a wrong.

122 I should make it clear that I do not hold against the Plaintiff any of the delay which has occurred since I reserved my decision in December last year. While undoubtedly the size and detail of his pleading has contributed substantially to the time it has taken for these reasons to be prepared, the major cause of the delay lies in the demands of other cases in the Court and my hands.

123 It is also relevant to bear in mind the expense which has been and will be involved in the litigation. Given the number of parties sought to be sued, and the number of issues which the Plaintiff wishes to pursue, the proceedings, if constituted as the Plaintiff wishes, will necessarily be very costly. Of itself that may be of little weight but once one recognises that some of this cost flows through to all of the errors in the litigation, then it seems to me of substantial significance. Of course, if the number of parties is reduced, then so is it likely that the cost will be, at least if the Plaintiff accepts that position.

124 In accordance with what I have said above, the situation of the “defendants” is as follows:-

First Defendant, the State of New South Wales – the proposed pleading is insufficient to sustain an action against it.

Second Defendant, The Manly Council – it has been dismissed from the suit but the proposed pleading raises some new matters which might succeed if rejoinder of the Council is permitted. There is no current appropriate application for this to occur.

Third Defendant, NRMA Insurance Ltd – the allowable parts of the proposed pleading are significantly short of what is required to plead a cause of action.

Fourth Defendant, Blessington, Judd, Freeman and Lazarus – not pursued separately from the Seventh and Eighth Defendants.

Fifth Defendant, John Miller – the proceedings against him have been severed from the suit. The attempt to reverse this ruling should fail.

Sixth Defendant, Commonwealth of Australia – dismissed from the suit by Newman AJ. There is no attempt to rejoin.

Seventh Defendant, Stephen Freeman – the cause of action sought to be pleaded against him is statute barred and must fail.

Eighth Defendant, Gregory Judd - replacement of one or more of the paragraphs, and amendment to others is necessary for there to be an adequate pleading against Mr Judd.

Ninth Defendant, Fair Trading Administration Corporation – it is not a party to the suit but the Plaintiff may well have, or at least have had, a cause of action against this organisation as pleaded in section 7 of the proposed pleading. The vast bulk of the paragraphs in this section may well be appropriate pleading in pursuit of that cause of action. There is no current application to join this entity.

125 Other matters to note are these. Substantial portions of the proposed pleading, not directed towards individual defendants should not be allowed. Also, it was only the First, Third, Fifth, Seventh and Eighth Defendants who sought to have the proceedings dismissed or struck out. Furthermore, to some extent the decision I make in relation to any defendant may have an effect on, and be influenced by, the decision I make in relation to other defendants.

126 Given the matters to which I have referred, and particularly that in December 2003, almost 3½ years after the proceedings were commenced there was still no adequate pleading (or anything close) which could arguably succeed against the First, Third and Seventh Defendants, the proceedings against them should be dismissed. The Second “Defendant” is not a party. No ground has been shown for having the proceedings against the Fifth Defendant not dealt with separately as Newman AJ ordered. The Ninth “Defendant” is not a party.

127 Accordingly none of the sections of the proposed pleading constituting claims against these entities should be allowed.

128 There remains that part of the proposed pleading as is directed against Mr Judd. As I have indicated this section also is not in a form sufficient to enable it to be allowed even if it does not suffer from the magnitude of the defects that other parts of the proposed pleading do. Given the totality of the matters to which I have referred as bear on Mr Judd’s situation, and in particular the history of the litigation, the Plaintiff should not have a further opportunity to plead against Mr Judd. The proceedings against him also should be dismissed.

129 Accordingly the formal orders I make are:-

1. The proceedings against the First, Third, Fifth, Seventh and Eighth Defendants are dismissed.

2. The Plaintiff’s applications to file a Further Amended Statement of Claim and an extension of time in which to do so are dismissed.

3. The Plaintiff is to pay the costs of the First, Third, Fifth, Seventh and Eighth Defendants of and incidental to the proceedings.

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Last Modified: 12/17/2004

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Citations

Allen v State of New South Wales [2004] NSWSC 1243

Most Recent Citation

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 5) [2016] FCA 167

Cases Citing This Decision

1

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 5) [2016] FCA 167

Cases Cited

3

Statutory Material Cited

0

Pyrenees Shire Council v Day [1998] HCA 3

Mutual Life & Citizens' Assurance Co Ltd v Evatt [1968] HCA 74

CITATION:	ALLEN v STATE OF NEW SOUTH WALES [2004] NSWSC 1243
HEARING DATE(S):	2 December 2003
JUDGMENT DATE:	17 December 2004
JUDGMENT OF:	Hulme J at 1
DECISION:	Refer to paragraph 129
PARTIES :	Plaintiff: Anthony Allen Defendants: State of New South Wales NRMA Insurance Limited John Miller t/as Miller Goddard Stephen Freeman Gregory Russell Judd
FILE NUMBER(S):	SC 20303/99
COUNSEL:	Plaintiff: In person Defendants: CA Webster J Duncan CE Tingey BD Alder
SOLICITORS:	In person Crown Solicitor Abbott Tout Miller Goddard/Price Waterhouse Coopers Ebsworth & Ebsworth