Anthony William Pumpa v Norman Parks (Vic) Pty Ltd and Christine Norman and John Norman
[2019] VSCA 40
•6 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0074
| ANTHONY WILLIAM PUMPA | Applicant |
| v | |
| NORMAN PARKS (VIC) PTY LTD and CHRISTINE NORMAN and JOHN NORMAN | First Respondent Second Respondent Third Respondent |
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| JUDGES: | BEACH and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 February 2019 |
| DATE OF JUDGMENT: | 6 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 40 |
| JUDGMENT APPEALED FROM: | [2018] VCC 725 (Judge O’Neill) |
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CIVIL PROCEDURE – Application for leave to appeal from order of County Court of Victoria entering judgment for the respondents – Applicant required by the respondents to vacate caravan site pursuant to a valid notice to vacate – Applicant failed to have notice to vacate set aside by Victorian Civil and Administrative Tribunal – Applicant brought proceeding in County Court seeking damages for negligence by respondents in requiring him to vacate caravan park site – Proceeding held to have no real prospect of success – No error below – Amended statement of claim did not disclose any cause of action – Proceeding had no real prospect of success – Civil Procedure Act 2010 (Vic), s 63.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | The applicant appeared in person | |
| For the Respondents | Mr A Strauch | Rigby Cooke Lawyers |
BEACH JA
EMERTON JA:
The applicant, Mr Pumpa, seeks leave to appeal from orders made by the County Court of Victoria on 28 May 2018 striking out his amended statement of claim and entering judgment for the respondents. The judge below held that Mr Pumpa’s claim had no real prospect of success because there was no basis, either in negligence or in breach of any of the various statutory provisions to which Mr Pumpa referred, for his claim for damages to be sustained.
The circumstances giving rise to the proceeding below were as follows.
By November 2016, Mr Pumpa had been a site tenant in the Central City Caravan Park at Golden Square near Bendigo (‘caravan park’) for many years. He owned his dwelling and occupied a permanent mobile site.
At the relevant times, the land upon which the caravan park was located was owned by Lococo Nominees Pty Ltd as registered proprietor. The first respondent, a company, was the lessee of the land. The second and third respondents, Ms Christine Norman and Mr John Norman, controlled the first respondent and carried out the day to day operations of the caravan park. Unless it is necessary to distinguish between them, we shall refer to all three respondents as ‘the Normans’.
The period of the lease from Lococo was five years from 17 April 2003, with three renewal options, each of five years. The second of the three options was to expire on 30 March 2018.
Well prior to that date, the Normans sought a substantial increase in the term of the lease in order to be able to raise funds to carry out capital improvements to the caravan park.
The Normans were unable to secure a long term lease, although the option of a further five years was available to them under the existing lease. The Normans decided that they were not prepared to continue to operate the caravan park business on the basis of a five year lease. They declined to exercise the further five year option and resolved that the business be wound up and that the caravan park operations cease.
By letter dated 2 November 2016, Lococo advised the Normans that it required vacant possession of the land by 30 March 2018.
On 8 November 2016, the Normans served on Mr Pumpa a notice to vacate (‘the Notice to Vacate’) pursuant to s 317ZG(1) of the Residential Tenancies Act 1997 (Vic) (‘RTA’). The Notice to Vacate gave the termination date for Mr Pumpa’s tenancy as 29 December 2017. Section 317ZG of the RTA provides that a site owner under a ‘periodic site agreement’ may give the site tenant notice of not less than 365 days to vacate the site. Mr Pumpa was given more than the statutory notice period to vacate his site in the caravan park.
As a result of receiving the Notice to Vacate, Mr Pumpa applied to the Victorian Civil and Administrative Tribunal seeking a declaration under s 452 of the RTA that the Notice to Vacate was invalid and of no effect.
In the Tribunal, Mr Pumpa submitted that his site agreement with the site owner was not a ‘periodic site agreement’, that the site owner was not entitled to give the Notice to Vacate and that it was invalid. In its reasons for decision given on 28 February 2017,[1] the Tribunal found that Mr Pumpa’s site agreement was a periodic site agreement pursuant to s 3 of the RTA and held that the site owner — the first respondent — was entitled to give the Notice to Vacate pursuant to s 317ZG. Mr Pumpa’s application to the Tribunal was dismissed.
[1]Order of Member Harvey in Anthony Pumpa v Norman Parks (Vic) Pty Ltd (Victorian Civil and Administrative Tribunal, R2017/472, 28 February 2017).
On 21 November 2017, Mr Pumpa initiated a proceeding in the Supreme Court seeking damages from the Normans for a range of alleged conduct related to his eviction from the caravan park. Mr Pumpa’s proceeding was subsequently transferred to the County Court.
By his original statement of claim dated 21 November 2017, Mr Pumpa sought an award of damages from the Normans in the amount of $773,000 made up of the following:
(a) damages for ‘negligence relating to financial loss of having to sell dwellings at below market value’ in the amount of $75,000;
(b) damages for ‘negligence relating to financial costs for increased rental over his life (minimum 18 years)’ in the amount of $230,000; and
(c) damages for ‘negligence relating to a serious psychological injury’ in the amount of $468,000.
Mr Pumpa subsequently filed an amended statement of claim dated 19 April 2018. The amended statement of claim seeks exactly the same relief as the original statement of claim, that is, damages for negligence in the sum of $773,000. Mr Pumpa claims that the Normans must compensate him for the losses and costs he has incurred and the psychological harm he has suffered as a result of having to vacate his site in the caravan park.
Neither statement of claim is in conventional form. Both contain a variety of allegations against the Normans going beyond allegations of negligence, including allegations of breach of agreement, unconscionable conduct and contraventions of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (‘ACL’), the Corporations Act 2001 (Cth), the Civil Procedure Act 2010 (Vic) and the County Court Civil Procedure Rules 2008 (Vic) (‘Rules’).
Mr Pumpa’s allegations about the Normans’ conduct in the original statement of claim may be roughly grouped as follows:
(d) the Normans deliberately became involved in serious misconduct with Lococo and, as a result of not getting their own way, retaliated by closing down the caravan park and unlawfully evicting the residents;
(e) the Normans, at the time of executing the site agreement, somehow misled Mr Pumpa about its terms, by not stating all of the terms in a more detailed manner or by not providing relevant information to him about the terms of the site agreement;
(f) Ms and Mr Norman were negligent in not acting in the best interests of the first respondent — the company — in managing the caravan park and in acting without considering the consequences of their actions on the 90 permanent residents of the caravan park;
(g) more specifically, Ms and Mr Norman were negligent in the way that they handled the conflict between the first respondent and Lococo resulting in the closing down of the caravan park;
(h) the Normans failed in their duty of care not to cause psychological injury to Mr Pumpa as a result of their dishonesty and Mr Pumpa’s unprovoked eviction from the caravan park along with all the unnecessary financial losses that occurred;
(i) the Normans were negligent in that they were very difficult to communicate with over 15 years prior to the events in question;
(j) the Normans were negligent and dishonest in the way that they conducted themselves before the Tribunal and, in particular, by misleading the Tribunal member in relation to the site agreement.
On 22 December 2017, the Normans filed and served a defence to the original statement of claim, along with a summons seeking orders that the original statement of claim be struck out and the proceeding be summarily dismissed.
In their defence, the Normans pleaded that nearly every paragraph in the original statement of claim:
(k) contained more than one material allegation;
(l) was ambiguous, uncertain and unable to be properly understood in order to be pleaded to;
(m) contained conclusions, lacked particulars and was otherwise an abuse of process; and
(n) was vexatious and scandalous.
In addition, the Normans pleaded that many of the allegations made against them related to the subject matter which had been adjudicated upon by the Tribunal and were therefore not justiciable. They further pleaded that the sections of the Corporations Act sought to be relied upon by Mr Pumpa provided rights and remedies to the corporation and its members, but not to Mr Pumpa, and that the sections of the Wrongs Act 1958 (Vic) sought to be relied upon by Mr Pumpa required pleading as to duty of care, causation and breach of duty of care, in respect of which Mr Pumpa had not made any material allegations.
In a directions hearing before the judge below on 11 April 2018, the shortcomings of the original statement of claim were canvassed and Mr Pumpa was invited to file and serve an amended statement of claim. Mr Pumpa duly produced the amended statement of claim on 19 April 2018.
The amended statement of claim is in the same form as the original statement of claim. It runs to almost 14 closely typed pages and makes a series of allegations that are bereft of particulars or, insofar as there are particulars, they are rolled into a single paragraph containing multiple allegations. For example, it is alleged that:
(o) the Normans contravened the ACL by not explaining the terms of the site agreement, not obeying the terms of the site agreement, by forcing Mr Pumpa to sign the site agreement without proper consultation and by unnecessarily evicting him when they could have agreed to another extension of their lease to either negotiate to release the caravan park to another person or company or make arrangements to resolve the dispute;
(p) the Normans were negligent in not acting in good faith in the best interests of the first respondent in managing the caravan park during its closing down, and in evicting Mr Pumpa without reasonable cause and without considering the consequences of their actions and for the best outcome for both the respondents and the site tenants;
(q) the Normans contravened the Wrongs Act in that they failed in their duty of care not to cause psychological injury to him through their dishonesty and his unprovoked eviction and the second defendant especially was negligent by knowing that Mr Pumpa would be exposed to a high risk of serious stress, anxiety and depression causing psychological injury after being told he would be evicted from the caravan park;
(r) the Normans were negligent because they could have reduced the risks by providing counselling to Mr Pumpa and by providing assistance with the disposal of his dwellings and financial assistance in relocating him as the second respondent was aware the RTA had provision for such relief but refused to recognise this; and
(s) the respondents caused psychological injury by not telling the truth about the reasons for the eviction.
The amended statement of claim concludes:
The defendants have never provided a reason for evicting the [applicant] or provided any financial support or associated costs in either relocation of his site dwellings, or assistance in cleaning up the site, or dissembling (sic) and reassembling the [applicant]’s dwellings. Even though there are provisions in the Victorian Residential Tenancies legislation, s 210(1)(ba), in the case of a site agreement, the caravan park owner in providing such a resource by the defendants for the eviction of site tenants.
It is plain from the foregoing, first, that Mr Pumpa’s claim for damages is based on the fact that he was required to vacate his site in the caravan park and, secondly, that Mr Pumpa has not understood the legal consequences of the Tribunal’s determination that the Notice to Vacate was valid. The RTA provides that a site owner may require a site tenant to vacate Part 4A site by giving a notice to vacate with the minimum 365 day notice period.[2] The Normans did what was required by the RTA to effect the lawful eviction of the site tenants with periodic site agreements, including Mr Pumpa. In other words, the Normans were within their rights to require Mr Pumpa to vacate his site by the date specified on the Notice to Vacate.
[2]Residential Tenancies Act 1997 (Vic) ss 317ZG(1)–(2).
Judgment below
The judge below dismissed the proceeding pursuant to s 63 of the Civil Procedure Act, having concluded that Mr Pumpa’s claim had no real prospects of success. His Honour was satisfied that there was no basis in negligence or in breach of the statutory provisions relied upon by Mr Pumpa for his claim for damages to be sustained.
In his reasons for decision (‘Reasons’),[3] the judge below recognised that Mr Pumpa, as a self-represented litigant, had to be given such assistance as was necessary to ensure that the judge understood the evidence upon which Mr Pumpa relied and the legal principles that underpinned his case. He recognised that it was necessary to give Mr Pumpa every reasonable assistance so that the proceeding could be determined fairly and Mr Pumpa accorded procedural fairness.[4] Nonetheless, the judge acknowledged that he struggled to understand the causes of action that Mr Pumpa was attempting to agitate. Mr Pumpa’s amended statement of claim was ‘a long and confusing document’ that made ‘a range of statements and complaints for which it [was] difficult to find any basis in the law’.[5]
[3]Pumpa v Norman Parks (Vic) Pty Ltd & Ors (Ruling) [2018] VCC 725 (‘Reasons’).
[4]Ibid [22].
[5]Ibid [15].
The judge below recorded that when the matter first came on for directions before him on 11 April 2018, he told Mr Pumpa that he could not understand the statement of claim, nor identify any cause of action from the matters alleged.[6] The amended statement of claim did not make the allegations any clearer. His Honour noted that, to the extent that a claim rested on the invalidity of the Notice to Vacate, its validity had been determined by the Tribunal.[7] Further, to the extent that Mr Pumpa alleged that he suffered injury as a result of the Normans’ negligence, it did not appear that Mr Pumpa had complied with the provisions of Part VBA of the Wrongs Act and obtained a ‘significant injury certificate’.[8]
[6]Ibid [18].
[7]Ibid. The judge also observed that the giving of the Notice to Vacate was appropriate in the circumstances, as the Normans could not get a significant extension of the lease, causing them to decide not to take up the further option under the lease which, in turn, meant that the site tenants, including Mr Pumpa, had no right to remain upon the land beyond the expiry of the lease.
[8]Ibid [15].
Having sought, in vain, to identify a cause of action in the amended statement of claim, the judge asked Mr Pumpa to tell him what the Normans ought to have done or ought to have refrained from doing in order to prevent Mr Pumpa’s eviction from the caravan park.[9] Mr Pumpa gave answers ― which he now says he ought not to have been obliged to give ― which, his Honour observed, were steps that the Normans had no legal obligation to undertake.[10]
[9]Ibid [19].
[10]Ibid [20].
The judge below concluded that Mr Pumpa’s claim had no real prospects of success in that there was no basis, either in negligence or in breach of the various statutory provisions to which Mr Pumpa referred, for his claim to be sustained. The Normans had acted within the scope of the civil law in requiring him to vacate the caravan park site.[11]
[11]Ibid [25].
Grounds of appeal
Mr Pumpa’s application for leave to appeal sets out a number of matters that might qualify as appeal grounds under the heading ‘Reasons for Granting Leave to Appeal’ and further matters under ‘Grounds or Proposed Grounds of Appeal’. Many of these grounds are procedural, raising the Normans’ alleged non-compliance with the Rules. It is not clear precisely what the Normans failed to do procedurally, although a large number of Rules and sections of the Civil Procedure Act are referred to in the application. The central complaint seems to relate the form of the Normans’ defence, which responded to the original statement of claim. No defence (or submission) was filed in response to the amended statement of claim. Mr Pumpa also complained that the defence that was filed contained no relevant information or particulars.
Given the Normans’ contention that the statement of claim failed to disclose a cause of action and given their application, filed concurrently with the defence, to have the statement of claim struck out for this and other reasons, their defence needed to go no further than it did, pending the determination of the strike out application. It is generally not required of defendants to plead facts and circumstances to enable a cause of action to be identified when the statement of claim itself fails to do so.
Mr Pumpa’s substantive complaint about the judgment below is set out in paragraph 6 of his application for leave to appeal:
6.1 His Honour made an error of judgment in not acting fairly in deciding to strike out the Appellants statement of claim only because His Honour did not want to, for whatever reason, identify there were proper several causes of action, including facts and references to law in not considering each of the following grounds in the Statement of Claim, and the Respondents defence pleadings:
[there then followed references to certain headings in the Rules and to matters in the Civil Procedure Act].
6.12 His Honour made an error of judgment in not acting fairly in considering that the Respondents had a duty of care not to harm any person during any undertaking of the Respondents actions and omissions in causing psychological injury.
6.13His Honour made an error of judgment and acted unfairly in not observing that a person in a civil proceeding had a right to a proceeding decided by a competent, independent and impartial Court.
Analysis
Mr Pumpa’s proposed grounds of appeal rest on what he perceives to be unfairness in the conduct of the hearing of the Normans’ application and the decision that was ultimately made by the court below.
In oral submissions before us, Mr Pumpa complained about paragraph 18 of the Reasons in which his Honour observed that claims resting on the invalidity of the Notice to Vacate had already been determined by the Tribunal. Mr Pumpa said that he considered it to be very unfair for the judge below to raise ‘anything about the Tribunal’ because his amended statement of claim did not mention anything about the Tribunal.
This misses the point. The decision of the Tribunal is relevant to whether the Normans acted lawfully – that is, within their rights – in requiring Mr Pumpa to vacate his site. The amended statement of claim repeatedly asserts that the Normans should have avoided causing him harm by taking steps to ensure that he could continue to live in the caravan park. The lawfulness of his eviction, including the process that the Normans followed by issuing the Notice to Vacate, is highly relevant to the relief that he seeks from them, which is for the financial losses and the psychological injury he has suffered as a result of being required to vacate his site. Insofar as the Normans acted lawfully by exercising their rights under the RTA, it is difficult to see how a duty of care could arise requiring them not to exercise those rights.
Mr Pumpa also contended that the judge below was unfair in paragraph 19 of the Reasons when he asked Mr Pumpa what the Normans should have done to prevent his eviction from the caravan park. He contends, again, that there was nothing in the amended statement of claim about eviction from the caravan park. According to Mr Pumpa, the judge should have asked him questions about what he did not understand in the statement of claim instead of asking about something that was irrelevant.
Again, this misses the point. The question asked by the judge below was directed to giving Mr Pumpa the opportunity to clarify the facts and circumstances that he contended entitled him to the damages claimed from the Normans. In other words, the question was directed to assisting the judge to identify a cause of action. We consider that there was no unfairness in the judge below asking Mr Pumpa what he contends the Normans should have done or refrained from doing to prevent his eviction from the caravan park.
Mr Pumpa also complained that the Normans did not obey Court orders in that they filed documents late and their submission related to the original version of the statement of claim instead of to the amended statement of claim.
It is true that the Normans did not file a defence to the amended statement of claim. At the time the amended statement of claim was filed, the Normans had on foot a summons to strike out the original statement of claim which had been set down for hearing. The amended statement of claim was not relevantly different from the original statement of claim, in that it did not, on its face, disclose a cause of action and, like the original statement of claim, contained many paragraphs where multiple allegations were rolled up without any apparent reason.
In any event, the Normans’ compliance or non-compliance with procedural orders is not relevant to whether the statement of claim or the amended statement of claim disclosed a cause of action. It was not the Normans’ job, as Mr Pumpa seems to suggest, to furnish him with a cause of action by responding to allegations in his pleading that did not support any claim for damages against them.
Mr Pumpa told this Court that the amended statement of claim ‘is all about the caravan park closing down and not compensating us under the [RTA]’. On the question of compensation under the RTA, Mr Pumpa referred the Court (orally) to what he said was a 2018 amendment to the RTA which, so he said, provides that if a caravan park owner gives a notice to vacate because of the closure of the caravan park, the caravan park owner must apply to the Tribunal for an order determining compensation for the park’s closure to be paid to the caravan park owner for eligible residents.
We do not see how this assists Mr Pumpa. Assuming that what Mr Pumpa told the Court is accurate, even if the provision had been in force at the relevant time it would have required application to be made to the Tribunal, not the court, and for any such application to have been made by the caravan park owner, not the site tenant.
In fact, the section of the RTA to which Mr Pumpa refers in his amended statement of claim as providing an entitlement to compensation is s 210B.[12] Section 210B provides that a party to a site agreement may apply to the Tribunal for an order for payment to the applicant by the other party to the site agreement of compensation for loss or damage suffered by the applicant. The provision, in full, reads as follows ―
[12]The amended statement of claim refers to s 210(1)(ba), which does not exist.
210BApplication to Tribunal by site tenant or site owner for compensation
(1)A party to a site agreement may apply to the Tribunal for an order for payment to the applicant by the other party to the site agreement of compensation for loss or damage suffered by the applicant because—
(a)the other party failed to comply with the site agreement or that party's duties under this Act relating to the site agreement; or
(b)the applicant has paid to the other party more than the applicant is required to pay in accordance with this Act or the site agreement.
(2)This section does not apply to a duty under a duty provision or section 206ZR.
Again, this provision requires application to be made to the Tribunal — not the court. Furthermore, the Tribunal may make an order for compensation only in specified circumstances, neither of which is presently applicable. It is not alleged that the Normans failed to comply with any particular terms of the site agreement (rather, it is said that the Normans misled Mr Pumpa about the contents of the site agreement) or that Mr Pumpa has paid the Normans more than he was required to pay in accordance with the RTA or the site agreement. Section 210B does not provide for compensation to be paid to persons because they have been required to vacate a caravan park site pursuant to a valid notice to vacate.
Mr Pumpa’s claim for damages for psychological injury is also constrained by statute. Division 2 of Part VBA of the Wrongs Act provides that a person is not entitled to recover damages for non-economic loss in any proceeding in respect of an injury caused by the fault of another person unless the injured person has suffered ‘significant injury’.[13] In order to establish that a psychiatric injury is a significant injury, the degree of impairment must be assessed by an approved medical practitioner as satisfying the threshold level.[14] In the absence of a significant injury as assessed in accordance with the Wrongs Act, Mr Pumpa is precluded from making his claim for damages for psychological injury.
[13]Wrongs Act 1958 (Vic) s 28LE.
[14]Ibid s 28LF(1). Or a certificate of assessment must be issued under s 28LNA of the Wrongs Act 1958 (Vic).
As the judge below observed, there is no suggestion that Mr Pumpa has complied with the requirements of the Wrongs Act in respect of the injury for which he claims compensation from the Normans.
Mr Pumpa contends that in the Reasons, the judge below ‘actually recognised two causes of action’ but then dismissed his claim because he could not find a cause of action. The Reasons do not support this contention. The judge stated that he was unable to identify any cause or causes of action in Mr Pumpa’s amended statement of claim. Acknowledging that Mr Pumpa suffered anxiety and distress as a result of having to vacate his site in the caravan park was not to recognise that Mr Pumpa had a cause of action for psychological injury. The Wrongs Act does not furnish a cause of action simply because some harm resulting from actions lawfully taken is foreseeable. A person may suffer harm because of the actions of another person in circumstances where the harm was reasonably foreseeable but have no legal remedy because no duty of care or breach of any duty of care can be established. In order to establish a duty of care and a breach of that duty, it is necessary to plead facts and circumstances giving rise to the duty and the breach. The amended statement of claim contains no such detail.
As to the causes of action said to arise under the Corporations Act, the amended statement of claim alleges that the Normans contravened ss 180, 181, 182 and 183 of the Corporations Act.[15] These provisions concern general duties of directors, other officers and employees in relation to care and diligence, good faith, use of position and use of information. However, a court may only order compensation be paid to a corporation for damage resulting from a contravention of ss 180, 181, 182 or 183 in relation to that corporation.[16] In addition, only the Australian Securities and Investments Commission or the corporation to which the contravention applies may make an application to a court for a compensation order for a breach of ss 180, 181, 182 or 183.[17] Thus, the alleged contraventions of ss 180, 181, 182 or 183 do not give Mr Pumpa any cause of action.
[15]Sections 180(1), 181(1), 182(1) and 183(1) set out the relevant duties and are defined as corporation/scheme civil penalty provisions in s 1317E of the Corporations Act 2001 (Cth).
[16]Corporations Act 2001 (Cth) s 1317H(1).
[17]Ibid s 1317J.
Mr Pumpa also relies on a contravention of s 185 of the ACL on the basis (apparently) that the Normans failed to provide him with a ‘legally binding site agreement’. This claim is also without foundation, as the validity of the Notice to Vacate was premised on there being a legally binding agreement between Mr Pumpa and the first respondent in the form of a periodic site agreement. Furthermore, s 185 of the ACL imposes no obligations on the Normans, but gives the Tribunal powers to declare void any unjust term of a contract or otherwise vary a contract to avoid injustice. Mr Pumpa has not made application to the Tribunal for any such orders.
In the course of his oral submissions, Mr Pumpa complained about the site agreement and the circumstances in which he entered into it. He complained that the agreement was just an ‘off the shelf’ proforma, and that the Normans should have gone to a lawyer to get a legal opinion as to whether it was ‘legal’. Using a pro-forma document is not, in and of itself, negligent or unlawful. In fact, it is commonly done for a variety of agreements, including for such important transactions as the sale of land. Furthermore, Mr Pumpa does not say how entry into the site agreement has caused him loss and damage. The site agreement gave him the protection of a 365 day notice period for termination of his occupancy. That was a significant benefit enabling him to get his affairs in order and make suitable alternative arrangements for his accommodation. Had he entered into a fixed term site agreement instead, it would still have been open to the Normans to give him a notice to vacate with 365 days’ notice.
Like the judge below, we have concluded that Mr Pumpa’s claim for damages from the Normans has no real prospect of success. We therefore see no error in the decision below.
Leave to appeal is refused.
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