Bonney v Commonwealth of Australia
[2019] WASCA 142
•13 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BONNEY -v- COMMONWEALTH OF AUSTRALIA [2019] WASCA 142
CORAM: MURPHY JA
MITCHELL JA
HEARD: 13 SEPTEMBER 2019
DELIVERED : 13 SEPTEMBER 2019
PUBLISHED : 13 SEPTEMBER 2019
FILE NO/S: CACV 87 of 2019
BETWEEN: JENNIFER BONNEY
Appellant
AND
COMMONWEALTH OF AUSTRALIA
First Respondent
STATE OF WESTERN AUSTRALIA
Second Respondent
INDIGENOUS BUSINESS AUSTRALIA
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: BONNEY -v- COMMONWEALTH OF AUSTRALIA [2019] WASC 273
File Number : CIV 3044 of 2018
Catchwords:
Appeal - Practice and procedure - Whether grounds of appeal have reasonable prospects of success - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 20 r 19(1)(a)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | Ms A J Dash |
| Second Respondent | : | Mr D E Leigh |
| Third Respondent | : | Ms A J Dash |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Sparke Helmore Lawyers |
| Second Respondent | : | State Solicitor for Western Australia |
| Third Respondent | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Nil
REASONS OF THE COURT:
On 13 September 2019, we heard the appellant's submissions on the registrar's notice to the parties to attend to show cause why the appeal should not be dismissed on the basis that none of the grounds of appeal had a reasonable prospect of succeeding. The registrar had issued that notice to attend prior to requiring the respondents to file respondent's answers in the appeal.[1] At the conclusion of the hearing on 13 September 2019, we ordered that this appeal be dismissed. These are our reasons for making that order.
[1] See r 33(3) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
Background
On 27 November 2018, the appellant commenced the primary proceedings against the respondents in the general division of this court. A statement of claim was filed on 22 February 2019. On 3 April 2019, the respondents applied for orders striking out the statement of claim and dismissing the action.
Those applications were heard by the master on 22 July 2019. At the conclusion of the hearing, the master made orders, relevantly striking out the statement of claim and entering judgment for the respondents. Those orders were expressed to take effect on publication of the master's reasons for making the orders.
The master published written reasons on 30 July 2019.[2] It is apparent from those reasons that the statement of claim was struck out on the ground that it disclosed no reasonable cause of action. The power to strike out the statement of claim on that ground was conferred by O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA).
[2] Bonney v Commonwealth of Australia [2019] WASC 273 (primary decision).
The appellant now appeals against the master's orders on the grounds that:
(1)it was unfair and unjust for the entire statement of claim to be 'dismissed'; and
(2)the master's reasons for decision were inadequate.
Facts pleaded in the Statement of Claim
Relevantly for present purposes, the following background facts emerge from the statement of claim.
On 7 July 1989, the appellant and her former partner purchased a property in Boulder from the Aboriginal Development Commission, with repayments of $410 per month at 5% interest per annum over 30 years.[3] It is implicit in the pleading that the debt owed to the Commission was secured by a mortgage over the property. The Commission's assets were transferred to the Aboriginal and Torres Strait Islander Commission (ATSIC) in 1990.[4]
[3] Statement of Claim, par 1.
[4] Statement of Claim, par 2.
The appellant and her former partner separated in 1992. The appellant continued to live in the house on the property and make payments to ATSIC.[5]
[5] Statement of Claim, par 4.
On 3 December 1996, ATSIC commenced proceedings against the appellant and her former partner in the District Court of Western Australia, claiming payment of $86,704.23 plus interest and possession of the property.[6] On 13 June 1997, the appellant signed a minute of orders consenting to entry of judgment for the amount claimed plus possession of the property. Also in June 1997, a written agreement was reached between the appellant and ATSIC, under which ATSIC would not seek to enforce the judgment if the appellant made agreed payments.[7] The statement of claim makes an unparticularised assertion that the appellant was 'conned and bullied' into signing the minute of consent orders.[8]
[6] Statement of Claim, par 8.
[7] Statement of Claim, par 12 - 22.
[8] Statement of Claim, par 17. See also Statement of Claim, par 87.
On 19 June 1997, judgment was entered in the District Court pursuant to the minute of consent orders.[9]
[9] Statement of Claim, par 19.
In April 1999, ATSIC gave the appellant notice that it intended to take possession of the property, and claimed that $90,104.69 was owed on the mortgage.[10] Writs of possession of the property were issued by the District Court on 11 August 1989 and 31 August 2000.[11] The bailiff took possession of the property on 5 October 2000.[12]
[10] Statement of Claim, par 23 - 24.
[11] Statement of Claim, par 25 - 32, 42.
[12] Statement of Claim, par 34.
The appellant returned to the property.[13] She was eventually removed in February 2001 when police charged her with 'being on premises without lawful excuse' and her bail conditions prevented her from returning to the property.[14]
[13] Statement of Claim, par 37.
[14] Statement of Claim, par 38 - 44.
The property was sold for $105,000 on 4 February 2002.[15]
[15] Statement of Claim, par 51.
The statement of claim pleads that various steps to enter and enforce judgment were taken by ATSIC without notice to the appellant. It also appears that she sought to dispute the amount owing under the mortgage. The pleading also names a number of possible heads of claim, generally without pleading facts that might establish such a head of claim.[16]
[16] Statement of Claim, par 121 - 124.
Master's reasons
After referring to the contents of the statement of claim, the master gave the following reasons for striking out the whole of the statement of claim and entering judgment for the respondents:[17]
The principles applicable to an application to strike out a statement of claim were set out in some detail by the defendants. It is not necessary to canvas those principles in these reasons. Suffice it to say the plaintiff must plead material facts which, if established, would lead to the grant of certain relief. The material facts must be clearly pleaded. It is not necessary for a plaintiff to plead a cause of action as such. It is material facts which are relevant. As and where necessary, particulars can be provided, however, the failure to provide particulars is not fatal to a pleading. The whole point of a pleading is to allow a defendant to understand the case it has to meet.
There are no material facts pleaded in this case which could give rise to any cause of action. There simply is no coherent story which would entitle the plaintiff to any relief. Even taking the most benign view of the pleading - and I am conscious the plaintiff appears in person - there is nothing in the narrative which hints at any cause of action. The pleading discloses that the Boulder property was mortgaged and that there was a default under the mortgage. Action was taken on the default and a consent judgment was entered. No attempt has been made to set aside that default judgment. What follows was enforcement of the default judgment. The property was sold and the mortgage discharged. It is difficult to see how the failure to bring certain documents to the attention of the plaintiff could in any way effect what seems a reasonable outcome consequent on a default under the mortgage.
During the course of her submissions the plaintiff indicated she could amend the statement of claim. There was no formal application to adjourn the matter on the basis that amendments would be made but it is appropriate I treat the plaintiff's comments as an application for an adjournment to allow for amendment. To grant the adjournment would be pointless. The pleading as it stands at the moment simply contains nothing which could give rise to a cause of action. That being so, to allow further time to amend the statement of claim would only increase costs and would be in no one's interests. Accordingly I would refuse any application for an adjournment to allow for amendment.
[17] Primary decision [6] - [8].
Disposition
As to ground 1, in our view, the master was plainly correct to conclude that the statement of claim did not disclose any reasonable cause of action. The pleaded facts acknowledged that judgment was entered in favour of ATSIC in the District Court for the amount claimed by ATSIC. The judgment gave possession of the property to ATSIC. The parties' rights merged with that judgment, which created a res judicata establishing, as between the appellant and ATSIC, the appellant's liability to ATSIC and ATSIC's entitlement to possession of the property. The District Court's judgment has not been set aside. Judgment was executed under the process of the court.
The fact that process relating to the entry and enforcement of the District Court judgment was not first served on the appellant (if established) would not provide a basis for impugning execution of the existing judgment.
In these circumstances, none of the other facts pleaded in the statement of claim provide any arguable basis for contending that the respondents are liable to the appellant in relation to the seizure and sale of the property. In any event, the statement of claim does not plead any conduct by any of the respondents which was capable of giving rise to a liability on their part to the appellant in respect of that seizure and sale. These fundamental deficiencies in the statement of claim were not capable of being cured by amendment.
As to ground 2, the master's written reasons adequately disclose the path of reasoning adopted to reach the conclusion that the statement of claim should be struck out and the action dismissed.
The appellant's submissions in support of her grounds of appeal raise a number of alleged procedural irregularities in the course of the primary proceedings and the District Court proceedings. None of those matters are capable of affecting the conclusion we have reached that the statement of claim did not disclose any reasonable cause of action, and that its deficiencies were not capable of being cured by amendment.
The appellant submitted, in effect, that the master's decision should be set aside because the court was 'covering up' the government's misconduct. There is no basis in the material before us for making that serious allegation.
For these reasons, we were of the view that neither of the appellant's grounds of appeal had any reasonable prospect of success. We therefore ordered that the appeal be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell13 SEPTEMBER 2019