Bonney v Commonwealth of Australia

[2019] WASC 273

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BONNEY -v- COMMONWEALTH OF AUSTRALIA [2019] WASC 273

CORAM:   MASTER SANDERSON

HEARD:   22 JULY 2019

DELIVERED          :   22 JULY 2019

PUBLISHED           :   30 JULY 2019

FILE NO/S:   CIV 3044 of 2018

BETWEEN:   JENNIFER BONNEY

Plaintiff

AND

COMMONWEALTH OF AUSTRALIA

First Defendant

STATE OF WESTERN AUSTRALIA

Second Defendant

INDIGENOUS BUSINESS AUSTRALIA

Third Defendant

Catchwords:

Practice and procedure - Application by defendants to strike out statement of claim - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Result:

Statement of claim struck out
Judgment entered for defendants

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	Ms B J Michalk
Second Defendant	:	Ms E O'Keeffe
Third Defendant	:	Ms B J Michalk

Solicitors:

Plaintiff	:	In Person
First Defendant	:	Sparke Helmore Lawyers
Second Defendant	:	State Solicitor's Office
Third Defendant	:	Sparke Helmore Lawyers

Case(s) referred to in decision(s):

Nil

MASTER SANDERSON:

1. These were the defendants' applications to strike out the plaintiff's statement of claim.  At the conclusion of the hearing I indicated that the statement of claim would be struck out and judgment would be entered for the defendants.  I also foreshadowed costs orders consequent upon the defendants' successful application.  I said I would publish reasons for my decision.  These are those reasons.

2. The statement of claim was lodged on 22 February 2019.  It is a lengthy document running to 20 pages and 126 paragraphs.  It commences by pleading that on 7 July 1989 the plaintiff entered into a mortgage with the Aboriginal Development Corporation (the ADC) in relation to a property in Boulder.  The details of that mortgage are not pleaded but there is no reason to suggest it was not in a common or standard form.  That is to say money was loaned to the plaintiff and her then husband to allow for the purchase of the Boulder property.  Interest charged was charged on the outstanding balance and periodic payments of principal and interest were required.  The lender was the ADC.  That body was subsequently abolished and replaced by the Aboriginal and Torres Strait Islander Commission (ATSIC) who became the mortgagor.  It appears the plaintiff and her then husband defaulted under the mortgage and ATSIC issued proceedings.  This action was, according to the statement of claim, commenced in the District Court and appears to have sought payment of outstanding arrears.[1]  It did not seek possession of the property.  By a minute of consent orders dated 13 June 1997 the plaintiff (and, it would seem, her then husband) agreed to judgment in an amount of $86,704.23 together with interest.[2]  According to the statement of claim, the consent judgment also required the plaintiff to deliver up possession of the property if there was any default under the consent judgment.

   [1] Statement of claim filed 22 February 2019, par 6.

   [2] Statement of claim filed 22 February 2019, par 17.

3. It appears there was a default and on 11 August 1999 ATSIC issued execution by way of a writ of possession – at the time the Civil Judgments Enforcement Act 2004 (WA) had not come into operation. For one reason or another the District Court bailiff did not take possession pursuant to the writ and on 31 August 2000 a second writ of possession was issued. On 5 October 2000 the Kalgoorlie bailiff seized the property.

4. There followed some proceedings in the Kalgoorlie Magistrates Court in relation to the seizure of the property and the actions of the plaintiff subsequent to that seizure.  Nothing seems to turn on any of that material.  It would appear the property was sold pursuant to the possession order, although that is not clear from the pleading.  It would also appear there were steps taken in the District Court to obtain certain payments from the plaintiff.  Once again it is not clear what relevance all of that has to the plaintiff's present complaints.

5. By paragraph 80 of the statement of claim the plaintiff sets out a series of documents and orders she says were not served upon her.  By paragraphs 81 through to 84 she complains about certain other irregularities in a number of documents.  By paragraphs 85 through to 90 she complains of a number of procedural irregularities in relation to the minute of consent orders lodged in the District Court.  By paragraphs 91 and 92 she complains about the way in which the writ of possession was issued and executed.  The remainder of the statement of claim is difficult to follow and does not appear to advance the plaintiff's case.

6. 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.

7. 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.

8. 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.

9. As I foreshadowed at the hearing, the orders to take effect upon publication of these reasons are as follows:

   (1)the statement of claim be struck out;

   (2)there be judgment for the defendants;

   (3)the plaintiff pay the costs of the applications, and costs of the action, including reserved costs, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DG
Associate to Master Sanderson

30 JULY 2019