Branwhite v Colac Otway Shire Council
[2013] VCC 470
•1 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-13-00248
| STEPHEN MARK BRANWHITE | Plaintiff |
| v | |
| COLAC OTWAY SHIRE COUNCIL | Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2013 | |
DATE OF RULING: | 1 May 2013 | |
CASE MAY BE CITED AS: | Branwhite v Colac Otway Shire Council | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 470 | |
REASONS FOR JUDGMENT
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application for judgment – whether the statement of claim disclosed a cause of action – whether the proceeding was competent in the plaintiff’s name – principles applicable to entry of judgment pursuant to s62 of the Civil Procedure Act 2010 – practical assessment of the plaintiff’s prospects of success – whether any prospect of a fair trial on the plaintiff’s pleadings
Legislation Cited: Civil Procedure Act 2010, s62
Cases Cited: Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222; Knorr v CSIRO & Ors [2012] VSC 83; Knorr v CSIRO & Ors (No 2) [2012] VSC 268; Knorr v CSIRO & Ors (No 3) [2012] VSC 259; Karam v Palmone Shoes Pty Ltd & Anor [2012] VSCA 97
Judgment: The defendant have judgment in the proceeding brought against it by the plaintiff pursuant to s62 of the Civil Procedure Act 2010
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | - |
| For the Defendant | Mr M Hoyne | Hoeys Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1 By a Writ filed 22 January 2013, the plaintiff brought a proceeding against the defendant alleging conduct on the part of the defendant which resulted in the plaintiff suffering loss and damage.
2 The defendant filed a Defence on 27 February 2013 which pleaded, in effect, that the defendant did not understand the allegations raised in the Statement of Claim and that it did not disclose a cause of action.
3 The defendant filed a Summons on 7 March 2013 applying for an order pursuant to rule 23.01(1)(a), (b) and (c) that the plaintiff’s proceeding be dismissed, and in the alternative, pursuant to rule 23.02, that the Statement of Claim be struck out. The application was supported by an affidavit sworn by Mr John Francis Hoey on 4 February 2013.
4 An order was made on the papers for the Summons to be adjourned from 7 March 2013 to 22 March 2013. On that occasion the plaintiff appeared in person, and Mr Hoyne of counsel appeared for the defendant.
The Hearing
5 On 22 March 2013, Mr Hoyne submitted that the Statement of Claim endorsed on the Writ did not disclose a cause of action, and that I should dismiss the plaintiff’s proceeding altogether.
6 The Statement of Claim comprises five paragraphs in handwriting. Essentially it pleads:
· Paragraph 1, that the defendant has engaged in misleading and deceptive practices, in contravention of local government laws and the Victorian Charter of Human Rights and Responsibilities relevant to fines and Court actions brought against the plaintiff.
· Paragraph 2, that if the defendant had adhered to Victorian government laws and best practices then the plaintiff would not have been fined and would not have been taken to court, and that criminal proceedings brought against him would not have resulted in convictions. Furthermore, that if the foregoing had not occurred, then his business venture would not have been affected.
· Paragraph 3, that the plaintiff seeks justice which was refused in his criminal trial and criminal appeal. It then makes reference to the Ombudsman, the yet to be created independent broad-based Anti-Corruption Commission, and that if he had a trial before a judge and jury, he would be entitled to monetary compensation and the planning approval, presumably for use of the land which he referred to in his oral submissions.
· Paragraph 4, that the planning approval, presumably for use of the land which he referred to in his oral submissions, be granted to the owners of the land at 1490 Princes Highway and 40 Ryans Road, Pirron Yallock.
· Paragraph 5, that penalties should be imposed upon officers of the defendant because of misleading conduct on their behalf which occurred in meetings, presumably had between the plaintiff and those officers.
7 Putting the matter simply, the Statement of Claim just makes no sense. I was not prepared to wrestle with the Statement of Claim to try to determine what the plaintiff was getting at.
8 Mr Hoyne submitted that I should not make an order giving the plaintiff leave to file and serve an Amended Statement of Claim, but that I should strike out the Statement of Claim and give the plaintiff leave to make such an application. The plaintiff informed me orally that he wished to make such an application. On that footing I made an order on 22 March 2013 that such application be heard on 22 April 2013, and that the plaintiff serve a copy of his Amended Statement of Claim on the defendant, and provide me with a copy of it at the commencement of the application.
9 On 22 April 2013, the plaintiff provided me with an Amended Statement of Claim and an affidavit sworn by him on 22 April 2013. The Statement of Claim is really no better than the plaintiff’s original Statement of Claim:
· Paragraph 1 pleads that the defendant engaged in misleading and deceptive practices relevant to a dam application made by the plaintiff and planning permits relevant to the vineyard which he apparently wanted to establish. It pleads a contravention of the Local Government Act 1989.
· Paragraph 2 pleads that the plaintiff applied for a planning permit to run a pest control business and alleges that the fee that he paid has been misappropriated. It pleads a contravention of the Crimes Act 1958.
· Paragraph 3 pleads that the plaintiff was fined by the defendant for constructing a dam without a planning permit despite an attempt on his part to obtain such a planning permit, presumably before the dam was constructed.
· Paragraph 4 pleads that the plaintiff was fined by the defendant for undertaking construction works without a planning permit.
It makes reference to a VCAT proceeding, and a criminal proceeding brought against the plaintiff in which he was found guilty, and a proceeding before Judge Cohen of this Court, which I now understand was an appeal from the Magistrates’ Court.
· Paragraph 5 pleads that the plaintiff suffered a broken leg, which I take to mean that he was in some way inconvenienced, and then makes reference to a Mrs Stones, and his application and Mrs Stones’ application being amalgamated, presumably relevant to a VCAT proceeding referred to later in that paragraph. It then pleads a public declaration relevant to a public road, and then criminal charges relevant to building work which the plaintiff undertook on the road, and then it makes reference to a number of VCAT proceedings.
· Paragraphs 6 and 7 plead that someone gave false evidence relevant to the plaintiff’s building and planning permits in contravention of the Crimes Act 1958.
· Paragraphs 8, 9 and 10 plead that the plaintiff seeks damages, that the Court issue building permits to the present owners, presumably of the land the subject of the planning permits, and that the plaintiff be entitled to recover costs and expenses incurred, presumably as a result of some fault on the part of the defendant.
10 In his affidavit, the plaintiff deposes to the fact that he was the owner of land at 1490 Princes Highway, Pirron Yallock. It gives some insight into the plaintiff’s purchase of the land and his dealings with the defendant relevant to his use of the land. In the course of his oral submissions it became apparent that the plaintiff, and Mrs Stone, made applications to VCAT, presumably for planning permission relevant to the use of the land. It also became apparent that the plaintiff had charges laid against him by the defendant which were heard in the Magistrates’ Court. The plaintiff was convicted and fined. He appealed to the County Court. His appeal was heard by Judge Cohen. I was left with an understanding that the plaintiff’s appeal was unsuccessful, and that a costs order was made against him.
11 Whatever the status of the plaintiff’s work on the land was, he nonetheless made a number of applications for planning permits, which I presume were refused because he and Mrs Stones appealed to VCAT to have the defendant’s refusal overturned. Additionally, the extent of the breaches of the law relevant to the plaintiff’s use of the land resulted in him being charged with offences. He was successfully prosecuted, and his appeal to this Court was dismissed. A significant order for costs was made against him in connection with the criminal proceedings.
12 The foregoing appears to me to be at the heart of the proceeding brought by the plaintiff in this Court. It appears to me that what the plaintiff is really trying to do is to bring a civil proceeding for damages which will involve litigating the very same matters which were dealt with at VCAT and in the Magistrates’ Court and in this Court.
13 The plaintiff’s attempt at amending the Statement of Claim still does not make any sense. Even with what the plaintiff deposed to in his affidavits and what he said in his oral submissions, it is difficult to define what possible cause/s of action the plaintiff could have against the defendant.
Disposition
14 Section 62 of the Civil Procedure Act 2010 is in the following terms:
“A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.”
15 Section 63(1)(c) of the Civil Procedure Act 2010 provides that the Court of its own motion may give summary judgment if satisfied that it is desirable to summarily dispose of the civil proceeding. I propose to deal with this application under s62.
16 In Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd,[1] Justice Dixon reviewed a number of authorities relevant to giving summary judgment, in particular, in the context of s62, and he very helpfully summarised the legal principles as follows:
[1][2011] VSC 222
“In summary I consider the principles which now apply, in the context of this application, to be:
(1) If a proceeding or defence, or any particular claim, cause of action or ground of defence (‘claim’) is hopeless, untenable, bound to fail, or could not possibly succeed, then it ought be summarily dismissed. In other words, a claim which ought be dismissed under the old test will be dismissed under s 63.
(2) Section 63, however, is less stringent. It does not direct an inquiry into whether a certain and concluded determination could be made that the proceeding, or a claim, would necessarily fail. What is required is a practical judgment by the court as to whether a claim has more than a ‘fanciful’ prospect of success
(3) The court’s discretion whether to exercise the power of summary dismissal is very wide. Section 64 of the Act expresses that the power is based in a consideration of the interests of justice. The Act provides direction in Pt 2.1. The discretion is to be exercised to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties. The court’s powers in furthering the overarching purpose are facilitated by having regard to the objects and matters set out in s 9 of the Act.
(4) The court may be satisfied, on an interlocutory application, that there is no real prospect of success in a civil proceeding but nevertheless consider the dispute to be of such a nature that only a full hearing on the merits is appropriate. Whether a full hearing on the merits is appropriate is a relevant discretionary consideration in the circumstances of each proceeding.
(5) The power to order summary dismissal is to be exercised with great care, as a trial upon evidence of issues raised is the well-settled approach to the determination of litigation. When proceeding on a summary application to assess the prospect of success, a judge ought to feel confident that an assessment can properly be made of whether the overarching purpose is facilitated on dismissal of the impugned claims.
(6) That argument directed to the issues relevant on the application, perhaps even extensive submissions, may be necessary to demonstrate that the case of the plaintiff has no real prospect of success is not ordinarily a relevant consideration.”[2]
[2]paragraph 18. Footnotes omitted.
17 Even on the basis of the principles of law which applied prior to the Act, it seems to me that it is apt to describe the plaintiff’s proceeding as untenable, bound to fail, and one which could not possibly succeed.
18 Justice Beach dealt with a similar situation in Knorr v Commonwealth Scientific and Industrial Research Organisation (CSIRO) & Ors[3] in which the statement of claim was described by his Honour as manifestly defective, non-compliant with the ordinary rules of pleading, and that to permit a trial to proceed on the basis of the pleading would undoubtedly prejudice, embarrass and delay a fair trial the proceeding. Likewise, his Honour refused to go through each paragraph of the statement of claim to identify its manifest defects. He ordered that the statement of claim be struck out.
[3][2012] VSC 83
19 The proceeding returned before Justice Beach on two further occasions.[4] On the second occasion, his Honour was faced with an amended statement of claim with the same manifest defects. His Honour refused to grant the plaintiff leave to file and serve an amended statement of claim, but preferred to allow the plaintiff to make an application for leave to file and serve a further amended statement of claim. The plaintiff made such an application.
[4]Knorr v CSIRO & Ors (No 2) [2012] VSC 268 and Knorr v CSIRO & Ors (No 3) [2012] VSC 259
20 Justice Beach refused the plaintiff leave to file and serve a further amended statement of claim. In doing so, his Honour repeated the same observations he made about the first statement of claim. He cited from the judgment of Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd & Anor[5] in which their Honours made a very relevant observation that a self-represented litigant cannot be allowed forever to stand behind the shield of their own ignorance, especially when it continues to subject other parties to cost and inconvenience and adds pointlessly to the load on the court’s already limited resources. There comes a time at which a self-represented litigant must be required to take responsibility for their choices.
[5][2012] VSCA 97 at paragraph 38
21 I consider the observations of Nettle and Osborne JJA to apply here with great force. I informed the plaintiff on 22 March 2013 that if he did not plead his Statement of Claim in accordance with the rules, that of my own motion I would enter judgment for the defendant pursuant to s62 of the Civil Procedure Act 2010. I referred the plaintiff to a recently appointed officer of the Court whose responsibility it is to give advice to litigants in person of legal services available which might avail litigants in person to determine whether they have a cause of action, and the steps which must be taken to plead it so that it will survive an attack upon it. I understand that the plaintiff availed himself of the referral which I made.
22 After hearing the plaintiff’s oral submissions it became plain to me that any order I might be inclined to make to give him yet another chance to plead a statement of claim in accordance with the rules and which disclose a cause of action will be futile. It will not result in anything better than the two attempts he has made so far.
Orders
23 The orders I will make in this proceeding are that the plaintiff’s application for leave to amend the Statement of Claim is refused; the defendant have judgment in the proceeding brought against it by the plaintiff pursuant to s62 of the Civil Procedure Act 2010, and that the plaintiff pay the defendant’s such costs to be assessed by the Costs Court, in default of agreement.
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