Brennocks v Homewest (the Housing Authority)
[2020] WADC 18
•14 FEBRUARY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BRENNOCKS -v- HOMEWEST (THE HOUSING AUTHORITY) [2020] WADC 18
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 18 DECEMBER 2019
DELIVERED : 14 FEBRUARY 2020
FILE NO/S: CIV 3689 of 2018
BETWEEN: SHANE JASON BRENNOCKS
Plaintiff
AND
HOMEWEST (THE HOUSING AUTHORITY)
Defendant
Catchwords:
Application to strike out statement of claim - Turns on its own facts
Legislation:
Civil Liability Act 2002 (WA)
Residential Tenancies Act 1987 (WA)
Rules of the Supreme Court 1971 (WA), O 20
Result:
The statement of claim is struck out
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Mr J King |
Solicitors:
| Plaintiff | : | Not applicable |
| Defendant | : | Legal and Legislative Services - Department Of Housing |
Case(s) referred to in decision(s):
Donoghue v Stevenson [1932] AC 562
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Kidd v Artus t/as Downings Legal [2013] WASC 264
Lampson (Australia) Pty Ltd v Fortescue Group Metals Ltd [No 3] [2014] WASC 162
Lever Brothers Ltd v Bell [1931] 1KB 557
Sullivan v Moody [2001] HCA 59
Tame v State of New South Wales [2002] HCA 35
PRINCIPAL REGISTRAR MELVILLE:
Background
The plaintiff, who is not legally represented, commence proceedings against the defendant by writ issued to October 2018. The writ was endorsed with what was said to be an 'endorsement of claim' that ran into some 33 paragraphs over five pages and which contained a further four pages of photographs.
At a directions hearing on 30 April 2019 the plaintiff was ordered to file and serve a statement of claim and the directions hearing was adjourned to 21 June 2019. The plaintiff sought to comply by filing a document of some 116 paragraphs over 24 pages.
On 21 June 2019 the plaintiff was ordered to file and serve an amended statement of claim by 31 July 2019. Some 19 directions were made to deal with perceived shortcomings in the statement of claim.
No amended statement of claim was filed within the time ordered and on 3 October 2019 the defendant issued a chamber summons seeking orders that the action be dismissed pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) (RSC).
On 9 October 2019 the plaintiff filed an amended statement of claim and on 25 October 2019 the plaintiff filed yet another amended statement of claim. The defendant's application to strike out the action is now pursued in respect of the statement of claim filed 25 October 2019.
This is another case demonstrating the difficulties in dealing with unrepresented litigants. In some ways attempts by the court through its directions made 21 June 2019 to improve the situation has only succeeded in worsening the situation. The relevant directions made by Registrar Kingsley on 21 June 2019 were:
3.The amended statement of claim should:
(a)follow the template provided by the District Court to litigants in person;
(b)not attempt to give evidence or opinion in support;
(c)clearly set out the causes of action pursued and then list the facts that support these causes of action;
(d)only focus on the claims being pursued against the defendant and not digress into issues with third parties;
(e)not contain duplications of claims;
(f)be limited to times when the plaintiff was a tenant of the defendant;
(g)be substantially shorter than 25 pages;
(h)provide details about the specific allegations of fraud and set out the legal basis for such claims;
(i)address the jurisdiction of the District Court to go behind the decision of the Magistrates Court to order the termination of the plaintiffs tenancy and subsequent eviction;
(j)address the jurisdiction of the District Court to order the defendant to remove anything from its records;
(k)address the jurisdiction of the District Court to consider the defendants decision not to transfer the plaintiff;
(l)address the legal basis for any claim that the defendant has a common law duty to protect its tenants;
(m)address the legal basis for any claim that the plaintiff was induced to accept a tenancy and that he was placed in the premises (as opposed to being offered a tenancy which he accepted) in breach of some form of common law duty;
(n)address the legal basis for any claim that the defendant is vicariously liable for the actions of third parties;
(o)provide specific facts to support any claim that the defendant tried to intimidate silence threaten or harass the plaintiff;
(p)provide specific facts and dates relating to each item of disrepair claimed;
(q)address the legal basis for the claim that the defendant is liable for the loss and damage to the plaintiffs possessions;
(r) outline any physical or mental injury suffered by the plaintiff and the way such injury is related to specific parts of his claim; and
(s)set out the legal basis for the claim that the defendant is liable to pay general compensation of $467,000 and provide a breakdown of the heads of damages.
At its heart, the plaintiff's complaint appears to be that the defendant breached various terms of a tenancy agreement between he as tenant and the defendant as lessor, which terms are imposed by law, more particularly the Residential Tenancies Act 1987 (WA) (RTA), including in particular terms that the defendant would not permit any interference with the reasonable peace, comfort or privacy of the tenant in the use of the premises, and that the defendant must also take all reasonable steps to ensure that the defendant's neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in the use of the premises.[1] The breach has come about by the actions of other tenants and/or their guests for whom the tenants are vicariously responsible under the provisions of the RTA.[2]
[1] Section 44 of the RTA and sch 4 Form 1AA and Form 1AB.
[2] Section 50 of the RTA.
More particularly those actions involved the alleged burglary of, or trespass onto, the plaintiff's unit, the theft of his property, damage to his property, harassment, abuse and threats to his physical safety and mental well-being with consequent personal injury.
Out of that factual scenario appears to arise the plaintiff's claims which he describes in his statement of claim under the following headings:
(a)Fraud;
(b)Vicarious liability;
(c)Negligence breach duty of care;
(d)Defamation;
(e)Eviction proceedings; and
(f)Claim for damages.
The Residential Tenancy Act
To get a further sense of the context in which the plaintiff makes his allegations, it is necessary to make reference to various provisions of the RTA.
By s 43 the landlord is required to ensure that urgent repairs are carried out by a suitable repairer as soon as practical after having been notified by the tenant of the need.
By s 44(2) a tenant is to have quiet enjoyment of the premises without interruption by the lessor, the lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of the premises, and the lessor must take all reasonable steps to enforce the obligation of any other tenant of the lessor in occupation of adjacent premises not to cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
By s 50 it is a term of every residential tenancy agreement that the tenant is vicariously responsible for any act or omission of the person on the tenants premises with the permission of the tenant where that act or omission had it been done by the tenant would have constituted a breach of the agreement.
By s 59E it is provided that a lessor who causes or permits interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of premises commits an offence.
The plaintiff complains of breaches of s 71A(3) and s 71A(4), which subsections do not exist.
By s 75A it is open to a lessor to apply to the court for an order terminating a social housing tenancy agreement which order may be made if satisfied the tenant has caused or permitted a nuisance by the use of the social housing premises, or interfered, or caused to be permitted any interference, with the reasonable peace, comfort or privacy of any person who resides in the immediate vicinity of the premises, and that the behaviour justifies terminating the agreement.
Insofar as the plaintiff's claims have their origins in the defendant's alleged breach of the provisions of the RTA, it would seem they are primarily based on the proposition the defendant failed to take all reasonable steps to enforce the obligation of any other tenant of the lessor in occupation of adjacent premises not to cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises, the failure being constituted more particularly by failing to evict the other tenants or to commence legal proceedings with a view to obtaining an order to that effect.
Pleading rules
The rules applicable to how a statement of claim is to be pleaded can be found in O 20 of the RSC. By O 20 r 8(1) every pleading is required to contain only a statement in summary form of the material facts. By r 8 (2) the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated.
By O 20 r 13 every pleading must contain the necessary particulars of any claim including, without prejudice to the generality of the foregoing words, particulars of any misrepresentation or fraud and where a party alleges any condition of the mind of any person including fraudulent intention, particulars of the facts on which the party relies must be pleaded.
For a pleading to disclose a cause of action it must plead the material facts that establish the cause of action. If a material fact is missing, a cause of action is not disclosed.
In considering whether the pleaded material facts disclose a cause of action they are assumed to be true.
It is sufficient for the plaintiff to plead facts which disclose a cause of action. It is not necessary for him to plead the legal result of those fact or the existence of any particular liability or duty that arises from the facts alleged. Rather, the plaintiff may rely on any legal consequence which arise from the material facts.[3]
[3] Lever Brothers Ltd v Bell [1931] 1KB 557, 583.
By O 20 r 19(1) the court is empowered to order any pleading be struck out or amended on the ground that it discloses no reasonable cause of action or may prejudice embarrass or delay the fair trial of the action.
In considering whether the statement of claim discloses a cause of action the statement of claim like any document must be read in its entirety, as a whole. That being said, it is necessary for the plaintiff to plead the material facts in some sort of coherent order so that the reader, in this case the defendant and the court, can understand the case, rather than to send the reader off on a search for material facts which have been scattered throughout the pleading, a search akin to sending the reader on a search for numerous needles in a hay stack without even a guarantee that the needles are there.
As to whether the statement of claim may prejudice embarrass or delay the fair trial of the action, in Kidd v Artus t/as Downings Legal[4] it was said:
The ground that a plea may prejudice, embarrass or delay the fair trial of the action evokes a composite phrase. Pleadings may be struck out on this ground 'because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general': see HartRoach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998).
[4] Kidd v Artus t/as Downings Legal [2013] WASC 264 [26].
The purpose of pleadings
The Court of Appeal addressed the question of pleading in EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd[5] where it said at [124]:
Pleadings have two functions. First, to ensure a fair trial by putting the other party on notice of the case to be met. Secondly, to define the issues for decision so that the court can control the preparation of the case and the conduct of the trial. See Williams v Australian Telecommunications Commission(1988) 52 SASR 215, where King CJ said:
'The fundamental purpose of pleadings is to provide a structure or framework for the litigation designed to promote a just outcome. Pleadings achieve this purpose by performing two basic functions. The first is to define the issues between the parties thereby providing the basis for the determination of questions as to discovery before trial and admissibility of evidence at trial and of questions as to what the litigation has decided for the purpose of the Rules as to res judicata and issue estoppel. The second function is to give to the parties fair notice of the case to be made against them at trial thereby minimising the risk of injustice resulting from surprise (216).'
See also Mick Skorpos Petrol Discount King Pty Ltd v The Shell Company of Australia Ltd (1997) ATPR 41-556, 43,693 - 43,694 (Mansfield J).
[5] EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78 [124].
Pleadings are required to:[6]
[6] Order 20 r 8(1) of the RSC.
… contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.
If they do not the pleading is at risk of being struck out. In this regard I can do little better than quote the words of Vaughan J in National Australia Bank Ltd v Rowe:[7]
[7] National Australia Bank Ltd v Rowe [2018] WASC 330 [2] ‑ [7].
2It is said that this rule is applied in a more flexible way than was the case in earlier times in view of the principles of positive case flow management.
3Equally, referring to case management authorities as to the modern function of pleadings, it is often sought to justify an overly lengthy pleading by reference simply to whether it identifies the issues, discloses an arguable claim and informs the parties of the case that has to be met. The strictures of O 20 r 8(1) are ignored. Evidence is pleaded, either under the guise of being a material fact or by way of particulars, and the particulars themselves go beyond that which is necessary.
4It is simply wrong to read decisions such as Barclay Mowlem Construction Ltd v Dampier Port Authority as in any way condoning this approach. To the contrary, the goal in O 1 r 4A of the Rules of the Supreme Court 1971 (WA) and the objects of O 1 r 4B are best achieved through conscientious adherence to O 20 r 8(1). Prolixity obscures identification of the true issues in contention and adversely impacts on the proper and efficient preparation of a case and its presentation at trial. Where this style of pleading must be responded to a vast number of false issues will be raised. It places a significant burden on the parties, in terms of costs, and also the resources of the court.
5The requirements of O 20 r 8(1) should be observed in preparing a pleading. Practitioners may do so confident in the knowledge that a summary statement of the material facts - and only such a summary statement - is what is required by the rules. The true significance of the case management authorities in this area is that it is unnecessary to encumber a pleading with unnecessary particulars, and all the more so evidence, as it is inevitable that there will be subsequent pre-trial disclosure of the evidence to be adduced at trial.
6A pleading must identify the issues, disclose an arguable claim or defence, and inform the parties of the case to be met. In doing so it should be clear and complete but concise. That standard is not met by over-complicating the pleading with unnecessary particulars and evidence.
7A prolix pleading, offending the requirements of O 20 r 8(1) by its incorporation of unnecessary or irrelevant material, may be struck out on the ground that it will prejudice, embarrass or delay the fair trial of the action. Doing so, approaching the pleading as a whole rather than requiring the other party and the court to undertake the oppressive task of surgical excision to remove all but the material facts, will often be the means most conductive to meeting the goal in O 1 r 4A and the objects of O 1 r 4B.
(footnotes omitted)
The court's duty to unrepresented litigants
Notwithstanding the difficulties with the statement of claim the court must exercise care to ensure that an arguable case of an unrepresented litigant is not dismissed simply because it has been obscured by his own inadequate advocacy, a duty which extends to the way he has expressed his case in his pleadings.
The Court of Appeal said in Glew v Frank Jasper Pty Ltd:[8]
Due allowance must, of course, be made for the fact that Mr Glew is unrepresented. A court should always be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy': Neil v Nott [1994] HCA 23 [5]; (1994) 121 ALR 148, 150. It must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case. And some leniency may be required in relation to compliance with the rules. But in the end the allowances that can be made for a litigant in person are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the court.
[8] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
Strike Out Application
In addition to the principle set out in the cases referred to above, in the context of an application to strike out a statement of claim it is also necessary to have regard the following principles which I have taken from Lampson (Australia) Pty Ltd v Fortescue Group Metals Ltd [No 3]:[9]
The principles in relation to strike out applications are well known. They are one of the few matters in the course of these proceedings which are not controversial. The principles were summarised by Master Staples in Kimberley Downs Pty Ltd v Western Australia in a passage which has been quoted with approval on numerous occasions
(1) The rule is intended to apply only to cases which are really not arguable and not to cases where under the previous practice demurrer would have been the proper course: Packhard v Transport Trading and Agency Co Ltd [1912] WALawRp 44; (1912) 14 WALR 191 per Burnside J at 195.
(2) On the application, not only must all the facts alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable: Niven v Grant [1904] VicLawRp 14; (1903) 29 VLR 102 per Holroyd J at 106.
(3) Great care must be exercised to ensure that the plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal: General Steel Industries Inc v Commissioner for Railways NSW[1964] HCA 69; (1964) 112 CLR 125 at 130.
(4) But the rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot succeed: General Steel Industries Inc v Commissioner for Railways NSW[1964] HCA 69; (1964) 112 CLR 125 at 130.
(5) As a general rule, a plaintiff is entitled ... as of right to have his case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out: Dalgety Australia Ltd v Rubin (Unreported, WASC Full Court, Lib No 5485, 24 August 1984, per Burt CJ).
(6) A court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie: Hospitals Contribution Fund of Australia v Hunt(1983) 44 ALR 365 per Master Allen.
[9] Lampson (Australia) Pty Ltd v Fortescue Group Metals Ltd [No 3] [2014] WASC 162 [44].
In this case it is not the easiest of tasks to attempt to discern from the plaintiff's statement of claim what claim or claims he may have. Rather than concisely pleading the material facts, the pleading is long winded, containing repetitive statements, colourful and emotive language, conclusions and opinions. For example, the statement of claim unnecessarily duplicates pars 13 and 14, duplicates pars 16 and 17, duplicates pars 19 and 20, and triplicates par 15, par 18 and par 21. The plaintiff uses language such as 'similarly terrorised and victimised tenant's homes, or the complex in general' and 'horrifically violent incidents' with a lack of particularity or detail of what exactly the incidents were, how they were violent and how they were horrifically violent. The claims are pleaded with a high degree of generality and a lack of particularity.
I now turn to the plaintiff's statement of claim as set out under his own headings.
Fraud
The plaintiff appears to allege that he was induced to enter into the tenancy agreement by fraudulent representations, which he appears to describe as lies, or alternatively negligent misrepresentations of the defendant, its servants or agents as to the histories of offending from known repeat violent, dangerous and/or criminally disruptive tenants with intent to gain his assent to accept the property and induce him to sign the lease agreement. Two tenants are identified as the known repeat violent dangerous and/or criminally disruptive tenants.
However, the misrepresentations are not stated. The identity of the person who made the representation and how that persons representations should be attributed to the defendant are not pleaded. They need to be pleaded.
The plaintiff appears to further plead that in the alternative that the fraud was perpetrated by 'not disclosing the known past and present history relating to the inherent risks in danger when specifically question in that regard'.This pleading appears to be inconsistent with the previous pleading of fraudulent or negligent misrepresentation constituted by lies and as such offends O 20 r 11 of the RSC.
The plaintiff also alleges that the defendant lied to and/or misled the plaintiff claiming issues identified affecting the habitability of the home previously raised by the plaintiff had been repaired or remedied and that was not the case. What was said that is alleged to be the lie or misrepresentation and who said it and by what authority they said it is not pleaded. Again, they need to be pleaded.
In my view the lack of these details constitute a failure to comply with O 20 r 13 of the RSC and may prejudice embarrass or delay the fair trial of the action. Further, they constitute a failure to comply with order 3(h) of Registrar Kingsley made 21 June 2019.
Vicarious Liability
The three paragraphs pleaded under this heading pleads and puts the defendant on notice of the application of s 50 of the RTA that provides a tenant is vicariously liable for the actions of his or her guests, the acts of the tenant's guests therefore being the acts of the tenant. This proposition then lays the groundwork for the allegation that the defendant was in breach of the RTA and the tenancy agreement in not taking all reasonable steps to ensure that the defendant's neighbouring tenants did not interfere with the reasonable peace, comfort or privacy of the tenant in the use of the premises. Although prolix, this pleading will not prejudice, embarrass or delay the fair trial of the action. I would not strike it out.
Negligence breach duty of care
When the pleadings are read in their totality it is apparent that the plaintiff pleads facts that go some way to arguably establishing a relationship between the plaintiff and the defendant sufficiently close enough to impose upon the defendant a duty to take reasonable care to ensure the plaintiff is not injured by the defendant's acts or omissions.
The High Court has addressed the common law position in Tame v State of New South Wales,[10] endorsing the comments of Lord Atkin in Donoghue v Stevenson[11] in which it was said a duty is owed to:
… persons who are so closely and directly affected by my act that I ought to reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question …
[10] Tame v State of New South Wales [2002] HCA 35.
[11] Donoghue v Stevenson [1932] AC 562.
The High Court expressed the view this duty of care extends to preventing not only physical injury to those to whom a duty is owed, but in some circumstances also psychiatric injury. Where there is no physical injury but is only a psychiatric injury the duty of care would only seem to arise whether defendant knew or ought to have known that this particular plaintiff lacked normal fortitude and was particularly vulnerable or susceptible to psychiatric injury as a result of any of its acts or omissions.
However this position is controlled by the provisions of the subsequently operative Civil Liability Act 2002. Relevant sections of the Act provide as follows:
5Q.Terms used
In this Part -
consequential mental harm means mental harm that is a consequence of a personal injury of any kind;
mental harm means impairment of a person's mental condition;
pure mental harm means mental harm other than consequential mental harm.
…
5S.Mental harm: duty of care
(1)A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2)For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following -
(a)whether or not the mental harm was suffered as the result of a sudden shock;
(b)whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;
(c)the nature of the relationship between the plaintiff and any person killed, injured or put in peril;
(d)whether or not there was a pre‑existing relationship between the plaintiff and the defendant.
(3)For the purpose of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.
(4)This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.
5T.Liability for pecuniary loss for consequential mental harm
A court cannot make an award of personal injury damages for pecuniary loss for consequential mental harm unless the harm consists of a recognised psychiatric illness.
Broadly stated, and in this regard what follows is my distillation of the plaintiff's case from the various facts I have extracted from the different parts of his pleading and brought together, the plaintiff alleges the defendant had a legal obligation not to cause or permit any interference with the reasonable peace, comfort or privacy of the plaintiff in the plaintiff's use of the premises, and to take all reasonable steps to enforce the obligation of any other tenant of the lessor in occupation of adjacent premises not to cause or permit any interference with the reasonable peace, comfort or privacy of the plaintiff in the use by the plaintiff of the premises. Further, by reason of the fact that the relationship between the plaintiff and the defendant was governed by a social housing residential tenancy agreement, the defendant knew or ought to have known that the plaintiff was of limited means and not able to afford private accommodation and therefore was particularly reliant on his contractual relationship with the defendant.
These circumstances combine to present an arguable case for the defendant to be held to owe the plaintiff a duty of care.
I further distil from the pleading that the plaintiff then seems to allege the defendant breached this duty of care by, among other things:
1.failing to control the behaviour of the tenants of the adjacent properties, more particularly by failing to evict them, or take steps to have them evicted;
2.threatening to evict him for his complaints when he left the property due to fear for his safety;
3.failing to provide better security by way of 'proper barrier doors and screens covering all front facing windows and doors, … as well as strengthened glazing or safety doors';
4.failing to ensure urgent repairs were carried out contrary to s 43 of the RTA more particularly repairs to windows which were boarded up for 4½ months with the result the plaintiff was unable to keep his property and threats under surveillance; and
5.failing to relocate the plaintiff
The plaintiff alleges tenants of four adjacent premises and/or their guests caused and permitted interference with his peace comfort or privacy and identifies those four groups of tenants at pars 13, 16, 19 and par 22. Some of the behaviour that is said to have constituted the alleged interference is described as violent, criminal, destructive or otherwise serious interference and is further particularised in some respects as burglaries, theft and damage. However, in my view what each of the identified tenants or the guests of those tenants did, when they did it and what particular loss or damage each of those identified tenants or guests thereof caused at the time of that interference and the value thereof is not stated. Again, the plaintiff has failed to comply with the order of Registrar Kingsley at 3(s) to provide a breakdown of the heads of damages and failed to comply with O 20 r 13 of the RSC.
However the plaintiff does not plead when the defendant became aware or should have become aware the tenants of the adjacent properties and/or their guests were interfering with the plaintiff's right to peaceful enjoyment of his tenancy. Nor does he plead when the defendant ought to have commenced proceedings for the eviction of the tenants or what injuries he suffered as a result of the failure to commence the proceedings or to obtain the orders.
Similarly the defendant and the Court is left to guess what might constitute the 'threat' to evict the plaintiff, what constitutes 'proper barrier doors', what constitutes 'proper screens' and how s 43 of the RTA is enlivened given the lessor's obligation to repair only arises after notification by the tenant of the need to repair. It is necessary for the defendant to know when notice was given, how it was given, the purport of what was said or written and how that failure is related to the injuries of which the plaintiff complains.
In this regard the chronology of the material facts is essential to any cause of action because injuries suffered before the alleged failures of the defendant, such as the failure to take proceedings at the appropriate time to evict tenants of adjacent premises, cannot form part of his claim. In this regard it is impossible to discern from the pleadings a chronology pointing to a causal relationship between the defendant's alleged failures and the plaintiff's injuries and the plaintiff has failed to comply with the orders of Registrar Kingsley made the 21 June 2019 at order 3(r).
Furthermore, whilst the plaintiff alleges he was injured it is not clear whether he is alleging physical and consequential mental harm or pure mental harm as those terms are defined in the Civil Liability Act. Reference is made to injuries consistent with a recognised psychiatric illness such as PTSD and depression but no physical injuries are particularized. The defendant is entitled to know whether it is facing a claim for consequential mental harm or a claim for pure mental harm as that changes the case the defendant has to meet, the matters that it needs to consider and the investigations into the evidence it needs to undertake.
In my view sufficient is pleaded under this heading to suggest the plaintiff might have an argument that warrants going to trial. However such an argument is well and truly buried within a pile of verbiage. The pleading at such a high level of generality and so lacking in particulars should be struck out on the basis that in its current form it is prejudicial, embarrassing and likely to delay the fair trial of the action. The plaintiff should be given a further opportunity to more precisely and concisely plead out any cause of action having regard to the matters discussed above, including the pleading in a chronological order of the matters that are alleged to have caused, and how:
(a) the physical injuries, the consequential mental harm if any, or the pure mental harm if any, together with any expenses incurred by way of treatment for those injuries, any past and future loss of income; and
(b) itemised property damage, concisely incorporating the nature and extent of the property damage, who caused each discrete item of property damage and the cost of that discrete item of damage, as was required by the order of Registrar Kingsley at order 3(p).
Defamation
Under the heading 'defamation' can be found the plaintiff's allegation that he was defamed by a tenant of the adjacent premises in that tenant's communications with the defendant. Contrary to O 20 r 13(1) and r 8(2) of the RSC those communications or the effect or purport of them are not stated.
In my view the material facts that must be pleaded in all cases of defamation are:[12]
(a)the matter complained of, being the words used that are alleged to be defamatory;
(b)the publication of those words by the defendant including when where and how;
(c)the allegation the matter complained of was defamatory;
(d)the allegation that it was published of and concerning the plaintiff; and
(e)the relief claimed.
[12] Australian Defamation Law and Practice, LexisNexis Butterworths, Vol 1 [17-051].
In this case the plaintiff completely fails to plead the words alleged to have been defamatory and as such the statement of claim fails to disclose a cause of action.
The plaintiff then alleges the defendant
without properly clarifying the likely malicious intent of those allegations having regard to the suspicious circumstances in which they were made … published those allegations to a government database accessible to authorised government employees (such as Homeswest staff) and published this information on his tenancy record.
The plaintiff alleges the communications made by the tenant to the defendant were false, malicious, dishonest and 'potentially defamatory or defamatory complaints and were intended to cause harmful interference with his privacy comfort and quiet enjoyment of his premises'. It is unsatisfactory to allege the communications are 'potentially defamatory'. Either they are or they are not. And whilst the question of malice may be relevant to an action brought by the plaintiff against the tenant who is alleged to have made the statements they are irrelevant in an action brought against the defendant.
At par 50 the plaintiff then alleges the defendant was negligent in that 'it was foreseeable that without properly handling this matter in regard by unnecessarily disclosing information to Homeswest staff that have a direct relationship with the plaintiff it could negatively impact that relationship and interfere with the plaintiff's tenancy as well as his privacy and quiet enjoyment' [sic]. To say this 'could' negatively impact simply raises the possibility, which is insufficient. Either it did or it did not. Further, allegations of negligence do not to have any relevance to an action in defamation. Nor, in my view, can a cause of action in negligence arise in circumstances where the facts relied upon give rise to a cause of action in defamation.[13]
[13] Sullivan v Moody [2001] HCA 59 [54].
At par 51 the plaintiff alleges the department was negligent to not only him but another person when it failed to properly and discreetly investigate the matter. Again, the question of negligence is not relevant to an action in defamation. Further, department's negligence in respect of another person is not relevant to any claim the plaintiff may have against the defendant either in negligence nor defamation. This pleading again introduces irrelevancies and does not comply with the order of Registrar Kingsley that the plaintiff not digress into issues with third parties.
At par 52 the plaintiff complains that the defendant did not report the matter to the police on the basis the complaints made by the tenant might constitute a breach of a serious breach of a protection order. Again, how this is relevant to a cause of action in defamation is not discernible.
At par 53 the plaintiff alleges:
defamation in regards both libel and slander every regard and action, or otherwise failure to clarify the likely nature of the complaint and alleged conduct in that regard, especially where that information was published disclosed or unnecessarily disclosed in this and every regard.
This is incomprehensible.
The pleading under the heading defamation is best described as a generalised litany of complaints and grievances about the defendant that have no apparent connection to an action for defamation. To the extent there is any allegation suggestive of defamation, the alleged defamatory statements are not pleaded.
This part of the statement of claim should be struck out.
Eviction proceedings
The complaint described under this heading is in respect of the alleged failure of the defendant in not providing the Fremantle Magistrates Court with the plaintiff's proper service or postal address in relation to eviction proceedings brought by the defendant and the allegation those eviction proceedings were vexatious and contrary to the provisions of the RTA. The plaintiff cites the non‑existent RTA s 71A(3) and s 71A(4).
At par 59 the plaintiff pleads 'as a result the plaintiff did not receive service of court proceedings and was evicted by the courts in his absence'. The plaintiff alleges the defendant was negligent in this regard and additionally breached a statutory duty to provide service of proceedings and breached its further obligation to the court to provide correct service address information regards to any proceedings. For this the plaintiff seeks damages and compensation. However, in my view it is implicit in this pleading that the defendant obtained an order of the Magistrates Court giving the defendants possession of the premises. For so long as that order stands the defendants must be regarded as having acted in accordance with its lawful rights.
In my view the plaintiff's remedy, if any, is to apply to the Magistrate Court to set aside any judgement obtained in default, if that be the case, or to appeal that decision.
This part of the claim should be struck out.
Conclusion
Several of the purported causes of action should be struck out as not disclosing a cause of action. The remaining allegations may give rise to a cause of action for breach of contract, fraud and negligence which is being concealed by prolix pleading, the pleading of irrelevant facts and a failure to plead relevant particulars.
My view the best way to proceed is to strike out the whole of the statement of claim and to give the plaintiff the opportunity to concisely replead his statement of claim insofar as he alleges facts disclosing breach of contract, fraud and negligence. It is unduly oppressive to ask the court to attempt to surgically excise all but the material facts with the hope that what is left will disclose an arguable cause of action or a novel case that should be permitted to proceed to trial before a judge.
The plaintiff in repleading should be mindful of the need to plead the particulars of damages as ordered by Registrar Kingsley at order 3(p) and insofar as is possible be mindful of the need to comply with O 20 r 13(2) of the RSC.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ET
Court Officer13 FEBRUARY 2020
0
10
3