| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : FAZIO -v- THE CITY OF MELVILLE [No 2] [2013] WADC 147 CORAM : PRINCIPAL REGISTRAR GETHING HEARD : 14 AUGUST 2013 DELIVERED : 18 SEPTEMBER 2013 FILE NO/S : CIV 3425 of 2012 BETWEEN : ARTURO FAZIO Plaintiff
AND
THE CITY OF MELVILLE
First defendant
JOHN FREDERICK PARK
Second defendant
Catchwords: Practice and procedure - Strike out application - No reasonable cause of action - Trespass - Negligence - Deceit - Conspiracy - Good faith - Privacy - Malicious prosecution Legislation: Local Government Act 1995 (WA) s 8.6 (3)
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Result: Statement of claim struck out
Representation: Counsel:
Plaintiff : In person
First defendant : Mr J F Park
Second defendant : No appearance
Solicitors:
Plaintiff : Not applicable
First defendant : Park Linfoot Legal Solutions
Second defendant : Roach Legal Consulting Services
Case(s) referred to in judgment(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209
Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Brocx v Hughes [2010] WASCA 57
Citi Nominees Pty Ltd v Fenny [2006] WASC 97
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Derry v Peek (1889) 14 App Cas 337
Fairworld Holdings Pty Ltd v Burrup Fertilisers Pty Ltd [No 3] [2012] WASC 190
General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hancock Family Memorial Foundation v Porteous (Unreported, WASCA, Lib No 970320, 20 June 1997)
Hardie Finance Corporation Pty Ltd v Ahern [No 3] [2010] WASC 403
Hospitals Contribution Fund of Australia v Hunt (1982-1983) 44 ALR 365
Howden v Truth & Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416
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Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
Kimberley Downs Pty Ltd v State of Western Australia (Unreported; WASC, Library No 6414, 25 August 1986)
Koh v Tay [1999] WASC 197
Lyle v Soc [2009] WASCA 3
Macchia v The Public Trustee [2008] WASCA 241; (2008) 251 ALR 385
Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509
Neilson v City of Swan [2006] WASCA 94
Noye v Robbins [2010] WASCA 83
Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Peek v Gurney (1873) LR 6 HL 377
QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186
QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245
R v Carroll [2002] HCA 55; (2002) 213 CLR 635
Re Attorney-General; Ex Parte Skyring [1996] HCA 4; (1996) 70 ALJR 321
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Saunders v Department for Communities [2013] WADC 113
Shelton v National Roads & Motorists Association Ltd [2004] FCA 1393
Shire of Gingin v Coombe [2009] WASCA 92
Smart v Prisoner Review Board (WA) [2012] WASC 48
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Snarski v Barbarich [1969] WAR 46
Southern Wine Corporation Pty Ltd (in liq)v Frankland River Olive Co Ltd [2005] WASCA 236
Spalla v St George Motor Finance Ltd [No 6] [2004] FCA 1699
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Tay v Koh [2000] WASCA 356
Tobin v Dodd [2004] WASCA 288
Town of Port Hedland v Hoddder [No 2] [2012] WASCA 212; (2012) 43 WAR 383
Van Den Esschert v Chappell [1960] WAR 114
Varawa v Howard Smith & Co Ltd [1911] HCA 46; (1911) 13 CLR 35
Victoria Park Racing Co v Taylor [1937] HCA 45; (1937) 58 CLR 479
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
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Wicks v State Rail Authority of New South Wales [2010] HCA 22; (2010) 241 CLR 60
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1 PRINCIPAL REGISTRAR GETHING: For some time now Arturo Fazio, the plaintiff in this action, has had issues with the way in which the City of Melville, the defendant in this action, has gone about recovering outstanding rates owed by him in relation to a property at 10 Hannah Place in Leeming.
2 The present action was commenced by writ filed on 7 November 2012. In addition to the City of Melville, Mr Fazio sued as the second defendant a lawyer who acted for it in matters involving Mr Fazio. Mr Fazio has discontinued his claims as against the lawyer. In relation to the City of Melville, Mr Fazio makes a number of claims including trespass, negligence and breach of good faith. 3 The City of Melville is of the view that the indorsement on the writ and the pleaded case in the statement of claim do not disclose a reasonable cause of action and are an abuse of process. By application dated 1 February 2013, the City of Melville applied to strike out the writ of summons and for judgment. 4 The application has taken some time to come to a hearing due to some health issues being experienced by Mr Fazio. At a directions hearing on 21 March 2013 I made directions to program the City of Melville's application though to a hearing. The timetable in those orders was extended at a directions hearing on 29 May 2013. Mr Fazio was present in court for both these hearings. 5 On 17 June 2013, Mr Fazio filed two documents in compliance with the directions made on 29 May 2013 being: 6 The next relevant directions hearing was on 19 June 2013, which date was set at the directions hearing on 29 May 2013. Mr Fazio was not present at the 19 June 2013 directions hearing. At that hearing, I listed City of Melville's application for hearing on 14 August 2013. 7 The court records show that registry staff posted a copy of the extracted orders from the hearing on 19 June 2013 to Mr Fazio and that they also unsuccessfully attempted to send them to him by facsimile. (Page 6)
8 In compliance with the orders made on 19 June 2013, on 5 July 2013 the City of Melville filed an affidavit in support of its application (sworn by Wayne Nicholls, an accountant in its employ) and an outline of submissions. The City of Melville subsequently filed an affidavit dated 7 August 2013 by Ms Lynn Wilkinson, a legal secretary employed by the lawyers of the City of Melville. Ms Wilkinson deposed to having sent Mr Nicholls' affidavit and the submissions to Mr Fazio by email on 5 July 2013. The email address was that set out in the writ, making this mode of service permissible pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 72 r 5. 9 At the hearing on 14 August 2013 Mr Fazio did not attend. Having regard to the matters in [7] and [8], I was satisfied that Mr Fazio had received notice of the hearing on 14 August 2014 and had been served with the materials from the City of Melville. I proceeded with the hearing and reserved my decision. 10 At 4.21 pm on 14 August 2013 I received a facsimile from Mr Fazio apologising for not attending the hearing earlier that day. This obviously confirmed that he was aware of the hearing. Attached to the facsimile was an affidavit in which Mr Fazio outlined some health issues he was experiencing. He also outlined some issues he was having with his email service, with the effect that he stated he did not receive the documents sent by email to him as set out in Ms Wilkinson's affidavit due to problems with his computer. 11 In response, I sent Mr Fazio a letter to his postal address for service set out in the writ that enclosed a copy of Ms Wilkinson's affidavit (including the annexed documents) and gave him until 23 August 2013 to file any submissions. I advised Mr Fazio that I would not hand down my decision until after that date. Mr Fazio did not file any further submissions. 12 In a letter to me dated 25 August 2013, Mr Fazio asserted that he considered that he was yet to be formally served with the two documents annexed to Ms Wilkinson's affidavit (being the affidavit of Mr Nicholls and the submissions filed by the City of Melville). Given that he had also received copies of the documents from me, I advised Mr Fazio by letter in response dated 28 August 2013 that I was satisfied that he had received a copy of the documents. I also advised Mr Fazio that I was satisfied that he had been given a sufficient opportunity to be heard on the application, and that I would proceed to finalise my decision. (Page 7)
13 Four issues arise for determination: 1. Do either the writ or statement of claim disclose a reasonable cause of action? 2. If either the writ or statement of claim discloses a reasonable cause of action, should it nonetheless be struck out as an abuse of process? 3. If each of the claims in the writ and statement of claim is struck out, is the City of Melville entitled to judgment? 4. What final orders are appropriate?
Do either the writ or statement of claim disclose a reasonable cause of action?
Relevant law 14 An indorsement in a writ must contain 'a concise statement of the nature of the claim made, and of the relief or remedy required in the action': RSC O 6 r 1(1). A statement of claim 'must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim … 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': RSC O 20 r 8(1). 15 The court has the power to strike out the indorsement of any writ and any pleading on the ground (among others) that it discloses no reasonable cause of action: RSC O 20 r 19(1)(a). No evidence is admissible on an application of this kind: RSC O 20 r 19(2): Southern Wine Corporation Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236 [51]. 16 When considering whether to strike out a statement of claim as disclosing no reasonable cause of action: (Page 8)
(c) the rule is intended to apply only to cases which are really not arguable; (d) argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed; (e) great care must be exercised to ensure that a plaintiff is not improperly deprived of her opportunity for the trial of his case by the appointed tribunal; (f) 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; and (g) 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: General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125, 130; Neilson v City of Swan [2006] WASCA 94 [1], [2], [18]; Kimberley Downs Pty Ltd v State of Western Australia (Unreported; WASC, Library No 6414, 25 August 1986); Citi Nominees Pty Ltd v Fenny [2006] WASC 97 [28] - [30]; Hospitals Contribution Fund of Australia v Hunt (1982 - 1983) 44 ALR 365, 373. 17 Mr Fazio is self-represented. Accordingly, it is appropriate that I approach the indorsement in the writ, and the pleadings in the statement of claim, with some flexibility: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 – 537, 543; Smart v Prisoner Review Board (WA) [2012] WASC 48 [10]. He may require, and be given, some leniency in relation to compliance with the rules set out in the RSC: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]. I need to be astute to ensure that, in a poorly expressed or unstructured document setting out the claim, there is no viable cause of action which, with appropriate amendment or permissible assistance from the court, could be put into proper form: Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21]; Wentworth (536 – 537); Tobin v Dodd [2004] WASCA 288 [15]. A 'frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy': Neil v Nott(Page 9)
[1994] HCA 23; (1994) 68 ALJR 509, 510; Ibrahim [21]; Glew [10]; Tobin [14]. In Re Attorney-General; Ex Parte Skyring [1996] HCA 4; (1996) 70 ALJR 321, Kirby J stated (323): … it is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not previously been seen and which may have merit… Vigilance, and not impatience, is specially required where that person is not legally represented.
The claims made by Mr Fazio 18 In the indorsement to the writ, Mr Fazio sets out the following claims: The plaintiff's claim is for 1. Ongoing incidents over a period of time involving corrupt and or malicious conduct and or a continual absence of Good Faith afforded The PLAINTIFF, by the 1st Defendant being the City of Melville and is employees. 2. Point blank refusal by the 1st Defendant being The City of Melville and its employees, to recognise and abide by the PLAINTIFF'S lawful rights afforded to him by The Common Law, The Privacy Act and by virtue of Section 8.6(3) of The Local Government Act 1995. 3. Breach of a Duty of Care owed to the PLAINTIFF by the 1st Defendant being The City of Melville and its employees and a general derogation and or abrogation of my lawful rights. 4. Collusion between the 1st Defendant being The City of Melville and its employees and the 2nd Defendant being John Frederick Park, in maliciously Conspiring To Divert the Court of Justice in Perth Magistrates Court Civil Cases PER/GCLM/6153 of 2011 and PER/GCLM/20823 of 2011 against the PLAINTIFF. 5. Conduct unbecoming and otherwise wrongful of An Officer of the Court and Legal Practitioner afforded to The PLAINTIFF, by the 2nd Defendant John Frederick Park in the aforementioned Perth Magistrates Court Civil Cases. 6. The PLAINTIFF seeks remedy in the total relief of seven hundred and fifty thousand dollars ($750,000.00) to be apportioned between the defendants as this Honourable Court sees fit, plus costs, interest and out of pocket disbursements. (Page 10)
19 In the statement of claim, Mr Fazio pleads the following: 1. The PLAINTIFF moved into the property of 10 Hannah Place Leeming on or about the 5th August 2005, with his terminally ill defacto wife at the time, Samantha Underdown. 2. Contemporaneously upon moving into the property, a number of pre-prepared, highly visable A4 size and slightly smaller laminated orange Trespass signs were clearly displayed upon the property, in order to ensure the Privacy and Peaceful Enjoyment without intrusion into the property, by both the Plaintiff and his terminally ill defacto wife, Samantha Underdown. 3. The signs were specifically created to withdraw the implied license at Common Law of any person or entity, entering and then unlawfully remaining upon the property without the express permission of the occupant. 4. The sign specifically read as follows: NOTICE TO ALL PERSONS AND ENTITIES ENTERING THE PROPERTY WITHOUT EXPRESS PERMISSION OF THE OCCUPANT ADMITTANCE BY INVITATION ONLY OR BEWARE _____________________ TRESSPASS APPLIES Rulings by High Court of Australia Plenty v Dillon (1991) 171 clr 635 f.c. 91/004 George v Rockett (1990) 170 clr f.c. 90/026 Halliday v Nevill (1984) 155 clr 1 The Commonwealth v New South Wales 33 CLR IT 5. At all material times, CITY OF MELVILLE has been the local government to which rate notices have been issued upon the Plaintiff and the now deceased Samantha Underdown. 6. Samantha Uunderdown was the registered owner of the property with Landgate, whereupon her passing away on the 1st July 2007, (Page 11)
the property was then later transferred into the sole ownership of the Plaintiff on the 17th October 2007. 7. Prior to Samantha's passing away on the 1st July 2007, the defendant was made aware of the Trespass signs upon the property. 8. Subsequent to Samantha's passing away, Arturo Fazio the plaintiff who had absolutely no family or support whatsoever, struggled immensely with grief and started to live somewhat reclusively on the property, whereby he fastidiously enforced the Trespass signs and invited few people to visit. 9. The defendant continued to issue Rates Notices in the sole name of Samantha Underdown after her passing for sometime, which were not contemporaneously paid by the plaintiff Arturo Fazio. 10. On the 21st February 2010, an agent ultimately acting for the defendant by the name of Philip O'Donnell, attempted to personally serve upon the plaintiff upon his property of 10 Hannah Place Leeming, legal papers for the said outstanding rates in the matter of 2383/2010 emanating out of the Perth Magistrates Court. 11. A heated, prolonged argument developed between Arturo Fazio with this Philip O'Donnell over his continued Trespass by remaining on the property after being told to leave immediately as he was trespassing, then told to fuck off and asked if he was as dumb as he looked, in that he couldn't read? He stood and read the signage repeatedly out aloud, asking questions and ended up leaving after a period of time, not before retorting to my demand to go and get substituted service and don't come back again, that substituted service, required a court order. 12. The very next day being the 22nd February 2010, I faxed the Chief Executive Officer at the City of Melville over my discontent with the Trespass upon my property and in somewhat uncouth and threatening terms, Served Notice not to allow any employee or agent of The City of Melville to come back again. 13. On the 23rd February 2010, I had cause to fax Machlins Lawyers representing the City of Melville over the Trespass incident. 14. Prior (emphasis added) to the aforementioned Trespass incident on the 21st February 2010 in a phone conversation and in writing with a Mr Wayne Nicholls who was then the "Revenue Co-Ordinator" from The City of Melville, they acknowledged my personal difficulties and financial problems arising from such and put in place a formal forbearance arrangement for the outstanding rates until the 30th June 2010. Notwithstanding this formal forbearance agreement being in place, the defendant maliciously and or negligently and or in the absence of good faith, afterwards (Page 12)
commenced legal proceedings against Arturo Fazio for recover of the outstanding rates in the matter of 2383 of 2010, well prior to the 30th June 2010 compliance date. 15. City of Melville maliciously and or negligently and or without good faith continued with the proceedings in the Perth Magistrates Court against Arturo Fazio despite the formal forbearance agreement, whereupon straight after being served notice of an intention to counterclaim on the 13th May 2010 whilst in court, the extemporaneously formally discontinued the matter of 2383 of 2010 against me, as I was about to file Counterclaim papers. 16. Various heated telephone and written exchanges thereafter transpired between myself and Wayne Nicholls. 17. On the 24th June 2010, all outstanding rates on the property were paid in full, by Arturo Fazio. 18. Shortly thereafter in the matter of 10972 of 2010 in the Perth Magistrates Court, I as the Plaintiff then commenced legal proceedings against the City of Melville and Philip O'Donnell for Trespass and damages, arising out of the above. 19. Various proactive and seemingly amicable (though strained) communications then passed between myself, Wayne Nicholls and Len Hitchcock from City of Melville over the ensuing months. 20. Those proceedings progressed through the court to a Listings Conference on the 4th May 2011, whereby settlement/formal agreement between myself and Wayne Nicholls & Len Hitchcock (Legal Services Manager) from City of Melville and Peter Gillett from Mcleods Lawyers representing them, took place outside the courtroom before and after the proceedings. 21. During those lengthy discussions, messrs Nicholls and Hitchcock from City of Melville were both made patently aware of my own significant health issues and inability at the time to work and derive an income, whereby they then both projected condolences and apologies towards me for my personal circumstances and the trespass and privacy issues I had encountered. 22. Contemporaneous with these latest events and completely unbeknown to me at the time, messrs Nicholls and Hitchcock from City of Melville had negligently and or maliciously and or in the complete absence of good faith, instigated and had filed legal proceedings against me yet again, this time for unpaid and disputed service and rate charges at the year ending 30 June 2011. They commenced these proceedings against me, again unbeknown to me at the time, by way of case number 6153 of 2011 in the Perth Magistrates Court dated the 28th May 2011. The type of (Page 13)
proceedings commenced were particularly malicious in that it was for a relatively small amount of money well under the $10,000 threshold for a General Procedure Claim, when it could have been commenced by City of Melville employees by way of a Small Claim without the added impost of lawyers fees and less formality. 23. the amount of money sought by City of Melville in the matter of 6153 of 2011, was said to be attracting an interest rate component of 11% by them. The application of the maximum 11% interest rate is malicious in the particular factual circumstances of Arturo Fazio at the time, furthermore when juxtaposed with the Supreme Court rate of interest being 6% and in particular light that "under the Local Government Act 1995 and regulations to the act, up to 11% is the maximum rate that can be charged, with said flexibility to make decisions for the good government of persons in their particular district." 24. In the aforementioned circumstances and in the incontrovertible knowledge of those concerned, whereby City of Melville and their employees and agents had forever irrevocably had their implied license at common law withdrawn to enter and remain upon 10 Hannah Place Leeming, they maliciously and or in the completely absence of good faith and or negligently, caused 3 unlawful trespasses upon the property, the invasion of my privacy and the curtailment of my peaceful enjoyment of the property, on 3 separate occasions specifically being the 8th, 11th and 13th August 2011, in times of very trying personal circumstances to me. 25. City of Melville by way of proximity and or in their intimate knowledge of my personal circumstances as per the aforementioned history, also owned me a duty of care to ensure that none of their employees or agents trespassed upon my property or invaded my privacy and peaceful enjoyment. 26. Sometime later I discovered, that the aforementioned trespasses, invasion of my privacy, curtailment of my peaceful enjoyment and photographs of my property were taken ad intra, by an agent of City of Melville attempting service of the papers in the legal proceedings of 6153 of 2011. I later discovered this by way of notice from the court that substituted service had subsequently been applied for and granted to the claimant City of Melville. 27. Had it not been for the aforementioned and below mentioned said malicious conduct, absence of good faith shown, breach of their duty of care and or negligence by City of Melville, I would not have suffered and continue to suffer, ongoing physical, mental and fiscal damages, which ought to have been reasonably foreseeable to City of Melville in all the aforementioned circumstances and history. (Page 14)
28. Upon discovery the aforementioned, I then had cause to angrily write in a high anxiety state to Mr Hitchcock, The Mayor and CEO of City of Melville seeking full explanation and amelioration of the situation. City of Melville Officers then further acted maliciously, in the absence of good faith, deceitfully and or negligently, in their actions and or inactions forthwith. 29. On the 28th August 2012, I sought by way of a FOI application upon City of Melville, various documents as to the aforementioned events and legal advice they had sought and received. City of Melville continued to act maliciously, in the absence of good faith, deceitfully, not in accordance with the specific law and authorities such as the High Court decision in Osland v Department of Justice [2010] and or negligently, in denying me access to and copy of, the documentation I requested and urgently required at the time. And the plaintiff claims; a) Damages b) Interest c) Costs 20 From the indorsement in the writ and the pleadings in the statement of claim, it appears to me that Mr Fazio asserts ten claims against the City of Melville: (a) breach of an obligation under the Privacy Act 1998 (Cth); (b) breach of an obligation of privacy at common law; (c) good faith; (d) malicious conduct; (e) deceit; (f) collusion and conspiracy to divert the course of justice; (g) negligence; (h) trespass in relation to the property at 10 Hannah Place Leeming; (i) breach of the Local Government Act 1995 (WA) s 8.6(3); and (j) Freedom of Information Act 2002 (WA). (Page 15)
21 In defining these claims I have incorporated the correct descriptions of the legislation referred to. 22 Each of these ten claims is dealt with in turn.
Breach of privacy - Privacy Act 1998 (Cth) 23 The breaches of privacy claimed by Mr Fazio appear to be: 24 I am not satisfied that the City of Melville is an organisation to whom the Privacy Act 1998 (Cth) applies. 25 Even if I was so satisfied, the conduct complained of by Mr Fazio does not appear to breach one of the National Privacy Principles nor the Information Privacy Principles. These principles are concerned with the collection, storage, integrity and use of private information by an applicable organisation. 26 Even if I was satisfied that there was an apparent breach of a principle enshrined in the Privacy Act, that Act does not grant jurisdiction to the District Court of Western Australia. Rather, jurisdiction for matters arising under the Privacy Act is conferred on the Federal Court and the Federal Circuit Court: Privacy Act s 55A. 27 In my the view, that facts set out in the writ and the statement of claim do not disclose any, let alone any reasonable, cause of action in relation to a breach of the Privacy Act.
Breach of privacy - common law 28 There is no general right of privacy at common law: Victoria Park Racing Co v Taylor[1937] HCA 45; (1937) 58 CLR 479, 496. As was observed in Fleming's The aw of Torts, 'piecemeal protection' of the privacy of a person 'can now be found in a range of tort, equitable and statutory rules and standards' (Sappideen C and Vines P (eds), Fleming's The Law of Torts (10th ed, 2011)) (683). This includes the tort of trespass, which I will discuss below. The relevant equitable principles are concerned with disclosure of private facts: Fleming's The (Page 16)
Law of Torts 688 - 692. There is no claim relating to the disclosure of private facts pleaded in the statement of claim. I have also separately discussed the statutory obligations relied on by Mr Fazio. 29 In my view, that facts set out in the writ and the statement of claim do not disclose any, let alone any reasonable, cause of action in relation to a breach of a general right of privacy at common law.
Good faith 30 Mr Fazio appears to make five allegations that the City of Melville acted in breach of an obligation to act in good faith towards him. 31 The first allegation of breach of good faith appears to arise out of the claim that the City of Melville commenced proceedings in the Magistrates Court against Mr Fazio to recover unpaid rates in breach of a 'formal forbearance agreement'. Mr Fazio says that this agreement was made between him and Mr Nicholls. It was said to have been made in a phone conversation on 21 February 2010 (prior to an attempt to serve documents on Mr Fazio, the circumstances of which are described below). The reason for entering into the agreement is said to be Mr Fazio's 'personal difficulties and financial problems'. The effect of the agreement was that the City of Melville would not seek to recover the outstanding rates from him until 30 June 2010. The forbearance agreement is said to have been breached by the City of Melville commencing Magistrates Court claim PER/GCCM/2383 of 2010. The breach of the forbearance agreement is said to have been done in the absence of good faith. 32 The second allegation of a breach of good faith asserted by Mr Fazio is that the City of Melville continuing with Magistrates Court claim PER/GCCM/ 2383 of 2010, again in breach of the forbearance agreement. The City of Melville discontinued this claim in May 2010. Mr Fazio says that he paid the outstanding rates on 24 June 2010. 33 The third allegation of a breach of good faith arises out of the City of Melville commencing a second Magistrates Court claim against him, PER/GCLM/6153 of 2011, on 28 May 2011. This claim related to rates due for the year ending 30 June 2011. 34 The fourth allegation of a breach of good faith arises out of conduct by officers of the City of Melville in the action or inaction in dealing with a letter written by Mr Fazio to the Mayor and the CEO of the City of Melville. (Page 17)
35 The fifth allegation of a breach of good faith arises as a result of the City of Melville denying him access on a 'FOI application' to 'various documents as to the aforementioned events and legal advice they had sought and received'. 36 I am not aware of any applicable statutory obligation on the City of Melville to act in good faith towards Mr Fazio. There is no contract between Mr Fazio and the City of Melville into which a term to act in good faith could be implied. Any obligation imposed on the City of Melville would have to have its source in tort. I have reviewed two of the leading text books on torts and can find no reference to a cause of action in tort for breach of an obligation to act in good faith: Fleming's The Law of Torts; Balkin R P and Davis J R L, Law of Torts (5th ed 2013). 37 I am therefore of the view that facts set out in the writ and the statement of claim do not disclose any, let alone any reasonable, cause of action for a breach of an obligation to act in good faith.
Malicious conduct 38 Mr Fazio alleges that the City of Melville acted maliciously in: (a) commencing Magistrates Court claim PER/GCLM/2383 of 2010 in breach of the forbearance agreement; (b) continuing with Magistrates Court claim PER/GCLM/2383 of 2010, again in breach of the forbearance agreement; (c) commencing a second Magistrates Court claim against him, PER/GCLM/6153 of 2011, on 28 May 2011; (d) unspecified action or inaction in dealing with a letter written by him to the Mayor and the CEO of the City of Melville; and (e) denying him access on a 'FOI application' to 'various documents as to the aforementioned events and legal advice they had sought and received'. 39 More specifically, the second Magistrates Court action is said to be malicious because: (a) the City of Melville used the General Procedure Claim procedure in the Magistrates Court, and not the Small Claims procedure, which was a less formal procedure with no exposure to legal costs; and (Page 18)
(b) he was charged interest at the rate of 11%. 40 There is no tort of malicious conduct. There is, however, a tort of malicious prosecution. In Noye v Robbins[2010] WASCA 83 Owen JA, with whom Buss JA agreed, accepted the trial Judge's summary of the elements of a cause of action for malicious prosecution in the following terms [61] (see also [124], [379], [382]): (a) the defendant instituted the proceedings, or was instrumental in their institution and (or) continuation; (b) the proceedings were terminated in the plaintiff's favour so far as such an outcome was possible; (c) the defendant's conduct was without reasonable and probable cause; (d) the defendant was actuated by malice; and (e) that as a result, the plaintiff suffered damage of at least one of the three specific heads identified by Holt CJ in Savile v Roberts (1698) 1 Ld Raym 374; (1698) 91 ER 1147. See also QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245, 256. 41 There are at least three reasons why a cause of action for malicious prosecution is not disclosed in the indorsement or statement of claim in the present case. The first is that, '[g]enerally speaking, is it not actionable to institute civil proceedings without reasonable and probable cause even though maliciously': Varawa v Howard Smith & Co Ltd [1911] HCA 46; (1911) 13 CLR 35, 72. To be actionable, the proceedings must be of a kind 'that necessarily involve damage to a person's credit or reputation or to his property or an invasion of his personal liberty': Varawa 72. An example is a winding up application or a bankruptcy application: QIW Retailers Ltd 256. The civil actions complained of in the present case are for recovery of unpaid local council rates and service charges. I am not aware of any case to the effect that a civil action to recover unpaid rates may be the subject of an action for malicious prosecution. An action of this kind does not necessarily involve damage to Mr Fazio's credit or reputation or to his property, nor is it an invasion of his personal liberty. 42 The second reason is that there are no facts pleaded in the statement of claim from which a court could find that the City of Melville acted maliciously. Malice is not limited to ill-will, but includes motivation by some improper or collateral purpose: Noye [71], [124], [382]. There does (Page 19)
appear to have been some confusion within the City of Melville as to whether it was going to give Mr Fazio more time to pay the rates before commencing a recovery action. However, this falls far short of being malicious. Mr Fazio complained about the 11% interest rate charged. However, the City of Melville was entitled to charge 11% interest (as a maximum) on outstanding rates pursuant to LGA s 6.51 and Local Government (Financial Management) Regulations 1996 (WA) r 70. Mr Fazio also complains that the City of Melville used the General Procedure Claim procedure in the Magistrates Court, and not the Small Claims procedure. However, it was entitled to do so, and that fact that it did so does not support a finding of malice, even in the extended sense of an improper or collateral purpose. 43 The third reason is that there are no facts pleaded to support the element of 'without reasonable and probable cause'. Probable cause requires both: 44 The onus is on the plaintiff alleging malicious prosecution to prove what the evidence was and then to show that, based on that evidence, there was no reasonable and probable cause: Noye [348]; Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466, 470. The facts alleged to arise from the evidence must be set out in the statement of claim. The statement of claim does not contain any facts from which a court could find that the City of Melville commenced the actions without a belief in the propriety of doing so. Nor does the statement of claim contain any facts from which a court could find that there were no reasonable grounds for the City of Melville commencing the proceedings. 45 I am therefore of the view that the facts set out in writ and the statement of claim do not disclose any, let alone any reasonable, cause of action for malicious prosecution.
Deceit 46 Mr Fazio alleges officers of the City of Melville acted deceitfully in the action or inaction they took in dealing with a letter written by him to (Page 20)
the Mayor and the CEO of the City of Melville. He also alleges that the City of Melville acted deceitfully in denying him access on a 'FOI application' to 'various documents as to the aforementioned events and legal advice they had sought and received'. 47 There is a tort of deceit. It arises where: (a) a representation is made; (b) the representation is false; (c) the representation is made by the maker knowing it to be false, without belief in its truth or recklessly, careless whether it be true or false; (d) the recipient relied on the representation; (e) the representation was made with the intent that the receipt rely on it as he did; and (f) the recipient suffers damage; See generally: Koh v Tay [1999] WASC 197 [60], affirmed in Tay v Koh [2000] WASCA 356; Van Den Esschert v Chappell [1960] WAR 114; Snarski v Barbarich [1969] WAR 46; Derry v Peek (1889) 14 App Cas 337, 374; Peek v Gurney(1873) LR 6 HL 377; Fleming's The Law of Torts 718 - 723. 48 There is no false representation by the City of Melville identified in either the writ or the statement of claim. I am of the view that the facts set out in writ and the statement of claim do not disclose any, let alone any reasonable, cause of action for deceit.
Collusion and conspiracy to divert the course of justice 49 The allegations of collusion and 'Conspiracy to Divert the Court of Justice' are said to arise in relation to Perth Magistrates Court claim PER/GCLM/6153 of 2011 and PER/GCLM20823 of 2011, each of which were against Mr Fazio. These allegations are not the subject of specific pleas in the statement of claim. 50 I have reviewed two of the leading text books on torts and can find no reference to a cause of action in tort for collusion: Fleming's The Law of Torts; Law of Torts. Neither is there a tort of 'Conspiracy to Divert the Court of Justice'. There is a criminal offence of attempting 'to obstruct, (Page 21)
prevent, pervert, or defeat the course of justice', which may be the subject of a conspiracy: Criminal Code s 143, s 558. However, a breach of this section does not give rise to a civil cause of action. 51 There is, however, a tort of conspiracy. It has two broad limbs: conspiring to cause an injury and conspiring to pursue a lawful purpose by an unlawful means: see generally Fleming's The Law of Torts 789 - 795; Hancock Family Memorial Foundation v Porteous (Unreported, WASCA, Lib No 970320, 20 June 1997); Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405. 52 In relation to the first limb, the conspiracy need not involve unlawfulness in the overt acts relied on: Hancock (7) (Parker J). Rather, as Parker J (with whom Pidgeon and White JJ agreed) stated in Hancock (7 - 8): The object and purpose of those acting in concert is critical in this tort it being necessary for the plaintiff to show that the predominant or sole purpose of those conspiring was to cause injury rather than to advance an interest of their own': Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 43, McKernan v Fraser (1931) 46 CLR 34. The tort consists not of agreement, but of concerted action taken pursuant to agreement with the purpose of causing injury, and it is an essential element that damage actually be caused: Lonrho Ltd v Shell Petroleum Co Ltd [1982] AC 173 at 188, Crofter Hand Woven Harris Tweed Co v Veitals at 468. The damage must be caused by the performance of the overt acts: Galland v Mineral Underwriters Ltd [1977] WAR 116 at 119. 53 Unlawfulness is, however, necessary, for the second limb of the tort, 'the essence of which is an agreement to pursue what otherwise might be a lawful object but to do so by unlawful means': Hancock 7. 54 There are no material facts pleaded in the statement of claim to the effect that the City of Melville and any other person took concerted action pursuant to an agreement to cause Mr Fazio injury, either in relation to the two identified Magistrates Court claims or more generally. Nor is there any material fact pleaded to the effect that the City of Melville and any other person took concerted action to pursue an lawful object by unlawful means, either in relation to the two identified Magistrates Court claims or more generally. 55 I am thus of the view that the facts set out in writ and the statement of claim do not disclose any, let alone any reasonable, cause of action for the tort of conspiracy. (Page 22)
Negligence 56 Mr Fazio alleges that the City of Melville acted negligently in: (a) commencing Magistrates Court claim PER/GCLM/2383 of 2010 in breach of the forbearance agreement; (b) continuing with Magistrates Court claim PER/GCLM/2383 of 2010, again in breach of the forbearance agreement; (c) unspecified action or inaction in dealing with a letter written by Mr Fazio to the Mayor and the CEO of the City of Melville; and (d) denying him access on a 'FOI application' to 'various documents as to the aforementioned events and legal advice they had sought and received'. 57 It is sufficient for present purposes to summarise the cause of action in negligence at common law as requiring five elements to be established: (a) the plaintiff must have suffered an injury; (b) the kind of injury sustained by the plaintiff must have been reasonably foreseeable; (c) the defendant must owe a duty to a class of persons including the plaintiff to take reasonable care to prevent an injury of the kind suffered by the plaintiff; (d) the defendant must have breached the duty of care by failing to do something which a reasonable person in its position would have done by way of response to the foreseeable risk of injury; and (e) the breach of duty must have caused or materially contributed to the injuries suffered by the plaintiff: See generally the discussion of the relevant authorities in: Town of Port Hedland v Hoddder [No 2][2012] WASCA 212; (2012) 43 WAR 383; Lyle v Soc [2009] WASCA 3 [33], [40] - [41], [47], [48]; Shire of Gingin v Coombe [2009] WASCA 92 [48] - [80], [113] - [118], [139]. The outcome of each case will depend upon its own particular facts and circumstances: Shire of Gingin [42]. The common law principles take effect subject to the provisions of the Civil Liability Act 2002 (WA) (CLA). (Page 23)
58 There are at least three fundamental deficiencies with the claim in negligence asserted by Mr Fazio. The first is that Mr Fazio does not identify any injury which he suffered as a result of the alleged acts of negligence set out above. He relevantly says that had 'it not been for the aforementioned and below mentioned said ... breach of their duty of care and or negligence by City of Melville, I would not have suffered and continue to suffer, ongoing physical, mental and fiscal damages, which ought to have been reasonably foreseeable to City of Melville in all the aforementioned circumstances and history'. He pleads that he has suffered damages, but does not identify any physical injury which he says is the cause of those damages. 59 An action in negligence which is not based on physical injuries, may be based on mental harm. The issue of when an action in negligence based on mental harm may be brought is dealt with in CLA s 5S as follows: (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. (Page 24)
60 This section does not replace the common law of negligence in relation to psychiatric injury but defines or controls what would otherwise be a duty of care arising at common law: Wicks v State Rail Authority of New South Wales [2010] HCA 22; (2010) 241 CLR 60 [22] - [26]; Saunders v Department for Communities [2013] WADC 113 [47] - [49]. At common law 'in deciding whether, for the purposes of the tort of negligence, a defendant owed a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable': Wicks[25]; Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317 [12], [29], [89] - [90], [201], [275]. 61 Both under the common law and CLA s 5S the City of Melville will not be liable in negligence if all that is found against it is that it was a cause of distress, alarm, fear, anxiety, annoyance or despondency to Mr Fazio: Tame [7], [285]; Saunders [43]. 62 Mr Fazio has not pleaded that he has suffered a recognised psychiatric illness as a result of a breach of a duty of care owed to him by the City of Melville. 63 The second deficiency is that, assuming the relevant injury is a recognised psychiatric illness, I cannot see how a duty of care could arise in the circumstances set out in the statement of claim. As set out above, CLA s 5S provides that a defendant 'does not owe a duty of 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'. The relevant actions were commencing and continuing civil proceedings to recover unpaid rates, taking unspecified action or inaction in dealing with a letter and denying Mr Fazio access to documents on an 'FOI' application (see [56]). In my view, there are no specific facts pleaded from which a Court could find that the City of Melville ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken in undertaking the four identified actions. 64 The third deficiency is that there are no specific facts pleaded as to how is it said that the City of Melville breached any duty of care it may have owed in relation to the four identified actions. There is no allegation of what a reasonable person in the position of the City of Melville would have differently to what in fact occurred in response to a risk of mental (Page 25)
harm to a class of persons including Mr Fazio (assuming that such a duty did exist). 65 I am thus of the view that the facts set out in writ and the statement of claim do not disclose any, let alone any reasonable, cause of action for the tort of negligence.
Trespass 66 The relevant facts in the statement of claim relating to the trespass claim appear to be: (a) Mr Fazio was, at the relevant time, the registered proprietor of a property at 10 Hannah Place, Leeming; (b) to protect his privacy (and previously that of his terminally ill defacto wife) he erected some signs around the property prohibiting trespassers; (c) on 21 February 2010 an agent of the City of Melville, Philip O'Donnell, went on to the property at 10 Hannah Place to attempt to personally serve court papers in Magistrates Court claim PER/GCLM/2383 of 2010 for outstanding rates; (d) there was a 'heated, prolonged argument' between Mr O'Donnell and Mr Fazio, during which, among other things, Mr Fazio told Mr O'Donnell to leave his land and get an order for substituted service; and (e) on 8, 11 and 13 August 2011 agents or employees of the City of Melville again sought to enter on the property at 10 Hannah Place apparently for the purpose of serving him with court documents in Magistrates Court claim PER/GCLM/6153 of 2011. 67 Mr Fazio also says that the signs were 'specifically created to withdraw the implied license at Common Law of any person or entity, entering and then unlawfully remaining upon the property without the express permission of the occupant'. 68 The damages claimed by Mr Fazio is said to be 'ongoing physical, mental and fiscal damages'. 69 The law in relation to trespass to land was comprehensively summarised by Pritchard J in Hardie Finance Corporation Pty Ltd v (Page 26)
Ahern [No 3][2010] WASC 403, which I respectfully adopt [222] - [234]: 222 A trespass to land occurs (amongst other things) when a person intentionally or negligently enters into, or remains on, land which is in the possession of another. The emphasis of the tort is on physical interference with possession: see generally Balkin & Davis, Law of Torts (4th ed) [5.1]. Accordingly, it is the person with the exclusive possession of the land, rather than the owner of the land, who may sue in trespass: see Barker v The Queen(1983) 153 CLR 338, 341 - 342 (Mason J). It is well established that the tort protects the interest of the plaintiff in maintaining the right to exclusive possession of the property, rather than to protect title in the sense of ownership (although the party in possession may often also be the owner): The State of New South Wales v Ibbett(2006) 229 CLR 638 [29] (the Court). 223 Entry onto another person's land without the permission of the occupier, or otherwise with lawful authority, will constitute a trespass: Kuru v The State of New South Wales(2008) 236 CLR 1 [43] (Gleeson CJ, Gummow, Kirby & Hayne JJ); Plenty v Dillon(1991) 171 CLR 635, 639 (Mason CJ, Brennan & Toohey JJ), 647 (Gaudron & McHugh JJ); Coco v The Queen(1994) 179 CLR 427, 435 (Mason CJ, Brennan, Gaudron & McHugh JJ). Whether an occupier has granted a licence to another person to enter on the land is a question of fact: Halliday v Nevill(1984) 155 CLR 1, 6 - 7 (Gibbs CJ, Mason, Wilson & Deane JJ). 224 Justification or authority to enter land may take a variety of forms including a paramount right to possession, some other statutory or common law right of entry, the authority or permission of the person in possession and, in the absence of negligence, involuntary and inevitable accident: Barker v The Queen(356 - 357) (Brennan & Deane JJ). 225 The permission of the occupier may be given expressly, or implied from the circumstances. A licence to enter will be implied in certain circumstances, unless something in the facts is capable of founding the conclusion that any such implied licence was negated or revoked: Halliday v Nevill (7) (Gibbs CJ, Mason, Wilson & Deane JJ). Consent to an entry will be implied if the person entering on the land does so for a lawful purpose: Plenty v Dillon(647) (Gaudron & McHugh JJ); Robson v Hallett[1967] 2 QB 939, 951 (Lord Parker CJ). The implication of a licence will be precluded by an express or implied refusal of it, and an implied licence may be revoked at any time by an express or implied withdrawal of it: Halliday v Nevill (7) (Gibbs CJ, Mason, Wilson & Deane JJ). (Page 27)
226 The occupier's authority to enter may be subject to express or implied limitations regarding the time, place, manner or purpose of entry, and if it is so limited, it will operate only to authorise an entry which comes within the scope of its limited terms: Barker v The Queen(357) (Brennan & Deane JJ) and the authorities cited therein. If, on the facts, the right or authority to enter onto land is limited in scope then an entry which is unrelated to the right or authority will amount to a trespass. Accordingly a person who has permission to enter onto land for a specific purpose commits a trespass if he enters onto land for any other purpose, especially if that other purpose is an unlawful purpose. That person will stand in no better position than a person who enters with no authority at all: Barker v The Queen(342, 346) (Mason J), (357) (Brennan & Deane JJ). 227 However, an authority to enter need not be limited. As Brennan and Deane JJ observed in Barker v The Queen, the authority to enter onto land need not be limited (in its character as an authority to enter land) by reference to the things which the person whose entry is permitted may legitimately do after he has entered or to the range of purposes which were or might have been in the contemplation of the grantor of the permission. If it is a general permission to enter in the sense that it is not limited, either expressly or by necessary implication, by reference to the purpose for which entry may be effected, it is not legitimate to cut back the generality of the permission to enter merely because it is probable that the grantor would, if the matter had been raised, have qualified it by excluding from its scope any entry for the purpose of committing an unauthorised act. When the permission is not in fact so limited, an unanticipated or illegitimate purpose on the part of the entrant does not, at common law, affect the status of his entry or make him a common law trespasser (357 - 358). 228 Their Honours went on to observe that if the authority to enter onto land is not limited by reference to the things the invitee may do once he or she has entered: [A] purpose of subsequently doing an unlawful act will not, under the common law, convert entry which was otherwise within the permission into entry as a trespasser. In particular, to take the example on which most reliance was placed, the implied invitation to enter which a shopkeeper extends to the public may ordinarily be limited to public areas of the shop and to hours in which the shop is open for business: it is not, however, ordinarily limited or confined by reference to purpose. Indeed, in the context of the importance of 'impulse buying', the mere presence of the prospective customer upon the premises is itself likely to be an object of the invitation and a person will be within the invitation if he enters for no particular (Page 28)
purpose at all. The fact that a person enters with the purpose or some thought of possibly stealing an item of merchandise or of otherwise behaving in a manner which is beyond what he is authorised to do while on the premises does not, in the ordinary case where the invitation to enter is not confined by reference to purpose, result in the actual entry being outside the scope of the invitation and being trespassory (361 - 362). 229 Difficult questions can arise when the authority or permission to enter onto the land is limited to a particular purpose and a person enters onto the land for that purpose and for some other purpose: TCN Channel Nine Pty Ltd v Anning(2002) 54 NSWLR 333 [30] (Spigelman CJ, Mason P & Grove J agreeing). Whether the entry will constitute a trespass on the land is an issue which has not been finally resolved in the authorities: see Barker v The Queen(345 - 347) (Mason J), cf (365) (Brennan & Deane JJ); cf Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584, 599 (Barwick CJ & Menzies J), cf 606 (Kitto J); TCN Channel Nine v Anning[32] - [37] (Spigelman CJ, Mason P & Grove J agreeing) and the cases discussed therein; Byrne v Kinematograph Renters Society Ltd[1958] 1 WLR 762, 776 (Harman J). 230 A common example of the implication of a licence to enter relates to private homes, where a licence will ordinarily be implied in favour of any member of the public to go upon the path or driveway to the entrance of the home for the purpose of lawful communication with, or delivery to, any person in the house. The path or driveway will be viewed as having been held out by the occupier of the house as the link from the street to his or her home upon which members of the public may go for a legitimate purpose that in itself involves no interference with the occupier's possession nor injury to the occupier, his or her guests or his, her or their property: Halliday v Nevill(7) (Gibbs CJ, Mason, Wilson & Deane JJ). However, a licence will not be implied in such a case if the path or driveway leading to the entrance of the house is obstructed or the gate locked: Halliday v Nevill(7 - 8) (Gibbs CJ, Mason, Wilson & Deane JJ). 231 The same principles apply in relation to the implication of a licence to enter business premises. In TCN Channel Nine v Anning the question was whether employees of the appellant, a television reporter and cameraman, had trespassed on business premises when they entered the premises and attempted to film an interview with a view to broadcasting it. At trial, the appellant was found to have committed a trespass. On appeal, the appellant submitted that the entry of its employees occurred pursuant to an implied licence because the use of the land as a business (either as a tyre dump or as a race track) necessarily involved permission for members of the (Page 29)
public to enter, or on the basis that any member of the public has a right to enter a property in an attempt to lawfully communicate with the occupier, and specifically to do so for the purpose of requesting an interview. The evidence was that the gate to the property was unlocked at the time of the entry and that some form of implied licence to enter the property existed. 232 In determining whether the entry occurred pursuant to such licence, Spigelman CJ (with whom Mason P and Groves JA agreed) found that the purpose of the entry onto the land was a material consideration. His Honour held that: Whatever may have been the scope of a permission for entry with respect to the conduct of the used tyre business or the conduct of a race track, nothing the appellant did was referable to any such purpose. If there was an implied licence to enter for any such purpose, the appellant did not avail itself of such a licence [43]. 233 His Honour also rejected a general submission by the appellant that by virtue of the unlocked gate to the property, there was an implied licence which was not limited in any way by what could be done by persons entering onto the property [46] - [49]. He held that most implied invitations will be for limited purposes, and that: Persons conducting business on private property are entitled to do so without others intruding for purposes unrelated to the business activities they are conducting. This includes those who wish to enter with a view to publicly exposing aspects of their business [58]. Accordingly, he concluded that there was no implied licence for the appellant's employees to film on the property. 234 Similarly, an implied licence for members of the public to enter onto business premises was held, prima facie, to exist in Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 in the course of an application for an injunction based, in part, on an alleged trespass. However, that implied licence was held not to authorise entry for the purpose of a journalist and film crew filming a dissatisfied customer when she attended at the premises. Young J held that the evidence suggested that the implied invitation by the plaintiff for the public to visit its premises was limited to members of the public bona fide seeking information or business with it or to clients of the firm, but not to people, for instance, who wished to enter to hold up the premises and rob them or even to people whose motives were to go onto the premises with video cameras and associated equipment or a reporter to harass the inhabitants by asking questions which would be televised throughout the State (460). (Page 30)
70 There is a clear plea that a servant or agent of the City of Melville entered on to the land at 10 Hannah Place in Leeming, land of which Mr Fazio was the registered proprietor. The main issue for trial seems to be whether the entry was pursuant to an implied licence (as discussed in the authorities referred to in the preceding paragraph) or whether the signs placed on the land by Mr Fazio prevented that implied licence from being arising. There is then is issue of what, if any, damages, Mr Fazio suffered. 71 I am of the view that the plea of trespass does disclose a reasonable cause of action. It is, however, 'confusingly intermixed' with a number of claims which do not disclose a cause of action, and is thus pleaded in a manner which is embarrassing: Fairworld Holdings Pty Ltd v Burrup Fertilisers Pty Ltd [No 3] [2012] WASC 190 [26]; Shelton v National Roads & Motorists Association Ltd [2004] FCA 1393 [18]. A pleading which is embarrassing may be struck out: RSC O 20 r 19(1)(c). Mr Fazio needs to re-plead the statement of claim, limiting it to the causes of action which are not struck out.
Local Government Act 1995 (WA) s 8.6(3) 72 In the writ, Mr Fazio identifies an aspect of his claim as being 'Point blank refusal by … The City of Melville and its employees, to recognise and abide by the PLAINTIFF'S lawful rights afforded to him by ... virtue of Section 8.6(3) of The Local Government Act 1995'. 73 Local Government Act 1995 (WA) (LGA) s 8.6(3) grants to an 'authorised person' certain rights of entry onto land in the following terms: 8.6. Power to enter property (1) For the purpose of performing his or her functions an authorised person may enter land, premises or things in accordance with this section. (2) An authorised person may enter local government property with or without the consent of the local government. (3) An authorised person may, with assistants if necessary, enter land, premises or things other than local government property if — (Page 31)
74 The claim by Mr Fazio thus appears to be that the entry on to the property at 10 Hannah Place, Leeming, set out above, was not authorised by LGA s 8.6(3). 75 There is no express right in LGA s 8.6(3) for a person who says they suffered damages as a result of a breach of the section to commence an action in the District Court for damages. 76 The reference to LGA s 8.6(3) is relevant to the question of whether the employees or agents of the City of Melville had an implied licence to enter the property at 10 Hannah Place, Leeming. The reference to LGA s 8.6(3) may remain in the pleading in this context.
Freedom of Information 77 Lastly, Mr Fazio asserts that, in denying him access on a 'FOI application' to 'various documents as to the aforementioned events and legal advice they had sought and received', the City of Melville has acted 'not in accordance with the specific law and authorities such as the High Court decision in Osland v Department of Justice [2010]'. 78 The District Court only has that civil jurisdiction conferred upon it under the District Court of Western Australia Act 1969 (WA) (DCA) and other legislation: s 50. Neither the DCA nor Freedom of Information Act 1992 (WA) (FOIA) grants jurisdiction to the District Court in relation to matters arising under the FOIA. Rather, that jurisdiction is expressly given to the Supreme Court: FOIA s 85 to s 93. 79 The decision inOsland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 dealt with access to documents under the Freedom of Information Act 1982 (Vic). There is nothing in that decision suggesting that the District Court has jurisdiction in the present case. 80 There is no common law right of which I am aware which would create a cause of action pursuant to which Mr Fazio could assert a right to obtain documents from the City of Melville. Once there is a cause of action within the jurisdiction of the District Court Mr Fazio can obtain from the City of Melville in the discovery process 'all documents that are or have been in that party's possession, custody or power relating to any matter in question in the action': District Court Rules 2005 (WA) r 46(2). However, this does not create an independent cause of action. It is also subject to any valid claim for privilege. (Page 32)
81 I am satisfied that the claims made by Mr Fazio in relation to the release of information do not disclose a reasonable cause of action (at least not one that can be commenced in the District Court). These claims ought to be struck out.
Summary 82 For the reasons set out above, 9 of the 10 claims which I have identified in the indorsement to the writ and the statement of claim do not disclose a reasonable cause of action which can be brought in the District Court and should be struck out. The claim in trespass should be struck out in its present form. All the claims in the in indorsement to the writ should be struck out save for the claim in trespass and the reference to the damages suffered. The statement of claim as a whole should be struck out.
If either the writ or statement of claim disclose a reasonable cause of action, should it nonetheless be struck out as an abuse of process? 83 As I have found that the statement of claim discloses a reasonable cause of action for trespass, it is necessary for me to consider the City of Melville's submission to the effect that if there is a claim which discloses a reasonable cause of action, it should nonetheless be struck out as an abuse of process. 84 A pleading, or part of a pleading, may be struck out if 'it is otherwise an abuse of the process of the Court': RSC O 20 r 19(1)(d). This is part of the wider power of the court to act to prevent its processes from being abused. This power has been described as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people': Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536. This formulation has been approved by the High Court and applied by the Court of Appeal: Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 [28]; Batistatos v Roads and Traffic Authority of New South Wales[2006] HCA 27; (2006) 226 CLR 256 [6]; Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd[2012] WASCA 186 [41]; Commonwealth of Australia v Albany Port Authority[2006] WASCA 185 [20]. (Page 33)
85 The 'circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse': R v Carroll [2002] HCA 55; (2002) 213 CLR 635, 657 [73]; also Batistatos [9], [142]. The court may exercise its power in relation to an abuse of process 'as and when the administration of justice demands': Jago v District Court of New South Wales[1989] HCA 46; (1989) 168 CLR 23, 74; Brocx v Hughes [2010] WASCA 57 [13]. 'What constitutes an abuse of process cannot be reduced to hard and fast rules or closed categories because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case': Brocx[79]; QBE Insurance [110]; Ridgeway v The Queen[1995] HCA 66; (1995) 184 CLR 19, 74 - 75. 86 More specifically, an attempt to re-litigate a dispute already judicially determined may constitute an abuse of process, and may do so whether or not one of the doctrines of res judicata, issue estoppel or Anshun estoppel is applicable: Walton (392 - 393); QBE Insurance[41], [110] - [114],[202]; Macchia v The Public Trustee[2008] WASCA 241; (2008) 251 ALR 385 [32]; Spalla v St George Motor Finance Ltd[No 6][2004] FCA 1699 [66]. An abuse of process will arise where the subsequent proceedings are seriously and unfairly burdensome, prejudicial or damaging, or productive of serious and unjustified trouble and harassment: Ridgeway (74 - 75); Batistatos [14]; QBE Insurance [204]. It may also arise where there are 'multiple or successive proceedings which cause or are likely to cause improper vexation or oppression': Jeffery [27]; QBE Insurance [41]. 87 The issue of abuse of process arises because the present action is, in part, an attempt by Mr Fazio to re-litigate an issue which was the subject of a Magistrates Court claim and a settlement. Specifically, in his statement of claim, Mr Fazio states that he commenced proceedings in the Perth Magistrates Court against the City of Melville in relation to the alleged trespass on 21 February 2010. This claim was discontinued. The nature of the agreement pursuant to which it was discontinued is set out in the affidavit of Mr Nicholls. Mr Nicholls says that the agreement between the City and Mr Fazio was that: (Page 34)
88 In the circumstances of the present case, I am not satisfied that the claim for trespass should be struck out as an abuse of process in so far as it relates to the event which occurred on 21 February 2010. This is for four reasons. The first is that I have not had the benefit of Mr Fazio's version of the settlement of the Magistrates Court claim. The second is that there is an allegation of further trespasses after the date of the alleged settlement which is could not be struck out as an abuse of process, and will need to proceed to trial. The third is that it is open for the City of Melville to plead a settlement agreement in relation to the events of 21 February 2010 in its defence. Finally, the jurisdiction to strike out proceedings or a defence as an abuse of process must be exercised with great circumspection: QBE Insurance[41]; Howden v Truth & Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416, 418.
If each of the claims in the writ and statement of claim is struck out, is the City of Melville entitled to judgment? 89 Where an indorsement to a writ or a pleading has been struck out pursuant to RSC O 20 r 19(1), the court has the power to 'order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be': RSC O 20 r 19(1)(a). The alternative is to allow Mr Fazio the opportunity to file a minute of amended or substituted statement of claim. 90 As set out above [20], from the indorsement in the writ and the pleadings in the statement of claim, it appears to me that Mr Fazio asserts ten claims against the City of Melville. Of these, in my view, only one discloses a reasonable cause of action, being the claim in trespass. As I have already stated, Mr Fazio ought to have leave to replead this claim. The claim in relation to LGA s 8.6(3) gets subsumed into this cause of action on the issue of whether the City of Melville had a right of entry to Mr Fazio's property. 91 The fact that there is a claim that discloses a reasonable cause of action, and which may be repleaded, means that I cannot grant judgment to the City of Melville. 92 Of the remaining eight claims, five are either not causes of action, or do not give rise to causes of action which can be brought in the District Court, being: (Page 35)
(a) breach of an obligation under the Privacy Act 1998 (Cth); (b) breach of an obligation of privacy at common law; (c) good faith; (d) malicious conduct; and (e) breach of the Freedom of Information Act 2002 (WA). 93 In other words, there are no additional facts which, if pleaded, could possibly give rise to a reasonable cause of action able to be litigated in the District Court in relation to these claims. 94 This leaves three remaining claims, which are recognised torts: (a) conspiracy; (b) negligence; and (c) deceit. 95 If Mr Fazio is able to identify facts on which he says his claims are based which have not yet been pleaded, and which may give rise to a reasonable cause of action, it may be that he should be given the opportunity to present these facts at a trial: Saunders [38]; Pancontinental Mining (414). To facilitate this inquiry the orders I made on 21 March 2013 included an order that Mr Fazio file an affidavit setting out the facts on which the statement of claim is based. Mr Fazio filed an affidavit dated 17 June 2013 in response to this order. The question then arises as to whether there are any facts set out Mr Fazio's affidavit which, if included in an amended or substituted statement of claim, would give rise to a reasonable cause of action for these remaining three claims. 96 Having read Mr Fazio's affidavit, I am of the view that there are no other facts which, if presented at trial, could give rise to a reasonable cause of action in conspiracy or deceit. 97 There is an additional fact relevant to a claim in negligence, which is that Mr Fazio suffers from Bipolar 1 Disorder. This is a recognized psychiatric illness. However, this does not address the second and third deficiencies with a cause of action in negligence which I have outlined above ([42], [43]). (Page 36)
98 On the material before me I am satisfied that the causes of action claimed in conspiracy, deceit and negligence are so clearly untenable that they cannot possibly succeed: General Steel Industries (129 - 130); Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [24], [54] - [57]; Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 [113]. I have the high degree of certainty about the ultimate outcome of a trial on these claims case required by the High Court to make it appropriate not to allow these claims to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Spencer [24]; Batistatos [46]; SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20].
What are the appropriate final orders? 99 In relation to the writ, the only paragraph which discloses a reasonable cause of action is par 2. However, the references to the Privacy Act ought to be deleted. Paragraph 6 may remain as it relates to damages. 100 I have listed this action for a directions hearing on 26 September 2013 at 2.30 pm for the purpose of making orders on the application by the City of Melville. In my view, orders along the following lines are appropriate to give effect to the reasons set out above: 1. paragraphs 1, 3, 4, and 5 of the indorsement to the writ be struck out; 2. the words 'The Privacy Act' in par 2 of the indorsement to the writ be struck out; 3. the statement of claim dated 15 June 2013 be struck out; 4. the plaintiff have leave to file and serve a substituted statement of claim dealing only with the cause of action against the first defendant (the City of Melville) for trespass, including issues arising pursuant to Local Government Act 1995 (WA) s 8.6(3); |