Horsman v City of Greater Geraldton
[2020] WASC 338
•22 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HORSMAN -v- CITY OF GREATER GERALDTON [2020] WASC 338
CORAM: CURTHOYS J
HEARD: ON THE PAPERS
DELIVERED : 22 SEPTEMBER 2020
FILE NO/S: CIV 3170 of 2018
BETWEEN: BARRY STANLEY HORSMAN
First Plaintiff
GRACE JAVIER TANDOC
Second Plaintiff
AND
CITY OF GREATER GERALDTON
Defendant
Catchwords:
Obstruction - Local government - Sale of impounded goods
Legislation:
Local Government (Functions and General) Regulations 1996, reg 29(1)
Local Government (Uniform Local Provisions) Regulations 1996
Local Government Act 1995, s 1.4, s 3.39, s 3.42
Rules of the Supreme Court 1971, O 16 r 1
Result:
Summary judgment for defendant against first plaintiff
Category: B
Representation:
Counsel:
| First Plaintiff | : | PG McGowan |
| Second Plaintiff | : | PG McGowan |
| Defendant | : | A Sharpe & A Watts |
Solicitors:
| First Plaintiff | : | Lewis Blyth & Hooper (Gosnells) |
| Second Plaintiff | : | Lewis Blyth & Hooper (Gosnells) |
| Defendant | : | McLeods |
Case(s) referred to in decision(s):
Gerovich v Gerovich [2018] WASC 153
Haywood v Mumford (1908) 7 CLR 133
Webster v Lampard [1993] HCA 57
CURTHOYS J:
On 20 December 2018 Barry Stanley Horsman and Grace Javier Tandoc filed a writ of summons against the City of Greater Geraldton seeking declarations:
(a)that the City unlawfully took possession of two unregistered semi-trailers and the contents and sold them causing loss and damage, and
(b)that the semi-trailers and sea container were not on a lawfully created and gazetted thoroughfare so as to enable the City to seize the sea container and two semi-trailers so as to enable the City to seize them and their contents.
On 18 February 2020 the plaintiffs filed an amended writ of summons and a statement of claim.
On 13 May 2020 the plaintiffs filed a further amended writ of summons.
This application
On 5 March 2020 the City filed an application seeking the following orders:
1.The defendant be granted leave to bring an application for summary judgment by 5 March 2020.
2.Judgment in the action by the first and second plaintiffs be entered for the defendant pursuant to Order 16 r 1 of the Rules of the Supreme Court 1971.
3.In the alternative to paragraph 2, the plaintiffs' action be stayed permanently on the basis that it is an abuse of the process of the Court.
4.In the alternative to paragraphs 2 and 3, the Plaintiffs' Statement of Claim dated 18 February 2020 be struck out in its entirety on the basis that it exceeds the scope of the indorsement to the writ contrary to O 20 r 2(2) of the Rules of the Supreme Court 1971 and judgment for the defendant be entered.
5.In the alternative to paragraphs 2, 3 and 4, paragraphs 5 to 7, 9 to 11, and 14 to 17 of the Plaintiffs' Statement of Claim dated 18 February 2020 be struck out on the basis that those paragraphs exceed the scope of the indorsement to the writ contrary to O 20 r 2(2) and, further, on the basis that paragraph 5 may embarrass the fair trial of the action.
6.The defendant be excused from filing a defence until 14 days after the present application has been determined.
7.The plaintiffs pay the defendant's costs of the action, including this application.
The City's application was supported by an affidavit of Neil Ferridge affirmed on 3 March 2020 and an affidavit of Adam Watts affirmed on 20 March 2020.
Barry Horsman filed an affidavit in opposition sworn on 7 April 2020.
Amended writ of summons
As noted, the plaintiffs filed a further amended writ of summons on 13 May 2020.
The indorsement in the further amended writ of summons provides:
The plaintiffs seek declarations that the Defendant unlawfully took possession on 11 January 2013 of 1 unregistered semi-trailer, 1 prime mover, 1 mobile car hoist and a sea-container (containing the first plaintiff's goods) owned by the first plaintiff and goods inside the semi‑trailer owned by the Second Plaintiff and thereafter unlawfully sold and disposed of those items causing loss and damage.
The plaintiffs' statement of claim
As noted, the plaintiffs filed a statement of claim on 18 February 2020, which provided:
1.The Defendant is a municipal authority established in accordance with the provisions of the Local Government Act.
2.On 16 March 1984, in accordance with the provisions of the Local Government Act, a strip of land 10 meters wide widening at its commencement, commencing at the southwest side of Anderson Street and the east and most eastern corner of lot 27 Victoria Location 8160 and delineated as ROA on diagram 49027 south westward along the southern boundaries of that lot and lots 28 and 29 of location 8160 and terminating at the southern most southwestern corner of the last mentioned lot was declared as a 'street, way, public place or thoroughfare (the Thoroughfare)'.
3.The Thoroughfare was not named or otherwise gazetted as a named street or road.
4.The Thoroughfare is and was at all material times under the care control and management of the Defendant.
5.At or before 30 October 2012, the Plaintiff was the owner of an unregistered prime mover, one unregistered semi-trailer and a sea container which were located in the Thoroughfare at the south of lots 27 and 28 ('the Vehicles').
[table omitted]
6.The sea container contained goods belonging to the First Plaintiff (Barry's Goods)
[table omitted]
7.The Tri Axle-Pantech Refrigerated Semi-Trailer contained goods belonging to the Second Plaintiff (Grace's Goods).
[table omitted]
8.The Thoroughfare was at all material times unused, was accessible from Anderson Road only and was an unserviced laneway.
9.On or about 11 January 2013, the Defendant by its officers, servants or agents, attended on the Thoroughfare and took possession of the Vehicles, Barry's Goods and Grace's Goods.
10.In taking possession of the Vehicles and the Barry's Goods and Grace's Goods, the Defendant acted without authority.
11.The Defendant removed the Vehicles and Barry's Goods and Grace's Goods from the Thoroughfare and took them into its possession. On or about May 2014, the Defendant advertised notice of intention to sell the Barry's Goods and Grace's Goods by way of public tender.
12.At a date or dates at present unknown to the Plaintiffs, tenders were received by the Defendant.
Particulars
Particulars to be supplied after discovery.
13.In or about 17 July 2014, the Defendant advised the successful tenderers that their tenders had been accepted by the City.
Particulars
Particulars to be supplied after discovery.
14.On a date or dates unknown to the Plaintiffs, the Defendant disposed of the Vehicles and Barry's Goods and Grace's Goods and received payment therefor.
15.The Defendant has failed and/or refused to account to the Plaintiffs for moneys so received.
16.The actions of the City in seizing the Vehicles and Barry's Goods and Grace's Goods constitutes detinue by reason of which the Plaintiffs have suffered loss and damage.
17.The actions of the City, in effecting a disposal of the Vehicles and Barry's Goods and Grace's Goods and retaining the proceeds therefrom constitutes conversion by reason of which the Plaintiffs have suffered loss and damage.
Particulars
By reason of the Defendant's actions, the First Plaintiff has lost the benefit of a contract entered into on 15 December 2012 between himself and All Hours Electrical and Communications which contract was for a five year period commencing 28 February 2013 providing for payment in respect of the Plaintiff at $300 net per day and payment for the provision of the Ford Louisville Prime Mover and the Triaxle Refrigerated Pantex at the rate of $1,200 per day, net for the duration of the contract term.
The First Plaintiff has lost Barry's Goods to the value of $92,800 and the Vehicles to the value of $46,000. The Second Plaintiff has lost Grace's Goods to the value of $75,020.
Further particulars will be provided prior to trial.
AND THE PLAINTIFFS CLAIM:
1.A declaration that the seizure of the Vehicles and Barry's Goods and Grace's Goods by the Defendant was and is without lawful authority.
2.Damages.
3.Interest.
4.Such other relief as the Court may deem fit.
Gerovich v Gerovich
In Gerovich v Gerovich,[1] Justice Pritchard set out the principles relating to ordering summary judgment for the defendant:
[1] Gerovich v Gerovich [2018] WASC 153.
[26]Order 16 r 1 RSC requires the Court to be satisfied either that the action is frivolous or vexatious, or that the defendant has a good defence on the merits, or that the action should be disposed of summarily.
[27]The principles in relation to the determination of applications for summary judgment are well established. A party should not ordinarily be denied the opportunity to have his or her case determined following trial, and for that reason, the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial. In other words, the question is whether, on the material before the Court, it has been demonstrated that the plaintiff's action should not be permitted to proceed to trial because it is apparent that it must fail.
[28]However, that does not mean that summary judgment will be given only where the case is so hopeless as not to require argument. Extensive argument may be necessary to demonstrate that a party's case is so clearly untenable that it cannot possibly succeed.
[29]A defendant bringing a summary judgment application bears the legal onus of establishing that there is no serious question to be tried on any cause of action raised by the plaintiff. Under O 16 r 1(2), the defendant is required to file an affidavit verifying the facts upon which the application is based.
[30]The plaintiff is also entitled, under O 16 r 2, to file an affidavit to show cause against the application. If the plaintiff shows cause against the application for summary judgment by filing an affidavit in response, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. In other words, the plaintiff needs to show, on the evidence, that there exists a 'triable issue'. In doing so, the affidavit must 'condescend upon particulars' - that is, it must set out facts which establish that it is reasonable to permit the plaintiff to pursue the action.
[31]However while the plaintiff may assume an evidentiary onus, the defendant retains the legal onus of demonstrating that there is no real question to be tried.
[32]Actions should not be disposed of summarily when the facts are in dispute. Where there is a conflict on the affidavit evidence, the Court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting the application for summary judgment (in this case, John) will ultimately be accepted at trial.
[33]The Court has power, whether under O 16 RSC or pursuant to its inherent power, to summarily dismiss a part of a claim. (footnotes omitted)
In particular, I note what the High Court stated in Webster v Lampard:[2]
Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that 'great care ... be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his (or her) opportunity for the trial of his (or her) case by the appointed tribunal' ((7) General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR, at p. 130; see, also, Church of Scientology v Woodward[1982] HCA 78; (1982) 154 CLR 25, at p. 31).
Leave
[2] Webster v Lampard [1993] HCA 57.
The defendant requires leave under O 16 r 1 of the Rules of the Supreme Court 1971 (RSC) to bring its application for summary judgment, which was filed on 5 March 2020, being more than 21 days after an appearance was entered.
The application for leave is unopposed.
Leave is granted to the City to bring the application. The amended writ of summons was filed on 18 March 2020 and the application on 5 March 2020. Given the long delay after the issue of the writ before the statement of claim was filed the City should not be prejudiced.
City's application for summary judgment for the defendant
The City submitted:
Plaintiffs' claims
8.The Plaintiffs' claims arise from the impounding and sale of goods by the Defendant.
9.The Plaintiffs assert that on 11 January 2013, the Defendant impounded an unregistered prime mover, an unregistered semi‑trailer, a sea container and a mobile car hoist owned by the First Plaintiff, together with the contents of the semi-trailer and sea container, and later sold these items: see Statement of Claim (SoC): [5], [9], [14].
10.The Defendant admits that on 11 January 2013 its officer, Ranger Neil Ferridge, impounded those items and that the Defendant later sold those items.
11.The Plaintiffs assert that these items were taken from the Thoroughfare that is identified at SoC [2].
11.The Defendant admits that, at the time the goods were impounded, they were in the 'Thoroughfare' as defined at SoC [2] but notes that the reference in SoC [2] to 'east and most' should be to 'easternmost', that the reference to 'deliniated as ROA' should be to 'extending as delineated and marked ROW', and that the effect of the Gazettal was that the 'Thoroughfare' and other lands were declared to be 'public streets' which were 'absolutely dedicated to the public as streets within the meaning of any law now or hereafter in force.' See Attachment NF3 [pp 19 - 20] for the full terms of the Gazettal.
The City has evidenced the legal basis for the creation of the Thoroughfare, i.e. the Gazettal.
The City submitted:
Legal basis for impounding and sale
13.Section 3.39(1) of the LG Act provides that:
An employee authorised by a local government for the purpose may remove and impound any goods that are involved in a contravention that can lead to impounding.
14.At the relevant time, Mr Ferridge was an employee so authorised by the Defendant: Ferridge Affidavit, [6] ‑ [11], Attachment NF1 [pages 16 -17]
15.Section 3.37(1) of the LG Act provides that regulations may prescribe any contravention of a regulation or local law made under the Act to be a contravention that can lead to impounding.
16.Regulation 29(1) of the Local Government (Functions and General) Regulations 1996 (LG (FG) Regulations) provides:
A contravention of a regulation or local law made under the Act can lead to the impounding of goods involved in the contravention if-
(a)it occurs in a public place; and
(b)either -
(i)the presence of the goods -
(I) presents a hazard to public safety; or
(II) obstructs the lawful use of any place;
or
(ii)where the regulation or local law prohibits or regulates the placement of the goods, the goods are located in a place contrary to that regulation or local law. [Emphasis added.]
(Noted in Tallot v City of Stirling [2017] WASCA 126 [171])
Contravention of a regulation or local law
17.For the purpose of this summary judgment application, the Defendant relies upon the contravention of:
17.1.cl 4.7(1) of the Defendant's Parking and Parking Facilities Local Law 2012 (Parking Local Law) (Ferridge Affidavit, Attachment NF42 [p.79]) as authorising the impounding of the unregistered prime mover, unregistered semi-trailer and mobile car hoist; and
17.2reg 6(1) of the Local Government (Uniform Local Provisions) Regulations 1996 (LG (ULP) Regulations) as authorising the impounding of the sea container.
Contravention of cl 4.7(1) of the Parking Local Law
18.Clause 4.7 of the Parking Local Law provides:
(l)A person shall not park a vehicle in a public place so as to cause an obstruction.
(2)For the purposes of subclause (1) -
(a)a vehicle which is parked in any portion of a public place may not lawfully be parked is deemed to be causing an obstruction; and
(b)a vehicle that is parked in any portion of a public place where vehicles may lawfully be parked does not cause an obstruction, unless-
(i)the vehicle is so parked for any period exceeding 24 hours, without the consent in writing of the CEO or an authorised person; or
(ii)the vehicle is so parked during any period in which the parking of vehicles is prohibited or restricted by a sign. (See Ferridge Affidavit, 79)
19.…
Meaning of 'vehicle'
20.'Vehicle' is defined cl 1.5(1) of the Parking Local Law to 'have the meaning given to it in the Code.'
21.The 'Code' is defined in cl 1.5(1) to mean the 'Road Traffic Code 2000'.
22.The Road Traffic Code as at 31 August 2011 (which was in effect until 12 April 2013) provided in reg 3(1) that:
vehicle has the same meaning as that term has in the Act, and, in Parts 4 to 11, inclusive and in Part 18 of these regulations, includes an animal driven or ridden …
23.The Road Traffic Act 1974 as at 12 December 2012 (which was in effect until 13 January 2013) provided in s 5(1) that:
'vehicle includes -
(a)every conveyance, not being a train, vessel or aircraft, and every object capable of being propelled or drawn, on wheels or tracks, by any means; and
(b)…
24.It follows from this definition that the unregistered prime mover, unregistered semitrailer and mobile car hoist were all 'vehicles' for the purpose of the Parking Local Law.
I find that the unregistered prime mover, unregistered semitrailer and mobile car hoist were all 'vehicles' for the purpose of the Parking Local Law. I note that the sea container was not relevantly a 'vehicle'.
The City submitted:
Meaning of 'park'
25.Clause 1.5(1) of the Parking Local Law provides:
park in relation to a vehicle means permit a vehicle, whether attended or unattended to remain stationary, except for the purpose of-
(a)avoiding conflict with other traffic;
(b)complying with any written law; or
(c)immediately taking up or setting down persons or goods within 2 minutes of the vehicle becoming stationary.
26.There is no dispute about the fact that the unregistered prime mover, unregistered semitrailer and mobile car hoist were all in the same location from 7 January 2013 until 11 January 2013, when they were impounded (See Ferridge Affidavit, [32] ‑ [34], [ 42], [72]; Affidavit of Barry Stanley Horsman sworn 7 April 2020 (Horsman Affidavit), [27] ‑ [31]).
Based on the paragraphs of the affidavits stated above I find that the unregistered prime mover, unregistered semitrailer and mobile car hoist were each a 'vehicle' for the purpose of the Parking Local Law.
The City submitted:
27.Those vehicles were therefore 'parked' for the purpose of cl 4.7(1) of the Parking Local Law.
So parked for any period exceeding 24 hours, without the consent in writing of the CEO or an authorised person
28.It also follows from the agreement that the vehicles were all in the same location from 7 January 2013 until 11 January 2013 that the vehicles were all 'parked' for a period exceeding 24 hours.
Based on the paragraphs of the affidavits stated above I find that the unregistered prime mover, unregistered semitrailer and mobile car hoist were all 'parked' for the purpose of cl 4.7(1) of the Parking Local Law.
The City submitted:
29.The First Plaintiff did not have the consent in writing of the local government to park the vehicles in the Thoroughfare (Ferridge Affidavit, [39] ‑ [40] [p8]).
30.It follows that the First Plaintiff could not rely upon cl 4.7(2)(b)(i) of the Parking Local Law as a defence.
I find, based on Ferridge's affidavit [39] - [40], that the plaintiffs did not have the consent in writing of the City to park the vehicles in the Thoroughfare. The plaintiffs do not contend that they had consent.
The City submitted:
'Public place'
31.Clause 1.5(1) of the Parking Local Law provides:
public place means any place to which the public has access whether or not that place is on private property.
32.The Gazettal at Attachment NF3 to the Ferridge Affidavit provided that the Thoroughfare was 'absolutely dedicated to the public' as a street and so the Thoroughfare was a 'public place' within the meaning of cl 4.7(1) of the Parking Local Law.
The City next went on to deal with the meaning of an 'obstruction'. Before dealing with that I note that it is unnecessary to prove that the unregistered prime mover, unregistered semitrailer, prime-mover, sea‑container and parking hoist were an 'obstruction' because they were deemed to be an obstruction by reason of cl 4.7(2)(a) of the Parking Local Law.
The authorities relating to 'obstruction'
At this point it is convenient to deal with all the submissions relating to the authorities.
The City submitted:
Meaning of 'Obstruction'
33.In Haywood v Mumford (1908) 7 CLR 133, the High Court was required to consider the proper meaning of 'obstructing' in the context of an appeal from a conviction for the offence of obstructing a carriageway.
34.Chief Justice Griffith said at 138:
In my opinion the term 'obstruction,' as used in the Police Offences Act 1890, includes any continuous physical occupation of a portion of a street which appreciably diminishes the space available for passing and repassing, or which renders such passing or repassing less commodious, whether any person is in fact affected by it or not.
35.Justice O'Connor said at 140:
What is obstruction of a highway? It is not only an obstruction which actually prevents someone from exercising his right on the highway; it is any obstruction which interferes to an appreciable practical extent with the right which every member of the public has to use the highway, and to use it at all times and under all circumstances.
The plaintiffs' submissions in opposition stated:
35.The defendant's reliance on Haywood v Mumford must be treated with caution. First and most importantly the text of the relevant regulation is not reproduced in the judgment and secondly a case decided on the limited traffic that would have been around in a country Victorian town over a 100 years ago suggests this is not a like for like case.
The City's submissions in reply stated:
Reliance upon Haywood v Mumford
70.…
71.…
72.Haywood v Mumford is High Court authority which has stood for over a century and which is binding upon this Court.
73.The Plaintiffs' submissions state that 'First and most importantly the text of the relevant legislation is not reproduced in the judgment'.
74.The text of the by-law of the Borough of Sale appears at page 134 of volume 7 of the Commonwealth Law Reports and is as follows:
'Any person obstructing any carriage way, foot way, or public place within the Borough of Sale, by standing or loitering therein or thereon, shall, upon being required so to do by any member of the police force, discontinue such standing or loitering.'
75.The by-law was made under s 6 of the Police Offences Act 1890 (Vic) which appears 'so far as material' in a footnote on page 133 as follows:
'Any local authority may from time to time make regulations for the route to be observed by all carriages carts vehicles and persons and for keeping order in the carriage and foot ways and public places of any city town or borough and for preventing any obstruction thereof whether by the assemblage of persons or otherwise.'
76.The attempt to distinguish Haywood v Mumford on the basis that it was decided in the context of 'limited traffic' in a country town should be rejected because these factors make it all the more applicable to a laneway in Geraldton.
77.However, the key point is that the legal principles which it establishes bind this Court.
I am satisfied that Haywood v Mumford[3] is an authority binding on this court and that it should be followed.
[3] Haywood v Mumford (1908) 7 CLR 133.
The City submitted:
36.The above-quoted passage from Griffith CJ was applied by Chaney J in Tallott v City of Stirling (No 2) [2015] WASC 483; (2015) 213 LGERA 254 at [91] ‑ [92].
37.In that case, Chaney J upheld the legality of the impounding of Mr Tallott's van, which had been parked in a carpark at Scarborough Beach.
38.The van was not on the tarmac set aside for parking but between two trees: [74].
39.In relation to the meaning of 'obstructs' in the relevant legislation and by‑laws, Chaney J held at [92]:
'In my view, the sense in which the word 'obstructs' is used in r 29(1) of the Local Government (Functions and General) Regulations, cl 8.6 of the Parking Local Law 2008 and cl 4.1 of the Thoroughfares and Public Places Local Law is the sense described in Haywood v Mumford. I find that Mr Tallott's vehicle was obstructing a part of a public place and city property and the lawful use of that place. That is because it was occupying space which might be used by pedestrians entering or leaving the parking area and diminishing the area available for that or any other purpose.'
40.Justice Chaney's conclusion was upheld on appeal in Tallott v City of Stirling [2017] WASCA 126.
41.After setting out the quotation from Griffith CJ and Chaney J's reasoning at [92], the Court of Appeal held at [239]:
'Whether the word 'obstruct' carries the meaning referred to in Haywood v Muniford, or (to the extent that there may be any difference) has its ordinary meaning, which includes to 'make difficult of passage' and 'to come in the way of, the judge's findings of fact concerning obstruction at [92] were open.'
The plaintiffs' submissions in opposition stated:
36.Further, reliance on Tallott v City of Stirling (No 2) [2015] WASC 483, must again be tempered by reason of different language in different statutory instruments used for different purposes. Further the factual situation was quite different see [88] ‑ [90].
37.As a result, the use of this section could only amount to an obstruction at least in principle if it was otherwise used by traffic. On the evidence it was not being used, or at least there was no admissible evidence of its use.
38.Therefore, as a matter of first principle, the parking of the various items and equipment by the Plaintiffs could not and did not as a matter of fact amount to an obstruction.
The City's submissions in reply stated:
Reliance upon Tallott v City of Stirling (No 2)
78.The Plaintiffs' submissions at [36] contend that reliance on Tallott must be 'tempered by reason of different language in different statutory instruments used for different purposes'.
79.However, both Tallott and the present case concern the meaning of the word 'obstructs' in reg 29(1) of the LG (FG) Regulations. See Defendant's primary submissions at [38] and [89] ‑ [94].
80.Further, the local laws in Tallott which used the word 'obstruct' were designed to regulating parking and the obstruction of public places. These are the same purposes as the local laws relied upon in this case.
81.The Plaintiffs' submissions also contend that the factual situation was quite different.
82.The factual situation was different in that in Tallott the obstruction was found to be caused by a van which was parked between two trees in a carpark at Scarborough Beach.
83.The present case concerns vehicles including a prime mover and a semi-trailer, which are bigger than the van in Tallott.
84.Further, the public place in the present case is a 10 m wide laneway, which is a more confined space than the carpark in Tallott.
85.If anything, these differences reveal that the factual basis for concluding that the First Plaintiff had caused an obstruction is more compelling in the present case.
I accept the City's submissions that the meaning of 'obstruction' as stated in Tallott, both at first instance and on appeal, apply to the resolution of this matter. Indeed, it is hard to understand the plaintiffs' reasoning to the contrary. Both cases concern parking and obstruction.
Evidence of obstruction
The City submitted:
Evidence of obstruction
42.The Plaintiffs admit that the unregistered prime mover, unregistered semi-trailer and mobile car hoist were on the Thoroughfare on 11 January 2013: SoC, [5], [9].
43.In the Horsman Affidavit at [29], the First Plaintiff asserts that these items 'were not obstructing the thoroughfare' and similarly, at [33], the First Plaintiff says 'that none of the items referred to in paragraphs 33 or 34 caused an obstruction as alleged.'
44.The issue of whether the items were causing an obstruction is a legal issue and so the Defendant objects to the First Plaintiffs statements to the effect that the items were not obstructing the thoroughfare on the basis that it is a statement of a legal conclusion.
I agree that when the matter in issue is a legal question as to whether an object constitutes an 'obstruction' or 'obstructs' a statement in an affidavit to that effect is not evidence.
The City submits:
45.The Ferridge Affidavit at [41] ‑ [54], [64] ‑ [72] [pages 8 - 9] gives Mr Ferridge's evidence about the location and size of the vehicles which were impounded on 11 January 2013.
46.The location of the vehicles is marked on Attachment NF10 [page 27] to the Ferridge Affidavit.
47.There are photographs of the portable car hoist in situ at Attachment NF9 [page 26] and in the background of the photograph at Attachment NF 11 [page 28].
48.There are photographs of the prime mover and semi-trailer in situ at Attachments NF11 to NF15 [pages 28 - 32].
49.The laneway is 10 m wide: see Gazette and diagram at Attachments NF3 and NF2.
50.The prime mover was about 2.5 m wide and 3 m tall and the unregistered semitrailer was about 2.5 m wide and 3.5 m tall: Ferridge Affidavit, [47] ‑ [48].
51.In the context of a 10 m wide laneway, a prime mover and semi‑trailer which are 2.5 m wide will appreciably diminish the space available for passing and repassing.
52.The portable car hoist was about 1.8 m wide and about 4 m in length: Ferridge Affidavit [69].
53.It can be seen from the photographs at Attachments NF9 and NFl1 that the portable car hoist was being stored on a slight angle but principally lengthways across the laneway.
Mr Horsman's affidavit does not dispute Mr Ferridge's affidavit as to the position and dimensions of the prime-mover, semi-trailer and portable car hoist in any relevant detail. I find that the items were in the positions and of the dimensions as stated by Mr Ferridge in his affidavit.
The City submits:
54.A car hoist which is about 4 m in length will appreciably diminish the space available for passing and repassing when stored lengthways across a 10 m laneway.
55.As Haywood v Mumford makes clear, the Defendant does not need to prove that any person's actual passage through the Thoroughfare was made more difficult to establish a contravention of cl 4.7(1) of the Parking Local Law.
56.The prime mover, unregistered semi-trailer and mobile car hoist were therefore 'caus[ing] an obstruction' contrary to cl 4.7(1) of the Parking Local Law.
57.It follows from all of the above that on 11 January 2013, the First Plaintiff was in breach of cl 4.7(1) of the Parking Local Law by leaving his prime mover, semi-trailer and mobile car hoist in the Thoroughfare.
Having regard to the width of the prime-mover and semi-trailer (2.5 metres) and the portable car hoist (4.0 metres), I find that they 'appreciably diminished the space available for passing and repassing' along the thoroughfare. A reduction of the width by 25% and 40% is in both cases an appreciable diminishment. It should be noted that in each instance, as is evident from the photos attached to the Ferridge affidavit, the item was not hard against the boundary so the accessible width of the thoroughfare was diminished even more.
In addition, it is also relevant that the prime mover and semi-trailer had a combined length of about 15 metres (Ferridge [49], page 9) - that also appreciably diminished the space for passing and repassing. Anyone passing would not have been able to move back to the edge of the Thoroughfare had they so chosen for about 15 metres.
I find that the plaintiffs breached cl 4.7 of the Parking Local Law person by parking the unregistered prime mover, unregistered semitrailer and mobile car hoist in a public place, the thoroughfare so as to cause an obstruction.
The City submitted:
Contravention of reg 6(1) of the LG (OLP) Regulations
58.As at 11 January 2013, reg 6(1) of the LG (ULP) Regulations provided:
'A person who, without lawful authority, places on a public thoroughfare anything that obstructs it commits an offence if the person fails to remove the obstruction when requested by the local government to do so.'
59.The First Plaintiff contravened this provision by placing the sea container in the Thoroughfare.
'Public thoroughfare'
60.Section 1.4 of the LG Act provides:
'thoroughfare means a road or other thoroughfare and includes structures or other things appurtenant to the thoroughfare that are within its limits, and nothing is prevented from being a thoroughfare only because it is not open at each end'.
61The Thoroughfare was dedicated as a street by the Gazettal and therefore it was a 'road or other thoroughfare' within the meaning of this definition.
62.The Thoroughfare was also dedicated to the public by the Gazettal and so was a 'public thoroughfare' within the meaning of reg 6(1).
I find that the Thoroughfare was a 'thoroughfare' within the meaning of s 1.4 of the Local Government Act 1995 (LG Act) based on the gazettal.
The City submitted:
The sea container was placed on a 'public thoroughfare'
63The parties agree that the First Plaintiff had placed a sea container in the Thoroughfare by October 2012 and that it was in the same location when impounded in January 2013: Ferridge Affidavit, [25] ‑ [26] (page 6), [32] ‑ [33] (page 7), [42] (page 8), [71] (page 11); Horsman Affidavit, [27]; SoC, [5], [9].
I find that the sea container was in a public Thoroughfare.
The City submitted:
'Without lawful authority'
64.Regulation 4 of the LG (ULP) provides that:
'lawful authority means -
(a)the consent in writing of the local government; or
(b)authority conferred by an Act.'
65.The First Plaintiff did not have the consent in writing of the local government to place the sea container in the Thoroughfare: Ferridge Affidavit, [39] ‑ [40] (page 8).
66.The First Plaintiff was not otherwise authorised to place the sea container in the Thoroughfare and therefore did so without lawful authority.
I find that the plaintiffs were not authorised to place the sea container in the Thoroughfare.
The City submitted:
Anything that 'obstructs'
67.The meaning of 'obstructs' should be interpreted in reg 6(1) of the LG (ULP) Regulations in light of the decision of Haywood v Mumford and the Tallott cases set out above.
68.Mr Ferridge's evidence regarding the location and dimensions of the sea container is set out in his affidavit at paragraphs 55 to 63.
69.The location of the sea container is marked on Attachment NFl0 to the Ferridge Affidavit.
70.There are photographs of the sea container in situ at Attachments NF16 to NF19.
71.The sea container was about 3 m wide and 44 feet long: Ferridge Affidavit, [58] ‑ [59].
72.In the context of a 10 m wide laneway, a shipping container of about 3 m width will appreciably diminish the space available for passing and repassing.
73.The sea container therefore caused an obstruction in the Thoroughfare.
Having regard to the width of sea container (3.0 metres), I find that it 'appreciably diminished' the space available for passing and repassing' along the Thoroughfare. A reduction of the width of the Thoroughfare by 30% is an appreciable diminishment.
In addition, it is also relevant that the sea container was about 14 metres long (Ferridge [58], page 10) - that also appreciably diminished the space for passing and repassing. Anyone passing would not have been able to move back to the edge of the Thoroughfare had they so chosen for about 14 metres.
The City submitted:
'Requested by the local government'
74.On 31 October 2012, Mr Ferridge hand-delivered a letter from the Defendant to the First Plaintiff informing the First Plaintiff that items including an 'Abandoned Sea Container' of which the First Plaintiff had been identified as the owner were in the Thoroughfare and would be towed away and impounded if not removed prior to this date: Ferridge Affidavit, [27] [page 6], Attachment NF4 [page 21].
75.Later that day, the First Plaintiff sent an email advising that 'I will be in a position next week to get the crane to lift the container over my fence and on top [sic] of the container adjacent on the property of 89 Anderson st': Ferridge Affidavit, Attachment NF5 (page 22).
76.On 5 November 2012, Mr Ferridge attended the Thoroughfare and observed the sea container and other items had not been removed from the Thoroughfare: Ferridge Affidavit, [29] (page 6).
77.On 8 November 2012, the Defendant sent to the First Plaintiff a notice in respect of 'One Ford Prime mover (no licence plate)', 'Two semi-trailers (no licence plates)', and 'One shipping container', the latter item being the item referred to on other occasions as the sea container: Ferridge Affidavit, Attachment NF6 [page 23].
78.The notice was from the CEO of the Defendant and included the following:
'You are requested to remove the vehicles and goods that are the cause of the obstruction within 14 days of this notice.'
79.The First Plaintiff attests that he does not recall receiving that notice but that he requested in writing an extension to comply with the notice: Horsman Affidavit, [25] ‑ [26] (page 5).
80.The Defendant's records show that on 21 November 2012, the First Plaintiff asked for a 1 week extension to comply with that Notice: Ferridge Affidavit, [31] [page 7].
81.It appears that the Defendant granted the extension: Ferridge Affidavit, [31] [page 7].
82.This means that the deadline for the Defendant's request for removal was extended to 29 November 2012.
83.Although the First Plaintiff does not recall receiving the notice, it can be inferred that he must have received it given it is agreed that he asked for an extension to comply with it.
84.The First Plaintiff therefore was requested by the Defendant to remove the sea container from the Thoroughfare.
The plaintiffs do not say that he did not receive the notice - simply that they do not recall receiving it. Given, the evidence of Mr Ferridge that he served the notice and that the plaintiffs asked for an extension of time within which to comply I find that Mr Ferridge did serve the notice. I find that the City did request the plaintiffs to remove the sea (shipping) container.
The City submitted:
'Fails to remove the obstruction'
85.The First Plaintiff admits that the sea container remained in place from October 2012 to January 2013: Horsman Affidavit, [27] [page 5].
86.The First Plaintiff therefore failed to remove the sea container from the Thoroughfare in November 2012 as requested by the local government (and despite being given an extension of time).
87.Therefore, the First Plaintiff failed to remove the sea container after being requested to do so by the Defendant.
I find that the plaintiffs did not remove the sea (shipping) container after having been requested by the City to do so.
Conclusion
88.It follows from the above that, as at 11 January 2013, the First Plaintiff was in contravention of reg 6(1) of the LG (ULP) Regulations because he had not removed the sea container from the Thoroughfare after being requested to do so by the Defendant.
I find that the plaintiffs breached cl 4.7 of the Parking Local Law.
The City submitted:
Impounding was authorised due to contraventions
89.Regulation 29(1) of the LG (FG) Regulations, which is set out above, provides for when a contravention can lead to the impounding of goods.
90.The contravention must be of a 'regulation or local law made under the Act'.
91.The First Plaintiff's contravention of cl 4.7(1) of the Parking Local Law was a contravention of a local law.
92.As to the breach of reg 6(1) of the LG (ULP) Regulations, it is pertinent that, as at 11 January 2013, reg 3 of the LG (ULP) Regulations provided:
'Under section 9.60 of the Act, these regulations apply as if they were local laws made by each local government.'
93.Therefore, the First Plaintiffs contravention of reg 6(1) of the LG (ULP) Regulations was a breach of a local law of the Defendant.
94.The First Plaintiff's contravention of these local laws was a contravention that authorised the impounding of the vehicles because:
1.the breach occurred in a 'public place', being the Thoroughfare, and so comes within reg 29(l)(a) of the LG (FG) Regulations; and
2.the presence of the items caused 'an obstruction' and so obstructed the lawful use of the public place, thereby satisfying reg 29(1)(b)(i)(II) of the LG (FG) Regulations.
95.The impounding of the prime mover, semi-trailer, mobile car hoist and sea container was authorised because those were 'goods involved in the contravention' of the identified local laws by the First Plaintiff.
96.The items were therefore lawfully impounded pursuant to s 3.39 of the LG Act on 11 January 2013.
I find that the items were lawfully impounded by reason that they obstructed the lawful use of the thoroughfare and were located in a place contrary to a regulation or local law.
I note that neither s 3.39 of the LG Act nor reg 29(1) of the Local Government (Functions and General) Regulations 1996 (LG (FG) Regulations) require any notice after a contravention justifying impounding before the impounding takes place.
The City submits:
Sale of the impounded goods
Notice of impounding
97.Section 3.42(1) of the LG Act provides:
'When any non-perishable goods have been removed and impounded under section 3 .3 9 the local government is required to either -
(a)institute a prosecution against the alleged offender; or
(b)give the alleged offender notice that the goods may be collected from a place specified during such hours as are specified.' [Emphasis added.]
98.The First Plaintiff was given notice in accordance with s 3.42(1)(b) by a letter dated 11 January 2013, which the First Plaintiff collected on 15 January 2013: Ferridge Affidavit, [77] ‑ [78] (page 11). The letter is at Attachment NF21 (page 38)
I find that Mr Horsman was given notice in accordance with s 3.42(1) of the LG Act. However, there is no evidence that a notice was given to Ms Tandoc.
The City submitted:
Impounded goods may be withheld until costs paid
99.Section 3.46(1) of the LG Act provides:
'A local government may refuse to allow goods impounded under section 3.39 or 3 .40A to be collected until the costs of removing, impounding and keeping them have been paid to the local government.'
100.The Defendant required the First Plaintiff to pay the costs of removing, impounding and keeping the impounded items before he collected them: see, for example, the letter at Attachment NF2 l (page 38).
Disposal of uncollected goods
101.Section 3.47(2a) of the LG Act provides:
'The local government may sell or otherwise dispose of impounded goods that have not been collected within the period specified in subsection (2b) of -
(a)a notice having been given under section 3.42(l)(b) or 3.44; or
(b)…
102.Section 3.47(2a)(a) applied in this case because a notice had been given under s 3.42(1)(b).
103.The applicable period specified in s 3.47(2b) was that for 'non‑perishable goods' which were not 'prescribed non‑perishable goods', which was a period of 2 months.
104.Therefore, the Defendant was authorised to sell the goods two months after giving the notice dated 11 January 2013, which the First Plaintiff collected on 15 January 2013.
105.That is, the Defendant was authorised to sell the goods on and from 15 March 2013.
106.The Defendant agreed by its solicitors that it would not exercise the power of sale before 30 April 2013 in light of the First Plaintiffs circumstances: see letter from McLeods dated 16 April 2013 to the First Plaintiff at Attachment NF25 (pages 42-43).
107.On 28 May 2013, the Defendant, by its solicitors, agreed to defer disposal of the goods for, a further 14 days: Attachment NF27 (page 45).
108.The goods were not collected within that further 14 days.
109.On 21 March 2014, the Defendant, by its solicitors offered to accept a reduced amount in full and final settlement of the costs of impounding and keeping the goods and advised that if that sum was paid and the goods collected within 14 days, the Defendant would not proceed with the sale: Attachment NF31 (pages 50 - 51)
I find that by reason of Mr Horsman's failure to pay the fees the City was authorised to sell the items belonging to him.
The City submitted:
Sale of goods by public tender
110.The goods were not collected within 14 days of the letter from the Defendant's solicitors dated 21 March 2014 and so the Defendant proceeded to sell the impounded goods.
111.Section 3.47(3) of the LG Act provides:
'Section 3. 5 8 applies to the sale of goods under this section as if they were property referred to in that section.'
112.Section 3.58(2)(b) provides for the sale of goods by local government by public tender.
113.The impounded goods were sold by public tender: SoC [11] ‑ [13].
114.The tender process is described in the Ferridge Affidavit at [90] ‑ [92] [pages 14 - 15].
115.The public notice of the tender, which was published in the Midwest Times on 29 May 2014 and in the West Australian on 31 May 2014 is at Attachment NF32 [pages 55].
116.The letters to the successful tenderers dated 17 July 2014 are at Attachment NF33 [pages 56 - 59].
Conclusion
117.It follows from the above that the impounding and sale of the goods was authorised by the LG Act and so no action in conversion or detinue lies in respect of the goods.
118.The Defendant understands that the remedy of account pleaded at paragraph 15 of the Statement of Claim is not pressed.
119.On this basis, the Defendant seeks summary judgment in the action by the First and Second Plaintiffs.
I find that the impounding and sale of the goods belonging to Mr Horsman was authorised by the LG Act.
The plaintiffs' submission in opposition stated:
5.Notwithstanding the way in which the Defendant's submissions present it is important, if not fundamental, to have regard to the basis upon which the Defendant at the time in fact proceeded.
6.Further, it is critically necessary to have regard to the legislative framework on which, at the time, the Defendant proceeded.
The City's submissions in reply stated:
2.The Plaintiffs' submissions at [5] submit that 'it is important, if not fundamental, to have regard to the basis upon which the Defendant at the time in fact proceeded' and at [6] that 'it is critically necessary to have regard to the legislative framework on which, at the same time, the Defendant proceeded'. [Emphasis in original]
3.Those submissions should be rejected because they are contrary to High Court authority.
4.Even if the City had incorrectly identified the source of the legal authority to impound the goods when the impounding was carried out, the impounding would still be valid so long as there was a lawful basis for the impounding.
5.As Brennan J stated in Johns v Australian Securities Commission (1993) 178 CLR 408 at 426:
When a power is exercised, a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed. [Footnote omitted].
6.See also McHugh J at 469 quoting Starke J:
The question is not one of intention but of power, from whatever source derived.
7.See further Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1, [34] (French CJ, Hayne, Kiefel and Bell JJ) and the authorities cited in footnote 56 (which include Johns at 426 and 469).
8.It follows that it is unnecessary for this Court to determine whether Mr Ferridge had any subjective intention to rely upon a contravention of s 3.25 of the LG Act as the basis for the impounding when he carried out the impounding on behalf of the Defendant.
9.All that the Defendant must show is that there was a lawful basis for the impounding.
10.In any event, it is not accepted that when the impounding incurred that there was any subjective reliance by Mr Ferridge upon a contravention of s 3.25 of the LG Act as the basis for the impounding.
11.Indeed, as explained below at [98] ‑ [104], Mr Ferridge's actions suggest to the contrary.
The plaintiffs' submissions in opposition stated:
7.NF6 presents as 'Notice to remove obstruction from thoroughfare'.
8.It is said to be a notice issued pursuant to and in reliance upon the authority of s 3.25(1) Local Government Act 1995 ('LGA'). It is less than clear as to the basis upon which, if at all, it could be said that this notice derives its legitimacy from that section:
3.25Notices requiring certain things to be done by owner or occupier of land
(1)A local government may give a person who is the owner or, unless Schedule 3.1 indicates otherwise, the occupier of land a notice in writing relating to the land requiring the person to do anything specified in the notice that -
(a)is prescribed in Schedule 3.1, Division 1; or
(b)is for the purpose of remedying or mitigating the effects of any offence against a provision prescribed in Schedule 3. 1, Division 2.'
9.Of the upmost significance is that the notice, directed as it is either to the owner or to the occupier, relates to the land i.e. the land that is either the subject of the ownership or the subject of the occupation.
10.In this case, it is common ground that the notice was directed to matters which occurred not on land which was either owned or occupied by the Plaintiffs, but within a thoroughfare.
11.As a result, at the outset, there is no legislative basis to have justified the issuance of the notice. Further and in any event, in apparent reliance upon s. 3.25(1) the notice further provided:
'Notice is hereby given that these vehicles are the cause of an obstruction which is an offence under Regulation 6 of the Local Government (Uniform Local Provisions) Regulations 1996'.
12.Regulation 6 materially provided:
6.Obstructing public thoroughfare- Sch. 9.1 Cl. 3(1):
(1)A person who, without lawful authority, places on a public thoroughfare anything that obstructs it commits an offence if the person fails to remove the obstruction when requested by the local government so to do.'
13.So, at the outset, even if there was a legislative basis for the issuance of such notice, the notice itself proceeded in reliance upon what was contended to be an offence under Regulation 6 of the Local Government (Uniform Local Provisions) Regulations 1996.
The City's submissions in reply stated:
Legal significance of notice at Attachment NF6
12.The Defendant relies upon the notice at Attachment NF6 to establish that the First Plaintiff was requested to remove the sea container from the Thoroughfare because it was causing an obstruction: see Defendant's primary submissions at [77] ‑ [84].
13.The Defendant does not rely upon a contravention of s 3.25 of the LG Act as a basis for the impounding.
The fact that the City misstated the basis for the issue of the notice to remove the items from the Thoroughfare is irrelevant. The City clearly had power to issue a notice. Despite the fact that NF6 refers to s 3.25(1) which refers to an 'owner or occupier' the notice was addressed to Mr Horsman, identified the Thoroughfare, identified the items, gave notice of the obstruction and requested the removal of the items. The Notice NF6 was valid.
The plaintiffs' submissions in opposition stated:
14.Significantly, notwithstanding the notice, at no time did the Defendant bring a prosecution against the First and/or Second Plaintiffs in relation to the contended obstruction.
The City's submissions in reply stated:
No need for a prosecution
14.The Plaintiffs' submissions at [14] observe that 'at no time did the Defendant bring a prosecution against the First and/or Second Plaintiffs in relation to the contended obstruction'. See also Plaintiffs' submissions at [40].
15.It is factually correct that there were no prosecution proceedings commenced against the Plaintiffs in respect of the items in the Thoroughfare but this is irrelevant to the lawfulness of the impounding.
16.Section 3.39(1) of the LG Act confers a power to impound 'any goods that are involved in a contravention that can lead to impounding.' [Emphasis added.]
17.Therefore, there only needs to be a 'contravention' of a relevant offence provision for the impounding to be lawful.
18.There does not need to be a 'conviction' to establish a 'contravention'.
19.Indeed, s 3.42 of the LG Act makes clear that the impounding under s 3.39 can occur before a prosecution is commenced and that no prosecution need ever be commenced.
20.Section 3.42(1) provides:
When any non-perishable goods have been removed and impounded under section 3.39 the local government is required to either-
(a)institute a prosecution against the alleged off ender; or
(b)give the alleged offender notice that the goods may be collected from a place specified during such hours as are specified.
21.In the present case, the Defendant proceeded to give a notice in accordance with s 3.42(1)(b) rather than commence a prosecution under s 3.42(1)(a). See the Defendant's primary submissions at [97] ‑ [98].
It is simply irrelevant that no prosecution was commenced. None was required.
The plaintiffs' submissions in opposition stated:
15.The relevant notice is dated 8 November 2012.
16.The precursor to that was what appears to be the initial letter (NF4) of 31 October 2012 which is expressed in the vaguest terms and without legislative reference or an underlying statutory basis to indicate the basis upon which, at that stage, 'the above-named will be towed away and impounded on 2 November 2012 if not removed by you prior to this date'.
17.The upshot of what was said to be a putative failure to comply with the notice of 8 November 2012 under s. 3.25(1) LGA was that the Defendant under s. 3.26 LGA would itself remove 'the cause of the obstruction'.
18.NF7 is said to be a photograph of a generic 'vehicle removal notice' said to have been affixed to the unregistered portable hoist trailer whereas NF8 is said to be a photograph of the actual vehicle removal notice said to have been affixed to the unregistered portable hoist trailer.
19.This is of significance since the notice which provides the basis upon which doubtless the Defendant was purportedly proceeding on 8 November 2012 did not relate, refer to or identify an unregistered portable hoist trailer, i.e. it was not the subject of the notice and therefore notice not having been given to the Plaintiffs, there couldn't have been a basis upon which the Defendant could then have contended that there was a failure to comply with the notice so far as it related to the unregistered portable hoist trailer.
There is no requirement to state the legislative basis for a notice. NF4 is not vague.
The City's submissions in reply stated:
Notice at Attachment NF6 does not refer to a portable hoist trailer
22.The Plaintiffs' submissions at [19] observe that the notice at Attachment NF6 does not refer to a portable hoist trailer.
23.This is accepted.
24.It can readily be inferred that the reason why the portable hoist trailer was not included in the notice was that Mr Ferridge had not observed the portable hoist trailer in the Thoroughfare before the notice was issued on 8 November 2012.
25.Mr Ferridge first saw the portable hoist trailer in the Thoroughfare on 7 January 2013: Ferridge Affidavit, [32] ‑ [34].
The plaintiffs' submissions in opposition stated:
20.There is also a factual contest as to whether in fact the notice to remove was affixed to the vehicles or not. See [34] ‑ [39] (inclusive) of the affidavit of the First Plaintiff dated 7 April 2020.
The City's submissions in reply stated:
Factual contest as to whether "Vehicle Removal Notice" affixed?
26.The Plaintiffs' submissions at [20] suggest that there is a "factual contest as to whether in fact the notice to remove was affixed to the vehicles or not".
27.Mr Ferridge does not attest that the "Vehicle Removal Notices" were affixed to all the vehicles in the Thoroughfare.
28.Mr Ferridge only attests that a "Vehicle Removal Notice" was affixed to the portable hoist trailer: Ferridge Affidavit, [35] - [38].
29.The Defendant accepts that there were not "Vehicle Removal Notices" affixed to the other vehicles in the Thoroughfare.
30.The Defendant had already requested that the First Plaintiff remove the other vehicles he had placed in the Thoroughfare in the notice at Attachment NF6.
31.However, the Defendant had not requested that the First Plaintiff remove the portable hoist trailer from the Thoroughfare.
32.Although the Defendant is legally empowered to impound goods without affixing a "Vehicle Removal Notice", the Defendant gives the owner of goods the opportunity to move goods before impounding them by affixing a "Vehicle Removal Notice".
33.Given that the First Plaintiff had already been requested to remove the other vehicles in the Thoroughfare in November 2012, affixing a "Vehicle Removal Notice" to those vehicles in January 2013 would have been superfluous.
34.In any event, there is no need to determine any supposed "factual contest" about the "Vehicle Removal Notices" because they have no legal significance to the validity of the impounding.
35.They are simply a practical measure used by the Defendant to give an opportunity to the owner of a vehicle to avoid having that vehicle impounded.
In any event, no notice was required in relation to the prime-mover, semi-trailer and portable trailer in order to establish a breach - so whether a notice was given or not is irrelevant.
The plaintiffs' submissions in opposition stated:
Did the vehicles obstruct the Thoroughfare
21.The second issue which arises is a matter of a factual contest and therefore wholly inappropriate for the purpose of the disposition of these proceedings by way of Defendant's summary judgment under Order 16.
22.Further, insofar as the Defendant relies upon the affidavit of Neil Ferridge of 3 March 2020 it contains as one of its factual foundations matters which are wholly hearsay, untested, never raised with the Plaintiffs and contested as a matter of fact, paragraphs [20] ‑ [23].
23.As a result, the factual conclusion identified by Mr Ferridge at [24] proceeds on a wholly untested, in the sense of never put to Mr Horsman at the time, but contested as a matter of fact. See Horsman affidavit at [10] ‑ [12].
24.That in itself given that whether as a fact there was an obstruction is at the heart of the basis upon which the Defendant proceeded, is sufficient to lead to the result that this is a wholly inappropriate case to be disposed of by way of summary judgment.
The City's submissions in reply stated:
Factual contest as to whether impounded items caused an obstruction?
36.The Plaintiffs' submissions at [21] and [24] contend that there is a factual contest as to whether the goods caused an obstruction of the Thoroughfare.
37.However, the parties agree that the impounded items were in the Thoroughfare: see the Defendant's primary submissions at [9] - [12].
38.The question of whether the vehicles caused an obstruction of the Thoroughfare for the purpose of cl 4.7 of the Parking Local Law and the question of whether the sea container obstructed the Thoroughfare for the purpose of reg 6(1) of the LG (ULP) Regulations are questions of the proper application of those provisions in the context of agreement about the fact that the impounded items were in the Thoroughfare.
39.This is a matter of contest for legal submissions rather than a factual contest which would prevent the disposal of the Plaintiffs' claims by way of summary judgment.
Statements to Mr Ferridge regarding items in Thoroughfare
40.The Ferridge Affidavit at [19] - [23] sets out the investigation made by Mr Ferridge after receiving a complaint about items being left in the Thoroughfare and sets out certain statements made to Mr Ferridge in the course of his investigation.
41.For the purpose of the summary judgment application, the Defendant does not rely upon those statements made to Mr Ferridge for the truth of the statements.
42.Those statements are relied upon only to show that Mr Ferridge and the Defendant took action in respect of the items in the Thoroughfare after receiving a complaint about items in the Thoroughfare and conducting an investigation about the items.
43.It follows that there is no need to test those statements which would prevent the determination of the Plaintiffs' action by summary judgment.
There is no factual contest for the reasons stated above.
The plaintiffs' submissions stated:
25.Of interest in this situation is that it appears to be accepted that a gate was placed across the thoroughfare at the western boundary of Lot 29 by the owners of Lot 29, see Ferridge [17] and Horsman [9].
26.That singular and uncontested action to block the thoroughfare seems not to have attracted the interest of the Defendant, even though on its terms to have blocked access completely would by any understanding of the word 'obstructs' would appear to constitute an offence under Regulation 6(1) Local Government (Uniform Local Provisions) Regulations 1996.
27.Further, as a question of fact the use that is made of the thoroughfare (it being unnamed, unmade and unsurfaced) is identified in the Horsman affidavit [14] ‑ [18].
28.Although this unnamed, unsealed area was as a matter of law a 'thoroughfare' in reality of course because of the gate which had blocked access beyond Lot 29 it meant that in fact it was not a thoroughfare in the colloquial sense that is being able to pass through or pass over.
The City's submissions in reply stated:
The gate across the Thoroughfare
44.The Plaintiffs' submissions at [25] ‑ [28] refer to the gate placed 'across' the Thoroughfare at the western boundary of Lot 29.
45.The existence of this gate and the question of whether the gate was causing an obstructing of the Thoroughfare do not bear upon the question of whether the items left by the First Plaintiff in the Thoroughfare were causing an obstruction.
46.The Thoroughfare identified at SoC [2] is the thoroughfare dedicated to the public as a street by the Gazettal at Attachment NF3 to the Ferridge Affidavit, which refers to the plan at Attachment NF2.
47.That thoroughfare ends at the western boundary of Lot 29.
48.Therefore, it appears that the gate was not put 'across' the Thoroughfare but at the end of it.
49.In any event, in deciding how to allocate the Defendant's limited resources for the enforcement of local laws, the Defendant is entitled to prioritise responding to breaches of local law which have led to a complaint and which, upon investigation, appear to be causing difficulties for nearby occupiers of land.
50.Further, the fact that the Thoroughfare ended at the western boundary of Lot 29 and the fact that there was a gate there do not prevent the Thoroughfare from being a 'thoroughfare' within the meaning of the LG Act.
51.Although the Plaintiffs' submissions at [28] refer to the 'colloquial sense' of 'thoroughfare', the legally significant meaning of 'thoroughfare' is the definition of 'thoroughfare' in s 1.4 of the LG Act, which is set out in the Defendant's primary submissions at [60].
52.That definition expressly states that 'nothing is prevented from being a thoroughfare only because it is not open at each end.'
The definition of Thoroughfare is a legal question not a colloquial question.
The obstruction of the Thoroughfare did not cease to be an obstruction simply because someone else may have been obstructing the Thoroughfare.
The plaintiffs' submissions in opposition stated:
29.In order for the plaintiffs' vehicles to obstruct the thoroughfare would since it is a verb require an object.
30.That is, evidence that in fact someone or some vehicle was obstructed.
The City's submissions in reply stated:
No evidence of someone or some vehicle being obstructed is required
53.The Plaintiffs' submissions at [29] ‑ [30] and [37] ‑ [38] contend that the Defendant must adduce evidence that someone or some vehicle was obstructed in order to establish that the items left by the First Plaintiff in the Thoroughfare were causing an obstruction.
54.This contention should be rejected because it is contrary to High Court authority set out in the Defendant's primary submissions at [33] ‑ [35].
The plaintiffs' submissions in opposition stated:
31.In contradistinction the gate placed across the thoroughfare prevented completely any movement on the thoroughfare. The plaintiffs' vehicles on the uncontested evidence did not in width prevent the passage of vehicles or movement generally along the thoroughfare.
32.Insofar as the owners of Lots 27, 28 and 29 are concerned, access to those properties was affected by other means as identified in the Horsman affidavit.
The City's submissions in reply stated:
The Defendant need not show that the items in the Thoroughfare prevented passage
55.The Plaintiffs' submissions at [31] submit that the Plaintiffs' vehicles 'did not in width prevent the passage of vehicle or movement generally along the thoroughfare'.
56.It is not necessary for the Defendant to show the items left by the First Plaintiff in the Thoroughfare 'prevented' passage in order to establish that there was an obstruction.
57.The Defendant's primary submissions at [33] ‑ [41] sets out consideration by the High Court, Court of Appeal and Supreme Court of the legal meaning 'obstruction'.
58.Those authorities establish that an 'obstruction' is a thing which will appreciably diminish the space available for passing and repassing but need not prevent passage.
It was not necessary for the City to prove that someone was actually obstructed. The authorities make that clear.
The plaintiffs' submissions in opposition stated:
33.The matter can also be tested this way - to park a vehicle on the side of the road cannot of itself be an obstruction. To suggest otherwise would mean that each time a vehicle is parked on the side of the road would without more constitute an offence. Hence the use of the expression 'places on a public thoroughfare anything that obstructs'.
The City's submissions in reply stated:
Is parking a vehicle on the side of a road an obstruction?
59.The Plaintiffs' submissions at [33] state:
'to park a vehicle on the side of the road cannot of itself be an obstruction. To suggest otherwise would mean that each time a vehicle is parked on the side of the road would without more constitute an offence.'
60.This submission overlooks the operation and effect of cl 4.7 of the Parking Local Law, which is set out in the Defendant's primary submissions at [18].
61.In particular, cl 4. 7 (b) expressly provides that a vehicle that is parked in any portion of a public space where vehicles may lawfully be parked does not cause an obstruction.
62.That clause is qualified in two respects.
63.The first qualification, set out in cl 4.7(b)(i), is that cl 4.7(b) does not apply if a vehicle 'is so parked for any period exceeding 24 hours, without the consent in writing of the CEO or an authorised person'.
64.The vehicles left by the First Plaintiff in the Thoroughfare had been there for substantially more than 24 hours when they were impounded and so cl 4. 7 (b) did not apply to them. See Defendant's primary submissions at [28] ‑ [30].
The plaintiffs' submissions in opposition stated:
34.That as a matter of plain reading would not ordinarily mean a vehicle. If the legislature had meant vehicle it would have said so.
I do not understand the plaintiffs' submissions on this point. A vehicle parked on the side of a thoroughfare may clearly constitute an obstruction. It becomes an offence when it is there for more than 24 hours.
The City's submissions in reply stated:
Whether reg 6(1) of the LG (ULP) Regulations applies to vehicles is irrelevant
65.The Plaintiffs' submissions at [33] ‑ [34] submit that the word 'anything' in the expression 'places on a public thoroughfare anything that obstructs' would not ordinarily mean a vehicle.
66.The phrase 'places on a public thoroughfare anything that obstructs' appears in reg 6(1) of the LG (ULP) Regulations.
67.In this summary judgment application, the Defendant relies upon contravention of reg 6(1) of the LG (ULP) Regulations as the lawful basis for impounding the sea container but not the vehicles.
68.The Defendant relies upon contravention of cl 4.7(1) of the Parking Local Law as the lawful basis for impounding the vehicles.
69.Therefore, the issue of whether reg 6(1) of the LG (ULP) Regulations applies to vehicles is irrelevant for the purpose of this summary judgment application.
The plaintiffs' submissions in opposition stated:
39.For the contrary to be found would require a determination in relation to the full factual considerations that apply in relation to this area.
The City's submissions in reply stated:
A need for the 'full factual considerations'?
86.The Plaintiffs' Submission at [39] submit that there is a need for the 'full factual considerations that apply in relation to this area' in order to conclude that there was an obstruction.
87.However, the fact that the impounded items were in the Thoroughfare 1s agreed: Defendant's primary submissions at [9] ‑ [12].
88.The width of the Thoroughfare is 10 m: SoC [2].
89.The dimensions and location of the impounded items in the Thoroughfare are addressed in detail in the Ferridge Affidavit at [41] ‑ [70] and there is no contest about that evidence.
90.Therefore, all of the factual matters which are necessary to determine whether there was an obstruction of the laneway caused by the impounded items are before the Court.
91.There are no further facts which need to be determined at trial.
The dimensions of the items and of the Thoroughfare are not in issue. Whether the Thoroughfare was appreciably diminishable is capable of being determined on the basis of those dimensions.
If there were further facts which needed to be determined at trial the plaintiffs should have condescended to particulars of what those facts were. They failed to do so.
The plaintiffs' submissions in opposition stated:
40.The fact that the Defendant elected to proceed in the way that it did, where its nominated legal foundation was flawed rather than prosecuting the Plaintiffs, if the Defendant believed that there was a basis so to do, meant that the determination of the question as to whether there was an obstruction or whether the parking of the vehicles amounted to obstructing the area was not and has not been tested.
The City's submissions in reply stated:
'Nominated' legal foundation
92.The Plaintiffs' submissions at [40] refer to the Defendant's 'nominated' legal foundation.
93.There was never any 'nomination' by the Defendant of a legal foundation of the basis for the impounding.
94.There was also no requirement for the Defendant to make such a nomination.
95.In order to effect a valid impounding of the items in the Thoroughfare, the Defendant was only required to comply with the steps set out in the LG Act.
96.The Defendant did so.
The plaintiffs' submissions in opposition stated:
41.In essence, the Defendant seeks now to finesse that question by seeking to point to a legislative pathway which was not the basis upon which it proceeded, it was not the basis upon which notice was given to the Plaintiffs and was not the basis upon which in fact and as a matter of authority the Defendant proceeded to impound the Plaintiffs' vehicles and the contents thereof.
The City's submissions in reply stated:
'Finesse' a legislative pathway?
97.The Plaintiffs' submissions at [41] submit that the Defendant 'seeks now to finesse ... a legislative pathway which was not the basis upon which it proceeded.'
98.The Plaintiffs' assertion is that the Defendant or Mr Ferridge was subjectively intending to rely upon a breach of s 3.25 of the LG Act as a basis for the impounding.
99.That assertion is inconsistent with the evidence.
100.Mr Ferridge placed a 'Vehicle Removal Notice' on the portable car hoist: Ferridge Affidavit, [36] ‑ [37].
101.That 'Vehicle Removal Notice' refers to the Parking Local Law and does not refer to s 325 of the LG Act: see Attachment NF7 to the Ferridge Affidavit.
102.The portable car hoist is not referred to in the s 3.25 notice at Attachment NF6.
103.Therefore, Mr Ferridge could not have been intending to rely on the s 3.25 notice as the basis for impounding the portable car hoist.
104.The affixing of a notice referring to the Parking Local Law to the portable car hoist strongly suggests Mr Ferridge was intending to rely upon a contravention of the Parking Local Law as the lawful basis for impounding the vehicles.
105.Ultimately, there is no need to make a factual finding about the subjective basis upon which Mr Ferridge was proceeding when he impounded the items in question.
106.It follows from the High Court decisions including Johns that all that is required of the Defendant is to identify a valid basis upon which the power to impound was exercised.
107.The Defendant has done so and therefore has a good defence on the merits to the Plaintiffs' claim.
108.It follows that an order for summary judgment should be made.
The City has not finessed anything. Mr Ferridge's subjective intention is irrelevant.
The City is entitled to summary judgment against Mr Horsman. However, I am not persuaded for the purposes of this application that there should be summary judgment against Ms Tandoc. I am not satisfied that she was served with the relevant notice.
City's submissions on abuse of process
In relation to the claim that the actions is an abuse of process the City submitted:
120.In the alternative to summary judgment, the Defendant seeks an order that the First Plaintiff's action be stayed permanently on the basis that it is an abuse of the process of the Court.
121.The basis for the application is that the First Plaintiff has previously brought the same action against the Defendant.
122.That action was dismissed for failure to comply with a springing order and there has been no explanation for the failure to comply with the springing order.
In its submissions the City first dealt with the similarity of the previous action:
Previous action
123.On 28 October 2014, the First Plaintiff commenced proceedings in the Court against the Defendant and two others by way of writ of summons: Watts Affidavit, Attachment AWL
124.The indorsement on the writ was as follows:
'The plaintiff's claims is in TORT for: (1) WRONGFUL IMPOUNDMENT OF GOODS, (2) DETENTION OF GOODS, (3) CONVERSION OF GOODS, (4) UNCONSCIONABLE CONDUCT (5) DAMAGES (yet to be supplied), (6) INTEREST, (7) COSTS IN THE CAUSE.'
125.The Defendant entered an appearance on 5 November 2014.
126.On 19 January 2015, orders were made in that proceeding requiring the First Plaintiff to file and serve his Statement of Claim by 16 February 2015: Watts Affidavit, Attachment AW4.
127.On 16 February 2015, the First Plaintiff filed a Statement of Claim: Watts Affidavit, Attachment AW 5.
Comparison of Statement of Claim in present and earlier proceedings
128.There are substantial portions of the Statement of Claim in the present proceedings which are identical to the Statement of Claim filed in the earlier proceedings, and the claim for loss of earnings in the earlier proceeding bears a clear relationship to the claim for conversion in the present proceeding.
Contents of Shipping Container
129.The particulars to paragraph 6 of the Statement of Claim in present proceeding, which are headed 'Contents of Shipping Container', are identical to the list under the heading 'Contents of Shipping Container' in the earlier Statement of Claim with two exceptions.
130First, the Statement of Claim in the present proceeding gives the value for the last item 'Trailer Bearings Etc.' as '$500' rather than '$5,000'.
131.Secondly, the total value in the present Statement of Claim is '$92,800' but in the earlier Statement of Claim is '$95,000'.
Vehicles
132.The particulars to paragraph 5 of the present Statement of Claim, which are headed 'Vehicles', are identical to the list under the heading 'Vehicles' in the earlier Statement of Claim.
Contents of Tri Axle-Pantech Refrigerated
133.The particulars to paragraph 7 of the Statement of Claim, which are headed 'Contents of Tri Axle-Pantech Refrigerated', are identical to the list under the heading 'Contents of Tri Axle‑Pantech Refrigerated' in the earlier Statement of Claim.
134.The list is not in the same order in both Statements of Claim but the items are identical but for some minor spelling differences.
135.The total values given are different but the total value given in the present Statement of Claim of $75,020 is the correct total value.
Loss of Earnings
136.The claim for loss of earnings in the earlier Statement of Claim is for the 'Loss of earning for Truck & Trailer/Under 5 year Contract' in the amount of $2,737,500.
137.In the present Statement of Claim at [17], the particulars to the claim in conversion are for the loss of benefit of a contract:
'which contract was for a five year period ... providing for payment in respect of the [First] Plaintiff at $300 net per day and payment for the provision of the Ford Louisville P1ime Mover and the Triaxle Refrigerated Pantex at the rate of $1,200 per day, net for the duration of the contract term.'
138.If the damages are calculated on the basis that the First Plaintiff worked every day for five years, and that the total claim for each day was $1,500 then the damages claim is: $1,500 X 5 X 365 = $2,737,500
139.On the basis of this calculation, the claim for loss of earnings in the earlier Statement of Claim appears to be identical to the claim for conversion in the present Statement of Claim.
Conclusion
140.It follows from all of the above that the Plaintiffs' claim in the present proceeding is, in substance, the same claim that the First Plaintiff made in the earlier proceeding.
The plaintiffs submitted:
42.The initial proceeding brought by the First Plaintiff was the subject of action CIV 2007 of 2014.
43.This was an application by the First Plaintiff against the Chief Executive Officer, City of Greater Geraldton for an interlocutory injunction. This was the subject of a hearing before Pritchard J on 28 July 2014.
44.For reasons which were published on 14 August 2014, her Honour dismissed the application [2014] WASC 289. Of significance are her Honour's observations at [32] ‑ [35]. Although her Honour was prepared to accept that there was a prima facie case in relation to possible conversion of the plaintiff's goods, ultimately her Honour was persuaded by balance of convenience considerations and the adequacy of damages as an alternate relief. As a result, the application was refused.
45.Those proceedings had been commenced by way of Originating Motion on 21 July 2014.
46.At all times in relation to that action and in relation to action CIV 2482 of 2014, the Plaintiff acted in person.
47.In CIV 2482 of 2014 commenced on 27 October 2014, the Plaintiff was Barry Stanley of the Horsman family and the Defendants were described as Ken Diehm, Niel (sic) Ferridge and the City of Greater Geraldton.
48.On 16 February 2015, the Plaintiff in those proceedings filed what was described as 'Attachment: Statement of Claim'.
49.Such document could not by any generous interpretation amount to a pleading of the Plaintiff's position.
50.Unsurprisingly, the Defendants brought an application to strike out the 'Statement of Claim'.
51.The action was then struck out for failure to comply with an order as to the provision of a statement of claim. Such determination involved no determination on the merits and as a result gives rise to no issue estoppel or res judicata.
52.Further, to the extent to which there never was a pleading makes it difficult if not impossible to contend that the present action constitutes an abuse being the same action as the subject of CIV 2482 of 2014.
The comparisons between the facts that form the basis of the previous proceedings, CIV 2482 of 2014, and these proceedings, as out in the City's submissions, establish that the claim is made on the basis of the substantially the same facts. The fact that no formal pleading was filed does not mean that the facts as revealed in CIV 2482 of 2014 can be ignored. When considering a claim for an abuse of process a court cannot be blind to the claim made by a plaintiff simply because it is not expressed in a proper form. Mr Horsman clearly intended the attachment to represent the facts supporting the claim.
I accept that Mr Horsman's claim in the present proceeding is, in substance, the same claim as made in the CIV 2482 of 2014.
The City does not rely on the earlier proceedings CIV 2007 of 2014 as the basis for its claim of abuse of process. (City submissions in reply [111]). Whatever, facts were relied upon by Mr Horsman in those proceedings is irrelevant to a determination of the City's claim of abuse of process.
The City accepts that the fact that proceedings were struck out for a failure to comply with a springing order does not give rise to issue estoppel or res judicata. (City submissions in reply [111] - [112]).
As the City notes, in CIV 2482 of 2014, on March 2015 the court ordered
1.The plaintiff's claim against the defendants as set out and contained in the plaintiff's Statement of Claim dated 16 February 2015 be struck out in its entirety pursuant to Order 20 Rule 19(1) of the Rules of the Supreme Court and the Court's inherent jurisdiction.
2.Unless the plaintiff file and serve a Minute of proposed Statement of Claim by 7 April 2015, the plaintiff's action against the defendants be dismissed with costs.' (Watts Affidavit, Attachment A W9)
Further, on 13 April 2015, in CIV 2482 of 2014, the court ordered:
In accordance with order 2 of the orders of Registrar Whitby made on 16 March 2015, the plaintiff's action against the defendants be dismissed.' (Watts Affidavit, Attachment AWl0)
The City then submitted:
144.In Brocx v Hughes [2010] WASCA 57; (2010) 41 WAR 84, the Court of Appeal held that a second action commenced in respect of the same claim prosecuted in an earlier action was an abuse of process where the first action was dismissed for failure to comply with a springing order and the party's conduct was contumacious.
145.The Court held that a failure to comply with a springing order in one action does not, of itself, mean that a second proceeding commenced in respect of the same claim is an abuse of process.
146.However, where a party does not give a credible and satisfactory explanation for the failure to comply with the springing order, the court is entitled to infer that the conduct concerned was contumacious: Newnes JA at [98] ‑ [99].
However, it is important to note what Newnes JA stated about the facts in Brocx:
98Each case must, of course, depend upon its own circumstances. But, in my view, where an action has been dismissed by reason of the failure of a party to comply with a springing order in circumstances where that party's conduct was contumacious, a second action by that party to enforce the same claim will generally be an abuse of process. I do not, however, consider that the fact an action was dismissed for failure to comply with a springing order establishes, of itself, that the conduct of the party in default was contumacious. I do not understand the cases to which I have referred to suggest otherwise. In each case, the court found that the conduct was contumacious in the absence of an explanation which showed that it was not. (I think that for all practical purposes 'contumelious' and 'contumacious' have generally been used interchangeably in the cases as denoting a wilful and obstinate resistance or disobedience to authority). As Heydon JA (as his Honour then was) pointed out in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274:
A satisfactory explanation on affidavit might negate an inference that the plaintiff's defaults were not [sic] intentional or contumelious. But the absence of any explanation permits that inference to be drawn [54].
99In this case it was argued on behalf of the appellant that it was for the respondent to show that the appellant's conduct in the first action was contumacious. I accept that is the case but the particular circumstances which led to default occurring will generally be a matter peculiarly within the knowledge of the defaulting party and their solicitors. It is so in this case. In the absence of a credible and satisfactory explanation by the appellant as to how the default came about, the court is entitled to infer that the conduct concerned was contumacious.
100It was submitted that in this case the fault lay not with the appellant but with her solicitor. The blamelessness of a party personally is certainly a relevant factor, although it is not necessarily a complete answer. In this case, however, I consider there is insufficient evidence to enable a conclusion to be drawn as to where the fault lay. It is significant that the springing order which led to the dismissal of the first action was made against a background of continual delay and inaction in the prosecution of the appellant's case.
101Those delays can be said to have started by no later than March 2004 when the respondent's request for particulars of the statement of claim went unanswered for some six months. Shortly after the particulars were delivered, the appellant's solicitors had themselves removed from the record on the ground that the appellant had failed to pay their costs and counsel's fees. Mr Marks came on the record for the appellant in January 2005. From September 2004, when the particulars were provided, until the action was dismissed in February 2007, no substantive steps were taken to prosecute the action. The apparently sporadic attempts at settlement appear to have been exhausted by early February 2006. Still nothing happened to move the action along. And even following Mr Mark's advice to the registrar in March 2006 that an application to strike out the defence would be brought 'as quickly as possible', no substantive steps were taken. It was also the case that frequently correspondence from the court, and from the respondent's solicitors, was answered, if at all, belatedly and only after some prompting.
102Whether that delay and inaction was attributable solely to the appellant's then solicitor, or whether (or to what extent) it was due to delays by the appellant in responding to requests for instructions from her solicitor or for other reasons attributable to the appellant, does not emerge with any clarity from the evidence. The material which would reveal that is in the hands of the appellant. She has chosen to reveal little of it. The appellant has provided no explanation at all in respect of the period before 2006. Her evidence in relation to 2006 is limited to general and somewhat nebulous statements about communications from Mr Marks concerning a proposed or pending application to strike out the defence. Nowhere is there any account of what (if anything) the appellant did prior to the beginning of 2007 to ensure that the action was pursued diligently. Over the preceding three years it cannot have escaped the appellant's attention that the action was making next to no progress.
103There is nothing to suggest that the appellant was not in a position to provide a more detailed explanation if she chose to do so. But the detailed explanation which was plainly called for has not been provided.
104It is true that on the application to set aside judgment in the first action, Johnson J did not make a finding that the appellant's non‑compliance with the springing order was intentional and contumelious. But her Honour found that no extraneous circumstances could explain the 'level of dilatory conduct and blatant disregard of general obligations and court orders' that had occurred. It is apparent from her Honour's reasons that the paucity of the evidence provided by the appellant left her Honour in the position of being unable to determine whether, or to what extent, the appellant, as opposed to her solicitor, was to blame. Johnson J concluded that she was unable to say that the appellant had no responsibility. Her Honour found that there was no basis upon which the conduct of the appellant's case could be excused.
105The conduct of the appellant's case in the first action reflected an extraordinary disregard of the practices and procedures of the court. On the material available, the most favourable view that could be taken of the appellant's conduct is that she was content to allow the action to drag on in a desultory and entirely unsatisfactory manner and without any concern to see it brought to a timely conclusion. I would add that at no stage of this unhappy saga has the appellant put on any evidence directed to the merits of her claim.
106In my view, the only inference reasonably open is that the appellant's conduct was contumacious. No satisfactory explanation has been provided for it. As the conduct has not been explained, the court cannot be satisfied that it will not occur again. Mere assertions to that effect will not suffice.
A fuller reading of Brocx makes it clear that failure to comply with a springing order will not of itself lead to an inference that a plaintiff's conduct was contumacious.
The City further submitted:
147.In the present matter, the First Plaintiff has not sought to give any explanation for the failure to comply with the springing order made in the earlier proceeding.
148.In the absence of any explanation, this Court should infer that the First Plaintiffs default in the first proceeding was contumacious.
149.In these circumstances, the commencement of the present action by the First Plaintiff is an abuse of process and the First Plaintiffs action should be permanently stayed.
The writ was issued on 28 October 2014. The proceedings were dismissed on 13 April 2015. There was no extraordinary delay as in Brocx.
Mr Horsman failed to comply with one springing order and the action was struck out. There is no basis beyond that to draw any inference. The facts are vastly different to those in Brocx. There is no evidence of 'an extraordinary disregard of the practices and procedures of the court.'
I accept that the fact that a person is self-represented is not, of itself, sufficient to excuse a failure to comply with a springing order. However, as Newnes JA stated it is a factor to be taken into account. A self-represented person giving up in despair at mastering the Rules will often be an explanation for a failure to comply with a springing order.
I note that it would have been preferable if an explanation had been contained in Mr Horsman's affidavit but it is not a fatal error not to have done so.
Had I not granted summary judgment for the City against Mr Horsman I would not have dismissed the action as an abuse of process.
Strike out application
On 18 February 2020, the plaintiffs filed an amended writ of summons and a statement of claim. The plaintiffs filed a further amended writ of summons with an amended indorsement of claim on 13 May 2020.
The indorsement in the further amended writ of summons provides:
The plaintiffs seek declarations that the Defendant unlawfully took possession on 11 January 2013 of 1 unregistered semi-trailer, 1 prime mover, 1 mobile car hoist and a sea-container (containing the first plaintiff's goods) owned by the first plaintiff and goods inside the semi‑trailer owned by the Second Plaintiff and thereafter unlawfully sold and disposed of those items causing loss and damage.
In its strike out application the City contended that the statement of claim exceeded the scope of the indorsement appearing in the amended writ of summons, i.e. 18 February 2020. That indorsement reads:
'The Plaintiffs seek declarations that the Defendant unlawfully took possession on 11 January 2013 of 2 unregistered semi-trailers and a sea container owned by the First Plaintiff and goods inside that sea container owned by the Second Plaintiff and thereafter unlawfully sold and disposed of those items, thereby causing the Plaintiffs loss and damage.'
The City submits that the further amended writ of summons should properly be called a 'Minute of Further Amended Writ of Summons' because the plaintiffs require leave under O 21 r 1 RSC to file any further amended writ.
The City further submits that until such time as leave is granted by the Court to further amend the indorsement on the writ, the indorsement on the writ remains in the form in which it appears in the amended writ of summons filed by the plaintiffs on 18 February 2020. The City presses its application for a strike out of the statement of claim on the basis that it exceeds the scope of the indorsement.
Leave may be required to amend the writ pursuant to O 21 r 1. However, I am not prepared to strike out the statement of claim at this point. If the amendments to the indorsement are allowed then it may be largely unnecessary to strike out the statement of claim.
The City contends that the proposed amendment would be time barred.
Without forming a concluded view on the matter, I am not convinced that leave would be refused on the basis that the further amended writ contains an indorsement that is time barred. However, since I have granted summary judgment to the City it is unnecessary to resolve this issue.
Orders
The defendant be granted leave to bring an application for summary judgment.
There be judgment for the defendant against the first plaintiff.
The first plaintiff pay the defendant's costs of the application and the action to be taxed, if not agreed.
The application otherwise be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MDM
Associate to the Honourable Justice Curthoys21 SEPTEMBER 2020
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