Hoxton Park Resident's Action Group Inc. v Liverpool City Council

[2014] NSWSC 403

Supreme Court

New South Wales

Medium Neutral Citation:	Hoxton Park Resident's Action Group Inc. v Liverpool City Council [2014] NSWSC 403
Hearing dates:	31 March 2014
Decision date:	31 March 2014
Jurisdiction:	Equity Division
Before:	Young AJA
Decision:	Case management directions given
Cases Cited:	Hoxton Park Resident's Action Group Inc. v Liverpool City Council [2014] NSWSC 322
Category:	Interlocutory applications
Parties:	Hoxton Park Residents Action Group Inc (first plaintiff) Marella Harris (second plaintiff) Liverpool City Council (first defendant) Malek Fahd Islamic School Limited (second defendant) Australian Federation of Islamic Councils Inc (third defendant) State of New South Wales (fourth defendant) Commonwealth of Australia (fifth defendant)
Representation:	Counsel: Mr P King (first and second plaintiff) No appearance (first defendant) Mr A P Cheshire (second and third defendant) Mr H El Hage (fourth defendant) Mr A Markus (fifth defendant) Solicitors: Robert Balzola and Associates (first and second plaintiff) No appearance (first defendant) Goldrick Farrell Mullan (second and third defendant) Crown Solicitor (fourth defendant) Australian Government Solicitor (fifth defendant)
File Number(s):	2009/00289796
Publication restriction:	None

Judgment

1. This matter is in the list today for case management purposes. Although we have made some progress it will still be necessary to put the matter in the list for further case management next week. I will stand the matter over for further case management directions before me at 215 on Thursday 10 April.

1. The matter I have to decide today is questions of amendment for the statement of claim. I dealt with the statement of claim in my reasons of 11 March [2014] NSWSC 322. There was then before me a draft of a proposed amendment. Some amendments I allowed, some I did not and then my only order was that "on the next occasion short minutes of order of today's judgment and the final version of the statement of claim are to be filed in court...". That did not happen. What happened was that a document called an amended statement of claim was filed in the registry last Friday 27 March. It was not verified however page 23 was a pro forma affidavit by the plaintiff's solicitor which does not appear ever to have been signed but the name of the witness is given of a Justice of the Peace. Whether it there is a sworn version somewhere around is debatable. I hope there is not, for the sake of the solicitor. The Uniform Civil Procedure Rules Rule 14.23 requires a statement of claim to be verified and Part 35 Rule 3 required by a party or by an officer of a corporate party. That must happen before this court is going to take cognizance of the statement of claim especially because a vital fact is the allegation that the works that are disputed being carried on by the second and third defendants were using funds provided by the fifth defendant which were unauthorised and provided contrary to law. I am told by the Commonwealth that that fact is not only wrong it is contrary to sworn affidavits that have been already filed. At the moment there are only unsubstantiated allegations on the part of the plaintiff and unless some judge gives leave for the allegation not to be verified it requires verification, and a person swearing it must take into account the denials of the Commonwealth and if they put their oath to a matter which is they know is untrue very severe consequences will probably follow. Accordingly it is only on the basis that there is a sworn document that is filed no later than Tuesday 8 April that I will give leave to amend. There was handed up this morning a document which I have called and I have written on it "Revised Amended Statement of Claim" and I will work off that document. The challenges to the document are in (1) prayers 8 to 17 (2) paragraph 25 and (3) paragraphs 49 to 52.

1. So far as prayers 8 and 17 are concerned Mr King admits that the words "in the second plaintiff's case" should not appear in 8. This prayer was in the original version of the statement of claim with respect to the nuisance case, which has now gone. It is not an allegation that is supportable by the facts pleaded and I do not give leave to amend to include prayer said 8 and 17. This should not prejudice the plaintiff too much because although as long as it is clearly intimated as to what relief is being claimed the court is able to make whatever orders are appropriate when it has made its decision on the facts and the merits, but as Mr Cheshire who appears for the second and third defendants points out there would need to be, and I cannot see any there, some facts to support a claim for damages under s68 of the Supreme Court act 1970 or otherwise.

1. 2. So far as paragraph 25 is concerned the old paragraph 25A for which I did not give leave has been deleted but what was in that paragraph is now retained as particulars for paragraph 25. As I indicated in my earlier judgment it is appropriate that there be particulars as to what is meant by "national network" in paragraph 25 however the particulars that have been supplied have the same vice as in the earlier document paragraph 25A, that is it has the phrase that is so vague as to be meaningless "campuses...affiliated with the second defendant or its affiliates". I will not give leave for those particulars commencing with the words "including at...discovery herein" so that the particulars which I will allow are the national network referred to in paragraph 25 includes two other campuses of the second and third defendant in NSW owned and administered by them since 1 January 2005 and campuses in other States and Territories.

1. 3. Mr King says that paragraphs 49 through to 52 are merely there to plead as a matter of law another argument that supports paragraphs 25 to 28 and does not go further. There have been loud protests from the defendants about these however it seems to me that with one exception I should allow these pleadings to stay but on the basis that I dispense the defendants from having to plead to them and note that the apart from the factual question as to whether the works were carried out using funds provided by the fifth defendant which were unauthorised and contrary to law no factual issue arises.

1. The factual issue I have identified arises under paragraph 34 in any event. So far as the particulars are concerned, I will not allow the words "declaration and orders...Biscoe J." Otherwise they can stand. Accordingly, I will now turn to the proposed short minutes, and order as follows:

(1)   I note that, apart from affidavits in reply, the plaintiff's affidavits are complete;

(2)   Direct the defendants to file and serve any further affidavits on or before 28 April 2014;

(3)   Direct the plaintiffs to file and serve any affidavits in reply on or before 12 May 2014;

(4)   Vacate the hearing of 5, 6, 7, 8 and 9 May 2014;

(5)   Specially fix the proceedings for hearing before a judge, to be nominated, on 10, 11, 12 and 13 June 2014;

(6)   Direct that on or before 28 April 2014 each defendant file and serve an affidavit of documents with respect to the categories referred to in the orders of Hallen J of 25 March 2014;

(7)   Direct that on or before 28 April 2014 each defendant file and serve sworn answers to the interrogatories identified in the orders of Hallen J of 25 March 2014;

(8)   Direct that on or before 5 May 2014 each defendant provide inspection of documents, at the premises of the solicitors for each defendant, and thereafter provide photocopy access to the plaintiffs;

(9)   Grant leave to the plaintiffs to amend the statement of claim in the form called "Revised Amended Statement of Claim" subject to the exceptions identified in the judgment of Young AJA of 31 March 2014, provided that the statement of claim is to be the final version of the statement of claim, and it is only to be filed if duly verified in accordance with the rules, no later than Tuesday 8 April 2014;

(10)   Strike out the statement of claim filed on 27 March 2014;

(11)   Direct that, in the event any defendant proposes to file an amended defence, it do so on or before 22 April 2014;

(12)   Direct that the plaintiffs file any reply on or before 28 April 2014;

(13)   Appoint 19 May 2014 before a deputy registrar at 9am for return of subpoenas;

(14)   Direct the parties to exchange outlines of submissions on or before 26 May 2014, with any replies thereto to be exchanged within seven days thereafter, and that a copy of such submissions be sent to the trial judge no later than 3 June 2014;

(15)   Direct that the parties exchange a draft index of a proposed court bundle of documents on or before 26 May 2014;

(16)   Direct that any objections to affidavits be exchanged on or before 29 May 2014;

(17)   Direct that the final bundle or court book be provided to the chambers of the trial judge at least three business days before 10 June 2014, such bundle to include copies of the submissions, objections to affidavits as well as the evidence to be relied upon;

(18)   Liberty to apply on two days' notice;

(19)   Stand the matter over to my list at 2.15pm on 10 April 2014;

(20)   Costs of today reserved;

(21)   Direct that, without the leave of the judge, no further application for discovery is to be made.

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Decision last updated: 08 April 2014