Hoxton Park Residents Action Group Inc v Liverpool City Council
[2014] NSWSC 617
•15 May 2014
Supreme Court
New South Wales
Medium Neutral Citation: Hoxton Park Residents Action Group Inc v Liverpool City Council [2014] NSWSC 617 Hearing dates: 15 May 2014 Decision date: 15 May 2014 Before: Ball J Decision: 1. Strike out the replies filed by the plaintiffs on 2 May 2014 and 5 May 2014.
2. The plaintiffs pay the costs of the fourth defendant's motion filed on 12 May 2014 and the fifth defendant's motion filed on 7 May 2014.
Catchwords: PROCEDURE - civil - pleadings - application to strike out replies filed to defences - UCPR r 14.28 - whether replies an abuse of process - whether replies have a tendency to cause prejudice, embarrassment or delay Legislation Cited: Australia Act 1986 (Cth)
The Commonwealth Constitution
Environmental Planning and Assessment Act 1979 (NSW)
Financial Management and Accountability Act 1997 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)Texts Cited: Bullen & Leake & Jacob's, Precedents of Pleadings, (12th edition), Sweet & Maxwell Category: Procedural and other rulings Parties: Hoxton Park Residents Action Group Inc (First Plaintiff)
Marella Harris (Second Plaintiff)
Liverpool City Council (First Defendant)
Malek Fahd Islamic School Ltd (Second Defendant)
Australian Federation of Islamic Councils Inc (Third Defendant)
State of New South Wales (Fourth Defendant)
Commonwealth of Australia (Fifth Defendant)Representation: Counsel:
P E King (Plaintiffs)
A Cheshire (Second and Third Defendants)
H El-Hage (Fourth Defendant)
S Free (Fifth Defendant)
Solicitors:
Robert Balzola & Associates (Plaintiffs)
Goldrick Farrell Mullan (Second and Third Defendants)
Crown Solicitor's Office (Fourth Defendant)
Australian Government Solicitor (Fifth Defendant)
File Number(s): 2009/289796 Publication restriction: Nil
EX TEMPORE Judgment
Before me are 2 notices of motion filed by the fourth defendant, the State of New South Wales, and the fifth defendant, the Commonwealth, seeking to strike out replies that the plaintiffs have filed to each of the defences filed by the State and the Commonwealth. It is convenient to deal with the reply filed in response to the defence filed by the Commonwealth since both replies raise similar issues.
The plaintiffs in these proceedings seek to prevent the Commonwealth - either directly or through grants to the State - from providing funding in relation to an Islamic school in Hoxton Park on land owned by the third defendant and leased to the second defendant. In their original statement of claim, the plaintiffs challenged the arrangements by which that funding was made available and the development of the school itself on several grounds. A number of those grounds were struck out and some have been settled. However, some grounds have survived in the form of an amended statement of claim.
The plaintiffs rely on s 116 of the Commonwealth Constitution (the Constitution), which prohibits the Commonwealth from making any law for establishing any religion, or restricting the free exercise of any religion, and on an allegation that the State has sole legislative power over matters concerning religion and education. In broad terms, they challenge the validity of legislation by which it is said the Commonwealth makes funding available to the second and third defendants, and arrangements between the Commonwealth and the State by which the Commonwealth makes money available to the State for educational purposes, on the ground that that legislation or those arrangements infringe the constitutional guarantee given by s 116.
The circumstances in which a court may strike out pleadings are set out in Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 14.28, which provides that:
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court ...
The first paragraph of the reply filed to the Commonwealth's defence is merely formal in nature. Paragraph 2 amounts to a joinder of issue on the issues raised in the defence. The paragraph is unnecessary in view of UCPR r 14.27, which provides for an implied joinder of issue if no reply is filed. If the reply otherwise served a proper purpose, there is no reason why para 2 should not remain in it. On the other hand, if the reply serves no substantive purpose, then it would be desirable to strike out para 2 on the ground that it is unnecessary.
Paragraphs 3 and 5 repeat paragraphs of the amended statement of claim. They add nothing themselves. For that reason, in my opinion, they should be struck out on the ground that they are unnecessary, unless substantive paragraphs of the reply can be maintained.
Paragraph 4 of the reply is the first substantive paragraph. That paragraph is pleaded to be in answer to para 10.6 of the defence, which pleads certain factual matters relating to proceedings before the Land and Environment Court between the plaintiffs and the first defendant, the Liverpool City Council. In answer to those factual allegations, para 4 of the reply pleads that the funding provided by the Commonwealth was ultra vires on the ground that it was contrary to s 76B of the Environmental Planning and Assessment Act 1979 (NSW) because two development consents for the development of the school were invalid. What the paragraph appears to be asserting is that the Commonwealth cannot provide funding for a project which is contrary to the planning laws of New South Wales.
In my opinion, there are a number of difficulties with that allegation.
First, the allegation is non-responsive to para 10.6 of the defence. As I have said, para 10.6 makes various factual assertions concerning what has happened in proceedings in the Land and Environment Court. It would be open to the plaintiffs in a reply to admit all or some of those factual allegations. If the plaintiffs did not file a reply, there would be a deemed denial of each of the allegations under UCPR r 14.26(1). But I cannot see how the claim that I have described could properly be said to be in reply to the allegations made in para 10.6.
Secondly, the plaintiffs seek impermissibly to raise in para 4 a new or different claim: see Bullen & Leake & Jacob's, Precedents of Pleadings, (12th edition), Sweet & Maxwell, pp 107-8.
Mr King, who appeared for the plaintiff, submitted that the pleading in para 4 of the reply is not a new claim because it is simply an allegation that supports the relief already claimed in the amended statement of claim. I do not accept that submission. It depends on an overly generous meaning of the expression "new claim". In my opinion, a new claim for these purposes is any claim advanced as an independent ground justifying the relief that is sought. The claim pleaded in para 4 of the reply clearly meets that description.
Third, para 4 is an abuse of process for two reasons. First, it seeks to raise issues which fall within the exclusive jurisdiction of the Land and Environment Court and are the subject of the proceedings in that Court. Second, it raises an issue that the plaintiffs sought to raise in their statement of claim and were not permitted to do so by Young AJA.
For those reasons, in my opinion, para 4 of the reply should be struck out.
Paragraph 6 of the reply is expressed to be a response to para 14 of the defence. Paragraph 14 pleads various factual matters concerning the recurrent capital expenditure the Commonwealth has provided to the State which the State has then provided to the school operated by the second defendant. In response to that paragraph, para 6 of the reply pleads that those grants or expenditure were contrary to any proper or legitimate purpose under s 32B and/or s 44 of the Financial Management and Accountability Act 1997 (Cth) (FMA Act).
It is very difficult to see how that allegation is responsive to the factual allegations contained in para 14 of the defence. In addition, it raises a new claim because it advances a further ground for why the relief sought in the amended statement of claim should be granted.
There are other difficulties with the pleading in para 6. Section 32B of the FMA Act is a legislative attempt to grant the Commonwealth power to make certain arrangements or grants which, apart from that section, it might not otherwise have. Section 44 of the FMA Act imposes various obligations on chief executives of agencies to administer Commonwealth funds. It is difficult to see how the allegations in para 6 of the reply relate to those provisions. Substantially more would need to be pleaded in the paragraph before it could be regarded as pleading a proper claim. Even assuming that more had been pleaded, I accept the submissions made by the defendants that such an allegation is likely to raise factual and legal issues that would require investigation, which would require vacation of the current hearing (set to commence on 10 June 2014).
Having regard to those matters, in my opinion, the pleading in para 6 is both embarrassing and an abuse of process, and is consequently liable to be struck out under UCPR r 14.28.
Paragraph 7 of the reply is expressed to be a response to paras 10 and 14 of the defence. I have already described the factual matters that are pleaded in paras 10 and 14 of the defence.
Paragraph 7 contains an allegation that the school is part of a national network of that and similar campuses or projects which, when taken together, are said to impair the constitutional guarantee - presumably contained in s 116 of the Constitution - by reason of which it is said that the funding about which the plaintiffs complain is invalid.
Once again, it seems to me that that pleading is non-responsive to the paragraphs to which it is said to respond and it also raises a new claim.
The pleading contained in para 7 is also inadequate because it is unparticularised and vague and, for that reason, it is liable to cause prejudice, embarrassment or delay within the meaning of UCPR r 14.28.
Lastly, I regard the pleading as an abuse of process because it seeks to raise a claim that was struck out of the statement of claim by Young AJA.
For all of those reasons, para 7 should be struck out.
Paragraph 8 of the reply is also pleaded in response to para 14 of the defence. In essence, what is alleged in para 8 is that the funding decisions made by the Commonwealth and the arrangements entered into by the Commonwealth interfere with the State's exclusive power with respect to religion and education. Once again, it seems to me that this claim is both non-responsive and seeks impermissibly to raise in a reply a new claim.
I accept the submissions made by the State in relation to a similar pleading in the reply to its defence that the claim is also vague and ambiguous because it does not articulate the basis of the State's exclusive rights, how those rights were impermissibly infringed, the constitutional principles underlying the allegation and the effect of the impairment or undue interference.
For all those reasons, in my opinion, para 8 should also be struck out.
Paragraph 9 of the reply is not expressed to be in response to any particular paragraph of the defence. In it the plaintiffs allege that the funding decisions or arrangements about which they complain infringe the Australia Act 1986 (Cth) passed by the United Kingdom Parliament, the Commonwealth and State Parliaments and are repugnant to Chapter V of the Constitution.
For the reasons I have already given, that allegation raises a new claim.
Moreover, the pleading of the claim is hopelessly deficient because it does not explain how the arrangements are said to infringe the Australia Act, to what provisions of Chapter V of the Constitution the arrangements are repugnant and how that repugnancy arises. For those reasons, para 9 of the reply should be struck out.
Paragraph 10 of the reply is expressed to be a response to para 20 of the defence which asserts that the plaintiffs are not entitled to any relief either because they do not have standing or because the arrangements about which they complain do not give rise to rights which could found a claim for relief. It is very difficult to understand what para 10 of the reply means. It simply asserts that the plaintiffs contend that the funding provided by the Commonwealth, both for past activities and future activities, impairs the constitutional guarantee. Without saying anything more, para 10 is so vague that it is embarrassing and ought to be struck out.
Paragraph 11 of the reply is also said to be in response to para 20 of the defence. In effect, it asserts certain factual matters concerning the first and second plaintiffs which are said to give those plaintiffs standing. I am prepared to accept that in certain circumstances it may be appropriate to raise, by way of reply, factual matters that form the basis of an allegation of standing where the defence has denied that the plaintiffs have standing. However, the factual matters pleaded in para 11 are already pleaded in the amended statement of claim and they serve no utility by being repeated in the reply.
It is apparent from what I have said that the substantive provisions of the reply should all be struck out. For the reasons I have given earlier, there is no utility in allowing the balance of the reply to stand. Those paragraphs do not add anything to the plaintiffs' case and have a tendency to cause embarrassment or delay because they tend to complicate unnecessarily what is already a complicated case.
For those reasons, the reply filed in response to the defence filed by the Commonwealth should be struck out in its entirety.
As I said at the beginning of this judgment, it was not seriously suggested that the reply filed in response to the defence filed by the State raised any different issues. Consequently, and for similar reasons, that reply should also be struck out in its entirety.
The defendants have been successful in their motions. In my opinion, the replies filed by the plaintiffs were an abuse of process. For those reasons, the plaintiffs should pay the defendants' costs of the motions.
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Decision last updated: 21 May 2014
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