Kudrin v City of Mandurah - [2010] WADC 40

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: KUDRIN & ANOR -v- CITY OF MANDURAH [2010] WADC 40

CORAM: STAUDE DCJ

HEARD: 19 MARCH 2010

DELIVERED : 1 APRIL 2010

FILE NO/S: CIV 1629 of 2009

BETWEEN: NIKOLAI KUDRIN
MARIA KUDRIN
Plaintiff
AND
CITY OF MANDURAH
Defendant

Catchwords:

Application to strike out amended statement of claim - Litigants in person - Liability in negligence of public authority - Facts required to be pleaded to establish arguable cause of action

Legislation:

Rules of the Supreme Court 1971 O 20 r 19

Result:

Application allowed
Amended statement of claim struck out
Leave granted to file further amended or substituted statement of claim

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr J Eller

Solicitors:

Plaintiff: Not applicable
Defendant: John Eller

Case(s) referred to in judgment(s):

Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1
Campbelltown City Council v Mackay (1989) 15 NSWLR 501
Drexel London (a firm) v Gove [2009] WASCA 181
Kudrin & Anor v City of Mandurah [2009] WADC 75
Mount Albert Borough Council v Johnson [1979] 2 NZLR 234
Pyrenees Shire Council v Day (1998) 192 CLR 330
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

STAUDE DCJ: This is an application by the defendant by chamber summons dated 26 January 2009 for an order striking out the plaintiffs' proposed amended statement of claim dated 23 November 2009. In the course of the hearing I granted leave to the plaintiffs to amend the statement of claim in terms of the proposed amended statement of claim, being the pleading addressed by the application. The defendant invokes O 20 r 19(1) of the Rules of the Supreme Court 1971 and the Court's inherent jurisdiction. The defendant contends that the amended statement of claim discloses no reasonable cause of action and is otherwise scandalous and an abuse of the process of the Court.
The matters in issue between the parties were the subject of a decision by Davis DCJ on 21 May 2009 in Kudrin & Anor v City of Mandurah [2009] WADC 75. Her Honour dealt with an appeal from a decision of a Deputy Registrar granting an application on behalf of the defendant to strike out the plaintiffs' statement of claim on a number of grounds, including that the plaintiffs' claims were statute barred. Her Honour had before her an indorsed writ of summons and statement of claim as detailed in [44] and [45] of her Honour's reasons. Her Honour also had an affidavit by Mr Kudrin, the first‑named plaintiff, which set out the various forms of relief sought by the plaintiffs, and various evidential documents.
The outcome of that application was that her Honour, whose reasons for decision outline all the relevant circumstances of the dispute, ordered that, inter alia:
"The plaintiffs have leave pursuant to s 47A(3) of the Limitation Act 1935 (WA) to bring an action against the defendant with respect to any cause of action arising from the defendant's acts or omissions relating to the retaining wall built on the boundary of the plaintiffs' property at number 11 Chestnut Rise, Halls Head, Mandurah and number 10 Chestnut Rise, Halls Head, Mandurah following the dismissal, on 4 June 2003 by the Minister for Housing and Works of an appeal by Bradley James and Maria Price from a notice dated 20 February 2003 issued by the defendant pursuant to s 401 of the Local Government (Miscellaneous Provisions) Act 1960."
In arriving at this decision, her Honour found at [53] that the plaintiffs had an arguable case that the City ought to have done more to ensure the compliance by Mr and Mrs Price with the s 401 notice which was a statutory direction to Mr and Mrs Price to rectify the retaining wall so that it conformed to the plans and specifications approved by the defendant.
Her Honour found further at [54] that the plaintiffs had an arguable cause of action arising from the City's alleged failure to take action in relation to the s 401 notice holding that, "having failed to take the step of enforcing the s 401 notice pursuant to s 401(7), the risk of harm to the plaintiffs increased and they have arguably suffered damages as a consequence because of further movement in the wall and, now, encroachment of that wall onto their property with a risk of further damage."
At [49] her Honour found that "the City's failure to adequately check the construction of the wall in light of the complaints made by the plaintiffs may give rise to a cause of action", citing Mount Albert Borough Council v Johnson [1979] 2 NZLR 234 and Pyrenees Shire Council v Day (1998) 192 CLR 330 at [143] and [187]. Her Honour also found that there was authority to support a claim for "vexation, worry, distress and inconvenience which a plaintiff suffers as a reasonably foreseeable consequence of the defendant's negligence", citing Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 504, 511 and Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 37 ff.
In deciding that the plaintiffs should have leave to bring an action against the defendant arising from the defendant's alleged acts and omissions in relation to the construction of the retaining wall, her Honour was concerned to "determine whether, notwithstanding a poorly expressed or unstructured statement of claim, there are facts alleged which, if proved, would entitle the plaintiffs to some relief" (at [48]).
At [95] her Honour stated:
"The fact that I have concluded that the plaintiffs have an arguable cause of action does not mean, and the plaintiffs should not regard it as meaning, that they have a case which will succeed at trial or may survive other challenges which the City may bring in relation to their fresh writ. The City may well be able to establish a defence to the plaintiff's claim, including that the failure to ensure compliance or enforce the Section 401 Notice does not constitute a breach of any duty owed by the City to the plaintiffs. That is a matter that would need to be determined in that action once all the facts and circumstances of the case are known. Further, if the plaintiffs are ultimately successful, the relief they obtain will not necessarily be what is set out in Mr Kudrin's affidavit, such as the removal of the retaining wall and the installation of a fibro cement fence on the boundary. It will be up to the Court to apply the law to determine the relief, if any, to which the plaintiffs are entitled."
Her Honour suggested at [94] that the plaintiffs take legal advice in relation to the pleading of their claim.
Consequent upon her Honour's decision, the plaintiffs commenced the present action by writ of summons dated 2 June 2009. The plaintiffs' original statement of claim in this action dated 13 June 2009 alleges, relevantly, that:
"3.On 18 June 2003 the defendant, City of Mandurah, withdrew Section 401 Notice. In our opinion, the defendant committed unlawful, malicious act, with the intent to injure plaintiffs, the only victims in this case.
4.As the consequence of the defendant's actions, we, the plaintiffs have suffered damages, physical and emotional."
The statement of claim goes on to seek an order that the retaining wall be removed from the plaintiffs' land, that there be an order for the erection of a fibro cement fence between the two properties, and that damages be awarded for unlawful occupation and for emotional distress and various out‑of‑pocket expenses.
The defence dated 16 June 2009 contends that the statement of claim does not comply with O 20 of the Rules of the Supreme Court in that it is embarrassing and liable to be struck out as disclosing no legal basis for any claim for damages against the defendant. With respect to the factual allegations the defendant admits that it withdrew the s 401 notice and says that it was entitled to do so, on the basis of expert evidence that the retaining wall was structurally sound.
On 23 November 2009 the plaintiffs filed an amended statement of claim without leave. In fact it is a substituted statement of claim. Relevantly, it states:
"2.In October 1993 a retaining wall was erected on lot 1154 adjoining the plaintiffs' lot 1153 in Halls Head Mandurah. The wall was erected contrary to the plan and specifications provided by Ewing Engineers and approved by the defendant in July 1993. The defendant, City of Mandurah, was negligent in allowing erection of this wall. Limestone rubble was used instead of a blocks (sic). The soil under the wall was not compacted, no footing of 300 mm deep was dug out, which was most important due to the sloping terrain. We strongly protested to a building surveyors (sic) of the defendant that the wall may move or will move. Our protests were ignored. Consequently the wall had moved, destroying property on the plaintiffs' land. Our complaints to the defendant were met with a silence or rejected by a reports (sic) fabricated by the defendant's engineers. Only in February 2003 the defendant had admitted that the wall had not been built to the plan approved by the City of Mandurah. Section 401 notice was issued to the owners of the wall. In June 2003 the defendant withdrew the Section 401 Notice."
The action was listed for a pre‑trial conference on 18 November 2009. On that day it was adjourned to 20 January 2010.
At the pre‑trial conference on 20 January 2010 it was ordered that the defendant bring an application to strike out the proposed amended statement of claim on or before 29 January 2010 and that the application be listed for hearing before a Judge.
Mr Kudrin informed me from the bar table that he was aged 86 years and that this matter was affecting his and his wife's health. He told me that he had seen five or six lawyers, none of whom was prepared to take the case. Mr Kudrin was also at a disadvantage, it seemed to me, by reason of the fact that English is not his first language.
In my view there is no question that the amended statement of claim fails to disclose a reasonable cause of action and is otherwise embarrassing. However, I do not consider that it is scandalous or an abuse of process as the defendant contends.
To ground a cause of action in negligence against the defendants the plaintiffs are required to set out such facts which, if proved, would permit a Court to conclude that they are entitled to a legally enforceable remedy. As EM Heenan J observed in Tobin v Dodd [2004] WASCA 288 at [18]:
"Under the judicature or fact system of pleading, it is not necessary for the pleader to set out, or to limit himself to, the cause or causes of action which are asserted as the basis for relief claimed. Indeed, it is not necessary to specify any cause of action at all as it is sufficient that a pleading alleges the facts sought to be proved and the relief claimed. So it will not be fatal if the facts alleged, if proved, do not entitle the plaintiff to the particular relief claimed provided that the facts as proved do entitle a claimant to some relief within the jurisdiction of the Court: Phillip Morris Inc v Adam Peter Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 472. There is nothing unusual about a trial court, or an appellate court, adopting a view of the facts, or of the law, different from the views for which the parties to the litigation respectively contended: Australian Communications Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 53; (2003) 77 ALJR 1806 per Gleeson CJ at 1808 [7] and per Kirby J at 815 [51]."
The legal principles which must be applied in order to determine whether a public authority is under a common law duty of care were recently summarised by McLure JA in Drexel London (a firm) v Gove [2009] WASCA 181 at [263] to [265] as follows:
"Reasonable foreseeability of harm of the kind suffered is a necessary although insufficient condition for the existence of a duty of care: Tame v New South Wales (2002) 211 CLR 317 at [12]. …
Generally, reasonableness is the test for the imposition of a duty of care; it is the reasonableness of a requirement that a person should have certain persons or interests in contemplation that determines the existence for duty of care: Tame [9], [35], [109], [185], [272], [331]. However, the imposition on a public authority of the duty of care directly connected with the existence of a public power or duty raises discrete considerations. For example, there must be no incompatibility between a public authority's statutory powers and duties and its common law duties: Sullivan v Moody (2001) 207 CLR 562; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [78].
Further, the mere existence of a statutory duty or power does not create a common law duty even if harm of the kind suffered is reasonably foreseeable: Sutherland Shire Council v Heyman; Graham Barclay [80] (McHugh J), [145]-[148] (Gummow & ayne JJ); Stewart v Kirkland‑Veenstra [2009] HCA 15; (2009) 37 CLR 215."
The defendant's submissions in support of the application emphasise the principle that, generally, a public authority is not under a common law duty to exercise statutory powers which are discretionary in nature. This is so where the statutory powers were conferred for the benefit of the public generally as opposed to the protection of a specific class of persons, such as in Pyrenees Shire Council v Day (supra). In my respectful view the defendant's submission is one to be made at trial. It does not support the peremptory dismissal of the plaintiffs' claim.
Although I am of the view that the bare facts alleged in the amended statement of claim would not be sufficient, if proved, to ground a finding of liability against the defendant, I am nevertheless minded, in view of the terms of the leave granted by Davis DCJ by which the action was commenced, and the fact that the plaintiffs are unrepresented, to grant them an opportunity to further amend their claim. The plaintiffs are entitled to reasonable assistance from the Court: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 per Kirby P at 536.
I therefore propose to accede to the defendant's application to strike out the amended statement of claim but on the basis that the plaintiffs may, within 30 days, file and serve a further amended or substituted statement of claim setting out what they say the defendant should have done after the Minister's dismissal of the s 401 notice on 4 June 2003, what the defendant failed to do and what damage was caused by that failure.
In doing so I do not express any opinion as to the merits of the plaintiffs' claim, other than as to what I consider are the minimum facts that must be established by the plaintiffs, acting in person, in the circumstances of this action, in order to constitute an arguable case. Nor do I preclude the possibility that a further application to dismiss the claim may succeed.
So the orders will be:
1.The plaintiffs' amended statement of claim dated 23 November 2009 be struck out in its entirety on the grounds that it does not disclose a reasonable cause of action and is embarrassing; and
2.The plaintiffs have leave to file and serve a further amended or substituted statement of claim within 30 days from the date of this order.
I will hear the parties as to costs.