Kumaragamage v Liverpool City Council

[2003] NSWSC 165

CITATION:

Kumaragamage v Liverpool City Council & Anor [2003] NSWSC 165

HEARING DATE(S):

13 March 2003

JUDGMENT DATE:

19 March 2003

JURISDICTION:

Common Law

JUDGMENT OF:

Master Harrison

DECISION:

(1) The statement of claim filed 8 August 2002 is struck out as against the first defendant; (2) The plaintiff is to pay the first defendant's costs. Such costs are not to be paid forthwith but to await the conclusion of the matter.

CATCHWORDS:

Strike out statement of claim against first defendant

LEGISLATION CITED:

Residential Tenancies Act 1987 - s 33
Supreme Court Rules - Part 15 r 26

CASES CITED:

Bega Co-operative Society Limited v The Milk Authority of Australian Capital Territory (unreported, 12 May 1992, Federal Court of Australia)
Bruce v Odhams Press Ltd (1936) 1 KB 697
Pinson v Lloyds and National Provincial Foreign Bank Ltd (1941) 2 KB 72
Trades Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109
Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (unreported, 3 September 1991, Federal Court of Australia)
Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413
H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242

PARTIES :

Don Kumaragamage
(Plaintiff)

Liverpool City Council
(First Defendant)

Commissioner of Police of NSW
(Second Defendant)

FILE NUMBER(S):

SC 11941/2002

COUNSEL:

Mr MBJ Lee
(First Defendant)

SOLICITORS:

Mr Kumaragamage
(Plaintiff in person)

Mrs E White
Marsdens Law Group
(First Defendant)

Mr David Hull
Crown Solicitors Office
(Third Defendant)

- 5 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY 19 MARCH 2003

11941/2002 - DON KUMARAGAMAGE v LIVERPOOL
CITY COUNCIL & ANOR

JUDGMENT (Strike out statement of claim against
first defendant)

1 MASTER: By notice of motion the first defendant seeks firstly, an order that the statement of claim, so far as it relates to the first defendant be struck out; secondly, that the proceedings, so far as they related to the first defendant, be dismissed; and thirdly, that the plaintiff pay the first defendant’s costs of the motion and the proceedings. The first defendant relied on the affidavit of Elyse White sworn 14 August 2002. The plaintiff relied on his affidavits sworn 16 August 2002. The second defendant is the Commissioner of Police of NSW.

2 The plaintiff commenced proceedings in the District Court which raised similar allegations. On 30 August 2002, the plaintiff filed a notice of discontinuance.

3 The plaintiff pleads that he made his living by sub-letting rented premises to those who are unable to rent a house on their own. The plaintiff provides accommodation, furniture, electricity and water in accordance with s 33 of the Residential Tenancies Act 1987 (NSW).

4 The plaintiff alleges that before commencing the rental of premises he wrote two letters to Liverpool City Council explaining his intentions and requesting it to advise him as to whether he need to obtain council approval. The plaintiff alleges that the council did not have any concerns or objections. The plaintiff proceeded to sub-let rooms in various properties in Liverpool.

5 The plaintiff further alleges that on 16 May 2002 an employee of the first defendant obtained a number of search warrants by misleading the local court when he made a statement to it that the council had reasonable grounds to believe that the houses being sub-let by the plaintiff contained unauthorised alternations and/or the council had reasonable grounds to believe that the residents of the said premises were engaged in illegal activities. It seems that it is the attainment and execution of the search warrants and an assessment of development applications that give rise to plaintiff’s complaints, which I will refer to in more detail later in this judgment.

6 The plaintiff seeks that the first defendant pay him in excess of $22 million for damages.

The law in relation to summary judgment

7 Part 15 r 26 provides:

“(1) Where a pleading -
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(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 Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).”

8 The first defendant submitted that the plaintiff should be afforded the opportunity to replead his statement of claim against the first defendant provided that he pay the costs thrown away by this motion prior to filing his amended statement of claim. The plaintiff submitted that the court should receive evidence before proceeding to strike out the statement of claim.

9 The statement of claim is a complex document which runs for 40 pages. Helpfully, the plaintiff provided a summary of his allegations that he seeks to raise in his statement of claim at para 10. The allegations can be summarised as follows. They are allegations of malice, conspiracy and breach of statutory duty by council officers after 16 May 2002; breach of statutory duty and malice and damages caused by council employees on 26 March 1999 and 13 April 1999; denial of procedural fairness by the defendant’s employees on 6 May 1999 and 10 December 1999; the issue of false instruments, denial of procedural fairness and malice on 21 December 1999 and 22 December 1999 and compensation for damages; conspiracy to vanquish the plaintiff’s business by council employees David Grasso and Charles Silva Rallis; perjury by David Grasso in order to vanquish the plaintiff’s business; denial of procedural fairness and breach of statutory duty in the assessment of a development application by the council; and defamation and compensation and exemplary damages.

10 These are very serious matters and thus the need to properly plead the allegation is of utmost importance.

Pleading deficiencies

11 In Bega Co-operative Society Limited v The Milk Authority of the Australian Capital Territory (unreported, 12 May 1992, Federal Court of Australia) Justices Neaves set out the requirements of pleading. It is very helpful so I shall summarise it.

12 A pleading is to contain, and contain only, a statement in a summary form of the material facts on which the applicant relies. If it discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay, the whole or part of it may be struck out. The material facts are all those facts necessary for the purpose of formulating a complete cause of action - see Bruce v Odhams Press Ltd (1936) 1 KB 697 at 712; Pinson v Lloyds and National Provincial Foreign Bank Ltd (1941) 2 KB 72 at 75. It is not sufficient that the statement of claim simply express a conclusion drawn from facts which are not stated - see Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114-115; though in some circumstances to plead a conclusion may be to plead a material fact - see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (unreported, 3 September 1991, Federal Court of Australia, French J ). Not only must all material facts be pleaded but they must be pleaded with a sufficient degree of specificity, having regard to the general subject-matter, to convey to the opposite party the case that party has to meet - see Ratcliffe v Evans (1892) 2 QB 524 at 532; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at 417. It must be apparent on the face of the document that the facts pleaded, if proved, would establish the cause of action relied upon - see H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246. It is not a function of particulars to take the place of the necessary averments in the statement of claim - see Trade Practices Commission v David Jones at 114-115. Further, a pleading must state the facts that if not specifically pleaded might take the other party by surprise.

13 It is my view that the pleading in its current state is difficult to understand. The first defendant would not be able to discern the case that they are required to meet. It is not properly pleaded. The plaintiff may benefit from seeking legal assistance to re-cast his pleadings. The statement of claim is struck out as against the first defendant. In the exercise of my discretion, the plaintiff should be afforded one further opportunity to properly plead his claim against the first defendant. Leave is granted to the plaintiff to file and serve an amended statement of claim within 2 months, ie. on or before 19 May 2003.

14 Normally costs follow the event. The plaintiff is to pay the first defendants costs. It is my view that the plaintiff should not be obligated to pay the first defendant’s costs forthwith as this is the first amendment to the document. I have taken into account that somewhat similar causes of action were pleaded in the District Court.

THE COURT ORDERS that:

(1) The statement of claim filed 8 August 2002 is struck out as against the first defendant.

(2) Leave is granted to the plaintiff to file and serve an amended statement of claim on or before 19 May 2003.

(3) The plaintiff is to pay the first defendant’s costs. Such costs are not to be paid forthwith but to await the conclusion of the matter.
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Last Modified: 03/19/2003