Ness v Stevenson

[2020] NSWSC 631

Supreme Court

New South Wales

Medium Neutral Citation:

Ness v Stevenson [2020] NSWSC 631

Hearing dates:

22 May 2020

Date of orders:

22 May 2020

Decision date:

22 May 2020

Jurisdiction:

Common Law - Administrative Law

Before:

Beech-Jones J

Decision:

(1)   The notice of motion filed 15 May 2020 be dismissed.

 

(2)   Leave to file the proposed statement of claim be refused.

 (3)   The plaintiff pay the first, second and third defendants' costs of the notice of motion.

Catchwords:

Amendment application – adjournment application – no question of principle

Legislation Cited:

Civil Procedure Act 2005
Crimes (Appeal and Review) Act 2001
District Court Act 1973
Inclosed Lands Protection Act 1901
Supreme Court Act 1970

Category:

Procedural and other rulings

Parties:

Kristel Ness (Plaintiff)
Andrew Stevenson (First Defendant)
Catherine Brennan (Second Defendant)
New South Wales Department of Education (Third Defendant)
Local Court of New South Wales (Fourth Defendant)

Representation:

Counsel:
In person (Plaintiff)
A Williams (First, Second, & Third Defendants)

  Solicitors:
In person (Plaintiff)
McCabe Curwood (First, Second & Third Defendants)

File Number(s):

2020/30463

EX TEMPORE Judgment

1. Before the Court is a notice of motion filed 15 May 2020 seeking three orders; firstly, that the hearing date for these proceedings scheduled for 18 June 2020 be vacated; secondly, the plaintiff be given leave to file and serve a second amended summons; and thirdly, consequential orders for the variation of the time for service of evidence and submissions. The motion was returnable this morning before the Registrar and was referred to me as Duty Judge.

2. Before turning to the substance of the motion, it is necessary to outline, as best as I can, the background to the proceedings and the essence of the claims put forward in the “summons for judicial review” filed on 30 January 2020.

3. Between the time of the referral of the matter to me as Duty Judge and the time of the hearing of the notice of motion, the Court was supplied with approximately 2 kilograms of material which set out various assertions. There also exists on the file an affidavit sworn by the plaintiff which appears to be at least 150 pages in text.

Background

4. As best as can be ascertained, at some point, the plaintiff was, and perhaps still is, the parent of children who attend a public school on the northern side of Sydney Harbour. According to the material, there arose during 2017 and 2018 various areas of contention between her and those charged with the management of the school.

5. In the summons, complaint is made about something that is described as an “Inclosed Protection Lands Order” that bears the date 14 February 2019. The Inclosed Lands Protection Act1901 makes no reference to such a concept. Instead, s 4(1) provides that it is an offence for a person who, without lawful excuse, enters into inclosed lands "without the consent of the owner, occupier or person apparently in charge of those lands".

6. As best as I can ascertain, it seems that around 14 February 2019 a note or letter issued under the hand of the first defendant, Andrew Stevenson, was provided, perhaps by the New South Wales Police Force, to the plaintiff, advising her that she was no longer permitted to enter upon the land of the school.

7. According to the plaintiff's material, and confirmed by her in her oral submissions, at some stage after that there was also some form of direction given preventing her from communicating with members of the school staff. At some point thereafter, it seems that the plaintiff was charged with an offence under s 4(1).

8. At the hearing of this application, the plaintiff indicated that she was convicted in her absence in the Local Court of that offence. She later sought to annul that conviction but her application was refused. She also stated that she has an outstanding application to the District Court appealing against the refusal of the annulment.

The Proceedings

9. By summons filed 30 January 2020, the plaintiff seeks 17 orders. The summons names three defendants and I have already referred to the first named defendant to the proceedings. The second named defendant, Ms Catherine Brennan, is apparently a person who signed a letter in response to a request by the plaintiff for a review of the "order" or a direction that she not enter upon the land of the school. The third named defendant is the New South Wales Department of Education. Although it is not entirely clear, and they are not named as a defendant in the summons, it appears that at some stage a magistrate and then the Local Court of New South Wales was added as a fourth defendant.

10. The substantive orders sought in the summons are all described as "an order in the nature of a certiorari", an order in the nature of "prohibition" or an order in the nature of mandamus. Clearly, the summons seeks to invoke this Court's jurisdiction confirmed by s 69 of the Supreme Court Act1970 to exercise judicial review in relation to the actions of State agencies. The orders seek the setting aside of various "decisions" allegedly made by Mr Stevenson and Ms Brennan in relation to the exclusion of the plaintiff from the premises of the school, and her communication with staff, as well as orders directed to the Local Court in relation to its decisions concerning her prosecution.

The Amendment and Adjournment Applications

11. The proposed second amended summons seeks to expand the number of defendants and the relief sought. In relation to the defendants, the proposed amended summons seeks to substitute the former Minister of Education and now the Minister for Planning and Education as the first defendant; and then add Mr Stevenson as the fifth defendant; nine persons said to be employed by the Department of Education; five police entities and the District Court of New South Wales.

12. The relief sought is amended in a way that is designed to convey that the "decisions" that were previously alleged to have been made by Mr Stevenson and Ms Brennan were actually made by other persons, including the defendants, as well as "unnamed senior employees" of the Department of Education. In addition, relief is sought by way fo setting aside various decisions of the Police Force in purportedly imposing a fine, as well as seeking an order for mandamus against the Local Court and the District Court and costs.

13. In support of the application for an adjournment of the hearing, an affidavit of the plaintiff explains that the basis for the adjournment is that, in light of the way in which the proceedings are sought to be framed in the second amended summons and the obstacles that have been faced by the plaintiff in gathering evidence in support of her case, it is not possible to prepare the hearing for 18 June 2020.

14. On this application, the plaintiff indicated that the essence of her complaint is that in the period leading up to her exclusion from the school she sought to raise various issues of public importance either with, on or near the school. She contends that the actions taken against her had been undertaken in effect to silence her. She also stated that other action that was taken against her, including the prosecution, was, amongst other matters, contrary to the so-called implied freedom of political information found within the Constitution.

15. Needless to say, there are a number of difficulties with how the proceedings are presently framed as well as how they are proposed to be framed in the amended summons. It is appropriate to mention three matters. First, the premise of the existing summons appears to be the contention that the decision to exclude the plaintiff from the property of the school, and direct that she not communicate with the teachers, are amenable to judicial review. I am far from convinced that that is the case. However, given that an issue of potential public importance may be raised by that point, it is not appropriate to resolve it on this application. In the end result, nothing in this decision turns upon the ultimate correctness of that proposition.

16. Second, it appears that by various means the plaintiff seeks to challenge decisions made by the police in the course of the bringing of a prosecution as well as her conviction in the Local Court and, potentially, the treatment of that conviction by the District Court. Decisions made by the police during the course of a prosecution are not generally amenable to judicial review. Decisions made by the Local Court are potentially amenable to judicial review in this Court, but the established means for doing so are to be found in the Crimes (Appeal and Review) Act 2001. It is only in rare cases that a challenge under s 69 of the Supreme Court Act to such decisions will be considered. In relation to decisions made by the District Court, at the moment that seems entirely premature. Otherwise, s 176 of the District Court Act 1973 precludes the grant of a certiorari directed to the District Court for errors that are within jurisdiction. Further, judicial review proceedings in relation to the District Court are determined by the Court of Appeal.

17. Third, to the extent that any possible issue is said to arise in relation to the implied freedom, the only context in which that could truly arise would be in relation to a prosecution under the Inclosed Lands Protection Act.

Amendment and Adjournment Must Be Refused

18. Leaving aside these issues, the real difficulty with the application is that, whatever the problems with the initial summons, the problems with the second amended summons are far more significant. If leave to amend is allowed, that second amended summons would require the addition of a number of additional parties all of which appears to be directed to establishing that somehow Mr Stevenson and Ms Brennan were acting as the guise or puppets of others and that otherwise the New South Wales Police Force acted improperly in the bringing of their prosecution.

19. I have no doubt that to allow an amended summons that takes those steps would be inconsistent with the objectives of the Civil Procedure Act 2005. It would add considerably to the delay in the proceedings. Further, the addition of these allegations appears to add nothing to the plaintiff's case in that, for the reasons I have already indicated, the prosecution decisions of the police are not generally amenable to judicial review, and if the essence of the complaint is that Mr Stevenson or Ms Brennan acted at the behest of others, that is simply a ground for challenging their decisions. Accordingly, leave to file an amended summons will be refused.

20. In relation to the application to vacate the hearing date, it follows from what I have said that I have grave concerns as to whether this matter will properly be ready for hearing on 18 June 2020 given the various difficulties with the way the plaintiff's case is currently formulated. There is no doubt the plaintiff is seeking to be diligent in providing material but the amount of material provided on this application gives me grave concern as to whether the matter will be ready. However, in the end, nothing has persuaded me that if more time was granted that position would be any different. In other words, the various difficulties that I have identified with the plaintiff's summons are unlikely to be satisfactorily addressed even if the hearing date was to be adjourned. The requirement that the proceedings be conducted in a manner which is quick, just and fair requires that, if there is a choice between an unprepared case being heard soon and, an even more unprepared and unwieldy case being heard later, the former option is to be preferred.

Proposed Statement of Claim

21. Lastly, I should note that even though it was not mentioned in the notice of motion, the plaintiff indicated that she also seeks leave to file a statement of claim in these proceedings which names three defendants; namely, the Minister referred to earlier; Ms Brennan; and the New South Wales Department of Education. The statement of claim seeks large amounts of damages and the cover pages assert that it relates to a variety of torts including misfeasance in public office, common assault, malicious prosecution and intimidation.

22. With great respect to the plaintiff, it is not possible in the time available to indicate all the difficulties with the pleading. However, by way of example, although the type of claim is described as including malicious prosecution and defamation, no elements of those torts are pleaded. The pleading includes a number of irrelevant assertions such as that a particular political club in a university is "publicly known for being misogynistic, homophobic and transphobic". It asserts that the Minister referred to earlier is a qualified solicitor and as such owes the plaintiff a duty of care, but it does not allege that the plaintiff was one of his clients or a category of person who might be owed a duty of care by a solicitor. The Minister is also said to have owed a duty of care as a member of parliament to take care of the physical and psychological safety of the plaintiff and her children. That is a broad-ranging proposition which, if it is to be properly mounted, would have to be carefully and expansively pleaded.

23. Most significantly, there are a number of serious allegations of conspiracy littered throughout the statement of claim which are in a form that the Court would never allow to proceed. Thus, for example, paragraph 58 of the proposed statement of claim pleads that:

“Between approximately 9 February 2019 and 10 October 2019 the following defendants formed an administrative illegal and impermissible tribunal and orchestrated multiple enclosed protected land orders, communications orders, unfounded trespassing complaints (indictable false reports to New South Wales police) and charges in contravention of criminal law: ...”

24. The paragraph lists some 25 named entities. The proper particulars of any such conspiracy are not to be found in the statement of claim. The succeeding paragraphs then set out what are said to be various asserted "intentions" of the so-called "administrative illegal and impermissible tribunal". Again, no particulars are provided of that contention, even if it was capable of being understood.

25. Ordinarily the Court does not countenance the filing, in judicial review proceedings commenced by summons, of a statement of claim seeking damages of that kind for those torts. Given that the statement of claim is clearly, in the technical sense, vexatious and otherwise embarrassing, that only confirms that leave to file the statement of claim must be refused.

Orders

26. Accordingly the orders made by the Court are:

(1)   The notice of motion filed 15 May 2020 be dismissed.

(2)   Leave to file the proposed statement of claim be refused.

[Parties addressed on costs]

27. The first three defendants seek the costs of the notice of motion.

28. Ms Ness seeks to resist that order. She submits that the costs of her notice of motion should be costs in the cause. Given the nature of the findings that I have made I do not think that any order other than Ms Ness pay the costs of the notice of motion is appropriate.

29. I otherwise note that Ms Ness seeks the issue of various notices to produce and subpoenas, including to the defendants for the production of material relevant to her case. I have not embarked upon any consideration of that, and it will need to be taken up with the Registrar. I would only observe that, given the analysis of Ms Ness's case that I have already undertaken, any request for documents will have to be very narrowly framed to pass the test appropriate for the compulsory production of material.

30. Accordingly, the Court orders that:

(3)   The plaintiff pay the first, second and third defendants' costs of the notice of motion.

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Decision last updated: 28 May 2020