Partington v Newcastle City Council
[2014] NSWSC 352
•26 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: Partington v Newcastle City Council [2014] NSWSC 352 Hearing dates: 26/02/2014 Decision date: 26 February 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Interlocutory relief as sought in orders 1, 2 and 3 of the summons filed 24 February 2014 is refused.
(2) Mr Partington to pay the defendant's costs of today.
Catchwords: PROCEDURE - civil - interlocutory relief; application for - relief sought for council to remove barricade erected around a caravan and for access to be provided to plaintiff to effect repair and maintenance work on caravan - no prima facie basis disclosed by plaintiff for relief - no arguable case based on purported oral agreement for plaintiff to have access to park to undertake repairs and removal of caravan during specified period - balance of convenience does not favour grant of relief. Legislation Cited: Impounding Act 1993 (NSW)
Inclosed Lands Protection Act 1901 (NSW)Category: Procedural and other rulings Parties: Ricky Partington (P)
Newcastle City Council (D)Representation: Counsel:
In person (P)
E Holmes (D)
File Number(s): 2014/57910
EX TEMPORE Judgment
This is an application by Mr Ricky Partington for interlocutory relief.
Mr Partington first appeared before the Court on 24 February 2014 ex parte and sought urgent relief. On that day, I declined to grant any urgent relief but granted leave to Mr Partington to file a summons and affidavit and to have the summons and affidavit returnable before the Court today at 2pm providing that the summons and affidavit were served promptly, by identified times.
The matter has returned to the Court today at 2pm where Mr Partington was in attendance via the telephone and Ms Holmes, a solicitor, attended on behalf of the defendant, the Newcastle City Council. Mr Partington intended to attend today in person but, because of some unforeseen events entirely beyond his control, he was unable to do so. It is for that reason the Court has permitted the hearing to be conducted with Mr Partington on the telephone.
Whilst it is undesirable that interlocutory relief is dealt with when parties are not personally present, in the particular circumstances of this case that is unavoidable.
Interlocutory Relief Sought
When the proceedings were called on today, Mr Partington made it plain that the relief he sought today was threefold.
First, he seeks an order of the Court that the defendant and its servants or agents immediately remove a barricade that has been erected around a caravan situated on site number 133 at the Stockton Caravan Park.
Secondly, he seeks an order that the defendant and its servants or agents permit access without restriction to Mr Partington himself to visit the Stockton Caravan Park for the purpose of carrying out repair and maintenance work on the caravan presently located at site 133.
Thirdly, Mr Partington sought an order of the Court that the defendant, its servants or agents implement and abide by an arrangement made between him and the caravan park manager to allow him access for a period of three weeks to undertake essential repairs and maintenance on the caravan.
Factual Background
The Stockton Caravan Park has provided long-term accommodation to many, many people for many years. It appears that Mr Partington and his family occupied a caravan on site 133 between 1989 and 1997. Thereafter, the caravan that they formerly occupied was sold. Recently, Mr Partington learned that the caravan that he and his family formerly occupied, and which had been built in situ by his father and him, was available for sale for the sum of $1.
Accordingly, on 24 January 2014, Mr Partington entered into a Bill of Sale for the caravan by which he purchased it from Mr and Mrs Whiteman for $1.
The terms of the Bill of Sale relevantly were:
"3. Said caravan is being sold 'as is' without any express or implied warranty as to condition or working order.
4. The buyer takes possession of said caravan on 15 February 2014".
The arrangement by which Mr and Mrs Whiteman occupied site 133 was terminated by the defendant's servants or agents on 1 November 2013, which termination required Mr and Mrs Whiteman to deliver up vacant possession of the site to the park owner on or before 29 March 2014.
Mr Partington does not claim in these proceedings that he has any occupation agreement or lease with the defendant which enables him to occupy site 133 at the Stockton Caravan Park.
It appears that on 13 February 2014, Mr Whiteman notified the employees at the caravan park that he had closed the bank account which was being used for the payment of the park fees. He said, in an email, this:
"Mr Partington, who purchased our van, has agreed to pay any ongoing fees for site 133. He will contact you shortly."
In an email response to that first email, Mr Whiteman was told that there could not be any transfer of the occupation agreement without the permission of the park owner. He was told that no such permission had been granted and that he remained responsible for site fees until such time as the site has been vacated to the satisfaction of park management.
Mr Partington has informed the Court that he had a telephone conversation with the current manager of Stockton Caravan Park on a day, which he no longer specifically remembers, but in the few days prior to 15 February 2014. He has deposed to the fact that he spoke with the manager and reached an agreement with the manager whereby he says he is allowed to occupy the site and come and go into the caravan park to carry out repairs to the caravan for a period of three weeks.
He describes the agreement in this way in his affidavit:
"The manager of Stockton Caravan Park agreed to allowing me to keep the caravan and come and go as I please as long as I paid the caravan park three weeks worth of site fees in which the plaintiff agreed to do so upon arrival at the caravan park."
It transpired that either on 18 or 19 February, probably 19 February, that Mr Partington attended the caravan park and attempted to pay his site fees but the manager was not present and was unable to be contacted. No fees were in fact paid.
Whilst there, Mr Partington, who knew many of the residents of Stockton Caravan Park, had a number of conversations with various residents in which he learnt that they had been given notices to vacate the site and that they were concerned about that.
Mr Partington, who told me that he is a student of constitutional law, apparently informed many of the residents or at least those with whom he spoke, that the paperwork that they had been served terminating their interests did not state any section of the lease that they had breached nor did the notices identify any section of the law to allow the caravan park management the power to give them termination notices and order them to vacate their sites.
He apparently informed several of the residents, many of whom were elderly, that they should challenge their termination notices in court and get orders of the Court that the caravan park must give them the exact reason as to why their leases are being terminated and then wait for a response.
Mr Partington contends and has submitted to me that the conduct of the Council through the managers of the park in giving these termination notices was unfair and unconstitutional, and that the fact that he gave advice to some of the residents has resulted in the Council going back on its agreement to allow him to access the caravan for three weeks and has resulted in subsequent action being taken.
It seems so far as the subsequent action is concerned, that on 18 February 2014, ATPM, which seems to be the organisation responsible for managing the caravan park, sent Mr Partington a letter by email.
The letter said this:
"This letter is to advise you that the park owners of Stockton Beach Caravan Park have not given consent for you to occupy a site on the park and will not be offering you an occupation agreement for site 133.
You have just assumed the position of having an occupation agreement with the park owners. We maintain our position that we are not under any obligation to recognise you as an occupant and have not given you consent to occupy site 133 or to enter or remain in the park.
...
It is an offence under s 4(1) of the Inclosed Lands Protection Act 1901 for any person who, without lawful excuse, enters upon enclosed lands without the consent of the owner/occupier or person in charge of those lands or who remains on those lands after being requested by the owner/occupier or person in charge of those lands to leave those lands. You are hereby prohibited from entering or remaining the park after 5 pm Friday 21 February 2014. We require that you remove the caravan and annexe from site 133 no later than 5 pm Friday 21 February 2014.
We put you on notice that if you fail to remove the caravan and annexe from site 133 or enter and remain in the park after 5 pm on Friday 21 February 2014, we will have you prosecuted for trespass in accordance with our rights under the Inclosed Lands Protection Act."
This letter sent by email on the morning of 18 February 2014 produced a series of responses from Mr Partington. In his first email sent at 11.29am on 18 February 2014, Mr Partington described the letter as: "The most offensive thing I have ever read in a long time."
He invited the park managers to "[g]o right ahead and try and prosecute me". He asserted that under the Inclosed Lands Protection Act 1901 (NSW) the manager had no choice but to offer him a lease because he was the new owner of the caravan and he further asserted that if a lease is not offered, then he would be entitled to live rent-free until such time as he received a lease.
A further response from Mr Partington was sent six minutes later. It was in the following terms:
"You are now put on notice that this letter is harassment and intimidation and not only that, you have not provided any information in writing which states you are authorised by council to make [any] decision on their behalf.
I am not instructing to look at the Crimes Act under intimidation and stalking and harassment which you quite clearly fall under that category. Do you understand?" (sic)
On 19 February 2014 at 9.38 am, Mr Partington again sent an email to the managers of the caravan park in these terms:
"Well Hayley, you failed in letting the police try and enforce your letter as the police now recognise that this is Crown land and any decision you make is unenforceable and the police now recognise that. so tell me, bitch, what is your next move seeing as how the police will not do anything for you now."
It appears that on 21 February 2014, the defendant, Newcastle City Council, sent Mr Partington by email a Notice under the Impounding Act 1993. The Notice described Mr Partington as the owner of a structure and associated fixtures and fittings located at site 133 within the Stockton Caravan Park. It noted that he had been required to remove the structure and associated fixtures and fittings by 5 pm on 21 February 2014, and as that time had passed, and that the structure and associated fixtures and fittings had remained in the Caravan Park, the Notice informed Mr Partington that the Council considered that the article had been abandoned.
The Notice went on to say this:
"The Impounding Act 1993 provides that Council may impound an article if Council believes on reasonable grounds that the article has been abandoned or left unattended. You are hereby advised that Council has impounded the article in situ. The article will be impounded in situ for a period of no less than twenty eight days after which it will be disposed of in accordance with the provisions of the Impounding Act 1993.
You are entitled to make claim for the release of the article within twenty-eight days of this date. The article will be sold or otherwise disposed of if not claimed and released within that period. In order to make a claim for the article, it will be necessary for you to contact Council's combined services team.
It should be noted that as you are prohibited from entering or remaining in the park, you will only be permitted to remove the article from the park by using a third party, prohibition of new entry or remaining in the park remains in force."
Mr Partington has informed the Court that his researches have demonstrated that the Impounding Act, which is an Act of the New South Wales Parliament, has never been assented to, gazetted and has therefore never come into force or effect. Accordingly, Mr Partington has submitted that this Notice is entirely invalid.
It is convenient at this point, to note that the defendant, the Newcastle City Council, accepts that the Notice is capable of being administratively challenged within a period of 28 days after its issue by application to the New South Wales Civil and Administrative Tribunal in accordance with the legislation covering the Tribunal and the legislation under which the Council has purported to act. It is common ground that Mr Partington has not made any such application, also because Mr Partington says the Act is invalid and, further, it is common ground that Mr Partington has not made any arrangement for a third party to remove the caravan from its site 133 nor has he sought to nor made any claim that the caravan should be released to a third party on his behalf.
Putting it simply, the factual position is that the caravan remains in situ, notwithstanding the Council's requirement of Mr Partington to remove it.
Mr Partington is prohibited from entering the park to undertake repairs on the caravan which he wishes to do. The Council considers that the caravan has been abandoned and has impounded it. These are all facts which are easily established.
Mr Partington claims his relief based upon his evidence that he had an oral agreement with the manager of the Caravan Park which permitted him to access the park for a period of three weeks to undertake relevant repairs and remove the caravan.
Mr Partington has said that if an injunction were granted or orders made as he seeks, he would comply with all relevant rules relating to behaviour and conduct within the park.
Mr Partington has informed the Court that he presently resides on the Central Coast but that he has taken to the caravan, or else has with him, in his motor vehicle, tools which he would need to effect the repairs in which he wishes to undertake.
In the short time available today, the Council has not adduced any evidence from the manager of the Caravan Park, but disputes by reference to the contemporaneous documents that any such conversation took place as Mr Partington alleges.
The Council submits that, in accordance with the usual authorities, a grant of interlocutory relief of the kind Mr Partington seeks should not be made. First, because Mr Partington has not disclosed any prima facie basis for relief and, secondly, because the balance of convenience does not favour the grant of relief.
It is appropriate that I deal with each of those considerations. I need in doing so to remind myself that I am not hearing this case on a final basis, and I have not heard all of the evidence upon which both parties would wish to rely should this be a final hearing. Mr Partington submits to the Court that if the Court accepts his account of the oral conversation with the manager for the Stockton Caravan Park, as indicated, that subject only to the payment of site fees for a period of three weeks which Mr Partington is willing, ready and able to pay, he has an agreement which enables him to access the site for the purpose of undertaking the work which he wishes to do. The account by Mr Partington of that agreement has been referred to earlier. It is set out albeit in apparently a summary form in his affidavit.
Mr Partington has today in response to questions from the Court, told the Court that the conversation occurred in the week of, or the few days leading up to, 15 February 2014 and he is able to be specific about the date. He says that the reason he is able to fix 15 February 2014 as being the date prior to which the conversation must have occurred, was because that is the date nominated in the Bill of Sale for the caravan as being the date upon which he took possession of the caravan, and as I would understand the position, to include becoming the owner of the caravan in accordance with the Bill of Sale.
The contemporaneous emails sent out about that time and shortly afterwards by Mr Partington do not support the making of such an oral agreement with the manager of the Stockton Caravan Park.
It is necessary to refer to these contemporaneous emails. At 1.26 pm on Monday 17 February 2014, Mr Partington sent an email to the Stockton Caravan Park in which he said
"As from the 16th onwards I have now become the official owner of the caravan at site number 133. I would just like to make arrangements with you to pay the fees for the site. Can you please contact me via email in regards to this please."
This email was sent at a time after Mr Partington says that he had already entered into an agreement with the park manager. It is inconsistent with such an agreement. In fact this email, I would conclude at this stage of proceedings, rather suggests that it was the first time that any contact had been made between Mr Partington and staff at the Stockton Caravan Park on the subject of his ownership of the caravan at site 133, and the payment of an occupation fee.
On 18 February 2014, on two occasions, Mr Partington sent emails to an employee of the organisation which manages the park. Those emails were sent in response to the letter of ATPM of 18 November 2013. I have earlier quoted the letter and those emails. There is no need to quote them again.
Of importance is that the letter sent by ATPM on 18 February 2014 is on its face, and by its content, inconsistent with the agreement with which Mr Partington avers he had with the park manager.
In response to that letter, neither of the two emails to which earlier reference has been made, make any reference whatsoever to the agreement that Mr Partington said that he had entered into with the manager. I would have thought that had such an agreement been entered into, then the two emails on 18 February 2014 would have been the obvious time to assert the existence of that agreement. That is because the agreement which Mr Partington relies upon was entirely contrary to the demands of ATPM in its letter of 18 February 2014.
I cannot be satisfied at the level necessary for interlocutory relief that Mr Partington has proved that he has a prima facie case, or an arguable case, based upon such an agreement.
Even if I be wrong in that conclusion, I am not satisfied that the balance of convenience favours making the orders sought by Mr Partington. There are two reasons for this. The first is that there is a means by which Mr Partington can organise to retrieve his caravan that he has purchased, from the site at the Stockton Caravan Park, because he is entitled to have a third party engage in the process of removal of the caravan to a site to which he wishes to have it removed to.
If this turns out to be a more expensive method than what would occur in the event the relief sought was granted by this Court, then there is no reason to think that, upon a court in the future so finding, Mr Partington would not be entitled to damages by reason of that additional expense. There is no reason to think that the defendant Council would not be in a position to meet any order for damages if one was made.
Secondly, there is available to Mr Partington avenues for obtaining relief with respect to the impounding Notice. I do not accept on the material before me that the Impounding Act is invalid. On the contrary, the assumption which I make is that it is valid unless and until there has been a declaration of invalidity. Because of that, there is an avenue to appeal against the Notice which has not been exercised. In the absence of such relief being sought, I am not satisfied that the balance of convenience favours the granting of any interlocutory relief.
In all of the circumstances, I decline to make any of the three orders that Mr Partington seeks today and I refuse the application which he has made. This means that the summons which was returnable before me needs to be stood over to an appropriate date to enable Mr Partington to consider what further evidence he wishes to file with respect to it.
In my view, it would be appropriate to stand the summons over before the Registrar at 9 am on Wednesday 12 March 2014.
Orders
Accordingly, the orders for the Court are:
(1) Interlocutory relief as sought in orders 1, 2 and 3 of the summons filed 24 February 2014 is refused.
(2) Mr Partington to pay the defendant's costs of today.
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Decision last updated: 01 April 2014
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