Pumpa v Norman Parks (Vic) Pty Ltd and Ors (Ruling)

[2018] VCC 725

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-18-00432

ANTHONY (TONY) WILLIAM PUMPA	Plaintiff
v
NORMAN PARKS (VIC) PTY LTD	First Defendant
and
CHRISTINE NORMAN	Second Defendant
and
JOHN NORMAN	Third Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2018
DATE OF RULING:	28 May 2018
CASE MAY BE CITED AS:	Pumpa v Norman Parks (Vic) Pty Ltd & Ors (Ruling)
MEDIUM NEUTRAL CITATION:	[2018] VCC 725

RULING
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Subject:APPLICATION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF; APPLICATION FOR STRIKE OUT OF PLAINTIFF’S CLAIM

Catchwords: SUMMARY JUDGMENT – application by defendant for summary judgment to dismiss plaintiff’s Statement of Claim pursuant to s62 of the Civil Procedure Act 2010 (Vic) and r22.16 of the County Court Civil Procedure Rules 2008 (Vic) – whether there is a real question to be tried – whether proceeding had “no real prospect of success”

STRIKE OUT – application for strike out of plaintiff’s Statement of Claim pursuant to r23.02 of the County Court Civil Procedure Rules 2008 (Vic) – whether Statement of Claim disclosed a cause of action – whether scandalous, frivolous or vexatious – whether an abuse of process of the Court

Legislation Cited:     Supreme Court (General Civil Procedure) Rules 2015 (Vic); Civil Procedure Act 2010 (Vic); Residential Tenancies Act 1997 (Vic); Australian Consumer Law and Fair Trading Act 2012 (Vic); Wrongs Act 1958 (Vic); Residential Tenancies Amendment Act 2011 (Vic)

Cases Cited:Tomasevic v Travaglini & Anor (2007) 17 VR 100; Werden v Legal Services Board (2012) 36 VR 637; Stead v State Government Insurance Commission [1986] 161 CLR 141.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person	-
For the Defendants	Mr A Strauch	Rigby Cooke Lawyers

HIS HONOUR:

1       The plaintiff, Mr Anthony Pumpa, is a self-represented litigant.  In 2017, he brought this proceeding (initially in the Supreme Court)[1] against the first defendant, Norman Parks (Vic) Pty Ltd, the second defendant, Ms Christine Norman, and the third defendant, Mr John Norman (“the defendants”). In February of this year, the proceeding was transferred to this Court. By Summons filed 22 December 2017, the defendants sought orders that:

(i)the Statement of Claim filed on 21 November 2017 be struck out pursuant to r23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“Supreme Court Rules”);

(ii)the plaintiff’s claim be summarily dismissed pursuant to r22.16 of the Supreme Court Rules, alternatively, pursuant to s62 of the Civil Procedure Act 2010 (Vic) (“CPA”); and

(iii)the plaintiff pay the defendants’ costs of and incidental to the Summons.

[1]SCI-2017-04716

2       The Summons was supported by the affidavits of Seamus Dominic Jones Ryan, solicitor for the defendants, sworn 3 May 2018, and Christine Norman, the second defendant, sworn 19 December 2017.  Mr Pumpa filed an affidavit sworn 19 April 2018.

3       The matter first came on for hearing before me on 11 April 2018.  I gave directions as to the further hearing of the Summons, including the provision of affidavit material and written submissions.  I heard further oral argument on 23 May 2018.

Relevant background

4       The first defendant took a lease of a caravan park, known as Central City Caravan Park, at Golden Square, near Bendigo (“the caravan park”).  The landlord was Lococo Nominees Pty Ltd (“Lococo”).  The period of the lease was five years from 17 April 2003, with three renewal options, each of five years.

5       One of the options was to expire on 30 March 2018.  Some time prior to that, the defendants sought a substantial increase in the term of the lease from Lococo, as without such a term the defendants could not raise funds to carry out various capital improvements which they intended to make to the caravan park.

6       By letter dated 2 November 2016,[2] Lococo’s solicitors indicated they required vacant possession by 30 March 2018.  As a result, it was proposed that the business of the first defendant be wound up and it would cease operation of the caravan park.

[2]Exhibit CN2 to the affidavit of Ms Norman sworn 19 December 2017

7       Mr Pumpa has been a tenant at the caravan park since before the Normans became lessees in 2003.   Mr Pumpa has lived in premises at the caravan park, along with many other longstanding permanent site tenants.

8 By notice dated 8 November 2016 and served on Mr Pumpa, he was required to vacate the caravan park by 29 December 2017 (the “Notice to Vacate”). The Notice to Vacate was issued pursuant to s319(a) of the Residential Tenancies Act 1997 (Vic) (“Residential Tenancies Act”).[3]

[3]Exhibit CN3 to the affidavit of Ms Norman sworn 19 December 2017

9       Mr Pumpa, like many other site residents, suffered distress and disappointment as a result of having to leave the caravan park.  He told me in submissions, and I accept, that the caravan park was a social focus for himself and other tenants, and that they had expended money making improvements to the premises and caravans in which they lived.  He advised me, and I accept, that his relocation to other premises caused him to incur significant costs.

10      In 2017, Mr Pumpa brought a proceeding in the Victorian Civil and Administrative Tribunal (“VCAT”).[4]  The application was initially an application made pursuant to the Residential Tenancies Act to challenge the validity of the Notice to Vacate. According to an Order made on 31 January 2017, leave was granted to Mr Pumpa to amend his application to an application under s452 of the Residential Tenancies Act, and to include a claim under the Australian Consumer Law andFair Trading Act 2012 (Vic) (“ACLFTA”). The purpose of the adjournment was:

“… to enable the applicant to provide the respondent with a one page statement setting out exactly the grounds for challenging the notice to vacate, including the legal basis of this claim … .”[5] 

[4]Proceeding No R2017/472/00

[5]The Reasons and Order are set forth in exhibit CN4 to the affidavit of Ms Norman

11      The matter came on again for hearing before Member Harvey on 28 February 2017.  Mr Pumpa’s application was dismissed.  Member Harvey noted:

“Mr Pumpa has been a site tenant at the Caravan Park for many years.  He owns his dwelling and occupies permanent mobile site 10.  He, like many other long standing permanent site tenants, at the caravan park, has made it his home and he hoped that he would live there for many years to come.  This caravan park is not just a place to live, it is a community.  The prospect of having to move is causing distress to himself and his fellow site tenants because it creates uncertainty as to where they will live in the future and how they will manage the process and worry about the costs associated with moving as the costs of relocating their dwellings will be significant or they need to make a decision to sell their dwellings at a price probably lower than their worth.  Ms. Norman and her partner who run the caravan park are also suffering stress as they need to manage the expectations of their site tenants and the process of removing infrastructure which will also be at significant cost.”[6]

[6]The Reasons and Order are set forth in exhibit CN5 to the affidavit of Ms Norman

12      Member Harvey noted that with the introduction of the Residential Tenancies Amendment Act 2011 (Vic) which came into operation on 1 September 2011, there was a change to the requirements for the giving of notice to vacate dwellings in caravan parks. Member Harvey noted that following the introduction of the amending Act, the first defendant prepared written site agreements for site tenants, including Mr Pumpa, as was required by s206E of the Residential Tenancies Act.  The agreement was said to commence as “pre-September 2011”.  It did not provide any fixed term, nor an end date.

13      Member Harvey then went through the relevant provisions of the legislation in relation to the provision of the Notice to Vacate.  He noted Mr Pumpa’s submission that the agreement was not a periodic site agreement and therefore the site owner was not entitled to give notice to vacate under the relevant provision.  The Notice to Vacate was thus invalid.  He rejected Mr Pumpa’s submissions, and said:

“A site owner is not required to give a reason when giving a 365 day notice under section 317ZG and none was given in the notice.  Ms Norman has informed Mr Pumpa and the Tribunal of the reason for giving the notice.  It is a legitimate reason being that the site owner is required to give back vacant possession of the land to its landlord on 18 March 2018.”

14      Member Harvey found that the site owner was entitled to give the Notice to Vacate under the relevant provision, and dismissed Mr Pumpa’s application.  

Mr Pumpa’s claim in this Court

15 Mr Pumpa’s Amended Statement of Claim is a long and confusing document, and makes a range of statements and complaints for which it is difficult to find any basis in the law. The cause of action at one point is said to be in negligence, causing psychological injury. It further alleges various breaches of the ACLFTA and the Corporations Act 2001 (Cth). There is further reference to contravention of the Wrongs Act 1958 (Vic) (“Wrongs Act”), in particular breach of the duty of care expressed in s48.  In paragraph 7.3, it is alleged the defendants owed a duty to provide counselling to the plaintiff as a consequence of being served with the Notice to Vacate.  To the extent it is alleged Mr Pumpa suffered injury as a result of the defendants’ negligence, there is nothing to suggest Mr Pumpa has complied with the provisions of Part VBA of the Wrongs Act and obtained a “Significant Injury Certificate”.

16      In paragraph 12 of the Statement of Claim, Mr Pumpa says the defendants ought to have accepted the further available five-year option which would have provided a further six-year period within which the defendants could resolve their difficulties with the landlord.

17      Having read the Statement of Claim, I find it very difficult to understand the legal basis for which the proceeding is brought, or any legitimate cause of action upon which Mr Pumpa’s claims rest. 

18      When the matter first came on for hearing on 11 April 2018, I told Mr Pumpa that I saw two problems with his proceeding.  The first was that I simply could not understand his Statement of Claim, nor decipher any cause of action from the matters alleged. On 26 April 2018, he filed an Amended Statement of Claim, which did not make his allegations any clearer.  I further said, that to the extent that his claim rested upon the invalidity of the Notice to Vacate served upon him in 2016, that was a matter already determined by VCAT and could not be re-litigated in this Court.  In large part, that was the basis upon which the matter was adjourned for further hearing.

19      In the course of oral submissions, I asked Mr Pumpa to tell me, as simply as could be done, what he suggested the defendants ought to have done, or ought to have refrained from doing, in order to prevent his eviction from the caravan park.  His response was as follows:

(i)     the Normans ought to have given him a fixed-term site agreement for a significantly longer period, at least twenty years;

(ii)     the Normans ought to have negotiated with Lococo in order to obtain a longer head lease to facilitate such an agreement;

(iii)    the Normans were obliged to relocate themselves, and other site tenants, into appropriate alternative premises;

(iv)    the Normans were obliged to pay him compensation for the costs incurred as a result of relocating to another site;

(v)     the Normans were not honest with Mr Pumpa in telling him what their intentions were in respect of the caravan park;

(vi)    the Normans should have attempted, through negotiation or mediation, to bring about a resolution of the problem between themselves and Lococo, so that the caravan park could continue to operate.  Mr Pumpa said that Ms Norman was somewhat volatile in negotiations with Lococo, and it was likely that this had made resolution of the issue difficult.

20      I do not accept that, in the circumstances, the defendants had any obligation to take the steps as suggested by Mr Pumpa.  It is clear that the Notice to Vacate was appropriate in the circumstances.  For reasons apparently related to the fact that the Normans could not get a significant further extension upon the lease, they decided not to take up the further option which, in turn, meant that site tenants had no right to remain upon the premises beyond the expiry of the lease.  The Normans were not obliged to provide any reason for deciding not to take up the further option, nor were they obliged to attempt to secure any ongoing tenement for the benefit of their tenants from Lococo.

21      While I accept, without reservation, the stress that Mr Pumpa and others have suffered due to the loss of their dwellings, and further, that they suffered not insignificant expense in relocating, I can find no obligation at law upon the Normans to compensate Mr Pumpa either for that distress, or those costs.

Self-represented litigant

22      The plaintiff is a self-represented litigant.  As such, I am obliged to give Mr Pumpa such assistance as is necessary to ensure that I understand the evidence upon which he relies, and the legal principles which underpin his case.  It is necessary to give him every reasonable assistance so that the proceeding can be determined fairly.[7]  It is essential that Mr Pumpa be accorded procedural fairness.[8]  That is particularly so when the outcome of the proceeding may result in the loss of Mr Pumpa’s long-established and secure residential accommodation.

[7]Tomasevic v Travaglini & Anor (2007) 17 VR 100 at 130; Werden v Legal Services Board (2012) 36 VR 637 at 651

[8]Stead v State Government Insurance Commission [1986] 161 CLR 141 at 145-6

Application for summary judgment

23 Section 62 of the CPA provides that a defendant may apply for dismissal of a plaintiff’s claim if it has “no real prospect of success”.[9]  The clear intention of the legislation is to provide a summary procedure for the dismissal of proceedings which are without merit. 

[9]The procedures for doing this are set out in Order 22 of the County Court Civil Procedure Rules 2008 (Vic)

24 The word “real” has received a more liberal interpretation since the CPA came into force than was previously the case. Nonetheless, the determination of a proceeding should be approached carefully. It is only if there is no real question to be tried that a court may enter summary judgment against a plaintiff. In such an application, there is no comprehensive hearing of the evidence, both for and against.

25      I have concluded the plaintiff’s claim has no real prospect of success.  There is no basis, either in negligence or in breach of the various statutory provisions to which Mr Pumpa has referred, for his claim to be sustained. The Normans acted within the scope of the civil law.  He is, understandably, aggrieved by the circumstances leading to the termination of his site agreement, but he has not established any cause of action, nor basis at law, for that agreement to found any entitlement to damages, or any other relief.  To the extent that he alleges the giving of the Notice to Vacate was defective, that matter has already been the subject of determination at VCAT.

26 It is unnecessary for me to set out in detail the submissions of the defendants. I accept those submissions, that in accordance with the relevant provisions of the CPA, the plaintiff’s claim has no real prospect of success.

Application for strike out of plaintiff’s Statement of Claim

27      In light of my findings with respect to the defendants’ application for summary judgment and dismissal of the plaintiff’s claim, it is strictly unnecessary for me to determine the defendants’ application for strike out of the plaintiff’s Statement of Claim.

28      However, for the reasons I have outlined at paragraph 24, the plaintiff’s Statement of Claim is also an abuse of process of the Court to the extent that it discloses no cause of action.  Accordingly, the Statement of Claim should be struck out.

Conclusion

29      While I have sympathy with the plight which has confronted Mr Pumpa as a result of the vacation of his premises at the caravan site, and accept that he has suffered distress as a result, that does not found in any cause of action.

30      The plaintiff’s Statement of Claim should be dismissed with costs. 

31      I shall make appropriate orders.

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