Rose v Frankston City Council
[2013] VCC 429
•1 May 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-03759
| JACQUELINE ROSE | Plaintiff |
| v | |
| FRANKSTON CITY COUNCIL | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2013 | |
DATE OF JUDGMENT: | 1 May 2013 (Revised) | |
CASE MAY BE CITED AS: | Rose v Frankston City Council & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 429 | |
REASONS FOR JUDGMENT
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SUBJECT: PRACTICE AND PROCEDURE
CATCHWORDS: Application for judgment – whether the Statement of Claim disclosed a cause of action – whether the proceeding was competent in the plaintiff’s name – principles applicable to entry of judgment pursuant to s62 of the Civil Procedure Act 2010 – practical assessment of the plaintiff’s prospects of success – whether any prospect of a fair trial on the plaintiff’s pleadings
LEGISLATION CITED: Civil Procedure Act 2010, s62, r 1.17(1) and r 9.06
CASES CITED: Worldwide Enterprises Pty Ltd v Silberman & Anor (2010) 26 VR 595; Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222; Knorr v Commonwealth Scientific and Industrial Research Organisation (CSIRO) & Ors [2012] VSC 83; Knorr v Commonwealth Scientific and Industrial Research Organisation (CSIRO) & Ors (No 2) [2012] VSC 268; Knorr v Commonwealth Scientific and Industrial Research Organisation (CSIRO) & Ors (No 3) [2012] VSC 529; Karam v Palmone Shoes Pty Ltd [2012] VSCA 97
JUDGMENT: The first defendant have judgment in the proceeding brought against it by the plaintiff pursuant to s62 of the Civil Procedure Act 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | - |
| For the Defendant | Mr M Roberts SC | Moray & Agnew |
HIS HONOUR:
Introduction
1 The plaintiff filed a Writ on 3 August 2012 endorsed with a Statement of Claim alleging that she is entitled to obtain an award of damages against the defendants.
2 On 23 November 2012, I ordered, among other things, that the second defendant have judgment in the proceeding against the plaintiff pursuant to s62 of the Civil Procedure Act 2010 (“the Act”). I also ordered that the plaintiff’s Statement of Claim be struck out, and that she file and serve an Amended Statement of Claim by 4.00pm on 25 January 2013 relevant to the extant cause of action pleaded against the first defendant.
3 The Statement of Claim clearly did not comply with Rule 13 of the County Court Civil Procedure Rules 2008 (“the Rules”), and did not appear to me to disclose a cause of action against the first defendant.
4 I adjourned the proceeding for the purpose of giving further directions, which I gave on 22 March 2013. By that time, the plaintiff had filed and served an Amended Statement of Claim dated for January 2013.
5 The first defendant filed a summons on 23 November 2012 by which it applied to have the plaintiff's Statement of Claim struck out pursuant to Rule 23.02 of the Rules. On 22 March 2013, it was very apparent to me that what the first defendant intended was to apply for judgment pursuant to s62 of the Act. I adjourned that application to be heard before me on 16 April 2013, and I made at an order that the parties file and serve any affidavits and other documents on which they intended to rely by 4:00pm on 8 April 2013.
The Hearing
6 The plaintiff drafted an Amended Statement of Claim comprising 58 paragraphs and occupying 18 pages. At the commencement of the hearing, the plaintiff sought my leave to rely upon an Amended Statement of Claim which contained sub-headings above paragraphs 1, 2 and 3, but otherwise did not alter the substance of the pleading.
7 In addition, the plaintiff gave me two documents headed “ATTACHMENT ‘1’ to Amended Statement of Claim” which amounted to her written submissions, and an affidavit which she swore on 6 April 2013. I will mark her affidavit “Exhibit A”.
8 At the commencement of the hearing on 16 April 2013, Mr Roberts tendered the following evidence:
· The affidavit of Matthew Charles Casbourn Cripps sworn 21 February 2013: Exhibit 1
· The affidavit of Matthew Charles Casbourn Cripps sworn 3 April 2013: Exhibit 2
· The affidavit of Danielle Kristin Sirio, legal practitioner of the solicitors retained by the first defendant, sworn 15 April 2013: Exhibit 3.[1]
[1]I have reversed the order of the marking of the exhibits from my announcement during the hearing of the identification of the exhibits
9 The plaintiff complained that she had not been given sufficient time to prepare her case. The principal basis of her complaint was the size of the first affidavit sworn by Mr Cripps of 72 paragraphs, comprising 17 pages and 54 exhibits.
10 It seemed to me that the plaintiff had been given ample time by me to amend her Statement of Claim and to compose the basis upon which she would submit that it disclosed cause of action or causes of action against the first defendant.
11 The affidavit of Mr Cripps is largely devoted to a chronology relevant to the plaintiff’s property at 22 Fernwood Drive, Langwarrin (“the property”) and the course of events relevant to two applications which the plaintiff made for planning permits to develop the property. None of the exhibits are particularly difficult to understand, and when read in sequence with the affidavit, logically relate the steps taken by the plaintiff to obtain planning permits, the first defendant’s response to those applications and what occurred as a result of two hearings before the Victorian Civil and Administrative Tribunal (“VCAT”).
12 After I reserved my determination of the first defendant’s application, I received three emails directed to one of my associates from the plaintiff dated 17 April 2013, and two dated 22 April 2013, in which the plaintiff made further submissions. The emails disclose that Ms Danielle Sirio was copied into each of the emails. I have read the content of each of the emails. I am not satisfied that they raise anything in addition to the particular thrust of the submissions made by the plaintiff and Mr Roberts.
The Evidence
13 Mr Roberts informed me that the property is not registered in the name of the plaintiff. It is registered in the name of a corporation known as “Hillndale Pty Ltd” (“the corporation”). He submitted that the plaintiff was incompetent to bring the proceeding in her name. It was not a point pressed by Mr Roberts, and in any event, for reasons which will become plain below, I consider that if the plaintiff had applied to substitute the name of the corporation for her own as plaintiff pursuant to Rule 9.06, I would have granted that application, or alternatively, would have granted the plaintiff’s application to join the corporation as a second plaintiff.
14 The substitution of the company raises a different problem, and that is that Rule 1.17(1) provides that a corporation shall not take any step in a proceeding save by a solicitor. Although this point may be somewhat academic here, the mandatory terms of the rule was dealt with in Worldwide Enterprises Pty Ltd v Silberman & Anor.[2] I think the nature of this proceeding permits me to dispense with the requirements of the Rule. I propose to proceed notwithstanding these difficulties, because I consider that this is the sort of application to which the Act applies. Section 8 requires the Court to seek to give effect to the overarching purpose referred to in s7 to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Additionally, s9 requires the Court to further the overarching purpose by having regard to a number of considerations, the most relevant of which for present purposes are the efficient conduct of the business of the Court, and the efficient use of judicial resources.
[2](2010) 26 VR 595
15 To require the plaintiff to make a formal application to amend her proceeding by either substituting the corporation for herself or joining it as a second plaintiff, and then requiring her to engage a solicitor, seems to me to add expense, and to ultimately frustrate the parties who are keen to have the question before me determined in a just, efficient, timely and cost-effective manner.
16 I propose to summarise the content of Mr Cripps’ affidavit because it points to the proceeding brought by the plaintiff being utterly futile, and which must lead me to enter judgment if favour of the defendant:
· The plaintiff is the sole shareholder of the corporation.
· The plaintiff engaged Mr Derek Farrington, architect, to lodge an application with the defendant to construct a double-storey dwelling next to the existing dwelling on the property. He did so on 5 December 2005.
· In paragraphs 13-23, Mr Cripps refers to the application, and that on 19 July 2006, a notice was served by the first defendant refusing the grant of a planning permit.
· On 1 August 2006, Mr Farrington lodged an application for review with VCAT. In paragraphs 24-29, Mr Cripps refers to the application for review, and that on 9 January 2007, VCAT upheld the first defendant’s refusal to grant the planning permit.
· On 19 June 2007, Mr Farrington lodged a second planning permit which contained modified plans for the development of the property when compared with original plans which accompanied the first application.
· In paragraphs 30-69, Mr Cripps refers to the second application, and the exchanges between the defendant and Mr Farrington and the plaintiff, and the position of a number of residents who objected to the development of the property.
· On 1 August 2008, a notice was served by the first defendant refusing the grant of a planning permit.
· Mr Farrington lodged an application for review with VCAT. It is not clear when that occurred, but it is immaterial, because on 12 February 2009, VCAT overturned the first defendant’s refusal to grant the planning permit.
17 From the date when the first application for a planning permit was refused to the date when the second application for a planning permit was granted, was from 5 December 2005 to 12 February 2009. It is during that period that the plaintiff complains that the defendant, through its councillors and officers, were guilty of negligence and misfeasance in public office.
18 The period between the first application for a planning permit on 5 December 2005 and its refusal on 19 July 2006 is just over seven months, a relatively short period during which the defendant appears to me to have been attentive and responsive to the application for the planning permit. The period between the application for review on 1 August 2006 and its hearing on 9 January 2007 is just over five months. The latter is a very short period of time. My experience as the judge in charge of the Damages and Compensation List, of the time delays between initiation of a proceeding and listings the trial, leads me to that conclusion.[3]
[3]In a general civil proceeding, a delay of twelve months is not uncommon
19 The period between the second application for a planning permit on 19 June 2007 and its refusal on 1 August 2008 is about fourteen months. Mr Cripps points to the delay comprising the first defendant engaging with Mr Farrington in negotiations, which included granting Mr Farrington extensions of time to complete the second application. The occasions when there was contact either directly or by correspondence was regular, and on what I have read appears to have been consistent with attention and response by the first defendant to the ongoing negotiations relevant to the plaintiff’s second application. The period between the application for review, which I will assume was around the time of the decision in August 2008, and its hearing on 21 January 2009, is about five months. Again, I make the observation that it is a very short period of time.
20 The plaintiff does not contest the chronology of events referred to by Mr Cripps, but in her material, she says that there were other things happening which bring into question the motives of the councillors and the officers of the first defendant in giving attention and being responsive to her applications for planning permits. However, the trenchant criticisms which the plaintiff has made in that material, and in her oral submissions before me, cannot derogate from the timeframes which I have referred to which demonstrate that the process was relatively expeditious save for the period between the making of the second application for a planning permit and the decision of the first defendant.
21 A lot of that time seemed to been consumed by direct negotiations between the first defendant and Mr Farrington in what appears to me to have been an attempt to formulate plans which the first defendant would approve. It must be remembered that on 20 August 2007, a preliminary assessment was made of the second application for a planning permit, following which there was correspondence regularly passing between the first defendant and the plaintiff, and also the meetings on 15 February 2008 with Mr Farrington and 27 February 2008 with Mr Farrington and the plaintiff, during which direct discussions occurred.
The Plaintiff's Amended Statement of Claim
22 I provided the plaintiff with as much time as I considered was reasonable to allow her to formulate her causes of action and to compose those causes of action into a conventional pleading of a statement of claim in conformity with the requirements of Rule 13.
23 The Amended Statement of Claim does not conform with the requirements of Rule 13. It is largely a complaint of delay made against the first defendant and invites an inquiry into the planning process conducted by the first defendant as if I am to step into the shoes of the officers of the first defendant and revisit what they did in dealing with the applications.
24 Overall, the Amended Statement of Claim is a long, discursive, turgid and rambling description of the plaintiff’s discontent which is then wrapped up with bald allegations of negligence and misfeasance in public office. I do not propose to dissect it, nor attempt to describe each discrete point of complaint made by the plaintiff.
25 It is trite to say that a conventional pleading of a statement of claim must plead so much of the facts as permit the defendant to understand the background facts upon which the allegation of a breach of the law is made. The convention is to plead such a statement of claim in a numbered paragraph form. This pleading is rather more like the story of the complaints of the plaintiff rather than bearing any resemblance to a conventional pleading.
26 However, there is a much greater problem facing the plaintiff. She made applications for planning permits a she was lawfully entitled to do. Once the applications were made, there was a statutory obligation imposed on the first defendant to attend to the applications and to respond to them in accordance with law. In relation to both applications, the plaintiff pursued her rights at law by engaging VCAT through a review process to attempt to overturn the decisions to refuse her applications. There does not seem to me to be anything irregular in the conduct of the first defendant at first instance when attending to the applications and responding to them, nor during the period between the making of the applications for review and the ultimate disposal of the second application by VCAT.
27 More particularly, what I find strange is that the plaintiff ultimately succeeded by having the refusal to grant the second application for a planning permit overturned by VCAT which then enabled her to develop the property in accordance with the approved plan. It seems to me that delays in legal proceedings are inevitable. The delays which the plaintiff experienced are simply one of the hazards of litigation. I cannot see that the delays of themselves were unacceptable, and in particular, after the second application was made, it seems to me that a great deal of time was taken up in negotiations in which Mr Farrington, on behalf of the plaintiff, used to try to obtain a workable result for the plaintiff.
Disposition
28 Section 62 of the Act is in the following terms:
“A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff’s claim or part of that claim has no real prospect of success.”
29 Section 63(1)(c) provides that the Court of its own motion may give summary judgment if satisfied that it is desirable to summarily dispose of the civil proceeding. I propose to deal with this application under s62.
30 In Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd,[4] Justice Dixon reviewed a number of authorities relevant to giving summary judgment, and in particular, in the context of s62, and he very helpfully summarised the legal principles as follows:
[4][2011] VSC 222
“In summary I consider the principles which now apply, in the context of this application, to be:
(1) If a proceeding or defence, or any particular claim, cause of action or ground of defence (‘claim’) is hopeless, untenable, bound to fail, or could not possibly succeed, then it ought be summarily dismissed. In other words, a claim which ought be dismissed under the old test will be dismissed under s 63.
(2) Section 63, however, is less stringent. It does not direct an inquiry into whether a certain and concluded determination could be made that the proceeding, or a claim, would necessarily fail. What is required is a practical judgment by the court as to whether a claim has more than a ‘fanciful’ prospect of success.
(3) The court’s discretion whether to exercise the power of summary dismissal is very wide. Section 64 of the Act expresses that the power is based in a consideration of the interests of justice. The Act provides direction in Pt 2.1. The discretion is to be exercised to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties. The court’s powers in furthering the overarching purpose are facilitated by having regard to the objects and matters set out in s 9 of the Act.
(4) The court may be satisfied, on an interlocutory application, that there is no real prospect of success in a civil proceeding but nevertheless consider the dispute to be of such a nature that only a full hearing on the merits is appropriate. Whether a full hearing on the merits is appropriate is a relevant discretionary consideration in the circumstances of each proceeding.
(5) The power to order summary dismissal is to be exercised with great care, as a trial upon evidence of issues raised is the well-settled approach to the determination of litigation. When proceeding on a summary application to assess the prospect of success, a judge ought to feel confident that an assessment can properly be made of whether the overarching purpose is facilitated on dismissal of the impugned claims.
(6) That argument directed to the issues relevant on the application, perhaps even extensive submissions, may be necessary to demonstrate that the case of the plaintiff has no real prospect of success is not ordinarily a relevant consideration.”[5]
[5]paragraph 18. Footnotes removed.
31 The practical judgment which I make is that the Amended Statement of Claim does not disclose a cause of action. A long, discursive, turgid and rambling description of the plaintiff's discontent should not require a judge to make efforts to reconstruct what the case might be to try to fit it into a bland reference to causes of action; in this case, these are said to be negligence and misfeasance in public office. I think that is the end of the matter. I am unable to detect a cause of action, and certainly no cause of action conventionally pleaded which responds to an allegation of breach of a duty of care, and/or misfeasance in public office.
32 Even on the basis of the principles of law which applied prior to the Act, it seems to me that it is apt to describe the plaintiff’s proceeding as untenable, bound to fail, and one which could not possibly succeed.
33 Justice Beach dealt with a similar situation in Knorr v Commonwealth Scientific and Research Organisation (CSIRO) & Ors[6] in which the statement of claim was described by his Honour as manifestly defective and non-compliant with the ordinary rules of pleading. His Honour said that to permit a trial to proceed on the basis of the pleading would undoubtedly prejudice, embarrass and delay a fair trial the proceeding. Likewise, his Honour refused to go through each paragraph of the statement of claim to identify it is manifest defects. He ordered that the statement of claim be struck out.
[6][2012] VSC 83
34 The proceeding returned before Justice Beach on two further occasions.[7] On the second occasion, his Honour was faced with an amended statement of claim with the same manifest defects. His Honour refused to grant the plaintiff leave to file and serve an amended statement of claim, but preferred to allow the plaintiff to make an application for leave to file and serve a further amended statement of claim. The plaintiff made such an application.
[7]Knorr v Commonwealth Scientific and Research Organisation (CSIRO) & Ors (No 2) [2012] VSC 268 and Knorr v Commonwealth Scientific and Research Organisation (CSIRO) & Ors (No 3) [2012] VSC 529
35 Justice Beach refused the plaintiff leave to file and serve a further amended statement of claim. In doing so, his Honour repeated the same observations he made about the first statement of claim. He cited from the judgment of Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd & Anor[8] in which their Honours made the very relevant observation that a self represented litigant cannot be allowed forever to stand behind the shield of his/her own ignorance, especially when it continues to subject other parties to cost and inconvenience and adds pointlessly to the load on the Court’s already limited resources. There comes a time at which a self represented litigant must be required to take responsibility for his/her choices.
[8][2012] VSCA 97 at paragraph 38
36 I consider the observations of Nettle and Osborne JJA to apply here with great force. I was at pains to explain to the plaintiff what she needed to do to plead a statement of claim, in order to identify the case which she intends to make, and to do that clearly and distinctly. It became clear to me that there was no prospect that giving the plaintiff another chance at pleading a statement of claim, absent the defects present in both Statement of Claim, will serve a useful purpose.
Orders
37 The orders I will make in this proceeding are that the first defendant have judgment in the proceeding brought against it by the plaintiff pursuant to s62 of the Act, and that the plaintiff pay the defendant’s costs which are not common to paragraph 5 of the order made 23 November 2012, such costs to be assessed by the Costs Court, in default of agreement.
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