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Towns v Central Coast Council

Towns v Central Coast Council

Case [2024] NSWDC 399 4 September 2024

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Summary Judgment

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Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Towns v Central Coast Council [2024] NSWDC 399
Hearing dates: 04 September 2024
Date of orders: 04 September 2024
Decision date: 04 September 2024
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Statement of Claim struck out; proceedings dismissed.
(2) The plaintiff is to pay the defendant’s costs of the notice of motion and of the proceedings.

Catchwords:
PRACTICE AND PROCEDURE – claim by litigant in person for removal of bus shelters brought against the Gosford City Council – prior applications for the same relief against the same defendant in the Local Court at Wyong and in the Land and Environment Court – defendant seeks orders pursuant to UCPR rr 13.4 and 14.28 for summary dismissal – plaintiff does not seek leave to amend - statement of claim struck out and proceedings dismissed with costs.

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56-62,144
Independent Commission Against Corruption Act 1988 (NSW), ss 20, 20A
Local Government Act1993 (NSW), ss 440, 674
Rules of the Supreme Court 1971 (WA), O 67 r 5(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 12.11, 13.4, 14.28, 42.1

Cases Cited:
Attorney-General v Wentworth (1988) 14 NSWLR 481
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Ex Parte K [2018] WASCA 144
Fletcher v Besser [2010] NSWCA 30
Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150
Jackamarra v Krakouer (1998) 195 CLR 516
Mahommed v Unicomb [2017] NSWCA 65
Mahommed v Unicomb (No 2) [2018] NSWSC 1450
McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133
Munsie v Dowling (No 4) [2015] NSWSC 37
Onus v Telstra Corporation Limited [2011] NSWSC 33
Re State of Western Australia; ex parte K [2018] WASC 15
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100

Texts Cited:
Nil

Category: Procedural rulings
Parties: Anthony Towns (Plaintiff)
Central Coast Council (Defendant)
Representation:
Counsel:
Plaintiff (self-represented)
Mr M Fraser (Defendant)
Solicitors:
Central Coast Council (Defendant)

File Number(s): 2024/00167407
Publication restriction: Nil

Judgment

The application before the court

The plaintiff, by amended statement of claim filed on 30 August 2024, brings proceedings against Central Coast Council for “public nuisance” and orders of a mandatory injunctive nature, which are set out in the pleading as follows:

That all instances of this style of bus shelter shown in the photographs in annexure A be removed” (a map of the locations of these bus shelters is attached).

These bus shelters be replaced with the most appropriately styled bus shelters.

Costs.

The defendant, by amended notice of motion filed on 27 August 2024, seeks summary dismissal of these proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rr 13.4 and 14.28.
The defendant provided written submissions and on 4 September 2024 Mr Fraser of Counsel addressed the court. The plaintiff, who at all relevant times has appeared for himself, appeared via AVL and responded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Towns v Central Coast Council

Details

AGLC: Towns v Central Coast Council [2024] NSWDC 399
Case: [2024] NSWDC 399
Decision Date: 04 September 2024

CaseChat Overview and Summary

In the case of Towns v Central Coast Council, the plaintiff, acting as a litigant in person, sought the removal of bus shelters. This was the third instance of the plaintiff bringing the matter before the courts, having previously attempted to have the same relief granted by the Local Court at Wyong and the Land and Environment Court against the same defendant. The defendant, Central Coast Council, sought orders for summary dismissal of the plaintiff's claim under UCPR rules 13.4 and 14.28. The plaintiff did not apply for leave to amend the statement of claim. The court was tasked with determining whether the claim should be dismissed due to futility and abuse of process.

The primary legal issues before the court were whether the claim was futile, vexatious or an abuse of process, and whether it should be dismissed under the relevant rules of the Uniform Civil Procedure Rules. The court considered the plaintiff's previous unsuccessful attempts to have the same relief granted, the lack of any new material or arguments in the current proceedings, and whether the plaintiff's conduct amounted to an abuse of the court's process. The court also had to determine whether the dismissal should include an order for costs.

The court found that the claim was indeed futile, as the plaintiff had not presented any new arguments or evidence since the previous dismissals. The court also concluded that the claim amounted to an abuse of process due to the repetitive nature of the proceedings and the plaintiff's lack of diligence in pursuing the matter. Consequently, the court struck out the statement of claim and dismissed the proceedings. The court further ordered the plaintiff to pay the defendant's costs associated with the notice of motion and the proceedings.

Orders

Orders of the court

(1) Statement of Claim struck out; proceedings dismissed.

(2) The plaintiff is to pay the defendant’s costs of the notice of motion and of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Towns v Central Coast Council [2024] NSWDC 399

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

Storry v Parkyn (Vexatious Proceedings Order)
[2024] FCAFC 100 Para 40

…This is not an uncommon problem for litigants in person to have to confront. In Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100 at [2] – [6], the Full Court of the Federal Court stated that it has become “increasingly common” for litigants to appear in person and that such persons “often disturb the…
Great Northern Developments Pty Ltd v Lane
[2021] NSWCA 150 Para 28

…The relief sought is in the form of a mandatory injunction which this Court cannot grant ( Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150 at [84]) and the proceedings would have to be transferred to the Supreme Court. However, the nature of this Court’s power to transfer proceedings to the Supreme Cour…
Mahommed v Unicomb (No 2)
[2018] NSWSC 1450 Para 28

…of some kind capable of being identified, so the concerns raised in Mahommed v Unicomb [2017] NSWCA 65 (as to which, see Mahommed v Unicomb (No 2) [2018] NSWSC 1450) would not apply.…
Ex Parte
[2018] WASCA 144 Para 41

…estern Australia; ex parte K [2018] WASC 15. There is also a right of appeal ( Re State of Western Australia; ex parte K was affirmed in Ex Parte K [2018] WASCA 144). Perhaps courts in this jurisdiction could consider a procedure of a similar kind. Such a procedure would only capture a small number of obvious claim…
Dickens v State of New South Wales (No 3)
[2018] NSWSC 485 Para 31

…As Adamson J explains in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [42]:…
Re State of Western Australia;
[2018] WASC 15 Para 41

…tters are determined ex parte by the Court, which means that the opposing party does not incur costs: see Re State of Western Australia; ex parte K [2018] WASC 15. There is also a right of appeal ( Re State of Western Australia; ex parte K was affirmed in Ex Parte K [2018] WASCA 144). Perhaps courts in this juris…
Mahommed v Unicomb
[2017] NSWCA 65 Para 28

…2005 (NSW) is predicated upon there being a cause of action of some kind capable of being identified, so the concerns raised in Mahommed v Unicomb [2017] NSWCA 65 (as to which, see Mahommed v Unicomb (No 2) [2018] NSWSC 1450) would not apply.…
Munsie v Dowling (No 4)
[2015] NSWSC 37 Para 23

…m; to bring a claim of “corruption”, as a cause of action, without more, is not only meaningless but arguably scandalous: Munsie v Dowling (No 4) [2015] NSWSC 37.…
Simmons v New South Wales Trustee and Guardian
[2014] NSWCA 405 Para 15

…se for proceedings brought both before ( Jackamarra v Krakouer (1998) 195 CLR 516 at [32]) and after ( Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405) the Civil Procedure Act 2005 (NSW) was enacted. The court must also take into account the overarching provisions set out in ss 56 – 62 of that Act:…
Stokes (by a tutor) v McCourt
[2013] NSWSC 1014

…7 Onus v Telstra Corporation Limited [2011] NSWSC 33 Re State of Western Australia; ex parte K [2018] WASC 15 Stokes (by a tutor) v McCourt [2013] NSWSC 1014 Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100 Texts Cited: Nil Category: Procedural rulings Parties: Anthony Towns (Plaintiff) Central Coast C…
McGrane v Channel Seven Brisbane Pty Ltd
[2012] QSC 133 Para 17

…of a pleading is self-evident, the pleadings may be dismissed after only one grant of leave (as occurred in McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133).…
Onus v Telstra Corporation Limited
[2011] NSWSC 33 Para 26

…In Onus v Telstra Corporation Limited [2011] NSWSC 33 at [111] ff, Price J set out the three ways in which a claim of public nuisance can be brought. As the plaintiff brings his claim for injunctive relief without obtaining the Attorney General's fiat, it is necessary for him to establish that he has standing to b…
Fletcher v Besser
[2010] NSWCA 30

…Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Ex Parte K [2018] WASCA 144 Fletcher v Besser [2010] NSWCA 30 Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150 Jackamarra v Krakouer (1998) 195 CLR 516 Mahommed v Unicomb [2017] NSWCA 65 Mahommed v Unicomb (No…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 34

…at 491. However, the categories of abuse of process are not closed ( Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [9]).…
Jackamarra v Krakouer
[1998] HCA 27 Para 15

…ngs is an order that should be made only in the clearest of cases. This has been the case for proceedings brought both before ( Jackamarra v Krakouer (1998) 195 CLR 516 at [32]) and after ( Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405) the Civil Procedure Act 2005 (NSW) was enacted. The court must…

Legislation cited in this decision · 4

Uniform Civil Procedure Rules 2005 (NSW)
12.11, 13.4, 14.28, 42.1 4 mentions (from Para 2)
Independent Commission Against Corruption Act 1988 (NSW)
20, 20A 3 mentions (from Para 23)
Local Government Act 1993 (TAS)
440, 674 3 mentions (from Para 2)
Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 15)

Medium Neutral Citation:	Towns v Central Coast Council [2024] NSWDC 399
Hearing dates:	04 September 2024
Date of orders:	04 September 2024
Decision date:	04 September 2024
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Statement of Claim struck out; proceedings dismissed. (2) The plaintiff is to pay the defendant’s costs of the notice of motion and of the proceedings.
Catchwords:	PRACTICE AND PROCEDURE – claim by litigant in person for removal of bus shelters brought against the Gosford City Council – prior applications for the same relief against the same defendant in the Local Court at Wyong and in the Land and Environment Court – defendant seeks orders pursuant to UCPR rr 13.4 and 14.28 for summary dismissal – plaintiff does not seek leave to amend - statement of claim struck out and proceedings dismissed with costs.
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-62,144 Independent Commission Against Corruption Act 1988 (NSW), ss 20, 20A Local Government Act1993 (NSW), ss 440, 674 Rules of the Supreme Court 1971 (WA), O 67 r 5(1) Uniform Civil Procedure Rules 2005 (NSW), rr 12.11, 13.4, 14.28, 42.1
Cases Cited:	Attorney-General v Wentworth (1988) 14 NSWLR 481 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Ex Parte K [2018] WASCA 144 Fletcher v Besser [2010] NSWCA 30 Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150 Jackamarra v Krakouer (1998) 195 CLR 516 Mahommed v Unicomb [2017] NSWCA 65 Mahommed v Unicomb (No 2) [2018] NSWSC 1450 McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 Munsie v Dowling (No 4) [2015] NSWSC 37 Onus v Telstra Corporation Limited [2011] NSWSC 33 Re State of Western Australia; ex parte K [2018] WASC 15 Stokes (by a tutor) v McCourt [2013] NSWSC 1014 Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Anthony Towns (Plaintiff) Central Coast Council (Defendant)
Representation:	Counsel: Plaintiff (self-represented) Mr M Fraser (Defendant) Solicitors: Central Coast Council (Defendant)
File Number(s):	2024/00167407
Publication restriction:	Nil