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:
Solicitors:
Plaintiff (self-represented)
Mr M Fraser (Defendant)
Central Coast Council (Defendant)
File Number(s): 2024/00167407 Publication restriction: Nil
Judgment
The application before the court
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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.
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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.
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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…
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- AGLC
- Towns v Central Coast Council [2024] NSWDC 399
- Case
- [2024] NSWDC 399
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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