Turnbull v Clarence Valley Council

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Turnbull v Clarence Valley Council [2023] NSWCA 295
Hearing dates: 19 October 2023
Date of orders: 8 December 2023
Decision date: 08 December 2023
Before: Simpson AJA at [1]
Basten AJA at [56]
Decision:

1. Leave to appeal is refused;

2. The applicant is to pay the respondent’s costs of the application.

Catchwords:

Appeals – application for leave to appeal from summary dismissal of proceedings – pleading disclosed no reasonable cause of action – no prospect that leave to replead would result in viable claim – leave to appeal refused – no issue of principle

Legislation Cited:

Local Government Act 1993 (NSW)

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Cases Cited:

BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Goktas v Government Insurance Office (NSW) (1993) 31 NSWLR 684

Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37

Category:Principal judgment
Parties: Christopher Luke Turnbull (Applicant)
Clarence Valley Council (Respondent)
Representation:

Counsel:
Applicant in person
J Guihot (Respondent)

Solicitors:
Not applicable
Moray & Agnew (Respondent)
File Number(s): 2023/80345
 Decision under appeal 
Court or tribunal:
Supreme Court of NSW
Jurisdiction:
Civil
Citation:

Turnbull v Clarence Valley Council [2023] NSWSC 83

Date of Decision:
14 February 2023
Before:
Schmidt AJ
File Number(s):
2022/73988

JUDGMENT

  1. SIMPSON AJA: The applicant (who identifies himself as “‘Christopher Luke’ of the family ‘Turnbull’ for the appellant ‘Christopher Turnbull’”) seeks leave to appeal against orders made on 14 February 2023 in the Common Law Division of the Supreme Court dismissing with costs proceedings commenced by him by Statement of Claim filed on 15 March 2022: Turnbull v Clarence Valley Council [2023] NSWSC 83. The applicant filed an amended Statement of Claim on 1 August 2022. He named the Clarence Valley Council (the respondent) as the sole defendant.

  2. On 17 August 2022 the respondent filed a notice of motion seeking, in the alternative:

  1. an order pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(b) (“UCPR”) that the proceedings be dismissed on the basis that no reasonable cause of action is disclosed;

  2. an order pursuant to UCPR 13.4(1)(c) that the proceedings be dismissed as disclosing no cause of action for personal injury or wrong against the second defendant (it may be that “second defendant” is a typographical error – as noted above, only one defendant is named in the Statement of Claim and the Amended Statement of Claim); or on the basis that the proceedings are an abuse of process;

  3. an order pursuant to UCPR r 14.28 that the proceedings (the Amended Statement of Claim) be struck out on the basis that the Amended Statement of Claim –

  1. discloses no cause of action appropriate to the nature of the pleading or

  2. has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

  3. is otherwise an abuse…

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Details
Case
[2023] NSWCA 295
Decision Date

CaseChat Overview and Summary

The applicant, Mr. Turnbull, sought leave to appeal from a decision of the primary judge who had summarily dismissed his proceedings against the respondent, Clarence Valley Council. The primary judge found that the applicant's statement of claim disclosed no reasonable cause of action and that there was no prospect that any amendment would result in a viable claim.

The central legal issue before the Court of Appeal was whether the primary judge erred in summarily dismissing the proceedings, specifically whether the statement of claim disclosed a reasonable cause of action or if there was a prospect of repleading a viable claim. The Court was also required to consider whether the refusal of leave to appeal would involve an issue of principle.

The Court of Appeal, comprising Simpson AJA and Basten AJA, refused leave to appeal. Their Honours agreed with the primary judge's assessment that the applicant's pleading was fundamentally flawed and that no amendment could salvage a reasonable cause of action. The Court found no error in the primary judge's exercise of discretion and concluded that the application for leave to appeal did not raise any issue of principle that warranted appellate intervention.

Consequently, leave to appeal was refused, and Mr. Turnbull was ordered to pay the respondent's costs of the application.

Orders

Orders of the court

1. Leave to appeal is refused;

2. The applicant is to pay the respondent’s costs of the application.

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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