Turnbull v Clarence Valley Council

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…