Von Schulz v Hurstville City Council
[2000] NSWSC 1035
•8 November 2000
CITATION: Von Schulz v Hurstville City Council [2000] NSWSC 1035 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 13269/97 HEARING DATE(S): 27 October 2000 JUDGMENT DATE: 8 November 2000 PARTIES :
Hurstville City Council
Karl Von Schulz
(Plaintiff)
(Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr K Von Schulz
Mr G L Turner
(Plaintiff in Person)
(Defendant)SOLICITORS: Corrs Chambers Westgarth
(Defendant)CATCHWORDS: Summary judgment LEGISLATION CITED: Supreme Court Rules - Part 13 r 5, Part 15 r 26
Fair Trading Act 1987 - ss 41,42 & 68
Bullen & Leake and Jacobs Precedents of Pleadings 12th Ed at 341CASES CITED: Air Services Australia v Zarb (NSWCA unreported, 26 August 1998)
Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Webster & Anor v Lampard (1993) 177 CLR 598
H 1976 Nominees Pty Ltd v Galli Ltd & Quarries Ltd (1979) ALR 181 at 186-187DECISION: See para 29
5
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
WEDNESDAY, 8 NOVEMBER 2000
13269/97 - KARL VON SCHULZ v
JUDGMENT (Summary judgment)
HURSTVILLE CITY COUNCIL
1 MASTER: By notice of motion filed 2 August 2000 the defendant Hurstville City Council, seeks an order firstly, that the proceedings be stayed pursuant to Part 13 r 5 of the Supreme Court Rules (SCR), or alternatively that the further amended statement of claim be struck out; or secondly, that the plaintiff’s claim for damages which occurred prior to 21 November 1991, be struck out insofar as the claim for those damages is made in paragraphs 3, 4, 5 and 12 pursuant to Part 15 r 26 (SCR); or thirdly, that the plaintiff’s claim for damages which occurred prior to 21 November 1991, be struck out insofar as the claim for those damages is made in paragraphs 6, 7, 8, 9, 10, 11 and 12 or an order limiting the issues for trial. The defendant relied on the affidavit of Jean Paul Wallace sworn 1 August 2000. The plaintiff relied on his affidavit sworn 24 August 2000.2 Regrettably, Mr Von Schulz forwarded a further affidavit of 2 November 2000 to my chambers after the proceedings had been concluded. I have read the contents of this affidavit and taken them into account but my decision has not altered.
3 The complaint by the plaintiff against the defendant arise out of road works which were carried out in the Hurstville area outside the plaintiff’s shop. The plaintiff alleges that the defendant owed a duty of care to him in respect of carrying out those road works. It had a duty to act reasonably, and that it wrongfully breached that duty. This caused damage to his business which resulted in its closure. The plaintiff also alleges breaches of ss 41 and 42 of the Fair Trading Act 1987(FTA) because of the conduct of the defendant in making representations and he alleges fraud on the part of the defendant.
4 The brief facts (for the purposes of this application I have taken the plaintiff’s case at its highest) are as follows.5 The defendant submitted that the plaintiff’s claim is statute barred, or alternatively that any damages sought which are not statute barred are not recoverable as a matter of fact or law. The defendant submitted that these proceedings are frivolous and vexatious and an abuse of process of the court, and they ought to be stayed or otherwise dismissed. Alternatively, the defendant claims that the pleading has a tendency to cause prejudice or embarrassment or is otherwise an abuse of process pursuant to Part 15 r 26 SCR.
(1) In March 1990 the plaintiff attended the offices of Hurstville City Council as he was intending to take over a lease of a shop in Forest Road. He had a conversation with the health and building inspector of the defendant, and asked if they had any requisition or future change concerning the butcher shop and smallgoods factory. The plaintiff was told that the shop was over 100 years old and there were no plans or requisitions to Forest Road.(2) In April 1990 the plaintiff entered into a lease and was a lessee of premises at 340 Forest Road Hurstville. He was the principal of the business trading as “Karl Von Schulz & Co” which was engaged in the manufacturer and sale of continental butchery and smallgoods products.
(3) On 21 May 1990 the plaintiff received a letter from Hurstville City Council drawing attention to the proposed changes to Forest Road.
(4) Between September 1990 and July 1991 (a period of about 10 months) the Council carried out road works which blocked the entrance to the plaintiff’s premises. The plaintiff has tendered a number of photographs showing the extent of the road works. One of which is reproduced below.
(5) On 1 March 1991 the various business operators presented a petition to Hurstville City Council concerning the road works and damage caused to their businesses.
(5) On 25 March 1991 a public meeting was held. At this meeting the plaintiff says that the Mayor promised that a mall would be built in Forest Road.
(6) In a letter dated March 1991/92 the plaintiff wrote to the defendant and paragraph 1 stated:
“CONCERNING YOUR ADMISSION OF GUILT, NOW YOU CONSIDERED THE PETITION AND MOVED THE DEAD LINE OF TUESDAY, 2 APRIL 1991 WITH COMMON SENSE, BUT THE DAMAGE IS COMPLETE.”
(7) On 23 November 1991 the plaintiff lost possession of the property. He alleges at page 10 of the transcript of proceedings before Master Malpass on 2 May 2000 that the Council took over the whole business and occupied the shop. The plaintiff stated that the landlord and the Council were there and also the Council’s solicitor who wanted to buy the property. The plaintiff was not in the shop but his wife was. He does not know whether it was the Council or the landlord who took possession. However, evidence as to the identity of the persons present in the shop could be given by the plaintiff’s wife.(8) On 20 November 1997 the plaintiff commenced proceedings by way of summons.
(9) On 2 February 1998 Sperling J ordered that proceedings continue by way of pleadings. He ordered that the plaintiff was to serve a statement of claim on or before 30 April 1998.
(10) On 29 April 1998 a statement of claim was filed.
(11) On 16 October 1998 an amended statement of claim was filed.
(12) On 22 October 1999 a further amended statement of claim was filed.
6 Part 13 r 5 says:
The law in relation to summary judgment
“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-
(a) no reasonable cause of action is disclosed;
(b the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
7 Part 15 r 26 says:
“(1) Where a pleading -
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleadings be struck out.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).”
8 In a Court of Appeal decision Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced the passages quoted in Zarb.
9 In General Steel Barwick CJ, who heard the application alone stated:10 Barwick CJ also said:
“Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
11 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous test stating at 602:
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly
groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense.”
12 According to Rolfe AJA in Zarb:
“The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.”
“The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241.”
13 The onus is on the plaintiff in the statement of claim to set out the facts upon which the defendants can become aware of the precise allegations made against them and hence what is it that they have to meet. If a fact is material, it must be pleaded and not merely referred to in particulars - see H 1976 Nominees Pty Ltd v Galli Ltd & Quarries Ltd (1979) ALR 181 at 186-187.
14 Before Master Malpass on 2 May 2000 the defendant’s counsel sought to limited the plaintiff’s case. The transcript recorded:15 Paragraph 35 of the plaintiff’s affidavit of 1 February 2000 (Ex A) refers to cash investments made by the plaintiff to the business between 4 April 1990 and 6 November 1990. Paragraph 37 refers to the value of plant and equipment which totalled $385,000. Paragraph 38 gives the monthly sales figures from the business which show that the sales from the date when the business commenced, namely on 4 April 1990 to the date of its closure. The initial monthly sales were for the sum of $7,720 By September 1990 when the road works began the monthly sales figure had reached $45,000. After September 1990, the sales decreased. The damages the plaintiff claims are loss of income for himself over 9½ years to date, $50,000 per annum totalling $472,500 and loss of income for his wife Theresia Von Schulz for one year at $25,000. The plaintiff claims a total loss of $1,174,273. It is noted that the plaintiff’s wife is not a plaintiff in these proceedings.
TURNER: Master, in light of the fact that Mr Von Schulz has agreed that his losses are limited to what is in par 43 of his affidavit could this be noted in the court transcript: One, Mr Von Schulz’s claims for damages, losses and financial compensation in respect of his claims against the Hurstville City Council are limited to the claims, dates and amounts set out in pars 36, 37, 40, 41 and 42 of his affidavit dated 1 May 2000, being Ex A. Two, Mr Von Schulz abandons any other claim for damages, losses or financial compensation which he may have against, the Hurstville City Council other than as set out in pars 36, 37, 40, 41 and 42 of his affidavit of 1 May 2000.
MASTER: Is there anything you want to say about that, Mr Von Schulz?
APPLICANT: I agree.
Master: That is your claim is it?
APPLICANT: That is my claim.
MASTER: That is the claim you want to advance in the proceedings?
APPLICANT: That is my claim. …”
Fair Trading Act and Trade Practices Act
16 The plaintiff has particularised a claim under ss 41 and 42 of the Fair Trading Act. At this stage the plaintiff has not made allegations under the Trade Practices Act.
17 Section 68 of the Fair Trading Act says:18 From the pleadings, the latest date at which damage could have been suffered was when the business closed, that is on 23 November 1991. Hence, the action under either the Trade Practices Act or Fair Trading Act became statute barred on 23 November 1994. The proceedings were commenced on 21 November 1997 about three years out of time. The claim under the Fair Trading Act or potential claim under the Trade Practices Act are statute barred. This part of the statement of claim should be dismissed.
“Actions for damages
(1) A person who suffers loss or damage by conduct of another person that is in contravention of a provision of Part 3, 4 5 (section 43 excepted), 5A or 5B may recover the amount of the loss or damage by action against the other person or against any person involved in the contravention.
(2) An action under subsection (1) may be commenced at any time within 3 years after the date on which the cause of action accrued.”
19 In text of Bullen & Leake and Jacob’s Precedents of Pleadings 12th Edition at 341, the learned author says:
Conspiracy and fraud
“The statement of claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what was the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiff thereby.”
20 In paragraphs 12 and 13 of the amended statement of claim the plaintiff alleges that the defendant wrongfully and maliciously conspired and combined to injure the plaintiff in that it accepted monetary amounts from Westfield Holdings Limited or one of its subsidiaries to change the pedestrian and traffic conditions on Forest Road Hurstville such that it would financially benefit Westfield Shopping Centre and/or its holding company to the detriment of the plaintiff; and that in consideration of such monetary amounts and in breach of its duty the defendant gave approval and undertook through its servants and agents the work which had the effect of financially benefiting Westfield Shopping Centre and its holding company to the detriment of the plaintiff. Paragraph 13 pleads that these acts specified in the preceding paragraphs were done by the defendant in furtherance of the conspiracy. The pleading of conspiracy does not appear in the further amended statement of claim.
21 In a letter from the plaintiff’s former solicitor to the defendant’s solicitor dated 7 April 1999, the solicitor said that he confirmed the plaintiff would not be relying on paragraphs 12, 13 and 14 of the statement of claim and will further amend his statement of claim to delete these paragraphs. This was done. When the plaintiff was representing himself at the hearing of this motion he stated that he intends to pursue the allegation of conspiracy. The plaintiff intends to plead a conspiracy and says that his former solicitor was not authorised to withdraw these allegation. Arguably to the parties the objects of the conspiracy have been identified but the overt acts, persons involved in these overt acts have not. The damages have been identified. If the plaintiff intents to plead a conspiracy it has to be properly particularised and it has not been. To plead fraud is a very serious matter. Hence fraud must be specifically pleaded - see SCR Part 15 r 13(2). This rule has not been complied with. If fraud is to be alleged it has to be properly pleaded.22 I am reminded of the words of Erle CJ which Windeyer J made reference in his decision in Hargrave. Erle CJ said of nuisance in a judgment which, because of his resignation was never delivered:
Nuisance
“This cause of action is immersed in undefined uncertainty … The maxim ‘ sic utere tuo ut alienum non laedas’ , is no help to decision, as it cannot be applied till the decision is made; and the use of the word ‘nuisance’ in the discussion prolongs the dispute, because it means both annoyance that is actionable, and also that which is not actionable; and where the question is whether the annoyance is actionable, the word nuisance’ introduces an equivocation which is fatal to any hope of a clear settlement.”
23 The plaintiff had six years in which to bring this action. The damages arose on 23 November 1991. The summons was filed on 20 November 1997. The defendant submitted that there are only two days within the limitation period and because damages for nuisance are continuing the claim of nuisance should be limited to two days. I do not accept this proposition. The facts that give rise to a claim in negligence will be the same or similar to those that give rise to the claim for nuisance. Those are matters which should be determined at trial. Nor I do accept that the plaintiff on a summary judgment application should be bound by his letter written in March 1991. This letter was written prior to the plaintiff’s business being closed down in September 1991. That means that the letter was written before the damages crystallised.
24 In relation to the facts which give rise to the claim under the Fair Trading Act, it may be that the plaintiff is seeking to allege that the negligent mis-statement or false and misleading statement are made at common law. This has a limitation period of six years not three. The original summons would have been filed in time. The plaintiff may wish to replead his claim in light of the above. Further, the claim in relation to the loss of his equipment, may be one of detinue. This claim also has a six year limitation period. There may be a claim for trespass or conversion. As it is difficult for an unrepresented litigant to properly plead these matters it would be advisable for him to seek some legal assistance in this regard. It is not clear beyond peradventure that these matters are statute barred and the statement of claim should not be struck out on that basis.
25 The defendant submitted that that the plaintiff is confined to a claim of loss of wages and that he is not entitled to claim these damages because he was the proprietor of a business and therefore this paragraph should be struck out. However, I note that these particulars were given by way of affidavit evidence. Paragraph 14 of the amended statement of claim says “By reason of the conduct of the defendant the plaintiff has been greatly injured and his business damaged as a consequence of the loss of custom and has suffered loss and damage.” Paragraph 15a(i), gives particulars for loss of profit over the period of the lease. While the plaintiff may not be entitled to claim wage loss, he has pleaded a claim for loss of profits. As the plaintiff’s wife is not a plaintiff, it is difficult to see how the plaintiff can make a claim for her loss of wages. The plaintiff’s wife’s claim should be struck out.
26 In summary the only allegations that should be struck out are those relating to the Fair Trading Act, but these may be repleaded as a common law cause of action. The plaintiff’s wife’s claim for damages cannot be sustained and should be struck out. It is my view that the causes of action in negligence and nuisance should be permitted to go to trial.
27 I have taken into account the summons was filed in 1997, and that the plaintiff has been given two opportunities to replead his claim. In those attempts to replead, the plaintiff’s claim has been refined. In exercising my discretion, I have come to the conclusion that the plaintiff should be given one further opportunity to plead his statement of claim, but as previously stated, before doing so he should seek the benefit of advice from a legal practitioner.
28 Costs are discretionary. As the plaintiff’s claim was not properly pleaded it is appropriate that the plaintiff should pay the defendant’s costs.
29 The orders I make are:
(2) The plaintiff is to pay the defendant’s costs.
(1) The plaintiff is granted leave to file a third amended statement of claim. Such third amended statement of claim should be filed and served within two months.**********
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