Wonson v State of New South Wales

[2018] NSWSC 1144

Supreme Court

New South Wales

Medium Neutral Citation:	Wonson v State of New South Wales [2018] NSWSC 1144
Hearing dates:	27 June 2018
Date of orders:	25 July 2018
Decision date:	25 July 2018
Jurisdiction:	Equity
Before:	Darke J
Decision:	Proceedings dismissed pursuant to UCPR r 13.4.
Catchwords:	PRACTICE AND PROCEDURE – summary dismissal – no reasonable causes of action disclosed – adverse possession claim against the Crown precluded by s 45D(3) of the Real Property Act 1900 (NSW) and s 170 of the Crown Lands Act 1989 (NSW) – claim for compensation for care and management of land untenable – appropriate to exercise power to dismiss proceedings under UCPR r 13.4
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 91 Conveyancing Act 1919 (NSW), s 37A Crown Land Management Act 2016 (NSW), s 13.1 Crown Lands Act 1989 (NSW), s 170 Crown Suits Act 1769 (Imp) Limitation Act 1969 (NSW), ss 6, 27 Real Property Limitation Act 1833 (Imp) Real Property Act 1900 (NSW), s 45D Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28
Category:	Principal judgment
Parties:	David Charles Wonson (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Mr D Wonson (Plaintiff – in person) Ms M Carpenter (Defendant)   Solicitors: Lea Armstrong, Crown Solicitor (Defendant)
File Number(s):	2017/30725
Publication restriction:	None

Judgment

Introduction

1. These proceedings concern the title to a parcel of land at Coniston. Coniston is about 4km south of Wollongong, near Port Kembla. The parcel of land in question is Lot 2 in DP 837554. The registered proprietor of the land is the defendant, the State of New South Wales (“the State”). The State has been the registered proprietor since 4 May 2009.

2. The plaintiff, Mr David Wonson, who is not represented by a lawyer, commenced the proceedings by Statement of Claim filed on 31 January 2017. He incorrectly identified the defendant as a New South Wales government department, but this was rectified in an Amended Statement of Claim filed on 22 May 2017. By those pleadings, Mr Wonson primarily sought an order that he should be recorded as having possessory title to the land, and an order that the State’s title to the land be extinguished. Mr Wonson alleges that he, and his father before him, have been in continuous possession of the land since 1961, during which time the land has mainly been used for the purpose of training horses.

3. On 14 July 2017 the State filed a Notice of Motion seeking orders that the proceedings be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4(1)(b), or alternatively that the Amended Statement of Claim be struck out insofar as it seeks relief based on assertions of adverse possession of the land. Before that motion was heard, Mr Wonson filed a Notice of Motion on 23 November 2017 seeking leave to further amend his Statement of Claim. A draft Further Amended Statement of Claim accompanied the motion. In January 2018, Mr Wonson produced another draft pleading, described as “Further Further Amended Statement of Claim”. That pleading will henceforth be referred to as the proposed pleading, as it is the pleading Mr Wonson now wishes to advance. The proposed pleading was actually filed on 9 March 2018. In those circumstances, no question concerning leave to file the proposed pleading strictly arises; rather, the question is whether it should be struck out. In any case, the focus of the submissions made at the hearing of the motions was upon whether the proceedings, including by the proposed pleading, disclose any reasonable causes of action.

4. Before turning to describe the nature of the claims made by Mr Wonson, it is necessary to say something about the history of the land.

History of the land

5. Lot 2 in DP 837554 was created on 13 April 1994 upon the registration of DP 837554. Lot 2 was one of eight lots so created. DP 837554 effected a subdivision of Lot 101 in DP 801243. Lot 101 in DP 801243 was itself a consolidation of land that included Lot 3 in DP 430285 and Lot 1 in DP 585352. That consolidation occurred on 22 May 1990. It is evident from certificates of title issued on 15 November 1976 in respect of Lot 3 in DP 430285 and Lot 1 in DP 585352 that the lots had been part of a grant in 1835 of 500 acres of land (referred to as Portion 50) in favour of Jemima Waldron.

6. Historical searches carried out by Morris Hayes and Edgar indicate that in 1913 all of the land now contained within Lot 2 in DP 837554 was resumed and vested in the Minister for Public Works (for purposes incidental to construction works at Port Kembla Harbour). It appears that the land now contained in Lot 2 in DP 837554 (not including a strip of land intended for use as a road) was transferred by the Minister for Public Works to Australian Iron & Steel Limited (“AI & S”) in 1936. This land had by that time been brought under the provisions of the Real Property Act 1900 (NSW). It further appears (from the Certificate of Tile in respect of Vol 5275 Folio 155) that this land was transferred to the Commissioner for Railways in 1941. It includes the land that became Lot 3 in DP 430285 and Lot 1 in DP 585352 which, by 1976, had become owned by Public Transport Commission of New South Wales.

7. In 1932 the strip of land referred to above was included as part of a proposed resumption under the Public Roads Act 1902 (NSW). There may have been a formed road on the strip at that time. In October 1961, the strip of land (hereafter “the roadway”) was resumed by the Commissioner for Railways from the Minister for Public Works. The roadway had remained under Old System Title. On 22 May 1990 the roadway was included as part of the consolidation that created Lot 101 in DP 801243. The Certificate of Title that issued included in the Second Schedule a qualified title caution in respect of the roadway. The registered proprietor of Lot 101 in DP 801243 was at that time the State Rail Authority of New South Wales (“the SRA”).

8. I note in passing that earlier in 1990 the SRA commenced proceedings in this Court against Mr Wonson seeking possession of Lot 3 in DP 430285, Lot 1 in DP 585352, and the roadway (which is located between the two lots). On 15 March 1990 consent orders were made to the effect that the SRA was entitled to possession of the two lots and that each party would pay its own costs. For some reason, not explained in the evidence, the orders make no mention of the roadway.

9. The qualified title caution in respect of the roadway remained when Lot 2 in DP 837554 was created on 13 April 1994. In 1995, the SRA applied for the removal of the caution. The application was supported by a Statutory Declaration made by Mr Frank Boland which included the statement that as far as he was aware:

There is no person in possession or occupation of the said land or any part thereof adversely to the estate or interest of the registered owner(s).

10. In the proposed pleading, Mr Wonson complains about that statement (which he says was false) and says that the State’s title to the land is thus liable to be defeated. That matter will be returned to later in these reasons. In any event, the caution was removed, and an unqualified title for Lot 2 in DP 837554 issued in March 1995.

11. On 30 June 2007 Lot 2 in DP 837554 (the registered proprietor of which was still the SRA) was transferred to the Crown pursuant to an order under s 94 of the Transport Administration Act 1988 (NSW). At about the same time, the lot was declared to be Crown Land pursuant to s 138 of the Crown Lands Act 1989 (NSW), and reserved pursuant to s 87 of that Act.

12. On 4 May 2009 the registered proprietorship of Lot 2 in DP 837554 was transferred from the SRA to the State.

13. On 15 May 2015 the reservation of Crown Land in respect of Lot 2 in DP 837554 was revoked pursuant to s 90 of the Crown Lands Act.

14. In 2016, Mr Wonson made an application to Land & Property Information for possessory title in respect of Lot 2 in DP 837554. The application was rejected on 17 August 2016. As mentioned earlier, Mr Wonson commenced these proceedings on 31 January 2017.

Mr Wonson’s claims

15. Mr Wonson’s Amended Statement of Claim primarily raises a claim for possessory title to Lot 101 in DP 801243 or alternatively “lot 2 Coniston”. In circumstances where Lot 101 in DP 801243 ceased to exist upon its subdivision in 1994 into eight lots, including Lot 2 in DP 837554, the claim may be taken to concern that lot. Mr Wonson alleges that he has been in continuous possession of the land since 22 February 1970 when he became the sole proprietor of the horse training business formally conducted on the land by his father. Mr Wonson alleges that he has throughout had the intention to possess the land to the exclusion of all others, including the defendant which holds the “paper title”. Mr Wonson seeks orders to the effect that the State’s title be extinguished and that he be recognised as having title to the land.

16. The Amended Statement of Claim also raises a claim, in the alternative, for compensation “for the value of the land and remuneration for the capital works, labour and effort undertaken by and on behalf of the plaintiff”. The basis of this claim is obscure, but seems to be a form of proprietary estoppel that arises if Mr Wonson is unable to establish his title against the defendant and is thus dispossessed. It is alleged that there is “an equitable right by adverse possession to compensation for the protection, care, management and custody of the land held under title by the defendant”; or “a constructive contract in regard to the protection, care, management, and custody of the land held under title by the defendant”; or “a right to equitable damages as a consequence of the unconscionable conduct of the defendant, in that the defendant exploited the plaintiff in regard to using the plaintiff to exercise protection, care, management and custody of the land held under title by the defendant, without remuneration, compensation or consideration being paid to the plaintiff”. Mr Wonson claims compensation in the sum of $15.6 million.

17. In the latter part of 2017 and early in 2018, Mr Wonson was able to inspect numerous documents relating to the history of the land. This prompted Mr Wonson to reformulate, and add to, his claims, culminating in the proposed pleading.

18. The proposed pleading includes, in amended form, the claim of possessory title to Lot 2 in DP 837554. Mr Wonson now claims to have been in continuous possession of the land since 1961, when he and his father commenced occupation of the land, and in sole occupation of the land since his father’s death in 1988. The proposed pleading also includes the claim for compensation for $15.6 million, although the paragraphs which describe the grounds for the claim have not been included in the proposed pleading.

19. The proposed pleading contains a number of new claims. These new claims are not well pleaded but, in summary, appear to be:

1. a claim that the defendant’s title to the land is defeasible on the ground of fraud, it being alleged that the defendant became the registered proprietor as part of or in the context of a fraudulent scheme carried out by agents of the State in about 1990;

2. a claim that at no time prior to becoming the registered proprietor did the defendant (or presumably any predecessor instrumentality of the State) ever purchase the land or own the land;

3. a claim that the only part of the land transferred from the Department of Public Works to the predecessor of the SRA was the land transferred in October 1961, the other land transferred by the Department of Public Works being located approximately 1.5km to the north east;

4. a claim that the defendant was involved in a fraudulent removal of the caution on the title in 1995;

5. a claim that the transfer of title to the defendant is voidable pursuant to s 37A(1) of the Conveyancing Act 1919 (NSW) as the defendant intended to defeat, hinder or delay the plaintiff in his claim for the land;

6. a claim that the registration of the defendant’s title to the land involved an abuse of public power or authority by a public officer, who acted contrary to certain provisions of the Crown Lands Act 1989; and

7. a claim that the defendant through its agents entered into a contract concerning the land with Wollongong City Council which contract unlawfully fettered the exercise by the Council of a statutory duty and discretion.

20. These new claims are the basis for a number of additional prayers for relief, including a declaration that the transfer of title to the land to the defendant is voidable, an order that the defendant’s interest be set aside, damages for the tort of misfeasance, orders setting aside the decision of the defendant to register title to the land, and a declaration that the contract between the defendant and the Council is unlawful.

Evidence

21. As envisaged by Uniform Civil Procedure Rules r 13.4, the parties adduced evidence. The evidence was contained within the four volume Court Book (which has been marked as Exhibit A).

22. The plaintiff read eight affidavits, including three of his own. A number of these affidavits primarily went to matters of historical use and occupation of the land, including by Mr Wonson and his father. Some of the affidavits contain assertions to the effect that the land had once been owned by a Mr Stennis Cook and “the railways” claimed the land from him without ever paying him for it. The defendant also relied upon various documents in addition to those that were annexed to the affidavits, as well as a DVD and a USB stick containing audio visual commentary about the land and its occupation.

23. The defendant read four affidavits of Mr Paul Rankins, solicitor. Exhibited to one of those affidavits were various documents produced by Sydney Trains and the Registrar-General, and the Court file of the proceedings for possession in 1990. Exhibited to another of Mr Rankins’ affidavits were the documents referred to by Morris Hayes and Edgar in their report concerning title history.

Contentions of parties

24. Both parties provided detailed written submissions. The submissions are contained within the Court Book. The written submissions were supplemented by oral submissions at the hearing. It is not necessary to summarise the submissions at this point; it is sufficient to note that the State contends that Mr Wonson’s claims of possessory title and proprietary estoppel, and the new claims he raises in the proposed pleading, are all obviously untenable and doomed to fail, such that the proceedings should be summarily dismissed. Mr Wonson maintains that the claims (with the possible exception of the possessory title claim) give rise to triable issues, including issues of fact, and that the claims should therefore be allowed to proceed to trial. The various claims are considered below.

Determination

25. It is important to recognise that any rights Mr Wonson may have in respect of Lot 2 in DP 837554 rest upon the circumstances in which he occupied the land. That is to say, the rights to become registered as the proprietor of the land, or any equitable rights to compensation for what he has done on the land, are based on his occupation of the land. A number of the new claims contained in the proposed pleading seek to attack the State’s title to the land, but do not provide independent grounds for the assertion of rights. For example, even if the State’s title was defeasible for fraud, that would not give Mr Wonson any right to displace the State as registered proprietor unless he was deprived of rights as a result of the fraud. If that was the case, he would be entitled to bring proceedings of the type described in s 118(1)(d) of the Real Property Act. Similarly, even if the land had never been purchased by the State or any predecessor instrumentality of the State, that would not itself give Mr Wonson any right to displace the State as registered proprietor. In these circumstances, it is appropriate to first consider the claims Mr Wonson makes based on his occupation of the land, namely, his claim for possessory title and his claim for compensation.

26. It should be stated at the outset that the evidence plainly establishes that the land now contained within Lot 2 in DP 837554 was, except for the roadway, transferred by AI & S to the Commissioner for Railways for valuable consideration in 1941. There is no evidence that instead of that transfer there was a transfer of different land located approximately 1.5km to the north east. In my opinion, Mr Wonson’s contentions in that regard are entirely lacking in substance. It is also plain that in October 1961 the roadway was resumed by the Commissioner for Railways from the Minister for Public Works. There is no documentary evidence to support the contention that any of the land was ever owned by a Mr Stennis Cook. In my view, the suggestion that the land or some part of it was taken from Mr Stennis Cook without payment is also without substance.

27. I will therefore proceed on the basis that at all times from October 1961 title to the land that is now contained in Lot 2 in DP 837554 was held by the Commissioner for Railways (or its statutory successors) until the State became the registered proprietor on 4 May 2009. Further, as noted earlier, the land became Crown land in 2007 and has remained so ever since. In these circumstances, Mr Wonson’s claim of possessory title cannot possibly succeed.

28. Prior to the enactment of the Limitation Act 1969 (NSW), the relevant limitation period for recovery of possession of land was 20 years (Real Property Limitation Act 1833 (Imp)), or 60 years in the case of Crown land (Crown Suits Act 1769 (Imp)). Section 27 of the Limitation Act reduced the periods to 12 years and 30 years respectively, but these only applied where the period under the former Act had not commenced by 1 January 1971 (see s 6(1)(c)).

29. Until 1 June 1979 it was not possible to acquire possessory title to land under the Real Property Act. However, upon the commencement on 1 June 1979 of Part VIA of the Real Property Act, the acquisition of possessory title to land under the Real Property Act was permitted in certain circumstances (see s 45C). Section 45D relevantly provided:

45D(1)   Where, at any time after the commencement of this Part, a person is in possession of land under the provisions of this Act and:

(a)   the land is a whole parcel of land,

(b)   the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land; and

(c)   the land is comprised in a Crown grant or an ordinary certificate of title or is comprised in a qualified certificate of title and the possession by virtue of which the title to that estate or interest would have been extinguished as provided in paragraph (b) commenced after the land was brought under the provisions of this Act by the issue of the qualified certificate of title,

that person in possession may, subject to this section, apply to the Registrar-General to be recorded in the Register as the proprietor of that estate or interest in the land.

…

(3)   A possessory application may not be made in respect of an estate or interest in any land, or in any part of any land, of which:

(a)   Her Majesty or a Minister of the Crown,

(b)   a statutory body representing the Crown,

(c)   a corporation which is constituted by an Act and of which, in the case of a corporation aggregate, at least one of the members is appointed by the Governor or a Minister of the Crown; or

(d)   a council or county council within the meaning of the Local Government Act 1919,

is the registered proprietor.

30. The Public Transport Commission of New South Wales was as at 1 June 1979 the registered proprietor of Lot 3 in DP 430285 and Lot 1 in DP 585352. It was a corporation of a type that fell within s 45D(3)(c). So, too, was the SRA, which later became the registered proprietor of those lots. Section 45D(3)(c) has remained in its original form. Accordingly, Mr Wonson could not have made any application for possessory title against either Lot 3 in DP 430285 or Lot 1 in DP 585352. In addition, any application would need to accommodate the fact that orders were made by consent on 15 March 1990 that the SRA was entitled to possession of those lots as against Mr Wonson.

30. The position was different in relation to the roadway which passed between the two lots. The roadway remained under Old System Title until May 1990 when it was included (along with the two lots) in Lot 101 in DP 801243; and until May 1995 the roadway was the subject of a qualified title caution. Accordingly, it might for a time have been possible for Mr Wonson to assert a claim for possessory title to the roadway alone. However, Mr Wonson has never made such a claim and it is doubtful that such a claim could have been made after May 1990 because it would not be a claim in respect of a whole parcel of land. In any case, from May 1990 the roadway was part of Lot 101 in DP 801243 and later Lot 2 in DP 837554, the registered proprietor of which lots was at all times until 4 May 2009 a corporation of a type that fell within s 45D(3)(c) of the Real Property Act. Any claim for possessory title to the lots (including the roadway) would have been precluded.

31. Moreover, when Lot 2 in DP 837554 became Crown land in 2007, s 170 of the Crown Lands Act operated to prevent the assertion or establishment of title to the lot against the Crown on the basis of adverse possession. Section 170 relevantly provided:

170(1)   Title to any land of the Crown which has been:

(a)   set out as a road under an Act or in connection with the alienation of land of the Crown,

(b)   left between Crown grants for use as a road or driftway,

(c)   dedicated under the Crown Lands Acts or any other Act for a public purpose, or

(d)   reserved in a Crown grant or recorded in a folio of the Register as being reserved to the Crown,

may not, on the basis of adverse possession, be asserted or established against the Crown or any persons holding the land in trust for a public purpose.

(2)   Title to any land of the Crown reserved under the Crown Lands Acts or any other Act for a public purpose (not being land referred to in subsection (1)) may not, on the basis of adverse possession, be asserted or established against the Crown or any persons holding the land in trust for that public purpose.

(3)   Title to any other Crown land may not, on the basis of adverse possession, be asserted or established against the Crown.

33. A provision to the same effect is now found in s 13.1 of the Crown Land Management Act 2016 (NSW). Lot 2 in DP 837554 has continued to be Crown land. The revocation of the reservation pursuant to s 90 of the Crown Lands Act did not deprive the land of its status as Crown land. I note that Mr Wonson does not seem to challenge the 2007 declaration that the land was to be Crown land.

34. For the above reasons, it is my opinion that Mr Wonson’s claim for possessory title to Lot 2 in DP 837554 is untenable and bound to fail. No reasonable cause of action for possessory title to the lot is disclosed in the proceedings.

35. I turn now to consider Mr Wonson’s claim for compensation. As I have said, the basis of this claim is obscure but seems to be a form of proprietary estoppel. It is alleged in the proposed pleading (paragraph 9 and 13) that it would be unconscionable for the defendant to dispossess the plaintiff, presumably without paying compensation. The claim is not further developed in the proposed pleading, but is referred to in Mr Wonson’s written submissions. It appears from the submissions that the claim is said to be based on a representation made by the defendant through its conduct to the effect that by about 1990 it had waived any rights it might have to the land, and that after 1992 the defendant made no attempt to remove Mr Wonson from the land (see paragraphs 11 and 12 of Mr Wonson’s submissions dated 4 June 2018). It further appears that Mr Wonson says that he had an expectation that the defendant would compensate him for his care, management and protection of the land (see Mr Wonson’s submissions in reply dated 26 June 2018 at pages 2 and 13-14).

36. As submitted by the State, it is difficult to reconcile such a claim with the claim for possessory title. However, leaving that aside, the claim is in any event almost entirely devoid of definition. That is to say, the conduct of the defendant that is relied upon as amounting to a waiver of rights, the making of representations, or the basis of an expectation formed by Mr Wonson, and the effect that such conduct had upon Mr Wonson in relation to what he did on the land, is not adequately identified in any pleading or submission and is not referred to in any of Mr Wonson’s affidavits. The tenor of Mr Wonson’s evidence is that at all relevant times he believed that the land was originally owned by Stennis Cook and had been “taken over” by the New South Wales Railways, such that he did not recognise the SRA as the owner (see also paragraphs 88 and 89 of the proposed pleading).

37. Mr Wonson referred in his oral submissions to meetings with a member of the Commonwealth Parliament (Mr Connor MP) during which Mr Wonson gained an understanding that if he kept the land well he would be “looked after”. That does not advance the case. Mr Connor was not in a position to make any representations on behalf of the State.

38. It should also be noted that whatever the conduct of the defendant (or its predecessors in title) up to 1990, Mr Wonson consented to orders for possession against him in favour of the SRA on 15 March 1990. The suggestion made by Mr Wonson in his submissions that at no stage did he ever go to Court is contradicted by the contents of the Court file. Moreover, the mere fact that the SRA and the State did not thereafter take steps to remove Mr Wonson from the land is not on its own capable of giving rise to any right in Mr Wonson to claim compensation. The pleadings, and the evidence adduced by Mr Wonson, failed to identify any other facts that might form the basis of such a right.

39. In these circumstances I have come to the conclusion that Mr Wonson’s claim for compensation is also untenable and bound to fail. No reasonable cause of action for compensation is disclosed in the proceedings.

40. I am further satisfied that the new claims that are contained in the proposed pleading do not disclose any reasonable causes of action.

41. The new claims that seek to impugn the State’s title to the land or attack the State’s conduct in relation to its dealings with the title to the land cannot avail Mr Wonson if he has no viable claims for possessory title to Lot 2 in DP 837554 or compensation for what Mr Wonson has done on that land. The new claims referred to at 19(a), (b), (d), (f) and probably (g) above fall into this category. I would add, in relation to the claim in 19(f), that the proposed pleading contains no material facts, only conclusions. As for the claim referred to in 19(g), I note that it is alleged that the contract would have the effect of fettering the exercise of a power by the Council (which is not a party to the proceedings). The alleged agreement concerns a re-zoning of Lot 1 in DP 837554, which adjoins Lot 2 in DP 837554. Insofar as it is alleged that the contract contained a promise to give Lot 2 in DP 837554 to the Council, it is clear that no such gift was made.

42. I have already found that the new claim referred to in 19(c) is entirely lacking in substance.

43. I have reached the same conclusion about the new claim referred to in 19(e). There is simply no reasonable basis to assert that at any relevant time Mr Wonson was a creditor of the State (or any of its predecessors in title), let alone that a transfer of title from the SRA to the State was intended to defraud creditors.

44. Quite apart from the fact that the proposed pleading does not disclose any reasonable causes of action, its form is undoubtedly deficient in that it has a tendency to cause prejudice, embarrassment and delay. It is a pleading that is liable to be struck out pursuant to Uniform Civil Procedure Rules r 14.28. However, I have gone beyond the form of the pleadings to assess, in the light of the evidence adduced, the substance of the causes of action Mr Wonson seeks to advance.

45. For the reasons given above it is my view that the proceedings, including the proposed pleading, do not disclose any reasonable causes of action. Accordingly, it is open to the Court to dismiss the proceedings pursuant to Uniform Civil Procedure Rules r 13.4.

46. Mr Wonson urged the Court not to take that step. He submitted that he wanted the opportunity to adduce evidence, including expert evidence, to make good his assertions that the land had not been transferred to the New South Wales Railways and that instead different land located some 1.5km away was the subject of the transfer. Mr Wonson also submitted that questions of fact arose in relation to his claims, including his claims of fraudulent conduct. However, the fact remains that the Court cannot discern the existence of any causes of action that are tenable, and Mr Wonson has not been able to produce an acceptable pleading. Whilst I do not entirely discount the possibility that some tenable claim, not yet identified, may exist, I do not think that these proceedings should be allowed to continue. Mr Wonson, who has now had access to the documents that record the title history of the land, has not been able to articulate any viable causes of action. Faced with the apparent force of those documents, Mr Wonson made submissions to the effect that long ago the New South Wales Railways altered maps and plans in order to deceive the Registrar-General. These suggestions strike me as speculative at best. The proposed pleading contains no allegations of that character.

47. The proceedings have been on foot for some time already, and have not progressed beyond the proposed pleading which, as I have said, is deficient. It seems to me that it would accord with the overriding purpose referred to in ss 56 and 57 of the Civil Procedure Act 2005 (NSW), and the dictates of justice as referred to in s 58 of that Act, for the proceedings to be dismissed under Uniform Civil Procedure Rules r 13.4. The defendant has already expended considerable time and no doubt expense in the proceedings. I recognise, of course, that the power to summarily dismiss is one that must be exercised with caution and only in the clearest of cases. However, in my opinion this is such a case, and in all the circumstances it would not be just to put the defendant to further trouble and expense by allowing the proceedings to continue. Finally, I note that a dismissal pursuant to Uniform Civil Procedure Rules r 13.4 will not itself preclude Mr Wonson from bringing fresh proceedings in the event that he is able to properly formulate a tenable cause of action (see s 91 of the Civil Procedure Act).

48. The Court will therefore order that the proceedings be dismissed pursuant to Uniform Civil Procedure Rules r 13.4. The Court will further order that the plaintiff pay the defendant’s costs of the proceedings, including the costs of the Notices of Motion heard on 27 June 2018.

**********

Decision last updated: 25 July 2018