Woolnough v Isaac Regional Council
[2016] QSC 172
•3 August 2016
SUPREME COURT OF QUEENSLAND
CITATION:
Woolnough & Anor v Isaac Regional Council [2016] QSC 172
PARTIES:
TIMOTHY EARL WOOLNOUGH
(First Respondent/ Plaintiff)CHRISTEEN WOOLNOUGH
(Second Respondent/ Plaintiff)
v
ISAAC REGIONAL COUNCIL
(Applicant/ Defendant)
FILE NO/S:
S 12/16
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court Mackay
DELIVERED ON:
3 August 2016
DELIVERED AT:
Mackay
HEARING DATE:
1 August 2016
JUDGE:
McMeekin J
ORDERS:
The Statement of Claim is struck out;1.
The plaintiffs shall file and serve such amended Statement of Claim as they may be advised on or before 4pm on 29 August 2016;2.
The plaintiffs are ordered to pay the costs of the defendant of and incidental to this application;3.
The application is adjourned to a date to be fixed to be brought on, on the giving of three days’ notice.4.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the defendant applies for summary judgment or in the alternative to strike out the plaintiffs’ statement of claim – where the proceedings concern the plaintiffs’ claim that the council entered onto their land without authority and constructed defective sewage lines permitting raw sewage to escape onto their land – whether there is a need for a trial – whether the pleadings have a tendency to prejudice or delay the fair trial of the proceeding – whether the plaintiffs should be given leave to re-plead
Acquisition of Land Act 1967 (Qld)
Civil Liability Act 2003 (Qld)
Local Government Act 1993 (Qld) s 1070
Local Government Act 2009 (Qld) s 141
Personal Injury Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules1999 (Qld) r 149, r 155, r 157, r 158, r 171, r 292, r 293, r 374Chicco v Corporation of the City of Woodville (1990) Aust Torts Rep 67,893
Deatons Pty Ltd v Flew (1949) 79 CLR 370
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29
General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125
Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233
Queensland v Coffey [2005] QSC 212COUNSEL:
P Cullinane for the applicant
The respondents appeared in person
SOLICITORS:
Barry Nilsson for the applicant
McMeekin J: The defendant, the Isaac Regional Council, applies for summary judgment pursuant to r 293 Uniform Civil Procedure Rules 1999 (“UCPR”) or in the alternative to strike out the plaintiffs’ Statement of Claim pursuant to r 171 UCPR. In the further alternative it seeks judgment pursuant to r 394 UCPR on the grounds that the plaintiffs have failed to comply with my order of 30 May that they file a compliant Statement of Claim.
The plaintiffs are unrepresented. The male plaintiff spoke for both.
On 30 May last I ordered that the proceedings which had been commenced by Originating Application be treated as if commenced by Claim and that the plaintiffs file a Statement of Claim. A Statement of Claim has now been filed. A Defence has been filed and a Reply to that Defence.
The proceedings concern the plaintiffs’ claim that the Council entered onto their land without authority, constructed sewage lines there, that they did so in breach of Australian standards, subsidence occurred, and the sewage lines proved defective permitting raw sewage to escape onto their land.
The defendant’s solicitor’s affidavit shows that this is the sixth application brought by Mr and Mrs Woolnough concerning their complaints about these matters. The previous five have been struck out or dismissed as disclosing no reasonable cause of action. Rather than strike out this originating application – which was defective - I gave the plaintiffs another chance. So the Statement of Claim now advanced is the seventh attempt by the plaintiffs to plead their case.
The Statement of Claim is divided into sections A to G. I will deal with each section in turn. As pleaded they appear to be advanced as discrete claims. Mr Woolnough submitted that the claims in Sections B to G depend on success in the plaintiffs’ claim in Section A, a claim in trespass. Accepting that indication then I will endeavour to read the sections together. Each is intended then to relate in some way to the installation of sewage infrastructure in 2007 and the continued presence of the sewage infrastructure on the plaintiffs’ land. Having said that though I cannot see how Sections D, F and G, as pleaded, have any connection to an alleged trespass in 2007.
The relevant rule relating to a defendant’s application for summary judgment is r 293 UCPR:
Summary judgment for defendant
(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
(2) If the court is satisfied—
(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
(b) there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.
In Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, after a review of authorities, the Court of Appeal considered the approach that should be adopted to summary judgment applications brought pursuant to rules 292 and 293 UCPR. It was held that the more stringent test laid down by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 “that the case of the plaintiff is so clearly untenable that it cannot possibly succeed” is not to be applied. Rather “the court must consider whether there exists a real, as opposed to a fanciful, prospect of success. If there is no real prospect that a party will be successful in all or part of a claim, and there is no need for a trial, then ordinarily the other party is entitled to judgment”: per Atkinson J at [47]. See also McMurdo P at [2] and Williams JA at [17]. I bear in mind the cautionary statement of McMurdo P in that case at [3]:
“Nothing in the UCPR, however, detracts from the well established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases. Gaudron, McHugh, Gummow and Hayne JJ. said in Agar v. Hyde, (2000) 201 C.L.R. 552, 575–576 [57] recently cited with approval by Gleeson C.J., McHugh and Gummow JJ. in Rich v. CGU Insurance Ltd (2005) 79 A.L.J.R. 856, 859 [18]-[19]:
“… Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”
The relevant rule relating to the strike out application is r 171 UCPR which provides:
171 Striking out pleadings
(1) This rule applies if a pleading or part of a pleading—(a) discloses no reasonable cause of action or defence; or
(b) has a tendency to prejudice or delay the fair trial of the proceeding; or
(c) is unnecessary or scandalous; or
(d) is frivolous or vexatious; or
(e) is otherwise an abuse of the process of the court.
(2) The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
(3) On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.
A - The Trespass Claim
Under the heading “Introduction” the plaintiffs plead:
“This claim is in regard to Property owned by Tim & Christeen Woolnough know [sic] as Lot 76/N1101: PAR WODEHOUSE also known as 15 Bovey Street Nebo Qld 4742 and now 23-25 Bovey Street Nebo 4742.
Isaac Regional Council entered above property July 2007 without our knowledge or consent and assumed our land and failure to register an easement over the land when sewage mains infrastructure was put through the rear of our property. Therefore trespass applies.”
The Statement of Claim then asserts that the plaintiffs purchased their land on 15 November 2006. That is not in issue. Apart from the introduction that I have quoted the only detail of the alleged trespass appears under the heading “Penalty” and reads in part: “Trespass has continued from July 2007 to present day, 9 years in total…”. Who entered onto the land, what connection they had with the defendant, on what dates those persons entered, and what was then done is not alleged.
What I suspect the plaintiffs seek to assert is that the continued presence of the sewage infrastructure on their land amounts to a continuing trespass, no permission having been ever given to install it. That may be right, assuming the premise of no consent in their favour, as I must. Halsbury’s Laws of Australia puts the law in this way:
“[415-490] Continuing trespass A continuing trespass is a trespass for which the cause of action is renewed on each day that the wrong is not remedied. For example, a continuing trespass may be committed where a building is erected on another’s land without permission, objects attached to a building intrude into the airspace above neighbouring land, or goods are allowed to remain on another’s land without permission.” (authorities cited but omitted here)
The pleading goes on: “Seeking penalty $2,000,000.” No other pleading or particular of damage appears.
Other statements appear that ought not appear in a pleading – statements of cases said to be relevant, references to statutes but without referencing the statute to any cause of action, and comments such as “ignorance of the law is no defence.”
The fundamental rule of pleading is contained in r 149 of the UCPR which provides:
149 Statements in pleadings
(1) Each pleading must—
(a) be as brief as the nature of the case permits; and
(b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and
(c) state specifically any matter that if not stated specifically may take another party by surprise; and
(d) subject to rule 156, state specifically any relief the party claims; and
(e) if a claim or defence under an Act is relied on—identify the specific provision under the Act.
(2) In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.
Relevant to this case are rules 155, 157 and 158.
Rule 155 UCPR provides:
155 Damages
(1) If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed.
(2) Without limiting rule 150(1)(b), a party claiming general damages must include the following particulars in the party’s pleading—
(a) the nature of the loss or damage suffered;
(b) the exact circumstances in which the loss or damage was suffered;
(c) the basis on which the amount claimed has been worked out or estimated.
(3) If practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type.
(4) In addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise.
Rules 157 and 158 UCPR provide:
157 Particulars in pleading
A party must include in a pleading particulars necessary to—
(a) define the issues for, and prevent surprise at, the trial;
and
(b) enable the opposite party to plead; and
(c) support a matter specifically pleaded under rule 150.158 Particulars of damages
(1) If a party claims damages including money the party has paid or is liable to pay, the pleading must contain particulars of the payment or liability.
(2) If a party claims exemplary or aggravated damages, the party’s pleading must contain particulars of all matters relied on in support of the claim.
Apart from the facts asserted in the “Introduction” Mr and Mrs Woolnough have not provided the particulars that would satisfy the requirements of r 157(a) and (b). Nor have they pleaded facts which would satisfy r 155 in relation to their alleged damage. They appear to assume they have the right to impose a penalty on the defendant and in any amount they think appropriate. That is not the law. No facts are pleaded which gives them such a right and I know of no possible basis on which they could claim it.
In summary then it is pleaded that in July 2007 “sewage mains infrastructure was put through the rear of our property” and thereafter the trespass was ongoing over 9 years. The pleading may mean that on other occasions that are not identified entrance was obtained without consent by persons not identified. If that is meant no pleading of any action then undertaken by those entrants is pleaded. It is not said that the sewage infrastructure remains in place although that is the obvious inference and nor is it said that it presents a continuing trespass. If that is the fact relied on then that will need to be pleaded to enable a relevant response by the defendant and so identify the issues in dispute.
What damage was caused to the land is not pleaded although presumably one goes to Section B which asserts various effects. I observe that it is not necessary to show damage in order to show an actionable trespass.
Turning to the Defence, as to the matters alleged in the “Introduction” the defendant by its pleading asserts that Council officers had statutory authority to enter onto the plaintiffs’ land at all material times (identifying the relevant statutes) and in any case entered the plaintiffs’ land with their consent in July 2007. That last matter obviously involves a triable issue.
While the matters pleaded in the introduction and the non-contentious pleading of the purchase of the land are relevant to the cause of action the pleading should be struck out pursuant to r 171. That is so because the matters pleaded are either unnecessary or, because of the complete absence of particulars, the pleading would have a tendency to prejudice or delay the fair trial of the proceeding.
The defendant seeks summary judgement. If the entry in July 2007 was authorised by statute then there is no point to having a trial. The absence of consent, if shown, would be irrelevant.
It is clear that since the commencement of s 144 of the Local Government Act 2009 (Qld) (“the 2009 Act”) the Council has had the power “at all reasonable times” to enter onto the plaintiffs’ land without their consent for certain purposes and subject to certain conditions. That includes entry for the purpose of installing facilities:
144 Entry by a local government worker, at reasonable times,
to repair etc. facilities
(1) At all reasonable times, a local government worker may enter a property (other than a home on the property) without the permission of the occupier of the property—(a) to investigate the future installation of local government facilities on, over or under the property; or
(b) to install local government facilities on, over or under the property; or
(c) to inspect, maintain, operate, repair, replace or remove local government facilities, that are on, over or under the property, for their routine operations.
(2) Local government facilities are facilities that are installed by a local government (including sewerage pipes, for example).
(3) However, the local government worker must, as soon as the local government worker enters the property—(a) inform any occupier of the property—
(i) of the reason for entering the property; and
(ii) that the local government worker is authorised under this Act to enter the property without the permission of the occupier; and
(b) produce his or her identity card for the occupier of the property to inspect.
But that provision was not in place in 2007 when the installation occurred.
It is not so clear that Council could go onto the plaintiffs’ land without their consent prior to the passing of the 2009 Act. Reliance is placed on s 1070 Local Government Act 1993 (Qld) (“the 1993 Act”). It provides so far as relevant:
“1070 Entry on land for local government purposes
(1) An employee or agent of a local government may enter land or a structure, at all reasonable times, if the entry is necessary for the exercise of the local government’s jurisdiction, including for example—
(a) to carry facilities into, through, across or under the land; or
(b) to perform work on the land or structure; or
(c) to inspect, operate, change, maintain, remove, repair or replace the local government’s facilities on the land or structure.
(2) The powers under subsection (1) may be exercised only if—
(a) the entry is made—(i) to inspect, operate, change, maintain, remove, repair or replace the local government’s facilities on the land or structure for its routine operations; or
(ii) to investigate the future placement, removal, repair or replacement of facilities on the land or structure; or
(b) the owner and occupier of the land or structure agree to the entry; or
(c) urgent action is necessary for local government purposes, including, for example, the interests of public health or safety; …”
Despite the width of subsection 1070(1) of the 1993 Act the power to enter is constrained by subsection (2). For the consent of the plaintiffs to be irrelevant – and the giving of that consent is a fact in issue – the Council must show that any entry satisfied the pre-conditions laid down in the statute. Entry without consent is restricted to entry for the purposes of subsection 1070(1)(c) under subsection 1070(2)(a)(i), or to investigate future work under subsection 1070(2)(a)(ii), or to where “urgent action is necessary for local government purposes” under subsection 1070(2)(c). There is a very obvious omission to give power to enter without consent simply to perform work as provided for in subsection 1070(1)(b). The entry here undertaken clearly was not for work contemplated at some future time, nor is it said to be in respect of “urgent action”. The entry is pleaded to be in respect of the installation of sewage infrastructure – and as presently advised I cannot see that falls within the description “to inspect, operate, change, maintain, remove, repair or replace” local government infrastructure.
Mr Cullinane who appeared for the defendant urged that the verb “change” in subsection (2)(a)(i) covered the installation of infrastructure but I think that is drawing a very long bow. No authority was cited as supporting that approach to the construction of the 1993 Act. The natural meaning of the word is a change in the infrastructure in question that is already in place, not from no infrastructure at all to some. Whether the section applies must remain a triable issue at this stage.
There is the interesting question of whether an unauthorised installation of sewage infrastructure under the 1993 Act (assuming it was unauthorised for the purposes of argument) becomes an authorised one by reason of s 144(1)(b) or (c). Given subsection 144(3) I suspect not, but I have had no argument on the subject and will not decide it here.
As the pleading stands the plaintiffs have a right to a trial on the issue of whether the entry in 2007 was unauthorised. It is true that there is an evidential difficulty in that the first letter of complaint of which I am aware, written in 2009 and from solicitors, failed to assert any such unauthorised entry but that will be a matter for the tribunal of fact to weigh in the scales. If the plaintiffs in truth want to assert a continuing trespass resulting from the continued and unauthorised presence of the sewage infrastructure on the plaintiffs’ land then the pleading will need to be amended accordingly. If they wish to seek damages for that alleged unauthorised entry then they will need to further amend their pleading to comply with r 155.
Mr Cullinane did not argue for a limitation defence in relation to the claim in Section A, either in the pleading of the defendant’s case or in his submissions before me. A limitation defence is pleaded in relation to Section B. The problem is in the way the pleading is cast – Section B by its terms is pleaded as separate and distinct from Section A. However Mr Woolnough has made plain that one is to be read with the other. The obscurity of the pleading has led to an inconsistent stance from the defendant. I will deal with the point below in Section B.
Before leaving the Section I note that Mr Woolnough concentrated his efforts on a failure of the council to comply with the Acquisition of Land Act 1967 (Qld). That has nothing to do with the matter. The Council do not seek to acquire the plaintiffs’ land. Nor can the plaintiffs force it to do so.
The Section must be struck out.
B - Property damage and repair
Section B of the Statement of Claim is headed “Property damage and repair”.
The pleading is in the form of a narrative. The essential facts pleaded are:
(a) The installation of the sewage infrastructure involved excavation of land to a depth of 12 feet in a confined space;
(b) The installation did not comply with the Australian Standards (a standard being particularised) without any particulars of the failure to comply;
(c) A sink hole appeared due to water infiltrating the trenching which in turn was due to a failure to properly compact excavated material;
(d) Over the years the sink hole has worsened with the consequence that raw sewage “was coming up through our land when it rained”;
(e) The land has now subsided 40 meters along the back boundary;
(f) The subsidence is having an effect on a highset house;
(g) There are real health concerns;
(h) A quote was obtained from Coal Country Constructions “believe to be in 2011” to have the property repaired. No particulars of the quote or the nature of the repairs appears.
Again a “penalty” is claimed, this time of $1,500,000. Again there is no basis in law shown to support a right in the plaintiffs to pursue the defendant for a penalty. That part of the pleading must be struck out. Next to the claim for the penalty appears the words “Quoted for Repairs”. The relevance of those words is not apparent.
Mr Woolnough submitted, as I have mentioned, that he bases the plaintiffs’ claim on his success on the trespass claim. By that he means, I think, that he seeks to claim damages consequent upon the presence of the sewage infrastructure on the plaintiffs’ land. So much I think is pleaded although it could certainly be stated more clearly. If that is right then it is not essential to show negligence in the construction leading to damage, only that the damage complained of is a consequence of the unauthorised entry and installation of the infrastructure. The matters that I have listed in paragraphs (d) to (f) are readily construed as particulars of the damage caused by that construction although a plea of an “effect on a highset house” is plainly liable to be struck out as failing to disclose necessary particulars to enable the issues to be identified or the defendant to properly respond.
If my understanding of this claim is right then the reference to the Australian Standard does not presently go anywhere. It raises a false issue. On reading the pleading I had assumed that a case in negligence was being pursued. If that was right there were several problems with the pleading. One was that the way in which the Standard was breached is not stated and in any case a breach of the Standard is not necessarily negligent – Standards do not have legal or evidentiary force: Chicco v Corporation of the City of Woodville (1990) Aust Torts Rep 67,893 per King CJ; Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29 at 36 per Thomas J (McPherson JA agreeing). However I gather from Mr Woolnough it is not necessary to explore that further as he does not seek to maintain any action for breach of a duty of care. His pleading of a failure to adequately compact the trench (see (c) above) shows a sufficient causal connection with the alleged trespass to support the cause of action.
In its present form and reading Sections A and B together the pleading is vexatious and has a tendency to prejudice or delay the fair trial of the proceeding. That is so because it is not for the defendant to work out what is probably meant by a pleading. However enough is shown to satisfy me that there is potential for a cause of action to be properly pleaded and that the problem is the plaintiffs’ ignorance of pleading rules and the essentials underlying the cause of action they seek to set up, rather than a complete absence of any merit.
The defence denies that the construction of the sewage main caused any damage and asserts that any subsidence is due to the plaintiffs’ own faulty construction of a shed subsequent to the construction of the sewage main. Those matters are properly questions of fact for a trial.
However the defendant also asserts that there is a limitation defence – that the cause of action arose in 2007 and so the limitation period expired six years later[1] in 2013. If made out then the defendant ought to have summary judgment as the proceedings were not commenced until 9 May 2016. I have referred to the relevant rule and principles above and see Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233 per McMurdo P at [26].
[1]See s 10(1)(a) Limitation of Actions Act
It is common ground that the sewage main was constructed in 2007. The issue is whether that is when time began to run for limitation purposes?
Assuming the claim is to be for the alleged unauthorised entry in July 2007 then the cause of action was complete in 2007. The pleading however is for ongoing trespass over nine years, albeit unparticularised.
If the claim in truth be for a continuing trespass constituted by the presence on the land of the sewage infrastructure then there is, or arguably is, a new cause of action each day and so the limitation defence is not a valid defence to trespasses occurring after 9 May 2010. That claim is not pleaded expressly.
If the plaintiffs pressed a claim in negligence it seems that the limitation defence would be good one. A claim in negligence is complete upon damage being suffered. Damage was plainly suffered before the plaintiffs’ solicitors’ letter of 20 November 2009. However as that claim is not pleaded, and expressly now not pressed, it is not necessary to pursue the matter further.
The plaintiffs plead three forms of damage – or at least that is how I construe their pleading. They plead raw sewage entered onto the surface of their land, subsidence of their land and “an effect on the high set house”. When these events occurred is not stated although there is express reference to sewage appearing “as the years passed”, of greater subsidence occurring, and of conditions worsening in 2011. If these effects be shown then one could assume that damage has been suffered but at present there is no pleading, or at least no adequate pleading, of damages. That is not cured by going to the last section of the pleading headed “(G) Costs and Expenses Incurred” as there is no attempt to correlate the inventory of alleged costs or expenses to any damage pleaded in this section.
Assuming that the effects pleaded in Section B of the Statement of Claim are taken to be a consequence of a continuing trespass pleaded in Section A then if the plaintiffs wish to seek damages in respect of those effects then it is incumbent on them to properly particularise those damages. It is essential that the defendant be advised by the pleading of the nature of the damages claimed – eg a reduction in land value, or damages for reinstatement and repair, or damages for personal distress amounting to personal injury (but see my comments regarding Section E), or whatever damage the plaintiffs seek to argue applies: see r 155(2)(a) UCPR. The pleading is deficient in that regard.
As to the limitation defence I cannot see why it would be just to hold the defendant to its failure to plead expressly to the Section A claim given the plain intent to rely on the plea in relation to the money claims however expressed. The plaintiffs should not be better off simply because their pleading is obscure. To put the matter another way if by re-pleading the plaintiffs advance the case I think they seek to advance I can see no reason why this limitation defence cannot be pleaded in bar to any tort complained of that occurred prior to 9 May 2010.
I am satisfied that a good limitation defence is shown in relation to any claim for damages for trespass pre-dating 9 May 2010 or in respect of any claim in negligence if that was intended by the pleading.
The Section should be struck out.
C - Transportation and dumping of raw sewage
In Section C of the pleading the plaintiffs claim $4,789,426.30 for an alleged debt.
The introductory words include: “Civil Liability Act 2003 (Qld) 58 9(1) (c) 12”. There then appears: “Torts, Negligence, Personal, Injury, Breach of Duty of Care, Duty to take precautions against risk. Natural Law.” The point of this recital is obscure.
The sections of the Civil Liability Act 2003 (Qld) referred to deal respectively with the following subjects: s58 – Damages for loss of consortium or loss of servitium; s9(1)(c) – General principles “a person does not breach a duty to take precautions against a risk of harm unless – (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions”; s12 – Onus of proof “In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.” There is no attempt to correlate these provisions of the Civil Liability Act with any claim made in the Section and indeed they have nothing to do with a claim for a debt.
The pleading then reads in part:
“ISAAC REGIONAL COUNCIL was given every opportunity to remedy the transportation and the dumping of raw human waste on our suburban property. We informed them if they were not going to maintain or repair their Infrastructure we would bill them for using our land as a sewage reservoir. We have been very patient but all our attempts to resolve were ignored.
1: Our bill to IRC is one cent per second for allowing sewage to leech onto our property; the stench was sickening and taking away any enjoyment of our land due to the contamination.
2. IRC was billed and was asked to rebut if they found the Invoice to be incorrect. Not one of the bills was rebutted by Isaac Regional Council (IRC) from 2010 to 2016. Therefore their Silence is Consent. Evidence will be supplied to the Court.”
The assumption apparently underlying the claim is that one becomes indebted to another by the simple expedient of sending a demand to that other person in such amount as you desire. The further assumption is that if the recipient ignores the so-called “bill” the amount becomes due and owing. That is not the law.
No basis for any contractual relationship such as could give rise to a debt has been pleaded. The Section discloses no cause of action and should be struck out.
D - IRC Use of Police to Assist, Trespass, and raise false charges
The plaintiffs claim what they describe as a “penalty” in the sum of $1,500,000 for “lose (sic) of liberty, harassment, verbal assault, humiliation, lose (sic) of pay, travelling to Mackay for court and police refusal to assist us when we asked for help. Two years of living a nightmare for nothing.”
There then appears under the heading “Introduction”: “Isaac Regional Council used Nebo Local Police Officer Constable Allen Ward to gain access to our property on what we believe to be 4or [sic] 5 occasions between 2010 and 2012. They set out to do us Harm. Natural Law.”
The matters then pleaded apparently relate to the actions of Constable Ward. He is alleged to have done various actions with council employees, or permitted council employees to do certain things, or charged the male plaintiff with certain offences at the behest of the Council. The allegations include entry onto the plaintiffs’ land without their consent, use of a backhoe again without consent, breaking and entering, stealing, and attempted arson.
The fundamental problem with the pleading is that it is not apparent why it is alleged that Constable Ward was acting as the agent for the Council so as to make the Council liable for his actions. Making a complaint to a police officer on which he acts does not make him the agent of the complainant.
If the plaintiffs wish to bring a private prosecution for crimes they allege were committed against them then this is not the forum. In case the plaintiffs are minded by my comment to go elsewhere I point out that they will need the consent of the Attorney General or the leave of the Court to bring such a prosecution. So far as I am aware there has been no successful private prosecution in this State for over a hundred years. If they wish to bring a claim for damages for trespass then they have done that in Section A. No more particulars are given here to enlighten the defendant. If they seek to claim damages for malicious prosecution then the essentials of that cause of action have not been pleaded. In any case, presumably the Council did not bring any prosecution against them – that is a function of the State.
Finally the pleading of a right to a penalty is flawed. In truth there is no pleading of damages that satisfies the requirements of the UCPR.
No reasonable cause of action is shown. The Section should be struck out.
E - Personal Injury Claim Harm and Deformation (sic?)
A claim is made for compensation in the sum of $3,000,000 for Mrs Woolnough and $1,000,000 for her daughter Jessica.
Jessica is not a party to these proceedings and so no claim can be made on her behalf. She could be joined in the proceedings but there is no point to that unless there is a viable cause of action.
The introduction commences: “Judge ordered this claim to be put under what he called Personal Injury Proceedings Act 2002. …On reading this Act it made no sense to me.”
Mrs Woolnough, who the pleading identifies as the person to whom the Personal Injury Proceedings Act 2002 (Qld) (“the PIPA Act”) made no sense, misunderstands comments that I made on 30 May when the matter was last before me. I did not order that the proceedings “be put under” the Act mentioned. I informed the plaintiffs that if they wished to claim damages for personal injuries it was necessary that they comply with the PIPA Act. That is so because that is what the legislature has provided: s 9 of the PIPA Act provides that, before starting a proceeding in a court based on a claim for personal injury, a claimant must give the person against whom the proceeding is proposed to be started a written notice of claim in the approved form. The section goes on to deal with the required contents of the notice and the time within which it must be given. Section 7 makes the requirement to give the notice pursuant to s 9 a provision of substantive law; it must therefore be complied with before valid proceedings can be instituted. Section 18 provides that a claimant who fails to give a notice of claim complying with the legislative requirements, may not proceed further with the claim except in certain defined circumstances (none of which are presently relevant).
It seems evident that the procedures laid down in the PIPA Act have not been followed. The defendant pleads that is the case. I pressed Mr Woolnough for an answer to my direct question as to whether the PIPA Act had been complied with on three occasions and he avoided giving a direct answer. It seems evident from the pleadings that the PIPA Act has not been complied with. The Statement of Claim says as much and the Reply does not assert that the Act was complied with despite the issue being squarely raised in Defence.
A failure to comply with the pre-litigation procedures laid down in the Act has the effect that the claim is not justiciable: Queensland v Coffey [2005] QSC 212 at [6]; Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378 at [22]–[26].
The pleading runs to some two pages. Much of it has no relevance to a personal injury claim (or to any other aspect of the case as best I can tell). I will not detail all of it. So far as is relevant at all, and in summary, Mrs Woolnough alleges that as a result of her dealings over the years with the defendant over the matters complained of in these proceedings she has been diagnosed “since 2008” with stress and symptoms of depression, anxiety, C.O.A.D, reflux, high blood pressure, and bowel problems. As well there is a reference to a shot being fired at Mr Woolnough and at a fence by an unidentified person. It is not shown how that fact, assuming it to be shown, has any relevance to a claim against the Council.
No relevant basis for a duty of care is pleaded. No breach of any duty of care is pleaded. Stress resultant on having a legal dispute with a local Council is not, so far as I am aware, actionable per se. At least no authority was cited to support that claim. Assuming the psychiatric and physical ailments pleaded are said to be a result of any trespass then it has not been pleaded what trespass is referred to. That will need to be pleaded if relied on. However until the PIPA Act is complied with there is no justiciable cause of action.
The reference to “deformation” is in context intended to be a reference to “defamation”. The pleading does not identify with any precision what words are complained of, by whom they were spoken, when they were spoken, and why the Council would be liable for that person’s tort. Generally speaking an employer is not liable for the unauthorised torts of its servant: Deatons Pty Ltd v Flew (1949) 79 CLR 370.
There are very likely limitation problems as the defendant has pleaded although the lack of detail in the pleaded cause of action makes that impossible to determine.
The claim in this Section should be struck out.
F - Stopped Subdivision in retaliation for our claim
The claim here is for $650,000. The facts alleged in summary are that the plaintiffs determined to subdivide their land into two blocks in February 2007, made the necessary application to Council, satisfied all relevant requirements and paid the appropriate fees but in October 2008 one Donna Skinner – while not made clear apparently a town planner employed by the Council – imposed further conditions, refused to return the plans to the female plaintiff, and “took a thick black marker and a ruler and crossed out the signatures of the Mayor and the CEO who approved the subdivision rendering them useless and destroying our property.”
There is then an allegation that “around two years later” a Paul Jackson, described simply as “surveyor”, obtained the plans from the plaintiffs on a pre-text, destroyed the original plans and drew up new plans. The pleading relates: “That’s when we realised Donna Skinner must have asked Paul to get the plans out of our hands …”
I cannot perceive what cause of action the plaintiffs seek to pursue. Either the plaintiffs have satisfied Council requirements for a sub-division or they have not. If they have satisfied those conditions then no marking by a Council employee as alleged will alter that fact. If they have not satisfied those conditions then any marking is irrelevant – it is the fact of non-compliance that is the difficulty. The actions of a surveyor not said to be an employee or agent of the Council can have no bearing on any obligation owed by the Council. The pleading of what Donna Skinner “must have” done is by its terms vexatious.
There are no facts pleaded alleging retaliation although that appears in the heading to the Section. Assuming that motive to be essential to the cause of action pursued, the defendant points out that Ms Skinner’s alleged actions occurred in 2008 and it would appear from the solicitor’s affidavit earlier mentioned that the claim was first brought in a Court in 2015. It is not evident when the matter of a complaint was first raised – the earliest document I have is the letter from the solicitors acting for the plaintiffs dated in November 2009. The defendant’s point of course is that a retaliation, if that is an essential element of the cause of action pursued, cannot have been in retaliation for complaining about defective sewage lines if no complaint had yet been made when Ms Skinner acted in 2008.
Finally the nature of the damages claimed is not explained. It may relate to the difference in value between the land subdivided and un-subdivided but that is not said.
The Section discloses no reasonable cause of action and should be struck out.
G - Costs and Expenses Incurred
Section G of the pleading lists 18 items totalling $1,207,200.58. They include the purchase price (with legal costs and transfer duty) of the plaintiffs’ land of $404,000, site earthworks, survey costs, fencing, electricity connection, installation of water meters, and air conditioners, rates, interest on an undisclosed sum, a loan of $50,000 together with interest presumably paid on that loan, insurance costs, lost rent, expert costs, legal costs, court fees, loss of investment (Wyndham) and $60,000 for Miscellaneous.
Nowhere do the plaintiffs link these items to any pleaded cause of action. Some simply cannot be claimable – for example the purchase price of the land. Others may be claimable but it is impossible to know.
The pleading offends rules 171, 155, 157 and 158. It should be struck out.
Conclusion
There are reasons to think that a viable cause of action could be pleaded. If one took only parts of the present pleading then a case can be made out that involves triable issues, albeit with no proper pleading of damages. It is impossible to craft a sensible order that preserves some of the Statement of Claim. In my view then the proper order is to strike out the Statement of Claim.
There is the question of whether the plaintiffs should be allowed to re-plead. There will come a time when no further indulgence can be given to the plaintiffs. They have been ordered to pay costs on three occasions. They have again not pleaded their claim adequately. However the default is through ignorance and not malice. As well I am not at all confident that the plaintiffs appreciate the difficulties they face in obtaining the evidence necessary to successfully pursue the claim I think they wish to make. But that is a matter for them. I propose to give them one more chance.
The orders will be:
(a) The Statement of Claim is struck out;
(b) The plaintiffs shall file and serve such amended Statement of Claim as they may be advised on or before 4pm on 29 August 2016;
(c) The plaintiffs are ordered to pay the costs of the defendant of and incidental to this application;
(d) The application is adjourned to a date to be fixed to be brought on, on the giving of three days’ notice.
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