Wykanak v OCA
[2000] NSWSC 164
•8 March 2000
CITATION: Wykanak v OCA [2000] NSWSC 164 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 3884 of 1999 HEARING DATE(S): 8 March 2000 JUDGMENT DATE: 8 March 2000 PARTIES :
Dominic Wykanak (Plaintiff)
Olympic Co-Ordination Authority (First Defendant)
Andrew Refshauge - Minister for Urban Affairs and Planning (Second Defendant)
Susan Holliday - Director General of Urban Affairs and Planning (Third Defendant)
S A Smits & Associates (Fourth Defendant)JUDGMENT OF: Windeyer J at 1
COUNSEL : in person (Plaintiff)
Mr P.M. Wood (First Defendant)
no appearance (Second Defendant)
Mr A Galasso (Third Defendant)
Mr M Scott (Fourth Defendant)SOLICITORS: in person (Plaintiff)
Clayton Utz (First Defendant)
Christine Hanson (Second Defendant)
Christine Hanson (Third Defendant)
Sparke Helmore (Fourth Defendant)CATCHWORDS: PRACTICE AND PROCEDURE - dismissal of proceedings - plaintiff's non-compliance with directions - failure to provide particulars of allegations of misleading and deceptive conduct as directed by the court - plaintiff has no pesonal interest and no possible right to damages - proceedings dismissed - Pt 33 r6 SCR LEGISLATION CITED: Supreme Court Rules Pt33 r6 DECISION: See paragraph 14
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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONWINDEYER J
WEDNESDAY 8 MARCH 2000
3884/99 DOMINIC WYKANAK v OLYMPIC CO-ORDINATION AUTHORITY & ORS
JUDGMENT
1 HIS HONOUR: In this matter each of the defendants remaining in the action seeks an order either that the proceedings be dismissed or that security for costs be provided.
2 In view of the extraordinary nature of these proceedings and the number of other proceedings which have been commenced by this plaintiff in the Land and Environment Court, all claiming more or less the same relief as is sought here with very little prospect of success in any, this would be one of the extraordinary cases where it would be appropriate for the Court to make an order that a plaintiff provide security for costs.
3 The plaintiff has no personal interest in the proceedings other than a public interest which he says that he has, which I accept he genuinely thinks he holds, but he has conceded that there is no basis on which he, as an ordinary member of the public, could be awarded damages in the proceedings and, in those circumstances, there would be no utility at all in his obtaining the declarations which he seeks even if he had any chance of obtaining them.
4 He has, in fact, offered to the Court today to submit to an order that security for costs be provided within a period of three weeks, which order he would accept would become self-executing when the proceedings were dismissed if that security were not furnished. He has properly said to the Court that he himself cannot provide that security but he would like a further opportunity to see if it can be raised, presumably from people who support his cause.
5 All the proceedings in this Court, the motions for injunctions which would be brought here and on appeal and the applications in the Land and Environment Court are all aimed or all have the purpose of stopping the construction of the volleyball stadium which is intended will be constructed on Bondi Beach for the Olympic Volleyball competition.
6 The plaintiff is apparently one of those persons who does not wish the construction of that stadium to proceed. I am quite prepared to accept that he has genuine reasons for wishing to prevent its construction. The question though is whether or not he should be allowed to maintain these proceedings which will have no utility for him in any event.
7 The application for dismissal of the proceedings is put on numerous grounds. In my view, however, it should be disposed of on the simple ground that the original statement of claim and the amended statement of claim make serious allegations of misleading and deceptive conduct and of representations said to be false. No particulars have ever been provided of these allegations, which even as they stand are not sufficiently pleaded to set forth in proper terms the serious allegations which the plaintiff wishes to make.
8 The plaintiff has failed to comply with orders to furnish particulars made by Simos J on 1 October 1999, by the Registrar on 5 November 1999 and on 22 November 1999 and by Bergin J on 29 November 1999. All of those were for particulars of either the statement of claim or the amended statement of claim, in the most part being the particulars sought by each of the defendants. All that had been done when the final date Bergin J granted for furnishing the particulars was about to arrive, namely, 1 December 1999, was for a further Notice of Appeal to be filed, in the Court of Appeal against a decision of Lloyd J which dismissed one of the grounds of proceedings in the Land and Environment Court.
9 There has been an attempt by a solicitor at one time acting for the plaintiff to furnish some particulars. It is not necessary to go into that document other than to say that it is a disgrace and in no way is a proper response to the request for particulars.
10 The defendants should not be expected to continue to have to defend proceedings in this Court where the claims which the plaintiff seeks to make against them have not been in any way properly set forth and when orders which have been made which were made with the intention of having those claims properly elucidated have not been complied with and no reasonable excuse put forward for that.
11 I have come to the conclusion that it is high time the proceedings were put to an end.
12 Had the proceedings had some chance of achieving anything for the plaintiff by way of damages then the position might have been different but in the circumstances where the plaintiff has no interest save for a stated public interest purpose, and as the proceedings are not properly pleaded and not properly particularised, in my view they should be brought to an end.
13 The basis on which they can be brought to an end, apart from any other basis, is that provided in Pt 33 r 6 of the rules where proceedings can be dismissed if a plaintiff makes default in compliance with directions in the conduct of the proceedings. This plaintiff has certainly failed to comply with directions to furnish particulars. It could not be said on any basis that the letter from his former solicitor giving some details was a response to a request for particulars.
14 In those circumstances, it is appropriate to make an order dismissing the proceedings and I propose to make that order on each of the Notices of Motion.
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