Supreme Court New South Wales Medium Neutral Citation: Vassallo v Deitz [2024] NSWSC 246 Hearing dates: 6 March 2024 Date of orders: 13 March 2024 Decision date: 13 March 2024 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) The leave Mr Vassallo seeks is refused and the proceedings are dismissed; and (2) The parties are directed to confer about costs and, if there is any dispute, to approach the Court within 14 days with short written submissions about the competing orders sought, advising if they wish to be heard further. Otherwise, they are to file consent orders. Catchwords: CIVIL PROCEDURE – pleadings – self-represented litigant – whether leave to file amended summons should be granted – whether summons complies with requirements of Uniform Civil Procedure Rules 2005 (NSW) – whether summons discloses a reasonable cause of action – whether proceedings should be dismissed – leave refused – proceedings dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Crimes (Appeal and Review) Act 2001 (NSW), ss 53(2), 54(2) Environmental Planning and Assessment Act 1979 (NSW), s 9.25(1) Supreme Court Act 1970 (NSW), ss 69 and 69B Surveillance Devices Act 2007 (NSW), s 7(3)(b)(i) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1), 21.10, 59.4 Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Global Partners Fund Limited v Babcock & Brown Limited (In Liquidation) [2010] NSWSC 270 Leerdman v Noori (2009) 227 FLR 210; [2009] NSWCA 90 McGuirk v The University of New South Wales [2009] NSWSC 1424 Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 Ugur v Attorney General for New South Wales [2019] NSWCA 86 Vassallo v Deitz [2023] NSWSC 1121 Category: Procedural rulings Parties: Joseph Sid Vassallo (Plaintiff) Lindy Deitz (First Defendant) Michael John Weston (Second Defendant) Local Court of New South Wales (Third Defendant) Representation: Counsel: Dr J Smith (First and Second Defendants) Solicitors: Bartier Perry Lawyers (First and Second Defendants) File Number(s): 2023/71776 Publication restriction: Nil JUDGMENT 1. Mr Vassallo was convicted and fined in the Local Court under s 9.25(1) of the Environmental Planning and Assessment Act 1979 (NSW) for an environmental offence involving his refusal to answer questions he was asked by an investigating officer employed by Campbelltown City Council during the investigation of an illegal burn off at his property at Wedderburn in NSW. Mr Vassallo had elected to have that charge dealt with by the Court. McLennan LCM was satisfied that the offence had been proven and Mr Vassallo was convicted and fined $3,000. 2. During the course of the hearing in the Local Court, his Honour noticed that Mr Vassallo was recording the proceedings, which he acknowledged, claiming he had not read signs, including one in the courtroom, which notified that this involved an offence. That offence was successfully pursued by the Sherriff in other proceedings, about which Mr Vassallo now also seeks to complain by his proposed further amended summons. 3. This had been originally raised in Mr Vassallo's summons, but was abandoned in his amended summons considered by Chen J: Vassallo v Deitz [2023] NSWSC 1121. 4. Mr Vassallo had brought these proceedings in May 2023, seeking a range of orders in respect of the Local Court's decisions. He did not, however, advance an appeal under s 53(2) of the Crimes (Appeal and Review) Act 2001 (NSW). Such appeals are restricted to a question of law alone. 5. In the case of an environmental offence, such an appeal requires the Court's leave, which may not be granted unless the appeal is likely to require resolution of a matter relating to constitutional law, or a matter of general application: s 54(2). Mr Vassallo did not seek such leave. Rather, he sought judicial review of the Local Court's decisions. 6. That such relief was available was disputed. 7. In September 2023, Chen J considered the defendants' motion, making orders striking out Mr Vassallo's amended summons, but also giving him leave to make a further application for leave to file an amended summons. His Honour was satisfied that the amended summons did not identify any error of law, which had to be explicitly identified, and that the summons was convoluted, disorganised, ambiguous, containing some 41 grounds which made allegations that were unspecified, bare and provided insufficient details: Vassallo at [38]. 8. By his October 2023 notice of motion, supported by an affidavit Mr Vassallo swore, attaching his proposed further amended summons, he seeks leave to file that summons. That is still opposed, the defence case being that it does not address the problems Chen J explained and that the proceedings should now be summarily dismissed, the principles for making such an order being satisfied. 9. Mr Vassallo's amended summons having abandoned his complaints about his conviction for recording the Local Court proceedings had resulted in the Crown Solicitor entering a submitting appearance in these proceedings. There was no suggestion that the Crown Solicitor had been put on notice of Mr Vassallo's reinstatement of his complaints about this conviction. Plainly, if the leave he seeks were given, the Crown Solicitor would have to be notified, in order to consider these developments. 10. But for reasons which follow, despite the serious claims which Mr Vassallo wishes to pursue, I am not satisfied that justice can permit the grant of the leave which he seeks. 11. That Mr Vassallo faces real difficulty in complying with the requirements of the applicable Rules may be accepted, unrepresented as he is. But those Rules apply to all litigants. Adherence to them and the exercise of the Court's discretions in favour of parties who do not do so, must be approached in light of the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), the just, quick and cheap resolution of the real issues in the proceedings. 12. In the circumstances which here arise for consideration, I am unable to conclude either that Mr Vassallo can justly be given the leave that he seeks, or instead, yet another opportunity to replead. Given the case he advanced, that this is likely to produce a pleading that complies with the requirements of the Rules and advances a reasonable cause of action has not been established. 13. In the result I have concluded that the proceedings must now be dismissed. Issues 1. In issue between the parties was whether Mr Vassallo should be granted the leave he requires, to file the proposed further amended summons, or whether this leave should be refused and the proceedings dismissed. The parties' cases Mr Vassallo 1. Mr Vassallo's case was difficult to follow, despite his written and oral submissions, all of the evidence in the Local Court and the transcript of those proceedings being in evidence. 2. In essence, however, his case was that his proposed further amended summons addressed the problems Chen J had dealt with and that justice required him to be granted the leave he sought and that his proceedings not be dismissed without a hearing on the merits. 3. His written and oral submissions traversed his understanding of the law and the merits of his claim, which it must be accepted do not appear to have prospects of success, given what he advanced. That reflects his misunderstanding of fundamental legal concepts and principles, as well as of the legislation on which his case necessarily turns. 4. Mr Vassallo advanced submissions about the Commonwealth of Australia Constitution Act 1900 (UK), which he considers to be the ultimate law of Australia, binding the defendants and the Court. Additionally, he referred to the Royal Style and Titles Act 1973 (Cth); the Constitution Act 1902 (NSW); the Commonwealth Constitution; the Imperial Acts Application Act 1969 (NSW); the Property Law Act 1958 (Vic); the Real Property Act 1900 (NSW); the Crown Lands Act 1989 (NSW), as well as various requirements of the Uniform Civil Procedure Rules 2005 (NSW) which he complains were not complied with in the Local Court. Mr Vassallo did not appreciate that those Rules regulate civil proceedings, not criminal proceedings such as those in which he was convicted. 5. In his rambling explanation in his written submissions of the case he seeks to advance, Mr Vassallo advanced submissions alleging: * fraud and deceit in relation to a search warrant issued under the Environmental Planning and Assessment Act, which he claims was invalid, the offence being pursued not being known to the law and it failing to identify as it had to, the alleged offending conduct, which had to be established by complaint made on oath; * that a fine had been issued by an authorised officer of the Council without authority; * that a warrant had violated his Constitutional rights; * that the Local Court proceedings were void, relying on Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7; * that his strikeout application in the Local Court, brought under UCPR r 13.4 and his complaints about the failure to comply with a notice to produce as r 21.10 required, had not resulted in a strikeout; * that the Council Officer, Mr Weston, had been misrepresented in Court as being an investigating officer; * that the Council had failed to provide proof of jurisdiction and authority, without which the validity of its exercises of power were impugned; * that he had appeared at the Local Court hearing under duress; * that his arguments in the Local Court about jurisdiction and due process had been dismissed, despite his insistence on federal jurisdiction, to which he refused to consent; * that his challenge to the Court's authority had been dismissed; * that s 5 of the Constitution established the supremacy of Commonwealth laws over State laws in the case of inconsistency; * that he had an estate in fee simple in his land, dealt with in the Crown Lands Act 1989 (NSW), that being the most "absolute estate" in respect of rights of all estates known to the law, including the right to commit unlimited waste; * that, Commonwealth law being the superior law, nothing depended on State registration of other laws; * that there had been "manipulative story telling" in the Local Court; * that a Magistrate is not a judicial officer and his arrest by the Sherriff on a Magistrate's order involved an interference with a witness who was representing himself; * that defendants in criminal proceedings were not competent to give evidence for the prosecution, which had the legal burden of proof; and * that suspicions arose about the invoices evidencing the Council's costs, local government not being a third independent level of government, but a sublevel of State government. 1. In oral submissions, Mr Vassallo further explained his case. But despite my drawing his attention to the case advanced against him in the defendants' written submissions, the problems there identified were not directly addressed, even in his reply. The first and second defendants 1. The first and second defendants are employees of the Council, neither of whom were involved in the Local Court proceedings. Why they have been named as parties is not apparent, but that point, it was explained, has not yet been raised for consideration by the Court, although it has been raised with Mr Vassallo. 2. The defence case was that the proposed amended summons still did not disclose a reasonable cause of action, as it had to and so the leave sought had to be refused: Ugur v Attorney General for New South Wales [2019] NSWCA 86 at [70]. The test for dismissal, namely that the plaintiff's case is so clearly untenable that it cannot possibly succeed, being met, the proceedings should now be dismissed: General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130; [1964] HCA 69; Leerdman v Noori (2009) 227 FLR 210; [2009] NSWCA 90 at [75]. 3. The further amended summons remained convoluted, disorganised and ambiguous, containing allegations now spread across some 93 grounds. Allegations which were still unspecified, bare and provided insufficient detail, necessary to enable the defendants to know the case they had to meet. It also remained inconsistent with the requirement that grounds for relief be pleaded with specificity: UCPR r 59.4; McGuirk v The University of New South Wales [2009] NSWSC 1424. 4. Mr Vassallo sought to pursue a claim for judicial review under ss 69 and 69B of the Supreme Court Act 1970 (NSW), but the further amended summons still failed to comply with the rules. Rule 59.4 required it to state both the orders sought; whether relief was sought in respect of the whole or part only of the Local Court's decisions; and, if part only, which part. The grounds on which the relief is sought also had to be provided, but the difficulties with the grounds advanced, which Chen J had dealt with, had not been addressed, they had been exacerbated. 5. Mr Vassallo's "grounds" did not identify any error of law (or jurisdictional error as a category of error of law), with any degree of specificity, which could properly be the subject of judicial review. 6. Further, these proceedings should have been brought as an appeal, which would have required the Court's leave, the appeal having to identify the questions of law which arose to be considered. In any event, leave for an appeal could not be granted, given that what was raised did not involve a "matter relating to constitutional law or a matter of general application": s 54(2) of the Review Act. Can the leave Mr Vassallo seeks be granted? 1. I am satisfied that Mr Vassallo cannot be granted the leave he requires because his proposed further pleading still does not comply with fundamental rules of pleading specified by the Civil Procedure Rules, which do apply to these proceedings. They require the giving of necessary particulars, especially when fraud is alleged, thereby seeking to ensure that litigation is not conducted by ambush or surprise, so that there can be a fair trial. The proposed pleading does not achieve this. 2. Mr Vassallo explained that he had not appealed the Local Court's decisions because of his view that they were void. But having decided to pursue his complaints in that way, in these civil proceedings, he has to ensure that he pleads his case in accordance with requirements of the applicable law. 3. Chen J explained the problems with Mr Vassallo's amended summons, at a time when he did not seek orders against McLennan LCM, as he now seeks to do. It must be accepted that his proposed pleading exacerbates some of the problems Chen J identified. 4. As Chen J has already explained, a party cannot proceed on pleadings which are liable to be struck out because they disclose no reasonable cause of action; have a tendency to cause prejudice, embarrassment or delay in the proceedings; or are otherwise an abuse of the process of the Court. 5. That Mr Vassallo's proposed pleading still suffers from such problems, even though it now identifies ten alleged errors, which it was accepted include errors of law, must be accepted. Such errors include acting without or in excess of jurisdiction, no evidence, prejudgment, improper purpose and denial of due process. 6. Orders are sought both quashing the Local Court proceedings and ordering a stay of execution of its 3 February 2023 judgment. But the 93 grounds sought to be advanced to support the claimed errors in the Local Court simply do not comply with the fundamental requirement of disclosing a reasonable cause of action, as a summons must: Global Partners Fund Limited v Babcock & Brown Limited (In Liquidation) [2010] NSWSC 270. 7. What Mr Vassallo now seeks to plead, it must be accepted, still suffers from being convoluted, disorganised and ambiguous, as Chen J concluded. That does not permit the exercise of the Court's discretion to grant him the leave he seeks, the result of that course inevitably being embarrassment and ongoing delay in these proceedings. 8. These problems can best be explained by quoting from what is advanced in the proposed grounds about a notice to produce. It was issued under r 21.10, a rule irrelevant to the criminal proceedings in the Local Court. That notice is also not part of the alleged errors Mr Vassallo seeks to pursue in the further amended summons. But the grounds include: "11. Notice to produce for inspection UCPR 21.10 Paragraph 1 the originating information all documents and things relied upon for the Search Warrant. Paragraph 2 Copy of videos and all things seized under the search warrant. Paragraph 3 Authority of investigation officer named in search warrant Paragraph 4 Law enforcement (powers and Responsibilities) Act 2002 Part 1.2 proclamation Certificate Paragraph 5 Local Government Act 1993 section 2 proclamation Certificate Paragraph 6 Environmental Planning and Assessment Act 1979 section 1.2 proclamation Certificate Paragraph 7 Fines Act 1996 part 1.2 proclamation Certificate 12. Letter 22 December 2022 late answer from Dennis Loether & Laura Raffaele UCPR 21.10 USB containing documents /files, Paragraph 1. Images unlawfully obtained by surveillance a continuing nuisance of drones trespassing disturbing the quite enjoyment of the quiet enjoyment, missing originating information no sworn affidavit of the facts or reason for the issue of a search warrant. Paragraph 2. Audio part of recording would only play, unable to see the video, no instructions provided as to the format. In response to paragraphs 3,4.5,6 and 7 of the notice, Council has no knowledge information or belief as to the existence or whereabouts of the requested documents 13. Notice of Default, 16 January 2023 declared by a Court of Summary Jurisdiction, I maintain that without producing the original information, documents and things in the application for the purported Search Warrant including the Judgment, orders made by Campbelltown Local Court that created the Search Warrant, copy of all videos and things seized by the purported Search Warrant the Authority of the investigation officer named in the Search Warrant and the certified copies of the afore-mentioned Proclamation Certificates, the Prosecution cannot comply with their lawful requirement to prove authority upon which they intend to rely and I respectfully request that the court orders the matter be struck off 14. Subject Matter Land Grant in fee simple, sections 85 Commonwealth of Australia Constitution 1900 (Imp) Lot 301 in Deposited Plan 801304 Parish of Wedderburn, County of Cumberland, Real property, registered title in fee simple, indefeasibility under the Crown of the United Kingdom, tenements, messuages, corporeal hereditaments and incorporeal hereditaments Notice, Judiciary Act 1903, section 80, Common law to govern (1mp)" 1. The proposed grounds go on with what is best described as a stream of consciousness about an array of matters, including what appear to be extensive quotes from transcript, affidavits and documents, as well as submissions which include references to various legislation and rules, including those which can be of no conceivable relevance to anything in issue in these proceedings. 2. For example, the Imperial Acts Application Act and "land held of the Crown in fee simple". When questioned, Mr Vassallo explained that his land was not Crown land, having been purchased from the Crown. His case was that it was private land, a term defined in the Local Government Act 1993 (NSW), and yet by his proposed grounds, he seeks to advance a case relying on legislation which applies to Crown land. 3. The oral submissions which Mr Vassallo advanced evidenced that he did not accept that the common law could be affected by legislation enacted by the State Parliament, such as the Environmental Planning and Assessment Act and that this lay at the heart of the case he seeks to pursue. He did not, for example, accept that a statute could make it an offence to refuse to answer questions in circumstances specified in the offence of which Mr Vassallo was convicted. 4. I am satisfied that there must be a high degree of certainty that such views could not be accepted by the Court, were he permitted to pursue them in these proceedings. 5. The grounds which deal with the proceedings in which Mr Vassallo was convicted of unlawfully having made a recording of the proceedings, undoubtedly an offence, begin with a description of what unfolded in court, about which there is also no issue. The transcript of the proceedings is in evidence. It shows that his Honour raised the fact of the illegal recording with Mr Vassallo, who acknowledged that he had made such a recording. His Honour informed Mr Vassallo that the Sheriff would pursue that with him later. There is also no issue that this is what occurred, with the result that Mr Vassallo was eventually convicted. 6. Mr Vassallo's proposed grounds also accord with the Sheriff successfully pursuing that offence to conviction. Reference is there made to s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW). Why is unclear. Whether that provision was unsuccessfully relied on at the hearing at which Mr Vassallo was convicted, or one of which he has since become aware, is not apparent. But it cannot conceivably establish any basis for judicial review, or the orders which he seeks. 7. Also to be considered is that if leave were granted, the result is likely to be that the submitting appearance would be withdrawn and an application successfully made to strike out this aspect of these pleadings. 8. In the result it must be accepted that "the possibility that there is the kernel of a claim that is capable of being advanced" which led Chen J to decline to dismiss the proceedings under r 13.4(1), has not materialised. 9. Mr Vassallo's pleading must state, with sufficient clarity, the case that all of the defendants must meet in order to define the issues for decision at the hearing and to ensure that the basic requirements of procedural fairness are met. Namely, an opportunity for the defendants to meet the case advanced against each of them: Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286, 296, 302-3; [1990] HCA 11. Those issues must also provide a basis upon which evidence may be ruled admissible or inadmissible at trial, upon the ground of relevance: Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70. 10. The proposed pleadings still do not satisfy those fundamental requirements. Nor are they capable, as they must be, of assisting the Court to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in these proceedings: McGuirk v The University of New South Wales. 11. It must be accepted that much of what is sought to be advanced by these amended pleadings is still so manifestly faulty that it does not admit of argument: General Steel Industries Inc v Commissioner for Railways at 129. 12. The result is that leave to file the further amended summons cannot justly be granted. Should the proceedings be dismissed? 1. Regrettably, the result of these conclusions is that it must also be concluded that the proceedings must be dismissed, even though Mr Vassallo will thereby be deprived of the ordinary opportunity which a litigant must be given, to advance his or her case at a hearing. 2. But it is not for the Court to redraft a litigant's deficient pleadings and Mr Vassallo has been given ample opportunity to amend his summons, to comply with the essential pleading requirements Chen J explained. 3. These are conclusions not lightly arrived at: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [196]. But given the unintelligible and groundless way in which Mr Vassallo persists in seeking to plead his case and the untenable arguments he advanced to support the grant of the leave he requires, I accept that there can be a high degree of certainty about the ultimate outcome of these proceedings if they were allowed to go to trial in the ordinary way on the proposed pleadings: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]. 4. The result of the granting of leave to proceed on those pleadings could certainly not be a fair trial. 5. I have thus reached a high degree of certainty that Ms Vassallo's case will fail if allowed to go to trial; and that this is one of those "clearest of cases" where the Court may intervene to prevent those claims being litigated. 6. Accordingly, I will order that the proceedings be dismissed. Costs 1. Mr Vassallo sought to be heard on costs. 2. The parties are directed to confer and, if there is any dispute, to approach the Court within 14 days with short written submissions about the competing orders sought, advising if they wish to be heard further. Otherwise, they are to file consent orders. Orders 1. For now, for the reasons given, I order that: 1. the leave Mr Vassallo seeks is refused and the proceedings are dismissed; and 2. the parties are directed to confer about costs and, if there is any dispute, to approach the Court within 14 days with short written submissions about the competing orders sought, advising if they wish to be heard further. Otherwise, they are to file consent orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2024