New South Wales Supreme Court CITATION : McMurtrie v Commonwealth of Australia & 6 Ors [2000] NSWSC 781 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20448/99 HEARING DATE(S) : 2 August 2000 JUDGMENT DATE : 18 August 2000 Mark McMurtrie (Plaintiff) The Commonwealth of Australia (First Defendant) The Aboriginal & Torres Strait Islander Commission (Second Defendant) Dumaresq Shire Council (Third Defendant) PARTIES : NSW Police Service (Fourth Defendant) Australian Taxation Office (Fifth Defendant) Independent Commissioner Against Corruption (Sixth Defendant) NSW Police Commissioner Ryan (Seventh Defendant) JUDGMENT OF : Master Harrison COUNSEL : Mr G Laughton (4th, 5th & 7th Defendants) Mr Mark McMurtrie (Plaintiff in person) SOLICITORS : Mr G Kathner (1st, 2nd & 5th Defendants) CATCHWORDS : Summary judgment LEGISLATION CITED : Supreme Court Rules - Part 13 r 5, Part 15 r 26 Independent Commission Against Corruption Act 1988 Air Services Australia v Zarb (NSWSC unreported, 26 August 1998, Rolfe AJA) Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 CASES CITED : Webster & Anor v Lampard (1993) 177 CLR 598 DPP v Wille & Ors [1999] NSWSC 661 Kruger & Ors v Commonwealth of Australia (1997) 190 CLR 1 Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 DECISION : See para 32 15 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 18 AUGUST 2000 20448/99 - MARK McMURTRIE v COMMONWEALTH OF AUSTRALIA & 6 ORS JUDGMENT (Summary judgment) 1 MASTER: By amended notice of motion filed 24 July 2000 the first, second and fifth defendants seek an order pursuant to Part 13 r 5 of the Supreme Court Rules (SCR) that these proceedings be stayed or dismissed generally, alternatively an order pursuant to Part 15 r 26 of the SCR that the proceedings be struck out as against them. These defendants relied on the affidavit of Gregory Kathner sworn on 12 April 2000. By notice of motion filed 12 May 2000 the fourth, sixth and seventh defendants seek the same. The fourth, sixth and seventh defendants relied on the affidavit of Betty Sarkissian sworn 14 July 2000. The plaintiff relied on his affidavits sworn 17 May 2000 and 8 June 2000. Default judgment has been entered against the second defendant. The second defendant intends to file a notice of motion to seek to have the default judgment set aside. The third defendant has filed a motion for summary judgment which is for argument on a date yet to be fixed. The plaintiff appeared unrepresented. He was articulate and presented his case well. The law in relation to summary judgment 2 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 3 Part 15 r 26 provides: "(1) Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleadings be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 4 In a recent decision Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 5 In General Steel Barwick CJ, who heard the application alone stated: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 6 Barwick CJ also said: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; be manifest that to allow them' (the pleadings) 'to stand would involve useless expense." 7 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at p 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 8 According to Rolfe AJA in Zarb: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241." 9 In 1992 the plaintiff was awarded a management traineeship from the Department of Employment and Education and Training (DEET). DEET Lismore branch gave an undertaking that it would support the plaintiff for training management funds for a period of four years. In mid 1992 the responsibility for the management funds was transferred to the Aboriginal and Torres Strait Islander Commission (ATSIC). However, the arrangement entered into between the plaintiff and DEET was considered by ATSIC not to fall within their program guidelines. 10 In 1993 a recommendation was made that it was up to the regional office of ATSIC to negotiate to appropriate conditions of the grant, project milestones and accountability arrangements with the plaintiff so that the intended aims of the project were achieved. A continuation of the grant of assistance depended upon those conditions being met. It was suggested that the conditions of the grant should include reference to the original DEET conditions. 11 The plaintiff negotiated a lease with Dumaresq Shire Council, the third defendant to lease some land at Armidale airport. The plaintiff borrowed the sum of $150,000 from the council and erected a hangar on the land. There is a registered lease between the council, the plaintiff and his then wife for a period of 20 years. The plaintiff says that he only signed the back page of the deed and the lease, but did not witness the lease nor date it. The plaintiff disputes that he entered into this lease and this forms part of the claim against the third defendant. The plaintiff employed eight others and he conducted a business known as New England Aircraft Refinishers. 12 It carried out maintenance and repairs on aircraft. It appears that towards the end of 1995 the Civil Aviation Safety Authority (CASA) shut the plaintiff's business down. Regrettably it appears that CASA made an error which they later admitted and settled the matter with the plaintiff. Annexure F to the plaintiff's affidavit sworn 8 June 2000, which is a note from the Commonwealth and Defence Force Ombudsman records that the outcome was substantially favourable to the plaintiff. Unfortunately being shut down by CASA for a period of time affected the cash flow and reputation of the business. After ATSIC took over responsibility of the training program the plaintiff had difficulties being paid. This meant that the plaintiff could not make his repayments. Without these funds the plaintiff was unable to pay the lease payments to the council. 13 On 30 January 1996, the council's solicitors wrote to the plaintiff stating that as lessee of the council's property situated at Armidale airport he was in arrears of rental and in default in relation to the terms of the deed of agreement entered into with the council in December 1993. The solicitors were instructed that the council had resolved that proceedings should be commenced for possession of the subject premises and recovery of arrears of rent, and also arrears of payment due pursuant to the deed of agreement. The letter concluded that the solicitors were writing to advise that upon receipt of further instructions the necessary initiating process would be prepared and filed with the Supreme Court and thereafter served on the plaintiff. The plaintiff says that he wanted the matter to come before the court, so was quite content for that course of action to occur. 14 In a letter dated 9 February 1996 the solicitor says that the plaintiff abandoned the premises and that the council accepts the repudiation of any agreement which may have been in existence. It says that the council had re-entered the premises and taken possession of the same, and that the locks on the doors to all premises had been changed. It further said that any agreement that may have been in existence between the plaintiff and the council was terminated and the plaintiff was now excluded from the premises. An inventory of the equipment that was in the office, hangar, bathroom and outside was listed. Advice was given that these possessions could be recovered by contacting a member of the council. 15 The plaintiff alleges that the council officers together with the police took possession of the property without lawful reason. The plaintiff says that once he found out that the council had sought to take possession of the property he reported the break and enter to the police, but no action was taken. As the plaintiff considered that the council was not entitled to take possession he reported the actions of the police and the council to the Independent Commission Against Corruption (ICAC) (sixth defendant). 16 The complaints concerning ICAC are that on 29 August 1996, ICAC wrote to the plaintiff informing him that the assessment panel requested that he keep documents which he had in his possession and only forward them if he was requested to do so by the Commission. He provided a 20 page outline of his complaints but was never asked to provide the further documentation. By letter ICAC informed the plaintiff dated 6 January 1997, "at no time did you (the plaintiff) indicate that you held more detailed material which you considered essential to the assessment to your complaint". The letter also advised that an assessment of his complaint had been carried out by the Commission officers and a report had been submitted to the Operations Review Committee. The committee recommended to the Commissioner that the complaint should not be the subject of further inquiries or a formal investigation. The Commissioner accepted that advice. According to the plaintiff, the Police Commissioner, Commissioner Ryan sat on the operations review committee and because police were the subject of his complaint, the Commissioner had a conflict of interest. 17 The plaintiff also drew the court's attention to legal action taken by the Deputy Commissioner of Taxation against him in the Magistrate's Court of Queensland in August 1999. The Deputy Commissioner of Taxation sought to recover the sum of $1,599. The plaintiff lodged a defence and cross claim seeking payment of the sum of $33 million. After negotiations took place between the parties, orders were made that the plaintiff was to discontinue his cross claim and the Deputy Commissioner's claim was stayed pending commencement of proceedings in this court. 18 I turn now to the claims pleaded against the Commonwealth of Australia, the first defendant; New South Wales Police Service, the fourth defendant; the Australian Taxation Office, the fifth defendant; the Independent Commission Against Corruption, the sixth defendant; and Police Commissioner Ryan, the seventh defendant. As I understand the plaintiff's document, the causes of action against the Police Service and Commissioner Ryan appears about half way down on page 3 of the statement of claim and are reproduced below. "On or about 8th of February 1996, DSC representatives and NSW Police Service officers unlawfully entered my premises at Armidale Airport and unlawfully removed possessions belonging to me. I complained to the ICAC, who were negligent and incompetant (sic) with regard to their investigation of this matter. The NSW Police Commissioner acted in a complete conflict of interest by sitting on the Operations Review Committee of the ICAC when they decided not to investigate this matter - which involved allegations of unlawful actions by certain of his officers. The NSW Police Service refused to accept my Common Law right to the possession of my premises - to the exclusion of all other parties - unless entry is granted permitted by myself by way of express or implied permission to enter. The NSW Police Service have breached Sections 109, 117 and 118 of the Constitution of the Commonwealth of Australia by refusing and failing to up hold my Civil, common and other Law rights in this matter." 19 The complaint against the Commonwealth of Australia and the Deputy Commissioner of Taxation appears in the last paragraph on page 4. It is: "The Commonwealth of Australia and its' agent the Australian Tax Office are in breach of our contract, under which the Commonwealth of Australia is to provide me with the full and equal protection of myself, my property and my rights commensurate with the Constitution of the Commonwealth of Australia and my status as a Tax-paying citizen of Australia." 20 The defendants submitted that the plaintiff's statement of claim discloses no reasonable cause of action against them and should be struck out. 21 It appears that the plaintiff may be claiming that the Police entered his property without permission and committed the tort of trespass. In DPP v Wille & Ors [1999] NSWSC 661, 8 July 1999 Kirby J helpfully, if I may say so, at para 19 referred to the law of trespass. His Honour stated: "…The tort of trespass does not require proof of damage. In this respect it differs from an action on the case. The tort was developed to protect a person's land from physical intrusion. Having proved entry, it was for the defendant to "justify" or "excuse" his conduct (Fleming, The Law of Torts (9th Edition) p 83). Various defences were recognised which would "excuse" trespass. Fleming, and other authors, have catalogued such defences under various headings, including: · Inevitable accident (as opposed to mistake). · Consent. · Incapacity. · Necessity. · A limited right to recapture chattels on another's land. · Entry under legal authority (such as a warrant, or authorisation by statute). (Fleming, ch 5, pp 83-109; Street on Torts (8th Ed) ch 6, p 74 ff; Halsburys Laws of Australia vol 26 Title 415 (Tort), para 415-525 ff; The Laws of Australia ch 33 at 33.9)" 22 In relation to the claim against Commissioner Ryan, it appears that the plaintiff is saying that Commissioner Ryan had a conflict of interest when he sat on the Operations Review Committee of ICAC. The second and third paragraphs of the plaintiff's statement of claim reproduced earlier have an internal inconsistency. One paragraph (they are not numbered) pleads that ICAC was negligent and incompetent in relation to their investigation, but the very next paragraph pleads that the Police Commissioner was in a conflict of interest because he sat on the Operations Review Committee panel when they decided not to investigate this matter. Either ICAC investigated his matter or failed to do so. 23 ICAC submitted that it has a protection from liability. Section 109(1) of the Independent Commission Against Corruption Act 1988 states: (1) No matter or thing done by the Commission, the Commissioner or any person acting under the direction of the Commission or Commissioner shall, if the matter or thing was done in good faith for the purpose of executing this or any other Act, subject the Commissioner or a person so acting personally to any action, liability, claim or demand." 24 This is no pleading that officers of ICAC did not act in good faith. Further the Commissioner, is obliged under the Act to sit on the Operation Review Committee Panel 25 In relation to the claim against the Commissioner of Taxation, it appears that it is the wrong entity to sue. The defendant should be named as the Deputy Commissioner of Taxation. At this stage it is not clear what action the plaintiff intends to claim against the Deputy Commissioner of Taxation. The plaintiff submitted that there should be a mutuality of obligations so if a person is required to pay tax to the Commissioner he is obliged to negotiate the amount to be paid. The parties can reach an agreement on the amount of tax that is payable. 26 The plaintiff referred to ss 109 (Inconsistency of laws provision), 117 (Rights of Residents in States provision) and 118 (Recognition of law, public Acts and records and the judicial proceedings of every State) of the Constitution in his statement of claim. The first defendant submitted that s 51(2) of the Constitution seizes the Commonwealth Parliament with the power to make laws with respect to taxation and such laws provide the taxes to be levied upon individuals. These taxes are not negotiable and in no way give rise to enforceable rights such as those contended by the plaintiff. The last paragraph of the statement of claim pleads that the Australian Tax Office is an agent of the Commonwealth of Australia and that the Commonwealth of Australia is in breach of its contract to provide the plaintiff with full and equal protection of himself, his property and his right commensurate with the Constitution. 27 In Kruger & Ors v Commonwealth of Australia (1997) 190 CLR 1, it was held that the Constitution creates no private rights enforceable directly by an action for damages (per Brennan CJ at 46, Toohey J at 97 and Gaudron J at 131). Brennan CJ at 46 stated: "The Constitution creates no private rights enforceable directly by an action for damages. It "is concerned with the powers and functions of government and the restraints upon their exercise" , as Dixon J said of s 92 in James v The Commonwealth (1939) 62 CLR 339 at 362. The Constitution reveals no intention to create a private right of action for damages for an attempt to exceed the powers it confers or to ignore the restraints it imposes. The causes of action enforceable by awards of damages are created by the common law (including for this purpose the doctrines of equity) supplemented by statutes which reveal an intention to create such a cause of action for breach of its provisions. If a government does or omits to do anything which, under the general law, would expose it or its servants or agents to a liability in damages, an attempt to deny or to escape that liability fails when justification for the act done or omission made depends on a statute or an action that is invalid for want of constitutional support. In such a case, liability is not incurred for breach of a constitutional right but by operation of the general law. But if a government does or omits to do something the doing or omission of which attracts no liability under the general law, no liability in damages for doing or omitting to do that thing is imposed on the government by the Constitution." 28 The plaintiff also asserts that by reason of the payment of tax by him to the Commonwealth, he should be accorded a protection afforded by the International Covenant on Civil and Political Rights (ICCPR). In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 the Full Court of the Federal Court held that the "provisions of an International Treaty do not form part of the Australian law merely because Australia is a party to the Treaty and has ratified it. As a consequence, the ICCPR does not of itself operate to give rights to or impose duties on members of the Australian community." (per Sackville, North and Kenny JJ at 447.35). 29 It is clear that the plaintiff cannot claim that the Constitution affords him a right to damages. It is also clear that ICCPR does not give the plaintiff a right to damages. It is my view that the claims cannot be pleaded against the Commonwealth and the Deputy Commissioner of Taxation and are unsustainable and are hopeless. They should be struck out. The claims against the New South Wales Police Service, ICAC and Commissioner Ryan as currently pleaded are hopeless. 30 The onus is on the plaintiff in the statement of claim to set out the facts upon which the defendants can become aware of the precise allegations and hence what case it is that they have to meet. In my view this has not occurred in this pleading. In light of these matters I have come to the conclusion that the statement of claim in its present form is defective. This does not mean, as I emphasise, that there is no case that the plaintiff can bring against the defendants with the exception of the second and third defendants. That is a matter for another day. What it does mean is that the pleading in the form in which it is, is such that it does not properly articulate the cause of action and it does not give the defendant parties the opportunity of pleading properly to it. In light of this I have come to the conclusion that the first, fourth, fifth, sixth and seventh defendants must be successful in their motions. 31 The appropriate order is that I strike out the statement of claim but in the exercise of my discretion, I grant leave to the plaintiff to file an amended statement of claim within two months. The plaintiff is to pay the first, fourth, fifth, sixth and seventh defendants' costs of the motions. 32 The orders I make are: (1) The paragraphs of the statement of claim reproduced in this judgment are struck out. The statement of claim is struck out as against the first, fourth, fifth, sixth and seventh defendants. (2) An amended statement of claim is to be filed within two months. (3) The plaintiff is to pay the first, fourth, fifth, sixth and seventh defendants' costs of the motions. ********** Last Modified: 09/27/2000 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.