Mervyn Thomas Mills v John Perras & Ors [2011] NSWSC 581

Supreme Court New South Wales

Medium Neutral Citation: Mervyn Thomas Mills v John Perras & Ors [2011] NSWSC 581 Hearing dates: 27 May 2011 Decision date: 03 June 2011 Before: McCallum J Decision: Proceedings dismissed Catchwords: PLEADINGS - whether any reasonable cause of action disclosed - claim arising out of unsuccessful private prosecution in the Local Court - no rational connection revealed between conduct complained of and relief sought - proceedings dismissed Legislation Cited: Constitution Act 1902 Inclosed Lands Protection Act 1901 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Mills v Perras [2005] NSWSC 1184 Category: Interlocutory applications Parties: Mr Mervyn Thomas Mills (Plaintiff) Mr John Perras (First Defendant) Mr John Gaitanas (First Defendant) The Crown in right of the State of New South Wales (Third Defendant) Representation: Counsel No appearance entered for First Defendant A Haslam (Second Defendant) L Boyd (Third Defendant) Solicitors Gilchrist Connell (Second Defendant) Crown Solicitor's Office (Third Defendant) File Number(s): 2011/95471 Publication restriction: None

Judgment 1Before the court are applications by two of the defendants to have the plaintiff's pleadings struck out and the proceedings dismissed. 2The proceedings were commenced by summons filed on 24 March 2011. The summons names three defendants, Mr John Perras as first defendant, Mr John Gaitanis as second defendant and the Crown in right of the State of New South Wales as third defendant. However, I was informed at the hearing of the applications that Mr Perras has not been served with any originating process. A solicitor attended as a courtesy to inform the court of that circumstance, but has not entered an appearance. 3The summons describes the plaintiff's claims as claims in deceit, negligence and for breach of the Constitution Act 1902 and the Supreme Court Act 1970 . The proceedings ought accordingly to have been commenced by statement of claim: see rule 6.3 of the Uniform Civil Procedure Rules 2005 (UCPR). 4On 8 April 2011 the solicitor for the State of New South Wales wrote to the plaintiff, Mr Mills, informing him of that requirement and alleging other deficiencies in the form of the summons. When the matter first came before the court, an order was duly made directing Mr Mills to serve a proposed statement of claim. The Registrar made directions on that occasion calculated to affording the second and third defendants an opportunity to respond to that document before it was filed. Contrary to the apparent intention of those directions, a statement of claim was filed in the registry on 2 May 2011. The relief now sought by the defendants is directed both to that pleading and to the original summons. 5The two notices of motion were referred to me as Duty Judge on 23 May 2011. There was no appearance by Mr Mills on that date. The second defendant's notice of motion had been duly served on Mr Mills but the third defendant's had not. Accordingly, I directed that the notice of motion and affidavit be served by being left at the address for service identified in the summons in accordance with rule 10.5(1)(b) of the UCPR, together with a letter informing Mr Mills that I would hear the application on 27 May 2011. 6On the adjourned date, there was again no appearance by Mr Mills. Upon being satisfied that the two notices of motion and affidavits had been served in accordance with my earlier directions and that letters notifying Mr Mills of the adjourned date for hearing had also been served, I determined to hear the applications in his absence, as allowed under rule 18.7 of the UCPR. 7The defendants invoke the court's power under rule 13.4 and alternatively rule 14.28 of the UCPR. Those rules provide: 13.4 Frivolous and vexatious proceedings (1) If 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) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (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. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 8In order to gain a proper understanding of Mr Perras' claim, I have found it necessary to undertake a close reading of the summons and the statement of claim together, as each informs an understanding of the other. 9Mr Mills' claim evidently stems from an unsuccessful private prosecution brought by him against Mr Perras for trespass under s 4(1) of the Inclosed Lands Protection Act 1901 . That section provides: 4 Unlawful entry on inclosed lands (1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding: (a) 10 penalty units in the case of prescribed premises, or (b) 5 penalty units in any other case. 10The charge was heard by Magistrate Gould in the Local Court at Burwood in March 2005. His Honour dismissed the charge and ordered Mr Mills to pay Mr Perras' costs. 11The facts underlying the original prosecution are difficult to discern from the pleadings. Mr Mills alleges that Mr Perras gave contradictory evidence, at one time evidently acknowledging being in a particular position (not identified in the pleadings but presumably somewhere other than on his own land) and at another point maintaining that he had always remained on his own land. The Magistrate evidently found that Mr Perras had entered Mr Mills' land but that he had established a lawful excuse for doing so. As best I can understand Mr Mills' case from his pleadings, his principal complaint as to the determination of the prosecution appears to be that Mr Perras had not even mounted a defence of lawful excuse, since it was his evidence that he did not enter the land in the first place. Separately, Mr Mills complains about the alleged inconsistencies in Mr Perras' evidence. 12The statement of claim then refers to a further proceeding before an Associate Justice. The solicitor advocate for the State of New South Wales identified that as a reference to an appeal by Mr Mills to this court heard by Associate Justice Harrison in November 2005: see Mills v Perras [2005] NSWSC 1184. 13Her Honour's judgment sheds more light on the basis for the Magistrate's findings. Although it is difficult to be confident as to the detail from the limited material before me, it appears that the Magistrate identified that there was a factual contest as to whether Mr Perras had entered Mr Mills' property. Mr Perras' evidence on that issue, evidently given through a Greek interpreter, appears not to have been entirely clear. In any event, to the extent that Mr Perras denied entering the property, the Magistrate rejected that evidence. 14As to the finding of lawful excuse, the evidence was that Mr Perras was the owner of a German Shepherd named "Justice". He had seen Justice in the backyard of Mr Mills' property and had called him back, to no avail. The Magistrate was satisfied that Mr Perras' purpose when he briefly stepped onto the front yard of Mr Mills' property was to find Justice. Associate Justice Harrison dismissed Mr Mills' appeal, finding (at [18]) that it was open to the Magistrate to infer that Mr Perras intended to enter Mills' property to retrieve the dog . 15According to the statement of claim filed in these proceedings, there was then an appeal to the Court of Appeal. However, there does not appear to be any public record of the disposal of that appeal. It is implicit in the pleading of the present claim that it was not successful. 16Finally, the statement of claim contends, in effect, that an attempt to appeal to the High Court was thwarted by a dispute between Mr Mills and staff in the High Court Registry as to the fee payable in respect of the application (turning on whether it was a criminal matter or a civil matter). 17The connection between those events and the relief claimed in the summons is not clear. As against Mr Perras, Mr Mills seeks monetary compensation in the sum of $800,000 for "loss of the plaintiff's house property" and associated moving and storage costs allegedly caused through deceit on the part of Mr Perras in making self-contradictory statements amounting to perjury during the hearing of the charge in the Local Court. An alternative claim in the summons is for negligence on the part of Mr Perras when he allowed Justice to escape from his land and onto the plaintiff's land. 18There is nothing in either the summons or the statement of claim to reveal the basis upon which either of those events might be capable of causing the loss of Mr Mills' property. Perhaps the contention is that, following the unsuccessful prosecution, or after having a dog enter his property, Mr Mills decided to move, but that is not expressly stated. 19Similar relief is claimed against Mr Gaitanas, a solicitor who evidently appeared for Mr Perras in the Local Court proceedings. In the case of the claim against Mr Gaitanas, there is a claim for $800,000 founded in negligence for Mr Gaitanis' alleged failure to correct the allegedly self-contradictory statements made by Mr Perras in his evidence. The claim against Mr Gaitanas identifies an additional consequence of the conduct complained of, namely emotional and psychological distress and financial loss to Mr Mills. Again, perhaps it is to be inferred that the gist of the claim is that Mr Mills was prompted in those circumstances to move away from Mr Perras, but that is not stated in the pleading. 20The heart of the matter appears to be that because Mr Perras made contradictory statements in his evidence as to where he was at particular times, and because the Magistrate found that lawful excuse for entering the land had been established in circumstances in which Mr Perras denied even entering the land, the private prosecution failed where it should have succeeded. Even if those matters were established, the statement of claim fails to identify any rational connection between those events and the relief sought. 21As against the State of New South Wales, Mr Mills seeks monetary compensation in the amount of $100,000,000 for breach of the Constitution Act and the Supreme Court Act . The contention appears to be that, by operation of those two statutes, the Crown is vicariously liable for the negligence of various public servants, employees and agents who have allegedly failed to adhere to the principles of fairness and justice embodied in the two statutes. So far as I can ascertain from the statement of claim, that part of Mr Mills' claim is based on the conduct of the various judicial officers by whom the various proceedings have been heard. 22Two specific allegations in the summons shed some further light on the way in which the claim is put as against the State. First, it is alleged that the Crown "failed to make and apply laws for the peace, welfare and good government of New South Wales in all cases whatsoever". That claim appears to be based on section 5 of the Constitution Act , which provides: 5 General legislative powers The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever: Provided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly. 23In my view, the claim is plainly misconceived. It mistakes the power of the legislature under section 5 of the Constitution Act for a statutory duty to individual citizens to ensure that the object of the power is achieved. 24The second specific allegation is that public servants and agents of the Crown failed to administer fairness and justice to Mr Mills "in accordance with the preamble to the Supreme Court Act 1970 as well as its various sections, rules and regulations and amendments as applicable". 25The preamble to the Supreme Court Act 1970 states: An Act to provide for the concurrent administration of law and equity in the Supreme Court; to amend and consolidate the law with respect to the administration of justice and the procedure and practice of the Supreme Court; to repeal the Common Law Procedure Act 1899 , the Equity Act 1901 and certain other Acts; to amend the Partnership Act 1892 and certain other Acts; and for purposes connected therewith. 26As in the case of the alleged breach of the Constitution Act , Mr Mills' reliance upon the Supreme Court Act as the source of a statutory duty to individual citizens to achieve fairness and justice in any particular case is, in my view, misconceived. 27A further difficulty with the claim against the State is that, as with the claims against the two individual defendants, the summons and the statement of claim reveal no rational connection between the conduct complained of and the relief claimed. 28Taking the plaintiff's claim at its highest, I am satisfied that no reasonable cause of action is disclosed against any of the defendants by the summons or the statement of claim, taking those documents together. As already indicated, I was informed that the first defendant has not been served with any originating process. Whether or not that is so, the hearing of the applications brought by the second and third defendants has persuaded me that no reasonable cause of action is disclosed against Mr Perras and accordingly I consider it appropriate to dismiss the proceedings as against all three defendants. 29The orders are: 1. that the proceedings be dismissed as against each of the defendants. 2. that the plaintiff pay the costs of the second and third defendants.