Supreme Court New South Wales Medium Neutral Citation: Viavattene v Morton [2011] NSWSC 1173 Hearing dates: 19/09/2011 and 21/09/2011 Decision date: 22 September 2011 Jurisdiction: Common Law Before: Latham J Decision: The plaintiffs' statement of claim filed 17 May 2011 and annexures are struck out. The plaintiffs to provide security for the costs of the first and second defendants by paying the sum of $50,000 into Court on or before 11 November 2011. The proceedings against the first and second defendants are stayed until security for costs is provided in accordance with order 2. If security for costs is not provided in accordance with order 2, the proceedings against the first and second defendants are to be dismissed with costs. Subject to satisfaction by the plaintiffs of order 2, the plaintiffs are to file and serve an amended statement of claim on or before 2 December 2011. The plaintiffs' notice of motion of 16 August 2011 is dismissed. Catchwords: PROCEDURE - application to strike out statement of claim - statement of claim defective - unsupported by particulars - unintelligible, ambiguous, vague and too general - order for security for costs - second plaintiff resides outside New South Wales - plaintiffs have not paid two previous cost orders - application for joinder cannot survive striking out of statement of claim. Legislation Cited: Civil Procedure Act 2005 Cases Cited: Rajski v Scitec Corporation Pty Ltd (unreported) NSWCA 16 June 1986 Pethers v Minister for Agriculture [2010] NSWSC 805 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 Category: Principal judgment Parties: Beverley Viavattene - First Plaintiff Peter Viavattene - Second Plaintiff Bruce Morton - First Defendant Evelyn Birch - Second Defendant Representation: Counsel: Self Represented - Plaintiffs D Lambert - Defendants Solicitors: Self-represented - Plaintiffs Ellis & Baxter - Defendants File Number(s): 2011/162069 Judgment 1The plaintiffs filed a statement of claim on 17 May 2011 which claims the following relief, namely an injunction to stop the defendants trespassing, costs awarded in favour of the plaintiffs, and damages of $130,690 (said to represent $1250 each time that the defendants trespassed on the plaintiffs' land) and economic and non economic compensation in the amount of $1,500,000. 2The pleadings and particulars state the following:- 1. The defendants have trespassed, causing damage to the plaintiffs' land over 140 times, and disturbed the plaintiffs' quiet peace and enjoyment for the past six months. 2. The defendants have no right of access, easement or carriage way through or over the plaintiffs' land registered on title. 3. The defendants, while trespassing on the plaintiffs' land, use offensive language and behave in an offensive manner and incited violence against the plaintiffs. 4. The first defendant Bruce Morton unlawfully trespassed, assaulted and caused immediate harm and personal injury to the first plaintiff on the third and eighth of November 2010. 3The address provided in respect of both the plaintiffs in the statement of claim is 1520 Numinbah Road Chillingham NSW. The plaintiffs each purport to verify the statement of claim by an affirmation to the effect that they each believe the allegations of fact in a document marked "A" and annexed to the statement of claim are true. The document marked "A" is a document prepared jointly in the name of both plaintiffs. It consists of 84 paragraphs which do not differentiate between facts in the knowledge of the first plaintiff and facts in the knowledge of the second plaintiff. The document is in the form of a collusive narrative. 4The document is not sworn or affirmed and there is no jurat that appears on the document such that it could properly be described as an affidavit within the rules. Accordingly, there is no affidavit in support of the statement of claim. 5The first and second defendants are the neighbours of the plaintiffs. They reside on an adjoining property. The defendants served a notice of motion on the plaintiffs on 9 September 2011 in accordance with orders made by this Court on 22 August 2011. The notice of motion was listed for hearing on 19 September in accordance with directions made by the Court on 22 August. 6That notice of motion filed on the 12 September 2011 seeks an order striking out the pleadings for failing to comply with the rules, causing prejudice to the defendants, embarrassment and delay and for failing to provide sufficient particulars necessary to enable the defendants to identify the case that they are required to meet. In addition, orders are sought striking out the "affidavit" annexed to the statement of claim, and the dismissal of the proceedings on the grounds that they are vexatious, an abuse of process and that no reasonable cause of action is disclosed. In the alternative, the notice of motion seeks an order for security for costs and that the proceedings be stayed until security is given. Finally, the defendants seek associated cost orders. 7When the matter came on for hearing, the first plaintiff appeared unrepresented. The Court was informed that the first plaintiff appeared for both of the plaintiffs, although quite late in the hearing it became apparent that the first and second plaintiff are separated and that the second plaintiff now resides in Queensland. This circumstance is relevant to the issue of costs, to which I will return. The first plaintiff indicated that she was seeking an adjournment on the basis that legal representation had been terminated less than a week ago, thereby thwarting the plaintiffs' intention to file an amended statement of claim as directed on 22 August. The first plaintiff conceded that the present statement of claim is unsatisfactory and requires amendment. The legal representation to which the first plaintiff referred was by Cronin Shearer lawyers, of Southport in Queensland. The court was informed by e-mail from a solicitor of that firm on 13 September that the firm could no longer appear on behalf of the plaintiffs owing to an ethical conflict. 8The plaintiffs also filed a notice of motion on 16 August 2011 seeking to join the Tweed Shire Council in the proceedings and three named police officers. It is said that the Council and these police officers are in some way complicit in the trespass that has occurred to the plaintiffs' property. There does not appear to be an affidavit in support of that notice of motion. In any event, the question of joinder is subservient to the defendants' notice of motion seeking to strike out the statement of claim. 9On 19 September 2011, the court canvassed with the first plaintiff the basis for the adjournment application and the prospect that the plaintiffs might obtain legal representation so that the obvious defects in the statement of claim might be addressed. The court was informed by the first plaintiff that GMP solicitors and barristers at Parramatta were to be engaged on their behalf. On that basis the proceedings were adjourned to Wednesday the 21st September. On 20 September the Court received a facsimile from GMP solicitors confirming that they were not prepared to act on behalf of the plaintiffs. 10Since the commencement of these proceedings there has been a number of legal representatives either referred to by the plaintiffs as potential legal representatives or actually instructed by the plaintiffs. They include Stacks law firm, Mr Villa of counsel (who was made available to the plaintiffs on a pro bono basis and who was prepared to appear on their behalf until the plaintiffs withdrew their instructions), Cronin Shearer to whom reference has already been made and GMP solicitors. It is difficult to accept at face value the assertions by the first plaintiff of an intention to obtain and retain legal representatives in the light of this history. 11More importantly, the first plaintiff indicated that the plaintiffs are presently without funds and that their ability to comply with the orders of the Court is limited by their own lack of legal qualifications and their understanding of the technicality of pleadings. Whilst that is an undesirable state of affairs, the Court cannot compel a litigant to obtain legal representation. The history of the matter and statements made by the first plaintiff from the bar table establish to my satisfaction that the plaintiffs have voluntarily assumed the conduct of these proceedings and that they have rejected freely available legal representation. Any attempts made by the plaintiffs to obtain legal representation in the future will in my view be defeated by their lack of funds and the probability that they will be advised that the proceedings have no reasonable prospects of success. 12The Court is conscious of the duty to afford procedural fairness, particularly to self represented litigants. However, to the extent that the Court may provide assistance to unrepresented litigants, it ought not deprive the defendants of their entitlements. The Court cannot extend to a litigant in person a positive advantage over a represented opponent : see Rajski v Scitec Corporation Pty Ltd (unreported) NSWCA 16 June 1986 per Samuels JA. 13The defendants are entitled to have their notice of motion determined by the Court. In my view, no useful purpose would be served by granting the plaintiffs any further indulgence. The statement of claim is so obviously defective that, at the very least, it requires significant amendment, an observation with which the first plaintiff expressed agreement. The real issue for consideration is whether the Court should go further and strike out the whole of the statement of claim and dismiss the proceedings. 14The first observation to be made in respect of the pleadings is that paragraph 1 of the statement of claim is in the nature of an assertion, unsupported by any particulars and unsupported by evidence. For reasons that emerge from the judgment of Justice Davies on 19 July 2011, it has been determined that there was no trespass to the plaintiffs' land as and from 18 November 2010, whatever the position may have been prior to that date : also see affidavit of Bruce David Morton sworn 11 July 2011 at [49] and [71]. That finding leaves the allegation of trespass by the first defendant on 3 and 8 November 2010 (paragraph 4 of the statement of claim). 15Paragraph 2 of the statement of claim is similarly declaratory and provides no particulars. Paragraph 3 of the statement of claim alleges offensive language and violence on the part of the defendants jointly towards the plaintiffs jointly. It is similarly lacking in any particulars and does not allow the defendants to identify the case that they are required to meet in that respect. 16Whilst paragraph 4 of the statement of claim refers to two distinct acts of trespass by the first defendant, it also lacks particulars that would allow the first defendant to meet the claim and it contains vague and generalised assertions of assault, harm and personal injury. 17The statement of claim does not particularise the damages claimed. Generally speaking, a trespasser is liable for any loss caused to the land or to the value of the land. Any award of general damages also serves to vindicate the plaintiffs' rights to the exclusive use and occupation of the land. However, given the extremely fleeting and minor nature of the alleged trespass (assuming that the plaintiffs succeed in relation to the allegations of trespass on two occasions in November 2010) and the absence of any particulars of damage to the plaintiffs' land, the overwhelming prospect is that the plaintiffs would, if successful, receive no more than nominal damages. 18In summary, the pleadings offend rules 14.7, 14.14,14.20 and 15.1 of the UCPR. In addition, I am satisfied that the statement of claim is legally embarrassing, in the sense that it is unintelligible, ambiguous, vague and too general : Pethers v Minister for Agriculture [2010] NSWSC 805. 19I would therefore grant the defendants' prayer that the statement of claim and its annexures be struck out. Having regard to the finding that I have made above to the effect that there remains theoretically open to the plaintiffs a cause of action in trespass on two occasions in November 2010, I am not persuaded that this is an appropriate case for the dismissal of the proceedings as vexatious, disclosing no reasonable cause of action or constituting an abuse of the process of the Court. There are however, compelling reasons why there should be an order for security for costs against the plaintiffs under rule 42.21(1). 20Justice Haydon in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at 118 noted that :- Mere impecuniosity is not an absolute barrier to ordering security for costs against a natural person, although it is a factor against doing so. In particular, there are instances additional to those listed in rule 42.21(1)(a) -- (c) and (e) where it can be done. They include the vexatious conduct of litigation by plaintiffs who had failed to set aside an earlier judgement, instances where the plaintiff has dissipated assets and/or not paid previous costs orders (particularly costs orders in favour of the defendant), instances where the plaintiff brings a weak case to harass the defendant and instances where the plaintiff brings a case for the benefit of others, but not solely for that benefit. Hence the supposed "general principle .. that poverty is no bar to a litigant" is a severely qualified one. 21Independently of rule 42.21 of the UCPR, the Court has an inherent jurisdiction to regulate the proceedings and a broad statutory power under the Civil Procedure Act 2005 to order a stay on appropriate terms, taking into account the particular circumstances of the case. 22In terms of the particular criteria set out in rule 42.21, the second plaintiff's residence outside New South Wales militates in favour of an order against him. I note that the rule only requires that it appears to the Court that the criterion is satisfied. The first plaintiff indicated from the bar table that the second plaintiff now resides in Queensland. 23The extent of the plaintiffs' impecuniosity also derives from statements made by the first plaintiff from the bar table. The first plaintiff made a number of statements concerning the financial difficulties confronting the plaintiffs in the conduct of the litigation. Both of the plaintiffs are in receipt of social security benefits, although the second plaintiff apparently supplements those benefits with casual work. The plaintiffs pay fortnightly instalments on the mortgage over the subject property. 24More particularly, the plaintiffs have not paid two previous cost orders in favour of the defendants in the sum of $1500 (affidavit of Elizabeth Ellis, sworn 16 September 2011). That debt is the subject of a demand from the defendants. I am informed that the plaintiffs intend to dispute the costs order, however as matters presently stand, this is yet another circumstances to which Justice Haydon referred which justifies an order for security for costs. 25In the light of the existing debt, and in the light of the costs incurred by the defendants in these proceedings to date (see affidavit of Elizabeth Mary Ellis, sworn 21 September 2011), the defendants have acted promptly in seeking an order for security for costs. As I have already indicated above, the strength of the plaintiffs' claims are questionable to say the least. There would only appear to be a barely arguable cause of action with respect to the alleged trespass prior to 18 November 2010. 26It cannot be suggested that the plaintiffs' impecuniosity has been caused by the defendants, nor is it the case that the application for the order is being used to deny the plaintiffs the ability to litigate. Rather, the defendants, who are also private individuals who stand to incur considerable costs in the defence of these proceedings (particularly having regard to the way in which the proceedings have thus far been conducted by the plaintiffs), are well within their rights to require the plaintiffs to demonstrate that they have the means to meet an order for costs in the event that they are unsuccessful. 27It remains to observe that the plaintiff's notice of motion of 16 August 2011 cannot survive the striking out of the statement of claim. In the event that the plaintiffs file and serve an amended statement of claim in accordance with the proposed timetable, the question have joinder may be revisited in the light of the revised pleadings. 28Shortly before 7 pm on 21 September, an e-mail was received from the plaintiffs in chambers requesting a further adjournment of the matter pending enquiries by the plaintiffs of Legal Aid. The e-mail asserted that the Legal Aid office in Lismore had a number of files in the name of the plaintiffs. The plaintiffs wish to confirm whether Legal Aid might be willing to represent them in these proceedings. That enquiry is of course open to the plaintiffs but, in my view, it does not affect the assessment of the current state of the pleadings and the need for the orders that I propose below. It does not justify a further adjournment of the defendants' notice of motion. 29At the close of the proceedings yesterday, the first plaintiff indicated that she intended to return to her home on the North coast of NSW and wished to avoid further travel expenses. The first plaintiff is therefore appearing today for the purposes of receiving judgement in the matter by telephone. An electronic copy of these reasons will be e-mailed to the plaintiffs and a hard copy will be posted to the address for service. 30Accordingly, I make the following orders (1)The plaintiffs' statement of claim filed 17 May 2011 and annexures are struck out. (2)The plaintiffs to provide security for the costs of the first and second defendants by paying the sum of $50,000 into Court on or before 11 November 2011. (3)The proceedings against the first and second defendants are stayed until security for costs is provided in accordance with order 2. (4)If security for costs is not provided in accordance with order 2, the proceedings against the first and second defendants are to be dismissed with costs. (5)Subject to satisfaction by the plaintiffs of order 2, the plaintiffs are to file and serve an amended statement of claim on or before 2 December 2011. (6)The plaintiffs' notice of motion of 16 August 2011 is dismissed. ********** 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: 04 October 2011