Supreme Court New South Wales Medium Neutral Citation: Young v Roads & Maritime Services [2015] NSWSC 918 Hearing dates: 19 February 2015 Date of orders: 10 July 2015 Decision date: 10 July 2015 Jurisdiction: Common Law Before: Hidden J Decision: Leave granted to plaintiff to re-plead cross-claim Catchwords: CIVIL PROCEDURE – application by plaintiff to transfer Local Court proceedings to Supreme Court – issues raised by cross-claim – whether cross-claim properly pleaded Legislation Cited: Crown Proceedings Act 1988 Lands Acquisition (Just Terms Compensation) Act 1991 Cases Cited: ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue (NSW) [2012] HCA 6, 245 CLR 338 Breen v Williams (1996) 186 CLR 71 Fu v Bucasia Pty Ltd [2014] NSWSC 325 Szanto v Bainton [2011] NSWSC 985 Category: Principal judgment Parties: Ms Maureen Mary Young (plaintiff) Roads and Maritime Services (1st defendant) State of New South Wales (2nd defendant) Representation: Counsel: In person (plaintiff) Ms P Lane (1st & 2nd defendants) Solicitors: John McDonnell, Acting Crown Solicitor (1st & 2nd defendants) File Number(s): 2014/198018 Judgment 1. HIS HONOUR: The plaintiff, Maureen Mary Young, occupies a houseboat at Pearl Bay, Mosman. It has been birthed at Pearl Bay since she bought it in 1983. The first defendant, Roads and Maritime Services (RMS), has had several previous incarnations: relevantly, the Maritime Services Board, the Marine Ministerial Holding Corporation, New South Wales Maritime and the Maritime Authority of NSW. Ms Young currently occupies the houseboat pursuant to a lease from RMS over the area of the bed of Sydney Harbour underneath it. 2. In August 2013, the RMS commenced proceedings against her in the Local Court for recovery of rent and certain administrative charges under the lease. The total amount claimed, together with costs and disbursements, was a little over $6,000. In due course Ms Young filed a defence and a cross-claim. She also made an application that the proceedings be transferred to this Court. It is that application which is before me. The matter has had a somewhat lengthy history, which I need not recount. The proceedings in the Local Court are stayed pending the determination of the application. Background 1. The antecedent history of the proceedings is also lengthy, but need not be recited in any detail. It is sufficient to say that between the mid-nineties and 2004 there was a variety of proceedings relating to the houseboat between Ms Young and the Maritime Services Board, the Marine Ministerial Holding Corporation, NSW Maritime and others, which were settled by a deed of release of 18 September 2009. Among this litigation were proceedings brought in 2000 by her against the Marine Ministerial Holding Corporation, which have been referred to in argument as "the previous proceedings." As I understand it, in those proceedings she asserted a right to permanent residence on the houseboat in the location where it was then moored. The parties to the deed, among others, were Ms Young and the Maritime Authority of NSW, as the RMS was then known. It is convenient to refer to the RMS consistently, understanding that that name embraces all its previous styles. 2. By the deed RMS agreed to undertake a subdivision of the bed of Sydney Harbour, and enter into a lease to Ms Young of the relevant subdivided area. She was also to receive a payment of $700,000. Ms Young, for her part, was to release the RMS from any claims against it, and the previous proceedings were dismissed by consent. 3. The RMS honoured its obligations under the deed. A plan of subdivision was prepared and registered, Ms Young signing her consent to that registration. She was paid the $700,000. A lease in the form required by the deed was entered into on 11 May 2012, and registered. The lease provided for her right of residence on the houseboat. The application 1. Ms Young has been unrepresented throughout the proceedings, and has prepared all relevant documentation herself. She appeared without representation to argue the present application. The basis of the application is that her cross-claim in the Local Court pleads causes of action sounding in damages and the damages which might be recovered are well in excess of the jurisdictional limit of the Local Court, and the cross-claim raises issues of such importance and complexity as to warrant determination by this Court. 2. The cross-claim is an extremely lengthy and discursive document. The first 61 pages (pars 1 to 86) contain a narrative of facts upon which Ms Young relies, and the pleading of various causes of action and of damage extend over a further 34 pages (pars 87 to 98). Put shortly, the defendants oppose the application for transfer on the basis that the cross-claim does not disclose any viable cause of action and would be liable to be struck out. 3. Counsel for the defendants, Ms Patricia Lane, recognised Ms Young's position of disadvantage as an unrepresented litigant, but referred to the observations of Ward J (as she then was) about the modern approach to pleadings in Szanto v Bainton [2011] NSWSC 985 at [122] - [138]. Her Honour referred to the requirement of a pleading to state plainly the material facts constituting a cause of action and referred to UCPR r 14.8, which provides that a pleading "must be as brief as the nature of the case allows." Of particular relevance to the present case, her Honour said at [131]: "The comment sometimes made that a more liberal approach to pleading is now adopted must be seen in the context of comments made (as in Ritchie's at [14.7]) that the circumstance that the material facts are stated at great length will not ordinarily justify the striking out of the statement of claim or that a pleading should not be struck out merely because it includes allegations of non-material facts. I accept that a more discretionary approach to the requirement for proper pleading may be appropriate where (as here) the plaintiff is a litigant in person … . However, whatever the status of the particular plaintiff, if the pleading as a whole is such as to embarrass the defendant and/or contains inconsistent, confusing or irrelevant allegations, to such an extent that the defendant is not able to appreciate the precise nature of the plaintiff's case, the pleading should be struck out … ." (References to authority omitted.) 1. The defendants to the cross-claim are the RMS and the State of New South Wales. Ms Young explained that the State was joined pursuant to the Crown Proceedings Act 1988 because allegations are made against certain Ministers of State. Causes of action in breach of contract, deceit and misfeasance in public office are pleaded. In written submissions, developed orally, Ms Young set out at greater length the bases upon which she seeks transfer to this Court. These are: 1. The quantum of her claim is in excess of the Local Court's jurisdictional limit. 2. The RMS has acquired an interest in land without compensation, contrary to the Lands Acquisition (Just Terms Compensation) Act 1991. 3. The registered subdivision of the land over which she holds the lease is defective. 4. The RMS and/or the responsible Minister has been in breach of trust and fiduciary duties, "reasonableness of government." 5. By the omission of material facts as to the land acquisition, the RMS procured the dismissal of the previous proceedings for "improper purposes, ulterior motive and by deceit, being against public policy." 6. Ms Young has an equitable interest in land through her residence on the houseboat. 7. Matters of public interest arise through allegations of conduct "against public policy, its morals and the duties of bureaucrats and Ministers", and "against the public welfare where it affects the administration of justice and the jurisdiction of the courts." Complex issues are involved. 1. Another issue raised by Ms Young can be disposed of immediately. She has also filed a notice of motion for default judgment on the basis that the defendants have not filed a defence to the cross-claim, and she asked me to deal with that matter also. Plainly enough, that cannot be. The Local Court proceedings remain stayed and the matter has not been transferred to this Court. In any event, the defendants contend that the cross-claim is not properly pleaded and it is not possible to respond to it. 2. Of course, it is neither possible nor appropriate for me to assess the merit of Ms Young's various claims. The present application turns upon the cross-claim as it is currently pleaded, the question being whether it raises issues proper for determination in this Court. In written submissions, also developed orally, Ms Lane examined the cross-claim by reference to the grounds upon which Ms Young seeks the transfer of the matter to this Court, exposing its deficiencies. I find her arguments compelling. 3. At the heart of the cross-claim appears to be Ms Young's assertion that she is entitled to an interest in land different from that conferred by the 2012 lease, and unaffected by that lease and the 2009 deed giving rise to it. She challenges the validity of the 2009 settlement and the deed, and alleges breaches of the deed by RMS. At the outset this faces the difficulty that the obligations under the deed to subdivide the area and provide a lease have been performed by RMS. As Ms Lane put it, those obligations merged in the registration of the lease and no longer constitute a source of rights. 4. For that proposition she relied on the judgment of Stevenson J, in the context of Torrens system land, in Fu v Bucasia Pty Ltd [2014] NSWSC 325 at [52] ff. She also referred to ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue (NSW) [2012] HCA 6, 245 CLR 338, in the plurality judgment at [33] – [34] (351), for the principle that where obligations under one instrument are released and discharged, and replaced by obligations under another instrument, the earlier instrument ceases to be a source of rights and all continued obligations are founded in the subsequent instrument. Accordingly, the effect of both decisions is that it is necessary to interpret the terms of the contract said to have been spent or the terms of the release to determine objectively the parties' intent. 5. At times the pleading of the causes of action in the latter portion of the cross-claim refers to paragraphs in the prior narrative portion. The document is far too long to address in any detail. It is sufficient to refer broadly to the claims Ms Young makes, dealing with the grounds of her application for transfer set out above. I shall specify the paragraphs of the cross-claim which she relates to each of these grounds, and which appear in various parts of the document dealing with different complaints. (b) Acquisition 1. Paragraph 7D refers to a policy of current and previous governments to acquire land within Sydney Harbour. It in turn refers to pars 45 to 49, concerning information Ms Young said she received from Mosman Council conveying an RMS policy for residential houseboats to be incorporated into a proposed plan of management. Paragraph 89A refers to allegations of false representations by RMS officers based upon their knowledge of the effect of a council plan of management. Paragraphs 92 and 93 refer to a "proposed compulsory acquisition procedure" in relation to Ms Young's premises and a failure to "implement procedures for the proposed compulsory acquisition". What those procedures were, or how they applied to Ms Young, are not specified. At no point does Ms Young disclose the interest in land which she claims to possess and which was allegedly acquired. (c) Subdivision 1. The subdivision undertaken at RMS pursuant to the deed is referred to in a number of paragraphs of the cross-claim. The gravamen of Ms Young's complaint appears to be expressed in par 87(a) to (g), alleging a failure to commission a survey for a "residential subdivision" of the "entire Premises" of 1300 sq m, and of a failure in various respects to comply with the requirements of the 2009 settlement. This is the first paragraph of the pleading of a cause of action for breach of contract. Paragraph 89C, which I understand to relate to the pleading of deceit, also alleges false representations by RMS officers about the survey. 2. As noted above, the survey was registered with Ms Young's consent, and the obligations of RMS under the deed have been discharged by performance. The principles of merger referred to above are applicable. Moreover, the cross-claim does not spell out how the subdivision is said to have been defective. In asserting that the subdivision failed to give effect to the terms of the deed, it does not specify what those terms were or how they are said to have been breached. A request by the defendants' solicitor of 18 September 2014 for particulars relating to this issue was not answered. (d) Trust and fiduciary duties 1. This ground refers to pars 7B, 90, 90A and 90B of the cross-claim. Par 7B refers to a "Crown/Ministerial Trusteeship for the beneficial tenure rights over the Premises, said to have been created in the mid-1940s and to inure for the benefit of successor owners or occupiers. In the pleading of misfeasance in public office, pars 90, 90A and 90B allege that the responsible Minister at relevant times acted in breach of that trust and of a fiduciary duty. It should be noted that in pars 91 ff similar allegations are made against a senior officer of RMS. Of course, the allegations against a Minister have no bearing upon the case against RMS, which is a State instrumentality and a separate legal personality. 2. It is sufficient to say that the nature of the trust alleged is not pleaded and, as Ms Lane fairly pointed out, the manner in which it is said to arise is obscure. Equally, the circumstances alleged by Ms Young do not establish any recognised category of fiduciary duty. In Breen v Williams (1996) 186 CLR 71, Brennan CJ had this to say (at p 82): "Fiduciary duties arise from either of two sources, which may be distinguished one from the other but which frequently overlap. One source is agency; the other is a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other. Whichever be the source of the duty, it is necessary to identify 'the subject matter over which the fiduciary obligations extend'." (References to authority omitted.) 1. In the same case (at 92) Dawson and Toohey JJ observed that "the law has not, as yet, been able to formulate any precise or comprehensive definition of the circumstances in which a person is constituted a fiduciary in his or her relations with another." Ms Young's pleading fails to explain how any legal relationship between her and the Minister or the RMS officer gave rise to such a duty. (e) Deceit and actions against public policy 1. This ground asserts that the RMS procured the dismissal of the previous proceedings, in effect, by fraud. The issue of land acquisition is raised in this context, and it is alleged that officers of the RMS made false representations to her in relation to a number of matters, including the proposed subdivision and the nature of the lease: pars 88, 89A to 89E, 92. 2. In her written submissions Ms Lane correctly responds that the pleading provides no clear statement of when the alleged false representations were made, or when concealment occurred, what the substance of the representation or concealment was, and who was alleged to have taken part in that conduct. Szanto v Bainton (supra) was a case involving allegations of fraud, and at [190] Ward J emphasised that allegations of fraud are not lightly to be made, and must be clearly pleaded and properly particularised. 3. As to the claim that it was falsely represented to her that the 2012 lease was a "residential lease," an examination of the terms of the lease establish that it is just that. In particular, by special condition 17 it is made clear that Ms Young is entitled to reside on the houseboat. 4. Insofar as this ground raises the issue of actions against public policy, there is no cause of action arising simply from an allegation that a public officer acted contrary to public policy. I take it that Ms Young uses that expression as a further description of the conduct giving rise to the allegation of deceit. (f) Equitable interest in land 1. It appears that Ms Young pleads that she is entitled to an interest in land because of events occurring before the previous proceedings, an interest which has not been recognised by the RMS or the Minister. So much appears from par 7B and a number of other references to the previous proceedings throughout the cross-claim. Here also the nature of that interest is not specified. If it is meant to be the interest asserted in the previous proceedings, that issue was resolved by the dismissal of those proceedings and cannot be re-agitated. From the deed of release it appears that there was a lease at the time of the 2009 settlement, which was surrendered by virtue of the deed. She now occupies the premises under the registered deed entered into pursuant to the deed. 2. This claim is untenable unless Ms Young can establish that the deed should be set aside. In any event, it is not properly pleaded. (a) Quantum of claim 1. Paragraph 96 of the cross-claim alleges that Ms Young suffered damage and loss as a result of the various wrongs and breaches complained of, but merely adds that particulars of that damage and loss are to be provided. In evidence she produced some material amounting to some sort of global claim in a very large sum, apparently an attempt to calculate various costs and benefits to which she claims to be entitled. However, as Ms Lane rightly pointed out, this is not properly linked to any of the matters of claim alleged in the cross-claim. No specific head of damage or loss is attributed to any particular allegation of legal wrong. 2. The fact is that if Ms Young were able to articulate any claim in law arising out of the material upon which she relies, the damages which might result are imponderable. It is fair to say that some of the allegations she makes are serious and, if they could be articulated in such a way as to found a cause of action, that might justify the transfer of the proceedings to this Court. As matters stand, however, the cross-claim does not plead the necessary elements of any cause of action, and is bad in substance and form. It could not justify the transfer of the proceedings to this Court. 3. That said, I am reluctant to dismiss the application at this stage. It is not apparent that the material advanced by Ms Young gives rise to any cause of action but, as I have said, the focus of argument was upon the pleading of the cross-claim, not whether she might be able to make out a viable cause of action. 4. As I have said, Ms Young prepared the cross-claim without legal representation and this is the first occasion on which the adequacy of its pleading has been examined. I think that justice requires that she be given an opportunity to draw a new cross-claim which articulates causes of action supported by material facts and adequate particulars. She should have the opportunity to do so before her application to transfer is finally determined. This was a course properly raised, although by no means embraced, by Ms Lane. 5. I shall grant Ms Young leave until Friday, 7 August, to re-plead her cross-claim and serve it upon the defendants' solicitors. I direct that the matter be listed for directions before the registrar on the following Friday, 14 August 2015. ********** 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: 10 July 2015