Supreme Court New South Wales Medium Neutral Citation: Young v Roads and Maritime Services (No 2) [2015] NSWSC 1944 Hearing dates: 20 November 2015 Decision date: 17 December 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The Local Court Proceedings 2013/249441 are transferred to the Supreme Court of New South Wales. (2) The defendants must pay the costs of the plaintiff of the notice of motion, such costs to be limited to the amount of out-of-pocket expenses, of a type that would have been recoverable as disbursements if the plaintiff had been legally represented and which she has actually and reasonably incurred. (3) The matter is listed before the Common Law Registrar for Directions at 9 AM on 1 February 2016. Catchwords: CIVIL LAW – application for proceedings commenced in the Local Court of NSW to be transferred to the Supreme Court of NSW – whether there is sufficient reason for hearing proceedings in a higher court – whether pleading incomprehensible – whether fraud sufficiently pleaded Legislation Cited: Civil Procedure Act 2005 (NSW), ss 140, 140(4) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2 Preston v Commissioner for Fair Trading [2011] NSWCA 40 Taheri v Vitek [2014] NSWCA 209 Young v Roads & Maritime Services [2015] NSWSC 918 Category: Principal judgment Parties: Maureen Mary Young (Plaintiff) Roads and Maritime Services (First Defendant) State of New South Wales (Second Defendant) Representation: Counsel: P Lane (Defendants) Solicitors: In person (Plaintiff) Crown Solicitor's Office (Defendants) File Number(s): 2014/198018 Judgment Introduction 1. This is an application for transfer of proceedings that are currently pending in the Local Court of New South Wales to this Court. It is brought by the plaintiff, Ms Maureen Young, pursuant to s 140 of the Civil Procedure Act 2005 (NSW). In accordance with the governing section, the question requiring determination by me is whether "there is sufficient reason for hearing the proceedings in the higher court": s 140(4). 2. Ms Young was unrepresented, and during the hearing she informed me that she had made enquiries about obtaining pro bono legal assistance, but had been unsuccessful. The application was opposed on a number of bases by the two defendants, who were jointly represented by one counsel. 3. There was also a notice of motion of the plaintiff listed for hearing before me on the same day seeking various other orders. Each party agreed with my initial thought that the hearing of that motion must abide my threshold determination as to whether or not the proceedings should come before this Court, or remain in the Local Court. 4. Because of the differing roles played by the parties at different stages of this litigation, I shall refer to the plaintiff as Ms Young. Although there are two defendants, I shall refer to them collectively as RMS, unless greater differentiation is required. 5. After the hearing concluded, RMS communicated with my Chambers seeking to withdraw a portion of the written submissions that had been placed before me. Thereafter, Ms Young communicated with my Chambers indicating her objection to that course, and noting that I had not sought further submissions or communications from either party once the hearing had concluded and my judgment was reserved. Ms Young is correct; accordingly, the matter will be decided upon the written and oral submissions that were placed before me at the hearing, and that were extant at the closure of that hearing. 6. Ms Young also contacted my Chambers after the hearing suggesting that page 18 may be missing from the amended cross-claim, and seeking to provide the page to my Chambers. In fact, that page was not missing from the document filed in Court. Background 1. I shall not recount the background in detail. That is because I respectfully consider that it is comprehensively dealt with in the judgment of Hidden J of 10 July 2015: Young v Roads & Maritime Services [2015] NSWSC 918. 2. It is enough to say that, for over 30 years, Ms Young has had some sort of interest in a houseboat which sits close to the southern end of the Spit Bridge at Mosman, a suburb to the north of Sydney (I have expressed myself in that tentative way because the nature of that interest is in dispute between the parties). 3. In 2000, Ms Young commenced proceedings in this Court against RMS and others, including a firm of solicitors. Her claim, expressed very succinctly, was that various wrongs had been done to her with regard to her interest in the houseboat. 4. In 2009, those proceedings were settled, and consent orders made by this Court. Part of the settlement was the granting by RMS to Ms Young of a registered lease over a particular part of the harbour bed, and a right to reside above that part of the harbour bed on the houseboat. As well as that, a part of the settlement was that she was to be paid the substantial sum of $700,000. It was also a condition of the lease that Ms Young pay rent to the RMS; it is not necessary to detail the various bases upon which that rent was to be calculated. 5. In 2013, RMS commenced proceedings in the Local Court of New South Wales against Ms Young for unpaid rent. She filed a short defence, and a voluminous cross-claim. She also filed a summons in this Court of 4 July 2014 seeking transfer of the proceedings. In a nutshell, the bases upon which that was said to be appropriate were that the cross-claim raises complicated questions of fact and law, and, separately, that the amount claimed in the cross-claim far outstrips the jurisdiction of the Local Court. 6. In due course, the hearing of that summons came before Hidden J. As can be seen from his Honour's judgment, his Honour was not prepared to transfer the proceedings on the cross-claim as it stood: Young v Roads & Maritime Services at [28]. However, his Honour thought it appropriate to give Ms Young a further chance to redraft the cross-claim, in order to see whether it could be moulded into a state whereby it would be appropriate for it to found a transfer: Young v Roads & Maritime Services at [29]-[30]. 7. Before me, Ms Young filed in court an amended cross-claim, and it was that iteration of her pleading that forms the basis of this judgment. 8. Ms Young informed me that she has separately commenced the process of appealing against the judgment of Hidden J. Neither she nor RMS submitted that the pendency of that potential appeal should stand in the way of me considering the further cross-claim, as envisaged by Hidden J. Submissions of Ms Young 1. In short, Ms Young submitted that her amended cross-claim sufficiently set out the matters of fact and law upon which she relies. 2. She emphasised that I was not hearing an application to strike out the amended cross-claim; rather, I was simply determining whether it was appropriate to transfer it. 3. I understood Ms Young's submissions in support of transfer to be as follows. 4. First, the issues raised are complicated, and Ms Young is claiming a large sum of money that vastly exceeds the jurisdiction of the Local Court. 5. Secondly, Ms Young is seeking to impugn the consent judgment of 2009 of the Supreme Court on various bases, and as a result the appropriate jurisdiction for that attack is the Supreme Court; indeed, this Court is the only appropriate jurisdiction. Submissions of RMS 1. RMS accepted that what Ms Young is seeking to do may be summarised as impugning consent orders of this Court. And it was accepted that such an attack cannot be mounted in the Local Court or the District Court. 2. It was also accepted that consent orders founded upon a settlement can be vitiated by fraud; in support of that proposition, I was helpfully taken by RMS to the recent decision of Taheri v Vitek [2014] NSWCA 209. 3. It was also accepted that a registered dealing, such as the lease under consideration here, may also be vitiated by fraud, and I was informed that the most recent decision of the High Court of Australia explaining the principles underpinning that proposition is Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2. 4. What was not conceded, however, was that Ms Young has pleaded her asserted causes of action with regard to both legal and factual matters with sufficient clarity for RMS, and indeed the Court, to know what it is she is truly claiming. Furthermore, RMS submitted that the pleadings do not comply with a number of aspects of the Uniform Civil Procedure Rules 2005 (NSW) that deal with pleadings. 5. RMS submitted the amended cross-claim contains "rolled-up" allegations that make it difficult for the defendant to address. RMS drew my attention to several examples in the amended cross-claim that it submits were unclear, as follows. 6. First, it was said that par 10, which appears to be the allegation of fraud, contains no particulars, and there is nothing within the paragraph that permits one to know how it can be said that full discovery in the proceedings to be settled was an implied condition of the heads of agreement and the deed of release. 7. Secondly, par 15 of the amended cross-claim (which alleges breach of the terms of the deed of settlement) makes mention of failures on the part of officers employed by RMS and the State of New South Wales, without naming an officer, or giving specific examples of breaches on their part. 8. Thirdly, it was said that par 17 generally of the amended cross-claim (which makes the allegation of deceit), and by way of example par 17(c) in particular, alleges conduct against three officers; however, it is not possible to tell which officer engaged in what conduct, and the asserted knowledge of the officers at the time. 9. Fourthly and finally, the allegation of misfeasance in public office at pars 19, 21 and 23 of the amended cross-claim does not, RMS submitted, demonstrate how the failings relate to any duty that the Minister for Ports and Waterways owed to Ms Young. It was said that these paragraphs do not go beyond bare assertions. 10. In fact, RMS submitted that it would be oppressive to require a defendant to deal with a pleading that is so "wrapped up" that it is not possible to isolate, as the Rules require, a specific pleading in respect of just how it was that the conduct complained of is allegedly fraudulent. 11. RMS also submitted that it is not appropriate for Ms Young to bring these proceedings before this Court whilst the consent order remains on foot. Rather, Ms Young should proceed by way of a notice of motion in the proceedings which were previously settled. 12. On those bases, it was said that, just as Hidden J had refused the transfer on the basis of the pre-existing version of the cross-claim, I should do the same with regard to the current version. Determination 1. I do not accept the fundamental submission made on behalf of RMS. To my mind, the primary contention of Ms Young in her amended cross-claim is tolerably clear. It is as follows. 2. First, Ms Young accepts that she entered into the settlement in 2009 by way of executing certain documents, and whilst represented by a solicitor: at par 9 and par 12. 3. Secondly, however, she asserts that that settlement on her part was procured by fraud: see, for example, par 10. 4. Thirdly, that fraud was committed by way of the deliberate and dishonest withholding of documents from her that should have been supplied by way of discovery in those proceedings: see, for example, par 15. 5. Fourthly, she has identified the subject matter and nature of the documents that she asserts were fraudulently withheld: she claims that there were documents, in existence at the time of the discovery, that pertained to a subsequent compulsory acquisition of her interest: see, for example, par 17. 6. Fifthly, she has provided the names of the persons alleged to have committed that act with a fraudulent state of mind: see, for example, par 17, particulars (i)(a)-(d). 7. Sixthly, she has pleaded the dates within which she asserts those fraudulent acts took place as being the periods between 10 September 2009 and 15 December 2009: see pars 10, 15, 17, 17A, 17B, with regard to a list of discovered documents of 17 December 2008: see par 17(a)(2). 8. Seventhly and finally, it is tolerably clear that her claim is that, were it not for that alleged fraudulent withholding of documents, she would not have entered into the settlement, and the lease created pursuant to that settlement would therefore not have been registered: see, for example, par 17, particular (ii). 9. It is true that the cross-claim as a whole is verbose and repetitive (I make no personal criticism of Ms Young for that, in light of the fact that she is unrepresented). Nevertheless, I believe that that primary claim of Ms Young is able to be derived without great difficulty from the document. 10. As for other claims made by Ms Young, it is true that they are less easily understood. 11. Despite my reading of the amended cross-claim, and the oral submissions of Ms Young, I confess that I do not understand what is the precise complaint about the subdivision that she asserts occurred wrongfully prior to the granting and registering of the lease as part of the settlement. 12. It is also the case that Ms Young claims that there has been a "breach of trust" on the part of the relevant Minister of the New South Wales Government at the time with regard to her interest in the houseboat. In oral submissions, she confirmed that she meant to convey by the use of that phrase not some general moral failing, but rather that there was indeed a trust between herself and the Minister, with the Minister as the trustee and Ms Young as the beneficiary, and that that trust was breached by the Minister. The amended cross-claim asserts that that legal relationship arises through events that have occurred over the past 80 years or so with regard to houseboats moored on Sydney Harbour. But the legal mechanism whereby that is said to be the case is obscure. 13. In the same vein, it is pleaded that the Minister breached a fiduciary duty owed to Ms Young. But, again, the cross-claim does not explain how it is said that that legal relationship came into being prior to its breach. 14. Finally, despite the fact that Ms Young has provided some evidence in the form of statistics in support of her claim for damages, the mechanism whereby she asserts that this dispute about a single houseboat moored on Sydney Harbour can give rise to a claim for many tens of millions of dollars in damages is by no means clear. 15. Those criticisms of the amended cross-claim made by RMS are valid. But it needs to be recalled that I was not hearing an application by RMS for all or any part of the amended cross-claim to be struck out. Rather, all I was determining was the question of whether there is sufficient reason for hearing the proceedings in this Court as opposed to the Local Court. 16. I consider that the primary claim of Ms Young is sufficiently clear for that part at least of the amended cross-claim to found a transfer to this Court. I say that bearing firmly in mind the well-established rule that fraud must be specifically pleaded; to my mind, Ms Young has done so. And once it is accepted (as RMS explicitly did in oral submissions) that no other court would have the jurisdiction to reopen the orders of this court, the questions of the sufficiency of the pleadings about breach of trust, breach of fiduciary duty, and the basis of the quantum of damages recede into the background for the purposes of this discrete question. 17. In short, I consider that Ms Young has sufficiently pleaded her primary claim to found a transfer to this Court. To express the same concept obversely, I do not consider that the pleading filed by Ms Young is so defective that she should be shut out from litigating her claim in the only court that has jurisdiction to hear it. 18. Whether particular portions, or indeed the whole of the amended cross-claim, should be struck out on other bases is a separate question that may well require separate determination. And so, of course, is the question of whether or not Ms Young has any evidence to support her claims. 19. It follows that I propose to grant the order for transfer sought by Ms Young. As for the extant motion, I indicated to the parties at the end of the hearing that, because of my familiarity with the voluminous material placed before me on this application, I shall ask my Associate to suggest to the Registrar that, if pressed in due course, the hearing of that motion should be listed before me. Costs 1. The general rule is that costs should follow the event. RMS submitted that, if Ms Young succeeded on the transfer application, costs should be costs in the cause. 2. But I see no reason why Ms Young, having succeeded on a hard-fought motion, should not have her costs to the extent that the law allows. In accordance with well-established principle, discussed in the decision of Preston v Commissioner for Fair Trading [2011] NSWCA 40, those costs must, of course, in the case of an unrepresented litigant, be limited to disbursements only. Orders 1. I make the following orders: 1. The Local Court Proceedings 2013/249441 are transferred to the Supreme Court of New South Wales. 2. The defendants must pay the costs of the plaintiff of the notice of motion, such costs to be limited to the amount of out-of-pocket expenses, of a type that would have been recoverable as disbursements if the plaintiff had been legally represented and which she has actually and reasonably incurred. 3. The matter is listed before the Common Law Registrar for Directions at 9 AM on 1 February 2016. ********** 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: 17 December 2015