Supreme Court New South Wales Medium Neutral Citation: Roads and Maritime Services v Maureen Young [2018] NSWSC 1867 Hearing dates: 30 November 2018 Date of orders: 30 November 2018 Decision date: 30 November 2018 Before: Wilson J Decision: (1) The time within which the plaintiff, the RMS, is required to file a defence to the amended cross-claim filed on 14 May 2018 will be extended to seven days from today, close of business, that being 4.30pm a date to be fixed by the registrar. (2) The claims against the RMS, the cross-defendant, contained in paragraphs 10 through 23 of the cross-claimant's amended statement of cross-claim filed on 14 May 2018, being paragraph 10 relevant to breach of contract, paragraphs 11 to 18 relevant to deceit, paragraphs 19 to 21(d) relevant to misfeasance, paragraph 22 relevant to equitable claims and paragraph 23 relevant to damages, are struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005. (3) I direct the cross-claimant (that is, Ms Young) to pay the cross-defendant's (that is, the RMS's) costs of this motion. (4) I grant leave to the cross-claimant (that is, Ms Young) to replead paragraph 10 with respect to breach of contract. Any such repleading is to be finalised, filed and served by 6 December 2018. Liberty to replead the remaining paragraphs is refused. (5) I stand the matter into the Registrar's List at 9am on 6 December 2018 for a timetable to be fixed for the matter to be given some progression. (6) I give liberty to Ms Young to apply to the Registrar for further time in which to file any amended pleading of paragraph 10. Catchwords: TORT LAW – amended cross-claim for breach of contract, fraud, misfeasance in public office – equitable claims – claims for damages – application for strike-out of portions of claim - adequacy of pleading – adequacy of particulars – latitude to a self-represented litigant – pleadings incomprehensible – particulars insufficient to establish cause of action – no point of principle Legislation Cited: Uniform Civil Procedure Rules Cases Cited: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Magill v Magill [2006] HCA 51; (2006) 231 ALR 277 Maureen Mary Young v Roads and Maritime Services [2017] HCASL 243 Roads and Maritime Services v Young (No 2) [2018] NSWSC 1176 Young v RMS [2018] NSWCA 32 Young v RMS (no 2) [2015] NSWSC 1944 Young v RMS unreported decision SC (6 December 2017) Young v Roads & Maritime Services [2015] NSWSC 918 Young v Roads and Maritime Services [2016] NSWCA 238 Young v Roads and Maritime Services (No 3) [2016] NSWSC 491 Young v Roads and Maritime Services (No 3) [2018] NSWCA 91 Young v Roads and Maritime Services (No 3) [2018] NSWCA 106 Category: Principal judgment Parties: Roads and Maritime Services (Applicant/Plaintiff) Maureen Mary Young (Respondent/Defendant) Representation: Counsel: Ms P. M. Lane (Applicant/Plaintiff) Solicitors: Crown Solicitor (Applicant/Plaintiff) Ms Maureen Mary Young (Self-represented litigant in person) File Number(s): 2018/83808 Publication restriction: None ex tempore Judgment 1. 1 HER HONOUR: Before the Court this morning, the plaintiff, the Roads and Maritime Services ("RMS") moved on its notice of motion filed on 19 June 2018, in which orders are sought for particular parts of an amended statement of cross-claim filed on 14 May 2018 by Ms Maureen Young, the defendant, to be struck out. 2. The application for strike-out is made pursuant to rule 14.28(1) of the Uniform Civil Procedure Rules. Although the motion relates to a cross-claim, I do not propose to use what I regard as the confusing nomenclature of "cross-claimant" and "cross-respondent". I propose to refer to the RMS as the "plaintiff" and to Ms Young as the "defendant". 3. These proceedings have a long and, it might be said, somewhat tortuous history, which can be found by perusing the numerous earlier decisions of this and higher courts that relate to the overall litigation between the parties. Those decisions include decisions from the New South Wales Supreme Court from 2015, decisions from the Court of Appeal of New South Wales from 2016, further decisions from the New South Wales Supreme Court from 2016, a decision with respect to special leave from the High Court from 2017, and a number of decisions of both the Supreme Court and the Court of Appeal from this year, 2018: Young v Roads & Maritime Services [2015] NSWSC 918; Young v RMS (no 2) [2015] NSWSC 1944; Young v Roads and Maritime Services [2016] NSWCA 238; Young v Roads and Maritime Services (No 3) [2016] NSWSC 491; Young v RMS unreported decision SC (6 December 2017); Maureen Mary Young v Roads and Maritime Services [2017] HCASL 243; Roads and Maritime Services v Young (No 2) [2018] NSWSC 1176; Young v RMS [2018] NSWCA 32; Young v Roads and Maritime Services (No 3) [2018] NSWCA 91 and Young v Roads and Maritime Services (No 3) [2018] NSWCA 106. 4. A further special leave application filed by Ms Young remains on foot before the High Court, having yet to be determined. 5. Without attempting a summary of the whole of that history, it is sufficient to note that the proceedings overall commenced with a claim made by the RMS to the Local Court in 2013 for rent due under a lease to Ms Young. The proceedings were removed into this Court on Ms Young's application. She filed a cross-claim in respect of the RMS's claim for rent, seeking some $80 million in damages against the RMS, alleging breach of contract, fraud, misfeasance in public office, breach of trust and various other complaints. 6. At an early stage of the proceedings in this Court, the cross-claim was found to be defective. The defendant was given leave to re-plead. It appears that the re-pleading of the cross-claim did not improve it and, after many court dates and the passage of years, the cross-claim was struck out by his Honour Button J in a decision of 22 April 2016. His Honour placed some prerequisites on any further attempt to plead the cross-claim. 7. The defendant sought leave to appeal that decision but she was, on matters of substance, unsuccessful. The Court of Appeal did, however, set aside the order for the prerequisites to any further pleading of a cross-claim. The defendant's application to the High Court for special leave to appeal that decision was not successful. 8. The Roads and Maritime Services moved for default judgment with respect to its claim for unpaid rent and an order was made in its favour. The Court declined to set the order aside on the defendant's application and she challenged the order, unsuccessfully, before the Court of Appeal. As I understand it, it is that decision of the Court of Appeal which is presently awaiting determination by the High Court of an application for special leave. 9. The Roads and Maritime Services has issued notices of default and, consequently, notices of termination of Ms Young's lease. Proceedings have been commenced for possession of the leased land. Ms Young has filed a defence and filed an amended cross-claim on 14 May 2018. It is that amended cross-claim that is the subject of the present motion. 10. Rule 14.28 of the UCPR gives the Court power to strike out the whole or any part of a pleading where the pleading discloses no reasonable cause of action: rule 14.28(1)(a). That is the plaintiff's argument here. With, in my view, some restraint, the plaintiff does not ask that the whole of the pleading is struck out. Rather, orders are sought for paragraphs 10, 11 to 18, 19 to 21(d), and 22 and 23 of the amended cross-claim to be struck out. These paragraphs plead actions for breach of contract, deceit or fraud, misfeasance in public office, an equitable claim and a claim for damages, respectively. 11. Pursuant to rule 14.28(2), the Court has received evidence from both parties on the motion today. The plaintiff read and relies upon an affidavit of Robert Ghanem of 19 June 2018, which annexes a considerable amount of correspondence between the parties concerning the adequacy or otherwise of the pleadings and the sufficiency or otherwise of the particulars of the amended cross-claim. Further, the plaintiff has tendered a copy of the lease agreement executed in 2012 between the parties, relevant to property known as Lot 1 in deposited plan 1146276. That document has become exhibit A. The defendant read and relies upon her affidavit of 20 August 2018, in which she refers to a folder of documentary material, which became exhibits 1.1 through 1.11. There is additionally a chronology which, although not strictly evidence, has been marked exhibit 2 on the motion. That material relates to various aspects of Ms Young's dealing with the plaintiff and to the circumstance of a neighbouring houseboat, not owned by the plaintiff, that sank earlier this year. 12. The plaintiff argues that the pleading of the impugned paragraphs of the amended cross-claim and the particulars provided are so general as to fail to disclose a cause of action. It is argued that the diffuse nature of the pleadings makes it impossible for the plaintiff to defend a claim it cannot comprehend. 13. Ms Young submits that her claim is founded in the actions of RMS employees and is evidenced principally by RMS documents, and the RMS should thus be taken to understand both the basis of her claims and the particulars of them. She regards the pleadings and particulars she has provided as disclosing, on that basis, sufficient information for the RMS to be able to understand and defend, if it can, her claims. 14. The step of striking out a claim or part of a claim is not one taken without due consideration, and that is particularly so where the party affected is unrepresented. Negotiating the legal principles of civil litigation and the procedural rules of the Court is not straightforward, and some latitude is ordinarily allowed to an unrepresented litigant. As a general rule, only those claims which are obviously seriously defective are struck out, without leave to re-plead: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129 per Barwick CJ; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J. 15. The RMS contends that this is one such claim, and submits that the impugned paragraphs should be struck out, and liberty to re-plead granted with respect only to the asserted breach of contract and any associated claim for damages. Having considered the evidence and the submissions of the parties, I accept that argument. 16. The amended cross-claim is, in my view, largely incomprehensible. While specific claims follow headings which refer to a recognised cause of action, such as breach of contract, none of what follows could be said to constitute a claim recognised at law. 17. The evidence adduced by the plaintiff establishes that its attempts to secure sufficient particulars from Ms Young to be able to deal with the claim have led only to further amorphous, if voluminous, detail. None of the particulars provided serve to particularise the claim at all. To the contrary, they make for greater confusion by introducing further information that cannot be sensibly linked to a legitimate cause of action. As a general statement, the claim operates more as an expression of outrage and irritation with the plaintiff than as the foundation of a cause of action at law. 18. It is possible to understand that Ms Young feels aggrieved by the actions of the RMS and its staff and agents with respect to a lease executed in 2012 (exhibit A) and, earlier, a lease in 2009. But it is not possible to understand how it is she says she has a claim against the plaintiff for breach of contract, deceit, and misfeasance; or how she advances an equitable claim and a claim for substantial damages. Even allowing her a degree of latitude because she is not legally assisted, the amended cross-claim falls far short of a document that could form the basis of legal action in this Court. 19. The first of the paragraphs of which the plaintiff complains is paragraph 10, which is headlined "Contract". Paragraph 10 of the amended cross-claim deals with asserted breach of contract, but the relevant terms of the contract have not been identified, and it is not possible to guess what they are, even if, as Ms Young contends, the RMS should know. The claim appears to be for loss of an interest under a 2009 deed and for exposure to asbestos, but how those claims relate to any particular contractual obligation cannot be determined. Indeed, with respect to the claim concerning asbestos, Ms Young acknowledged in her written submissions, and again before the Court this morning, that the asbestos claim has nothing to do with the contractual arrangements between her and the plaintiff, and is in effect a separate claim. 20. Although the plaintiff, with what I regard as commendable forbearance, has submitted that it can in a general sense comprehend the nature of the claim and meet it in a general way, it cannot, without proper pleading or particularisation, determine what contractual obligation it is alleged to have breached or how. There is nothing at all to link the asbestos claim with any contractual obligation the RMS may have to Ms Young. It is simply a claim asserted with no basis of liability anywhere identified. 21. The defendant's amended cross-claim alleging fraud is no better. The claim appears to relate to the conduct of RMS staff over a period of years, without ever identifying or identifying adequately the false representations said to have been made or even who made such statements. There is nothing that could approach establishing the basis upon which the defendant says the plaintiff made the representation with the knowledge that it was false, or that the plaintiff was reckless or careless as to whether the representation was false or not. There is nothing to establish that the representation was made, intending that Ms Young rely upon it, or that she in fact relied upon it to her detriment. The amended cross-claim, instead, asserts that the plaintiff knew or should have known of certain largely unidentified representations, and that staff did not carry out their duties diligently and honestly but, rather, knowing that their representations were false. These are general assertions, not the basis of legal action. 22. The Court has been helpfully referred to the decision of Magill v Magill [2006] HCA 51; (2006) 231 ALR 277 for a statement of what is required for an action for deceit or fraud. This claim does not meet the requirements there specified, and there is no basis upon which to conclude that repleading the claim would solve the problem. 23. Fraud is a very serious allegation to make and any claim alleging it must be specifically pleaded. The pleading here does not contain allegations sufficiently specific to enable the RMS to identify the alleged falsehood complained of and how it is alleged that the relevant representations were made knowingly falsely. 24. Paragraphs 19 to 21(d) are the next paragraphs under challenge. They allege misfeasance in public office. To allege misfeasance in public office is again to make a serious allegation, and one which must be clearly articulated. Liability will only arise if there is an intention to cause harm by the officer, or the officer concerned knowingly acts in excess of his or her powers. There is an element of deliberate conduct in a claim of this particular nature. 25. The defendant has failed to plead her claim so as to make good the heading to these paragraphs. There is nothing that clearly identifies the identity of the wrongdoer, the conduct deliberately engaged in, how that conduct is said to have come about in the course of the exercise of the official's duties or what damage arises. 26. Misfeasance in public office has been said to be a deliberate or an intentional tort, the essence of which is dishonest abuse of power. There is nothing in Ms Young's claim to permit the plaintiff or the Court to understand how it is said this tort was committed by the plaintiff. The pleading makes assertions concerning the conduct of the officers named in paragraph 20, but what conduct of these officers is complained of is not clear. Nor can it be said how that conduct was carried out in office or how it constitutes the sort of misconduct an action of this nature seeks to address. The pleading is wholly deficient. 27. There is a further allegation in the amended cross-claim concerning the conduct of named RMS staff with respect to the sunken neighbouring houseboat, but again, as with respect to the argument concerning breach of contract, there is nothing to point to any proper basis upon which it could be contended that the plaintiff is responsible for the conduct and how it amounts to the tort pleaded. 28. Paragraph 22 is the next paragraph dealing with a claim challenged by the RMS. It deals with an equitable claim. The claim is an asserted equitable claim relating to the houseboat that Ms Young occupies, which, she says, entitles her to an equitable interest in a "valuable deep waterfront residential site", that being a portion of the seabed of Sydney Harbour in Pearl Bay. Ms Young has not laid out how this claim is said to arise, asserting only unconscientious conduct by RMS staff in 2009 and 2012. Having looked at the amended cross-claim, the evidence and the submissions, I am simply unable to determine how any such claim could be said to have arisen. I note that his Honour Button J struck out a similar claim in 2016. His Honour also was unable to determine how such a claim could possibly arise. The pleadings simply make it impossible to know. 29. Whilst there may be some contractual breach that the defendant can argue, and the plaintiff does not oppose the defendant having liberty to plead that aspect of her amended cross-claim, the other claims that I have set out reveal no cause of action against the plaintiff which I am able to discern. That being so, the claim for damages relying upon those alleged torts also cannot be made good. No basis for a claim for damage is disclosed in the amended cross-claim. 30. Having reached these conclusions, I propose to make the orders sought by the plaintiff. 31. [HER HONOUR HEARD SUBMISSIONS ON COSTS] 32. I propose to make an order for costs. The usual rule is that costs follow the cause. The plaintiff having been successful here and having, it seems to me, spent a considerable amount of time and energy in seeking to have the pleadings properly particularised prior to filing the motion, ought to receive its costs. ORDERS 1. Accordingly, the Court makes the following orders: 1. The time within which the plaintiff, the RMS, is required to file a defence to the amended cross-claim filed on 14 May 2018 will be extended to seven days from today, close of business, that being 4.30pm a date to be fixed by the registrar. 2. The claims against the RMS, the cross-defendant, contained in paragraphs 10 through 23 of the cross-claimant's amended statement of cross-claim filed on 14 May 2018, being paragraph 10 relevant to breach of contract, paragraphs 11 to 18 relevant to deceit, paragraphs 19 to 21(d) relevant to misfeasance, paragraph 22 relevant to equitable claims and paragraph 23 relevant to damages, are struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005. 3. I direct the cross-claimant (that is, Ms Young) to pay the cross-defendant's (that is, the RMS's) costs of this motion. 4. I grant leave to the cross-claimant (that is, Ms Young) to replead paragraph 10 with respect to breach of contract. Any such repleading is to be finalised, filed and served by 6 December 2018. Liberty to replead the remaining paragraphs is refused. 5. I stand the matter into the Registrar's List at 9am on 6 December 2018 for a timetable to be fixed for the matter to be given some progression. 6. I give liberty to Ms Young to apply to the Registrar for further time in which to file any amended pleading of paragraph 10. ********** 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: 05 December 2018