Lawrence v Arambasic

On 19 June 2019, Mr Lawrence and Dr White, the plaintiffs, filed a statement of claim seeking relief based on causes of action in trespass to land, trespass to persons and trespass to goods, which were alleged to have occurred during the eviction of the plaintiffs from a property in Lightning Ridge (the Lightning Ridge property) on 18 December 2018. The plaintiff sought relief against the registered proprietor of the Lightning Ridge property, the first defendant Mr Arambasic, and the Sheriff of New South Wales, the second defendant.

The Lightning Ridge property has a somewhat tortuous history, which provides the backdrop for the tortious conduct alleged in the plaintiffs’ statement of claim. On 18 August 2014, Sackville AJA made orders in previous proceedings (2013/312662) concerning the Lightning Ridge property, giving judgment for possession of the property in favour of Mr Arambasic against the defendants in that case, Ms Veza and Mr Griffiths, who were in occupation of the Lightning Ridge property at that time: Arambasic v Veza (No 4) [2014] NSWSC 1109 at [175]. The factual basis for those proceedings was summarised concisely by Beech-Jones J in Arambasic v Veza (No 3) [2014] NSWSC 621 at [5] – [7]:

In those previous proceedings, Mr Arambasic and Dr White were co-plaintiffs with a common cause, although as Sackville AJA noted in Arambasic v Veza (No 4) at [8], their interests were “not necessarily identical”.

From 11 December 2014 until 22 October 2017, Mr Arambasic resided at the Lightning Ridge property, which, as a result of the transfer executed on or about 19 December 2012, was, and remains, registered in his name. It appears, from the material before me, that on or around 8 September 2016 Dr White provided Mr Arambasic with a default notice for the $70,000 loan agreement referred to above and proceeded to demand possession of the Lightning Ridge property. It also appears that in or around December 2016, Dr White and Mr Arambasic began cohabitating in the premises, albeit with distinct living quarters separated by a protective lock. During the course of this living arrangement, on or around 29 November 2017, an interim apprehended domestic violence order was made as a result of an assault by Mr Arambasic on Dr White which resulted in the imposition of a bond without conviction. Subsequently, a final apprehended violence order was made. While this apprehended violence order did not require Mr Arambasic to live elsewhere than at the Lightning Ridge property, he vacated the premises shortly afterwards and lived overseas for a period of time before returning to Australia where he began squatting in a mining hut in Lightning Ridge.

On 24 October 2018, a writ of possession for the Lightning Ridge property was issued by this Court in favour of Mr Arambasic. The procedural history leading to the issuance of that writ was unclear on the material before me. However, based on the information contained at par 11 of the affidavit of Mr Malachi Dutschke sworn 23 September 2020, there appears to have been a notice of motion filed in the previous proceedings on or about 23 October 2018 to obtain a writ of possession in favour of Mr Arambasic against Dr White. In any event, a writ of possession was indeed issued by this Court on 24 October 2018 entitling Mr Arambasic to possession of the Lightning Ridge property.

On 28 November 2018, Dr White filed a notice of motion seeking a stay of the enforcement of the writ of possession which this Court had issued. I pause, at this point, to note that Dr White must necessarily have been aware of the existence of the writ of possession in order to file a notice of motion seeking that it be stayed. In any event, the hearing of Dr White’s stay application came on before Rothman J on 14 December 2018.

In an unreported ex tempore judgment delivered that same day, Rothman J noted that the circumstances of Dr White and Mr Arambasic’s arrangement were somewhat unusual but observed that the loan agreement between the two parties had never been enforced in this Court. His Honour concluded his judgment dismissing the stay application with the following comments:

It should also be noted at this point that, on 21 October 2019, Mr Arambasic commenced proceedings (DUC403/2019) by way of an Initiating Application (Family Law) in the Federal Circuit Court seeking a property settlement in relation to the breakdown of his and Dr White’s de facto relationship. A hearing in relation to the threshold question of whether the parties were ever in a de facto relationship, which it is anticipated will determine whether the Federal Circuit Court has jurisdiction in respect of this matter, has been set down for 15 March 2021. If this question is answered in the affirmative and the Federal Circuit Court finds that it has jurisdiction, under the Part VIIIAB of the Family Law Act 1975 (Cth), to declare and adjust the rights to property of parties formerly in a de facto relationship, it is likely that the Mr Arambasic’s and Dr White’s rights in respect of the Lightning Ridge property will ultimately be determined in those proceedings.

I should remark further that there is also a separate notice of motion in proceedings (2019/47932) in this Court filed by Dr White on 9 March 2020, seeking default judgment in respect of her statement of claim filed on 13 February 2019 seeking possession of the Lightning Ridge property. The determination of that notice of motion was stood over by Campbell J on 9 October 2020 to 29 March 2021, in order to allow time for the hearing of the jurisdictional question in the Federal Circuit Court proceedings to occur.

Three notices of motion came before me on 26 November 2020. The first was a notice of motion filed by the plaintiffs, Mr Lawrence and Dr White, on 3 December 2019, which sought to extend the operation of a caveat which Campbell J had earlier granted Dr White leave to lodge in his judgment of White v Arambasic [2020] NSWSC 1376 on 9 October 2020. The second was a notice of motion filed on 10 July 2020 by Mr Arambasic, the first defendant, seeking either summary dismissal under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or, in the alternative, a strike out of the plaintiffs’ statement of claim. And the third was a notice of motion filed on 3 July 2020 by the Office of the Sheriff of New South Wales (the Sheriff), the second defendant, also seeking either summary dismissal or, in the alternative, a strike out of the plaintiffs’ statement of claim.

At the commencement of the hearing of these motions, I canvassed with the parties my concerns regarding the interrelation between these proceedings (2019/190613) and those proceedings (2019/47932) which Campbell J had adjourned until 29 March 2021. My primary concern was that given that the jurisdictional question concerning the de facto relationship between Dr White and Mr Arambasic which could affect rights to the Lightning Ridge property would be dealt in Federal Circuit Court in March 2021 and Campbell J had already adjourned Dr White’s claim for possession of the Lightning Ridge property until after the hearing in the Federal Circuit Court, there seemed to me to be great sense in having the aspects of these proceedings that involved the disputes between Dr White and Mr Arambasic about the Lightning Ridge property stood over until 29 March 2021 as well. Both the plaintiffs and Ms Power of counsel, who appeared for the first defendant, agreed to this course, and accordingly I made orders giving effect to this in relation to the first and second notices of motion referred to above.

The remaining notice of motion before me was that brought by the second defendant, the Sheriff, filed on 3 July 2020. That notice of motion sought orders in the following terms:

Since nothing in that notice of motion was likely to turn upon the outcome of the proceedings in the Federal Circuit Court, I determined to deal with that application on 26 November 2020 and not stand it over with the other of the applications.

Since the substance of the Sheriff’s application was that the proceedings and the statement of claim failed to disclose a reasonable cause of action against her, it is necessary to consider that pleading in some detail. The parts of the plaintiffs’ statement of claim, including the coversheet, relevant to their claims against the second defendant included the following:

The second defendant’s evidence contained in the affidavit of Amy Lee sworn 3 July 2020 provided some of the procedural history of the matter and established that the plaintiffs had been invited a number of times to withdraw their claim against the Sheriff or file an amended statement of claim. In doing so, the solicitors for the Sheriff had outlined in correspondence the perceived problems with the statement of claim in its current form. Despite orders being made on a number of occasions by the Registrar allowing the plaintiffs to file an amended statement of claim, the plaintiffs eventually indicated that they did not consider that any amendment was required.

A copy of the writ of possession in respect of the Lightning Ridge property issued on 24 October 2018 and a copy of Rothman J’s judgment of 14 December 2018 refusing to stay the execution of the writ were annexed to the affidavit. The writ appeared valid on its face and it has never been set aside.

Annexed to Ms Lee’s affidavit was also a document headed “Process record” dated 18 December 2018, which was the Sheriff’s officer’s record of the execution of the writ of possession on 18 December 2018 at 1 pm. Among other things, the officer recorded under the heading “Action”:

The “Completion Type” was recorded as “Forcefull”.

The evidence of Mr Lawrence in his affidavit sworn 12 October 2020 relating to the Sheriff’s execution of the writ of possession was relevantly as follows:

Similarly, Dr White’s evidence concerning the Sheriff’s officer’s execution of the writ was that:

It can be seen that the plaintiffs’ evidence in relation to the actions of the Sheriff’s officer is effectively that the officer had the lock on the premises cut and encouraged Mr Lawrence to leave quickly. It is not suggested that the Sheriff’s officer destroyed, damaged or detained any property of the plaintiffs, apart from the lock. Nor is it suggested that the Sheriff’s officer touched Mr Lawrence or created in him an apprehension of imminent harmful or offensive contact.

Ms Thomas of counsel, who appeared for the Sheriff, submitted that the statement of claim filed by the plaintiffs did not disclose any reasonable cause of action against the second defendant and should be summarily dismissed. Insofar as the pleading or evidence disclosed a potential cause of action in tort against the Sherifff in trespass to land or trespass to goods, Ms Thomas submitted that on 18 December 2018, a sheriff’s officer attended the Lightning Ridge property, to execute a writ of possession that had been granted by this Court to Mr Arambasic, and that that writ was duly executed.

More particularly, it was submitted that the conduct of a Sheriff’s officer in respect of the execution of writs of this kind is governed by s 7A of the Sheriff Act 2005 (NSW), which provides legal authority for a sheriff to enter premises and use such force as is reasonably necessary to gain entry to the premises.

In respect of the trespass to goods claim, it was submitted that while the plaintiffs’ statement of claim alleged that “the defendants” had wrongfully destroyed the plaintiffs’ “personal goods and items”, there were no particularised allegations relating to the intentional damage or destruction of property that related to conduct of the sheriff’s officer, as opposed to Mr Arambasic.

Ms Thomas submitted further that the conduct complained of in Mr Lawrence’s affidavit of 12 October 2020, which has been quoted above, depicted actions which fell squarely within the rights and duties conferred on a sheriff by the Sheriff Act. Turning to the grounds for summary dismissal, Ms Thomas submitted that: first, pursuant to rr 13.4(1)(b) and 14.28(1)(a) of the UCPR, the proceedings and the pleading failed to disclose a reasonable cause of action against the Sheriff; and secondly, pursuant to r 14.28(1)(b), the pleading had a tendency to cause embarrassment.

The relevant principles stated in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1964] HCA 69 Preston v Star City Pty Limited [1999] NSWSC 1273 at [37] and Frazer v SR7 Pty Limited and Ors [2013] NSWSC 820 at [3] were relied upon.

Ms Thomas submitted that if the Court was not minded to summarily dismiss the plaintiffs’ statement of claim, then the Sheriff sought that the pleading be struck out for embarrassment owing to: the plaintiff’s failure to plead, in any coherent way, the essential ingredients of the tort of trespass to land; and, the absence of any particularised allegation of trespass to goods or chattels belonging to the plaintiffs by the Sheriff’s officer.

Dr White made submissions on behalf of both plaintiffs. Her submissions focussed first on the writ of possession, which, it was asserted, was defective for a number of reasons. The plaintiffs submitted that the writ of possession which had been issued on 24 October 2018 was not valid because it was still the subject of an appeal.

I note at this point that this submission is not sustainable. Dr White acknowledged that her application for a stay of the writ of possession had been rejected by Rothman J but stated that she had filed a Summons Seeking Leave to Appeal, which had not yet been dealt with by the Court and was still pending. It appears, on the material before me, that after initially filing a Notice of Appeal on 14 December 2018, and having that document rejected for lack of compliance with r 51.12 of the UCPR, Dr White sent a new Summons Seeking Leave to Appeal to the Court, which was received by the Supreme Court Registry on 19 June 2019 and contained grounds of appeal against Rothman J’s decision in the following terms:

On 10 September 2019, the Registry notified Dr White by way of a Notice of Rejection that the document she had lodged with the Court was said not to comply with r 51.12 of the UCPR. It appears from the Court records that there is no appeal of Rothman J’s decision currently pending. Further, and in any event, the writ of possession has not been set aside.

The plaintiffs’ second submission focussed on the service of the writ of possession. Dr White argued that she had not been served with the writ of possession, but rather the eviction notice. Consequently, it was said that the writ was not validly executed on 18 December 2018. As noted above, Dr White must have been aware of the writ of possession prior to her making her application to stay the execution of the writ, which application was heard by Rothman J on 14 December 2018.

The plaintiffs’ third submission related to a duty of care on the part of the Sheriff to serve them with the writ of possession. Dr White submitted that a duty of care arose from her basic human rights to have the writ of possession physically served on her, and that because this did not occur the actions of the sheriff who executed the writ were not lawfully justified.

Rule 13.4 of the UCPR relevantly provides:

Rule 14.28 of the UCPR empowers the Court to strike out pleadings in whole or in part as follows:

The general principles to be applied when considering an application for summary dismissal on any of the grounds laid out in r 13.4(1) of the UCPR are as follows:

In Young v Hones [2013] NSWSC 580 at [82], Garling J approved what had been said in the Supreme Court of Victoria by Bongiorno J in Gunns v Marr [2005] VSC 251 at [7], with respect to both a plaintiff’s formulation of their pleading and the Court’s measuring of an insufficiency because of which it may have to intervene, by way of dismissal:

It should be borne in mind that the hurdle for any applicant seeking summary dismissal of proceedings is not a low one, and the Court is not to look simply to the form a plaintiff’s claim may take but the substance buried within the pleading. In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3], Macfarlan JA (Beazley P and Ward JA agreeing) made the following remarks on the correct approach for the Court:

The principles concerning whether a reasonable cause of action is disclosed for the purposes of a summary dismissal application are also generally applicable, mutatis mutandis, to an application to strike out a pleading on the basis that it discloses no reasonable cause of action.

The first cause of action relied upon by the plaintiffs is trespass to land. In order to disclose a reasonable cause in trespass to land against the Sheriff, the pleading and the claim must in substance allege in a case such as this a direct interference with the plaintiffs’ possession of land by the Sheriff’s officer in question without the plaintiffs’ consent: Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 at [383]. The difficulty for the plaintiffs in the present case is that there will be no trespass to land, if the Sheriff’s officer interfered with the plaintiffs’ possession with lawful authority in the sense that the entry onto the land was authorised or excused by law: Halliday v Nevill (1984) 155 CLR 1 at 10-11; [1984] HCA 80. Such authority is positively conferred by s 7A of the Sheriff Act when a Sheriff’s officer is executing a writ of possession, as in the present case. Section 7A relevantly provides:

As noted above, as at 18 December 2018 there was a writ of possession, valid on its face, in respect of the Lightning Ridge property, which had not been set aside or stayed. Dr White also gave evidence in her affidavit, and accepted during submissions, that she had received an eviction notice on 12 November 2018. It was as a result of this that she made her application to stay the execution of the writ, which was heard and rejected by Rothman J on 14 December 2018. Consequently, there does not appear to be any reasonable basis to contend that s 7A(3) of the Sheriff Act was not complied with in this case.

Furthermore, it is true that if the right or authority to enter is limited in scope, then an entry which is unrelated to the right or authority will amount to a trespass: Barker v The Queen (1983) 153 CLR 338 at 341; [1983] HCA 18. There was, however, nothing in the pleading or in the evidence relied upon by the plaintiffs in this case to suggest that the Sheriff’s officer’s actions went beyond, or were unrelated to, what was authorised and permitted by s 7A.

Thus, in my opinion, the plaintiffs’ claim against the Sheriff based on trespass to land by the Sheriff’s officer on 18 December 2018 is bound to fail as the Sheriff’s officer’s actions were authorised and permitted by law. Accordingly, I am satisfied that the plaintiffs’ proceedings and their statement of claims disclose no reasonable cause of action in relation to that claim. Thus, to that extent, the proceedings against the Sheriff may be dismissed and the part of the statement of claim relating to that claim may be struck out.

For the sake of completeness, I make the following comments in relation to the plaintiffs’ submission concerning their human rights to receive a copy of the writ of possession itself and not merely an eviction notice. Section 7A(3) of the Sheriff Act establishes a requirement for occupier’s land to be given not less than 30 days’ notice to deliver up possession of land that is subject to a writ of possession. This enables occupiers such as the plaintiffs to seek to have the writ set aside or stayed before it is executed. Dr White availed herself of that opportunity but was unsuccessful. It cannot, in those circumstances, be legitimately suggested that there has been some breach of other rights to be served with a writ of possession which would confer on the plaintiffs a cause of action to recover damages or the other relief sought in the statement of claim. Further and in any event, such a cause of action is not pleaded and there is no reasonable prospect that such a cause of action whether based on trespass to land or some other basis recognised at law could be pleaded in this case.

There were no allegations in the statement of claim of any conduct by the Sheriff’s officer that amounted to a pleading of trespass to person by the Sheriff’s officer. Mr Lawrence’s evidence relevantly contained only the following material concerning what was done by the Sheriff’s officer: “the sheriff lady was ordering me and telling me to pack my thing quickly & get out of the place”. Given the provisions of s 7A(1) of the Sheriff Act and the fact that there was nothing to suggest that the officer’s actions were inconsistent with what was required for enforcement of the writ of possession, this evidence would not be sufficient to sustain a claim of trespass to person in the circumstances, even if it had been pleaded.

As to the claim based on trespass to goods, the damage pleaded in the plaintiffs’ statement of claim and the evidence of the plaintiffs referred to above mention damage to and loss or destruction of, the plaintiffs’ personal goods and items which were located inside the Lightning Ridge property. As I have already observed, however, there is no allegation that the Sheriff’s officer was directly involved in any way with the loss or destruction of those items, except for the lock which was cut. In relation to the lock, cutting it was authorised by s 7A(1)(a) and (b) of the Sheriff Act. As a result, there would be no reasonably arguable cause of action in trespass to goods against the Sheriff disclosed in that regard, even if such a claim were specifically pleaded.

At times, the plaintiffs in their submissions invoked a “duty of care”. For example, Dr White submitted at one point:

The statement of claim did not identify negligence as a cause of action relied upon and there was no pleading which suggested that it was. The evidence of the plaintiffs did not establish that the Sheriff’s officer was in any way responsible for the alleged conduct of Mr Arambasic in relation to the plaintiffs’ goods or personal property. Nor did it establish that the Sheriff’s officer when enforcing the writ owed to the plaintiffs a duty of care to prevent Mr Arambasic from interfering with the plaintiffs’ goods or personal property.

In addition, whatever tortious causes of action were sought to be relied upon against the Sheriff, s 15 of the Sheriff Act may be relevant. That section provides:

There was no allegation or suggestion in the evidence that the Sheriff’s officer in the present case was not acting in good faith in enforcing the writ on 18 December 2018.

This provision was not raised by any party during the hearing. In these circumstances and since the parties have not made submissions on its effect, it is not appropriate for me to express any concluded view upon the effect of s 15. Nonetheless, it may be a further obstacle standing in the way of the plaintiffs propounding any arguable cause of action against the Sheriff in this matter, if it were to continue against her.

For the reasons set out above, in my view the power of the Court under r 13.4(1)(b) of the UCPR to dismiss the proceedings in relation to the claim against the Sheriff and the power under r 14.28(1)(a) to strike out the part of the statement of claim relating to the claim against the Sheriff are engaged in the present case.

It is necessary to express some degree of caution when it comes to summarily dismissing a claim that has been brought, as in this case, by two litigants in person, who have not had the benefit of a legal education or training. A useful consideration of the allowances that may appropriately be afforded to an unrepresented litigant or litigants, was provided by McCallum J, as her Honour then was, in Seidler v Carroll & O'Dea [2013] NSWSC 338 at [8] – [10], in a matter that concerned an application for leave to amend a pleading to expand claims against an existing defendant and add a further defendant. The following passage is particularly relevant:

In this case, I have attempted to discern not only from the pleading but also from the plaintiffs’ evidence and their submissions whether there is likely to be any reasonable cause of action upon which they could rely against the Sheriff. I am satisfied that there is no such reasonable cause of action disclosed in the material relied upon by the plaintiffs.

Bearing in mind the principles set out above, including in particular the comments in O’Brien v Bank of Western Australia Ltd, as well as the proper degree of latitude to be afforded to unrepresented litigants, I am of the view that there are no discretionary considerations which tell against dismissing the claims against the Sheriff.

Further, it appears to me to be consistent with the requirement to give effect to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings to dismiss the claim against the Sheriff. Similarly, consideration of the objects in s 57(1) and the dictates of justice as referred to s 58(2)(b), in particular subpars (v) and (vi), of the Civil Procedure Act, in my view, support such an approach.

For all of these reasons, I propose to order under r 13.4(1)(b) of the UCPR that the proceedings in so far as they relate to any claim for relief against the second defendant be dismissed. This being so, it is unnecessary to grant the alternative relief sought of striking out the parts of the statement of claim that relate to the claim against the second defendant.

Ms Thomas sought an order that the plaintiffs pay the second defendant’s costs of these proceedings. The general rule, as provided in r 42.1of the UCPR, is that costs follow the event in a case such as the present. The event in this case is that the second defendant has been successful in her application to have the proceedings against her dismissed. There are no circumstances which were brought to my attention which would render it inappropriate to order the plaintiffs to pay the second defendant’s costs of these proceedings, particularly in light of the correspondence between the parties, in which the difficulties with the plaintiffs’ claim were pointed out, and the plaintiffs’ decision to continue to press their claim against the second defendant. As a result, it appears to me to be appropriate to order that the plaintiffs are to pay the second defendant’s costs of and incidental to these proceedings, which includes the second defendant’s costs of this application.

Accordingly, the orders of the Court are: