Vassallo v Deitz

This is an application by the defendants, by notice of motion filed 25 May 2023, for summary relief: the defendants seek an order that the plaintiff’s amended summons filed 8 May 2023 be summarily dismissed, under r 14.28 or 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’).

The defendants read, in support of the orders sought, affidavits of Maja Podinic sworn 26 May 2023 and 13 September 2023.

The background facts are within narrow compass. I will briefly deal with them, across three parts: first, the events giving rise to the alleged offending; secondly, the hearing of the offence in the Local Court; and, thirdly, a short description relating to the commencement of the proceedings in this Court.

The underlying proceedings arise out of an investigation by Campbelltown City Council (‘the Council’) into unauthorised clearing of land – including the removal of trees and vegetation – at a property in Wedderburn, NSW (‘the property’) in July 2021.

On 6 December 2021 a search warrant issued, pursuant to cl 6(1)(d) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and s 9.19 of the Environmental Planning and Assessment Act 1979 (NSW) (‘the EPAA’), authorising an officer from the Council and/or accompanying officers of the NSW Police Force to enter the premises (including the dwelling upon it) and to search the property in order to identify breaches of the EPAA and gather evidence relating to the unapproved removal of trees and vegetation.

On 7 December 2021 a Council officer, assisted by NSW Police, attended the property and executed the warrant. On that day, the plaintiff was issued with an electronic penalty infringement notice (No. 3211699471).

The penalty notice stated the offence as: “Failed to comply with requirement of investigation officer – individual”, and there was also recorded an offence code: “91967”.

The offence described by that code is an offence under s 9.25(1) of the EPAA. That section provides:

The conduct that is said to give rise to a contravention of this provision is also set out in the notes contained in the penalty notice. Those notes provide:

Following the issuing of the penalty notice the plaintiff lodged a number of requests for review. Being dissatisfied with the responses received, the plaintiff lodged a Court Election Form dated 15 March 2022.

Having made that election, a hearing of the offence charged took place on 3 February 2023 in the Local Court at Campbelltown before Magistrate McLennan.

After an exchange between the plaintiff and the Magistrate, the Magistrate proceeded on the basis that the defendant entered a plea of not guilty.

The Magistrate found the plaintiff guilty and imposed a fine of $3,000. The Magistrate also ordered the plaintiff to pay the Council’s costs of $11,772.

By summons filed 3 March 2023, the plaintiff sought a range of orders with respect to the decision of the Local Court.

The summons was drafted without legal assistance.

By the orders in that summons, the plaintiff sought a stay of the orders requiring the payment of the fine, and the legal costs (order 1), an “order quashing both the decision and proceedings” (order 3), and an order “that the defendants may not recover costs from the plaintiff” (order 4).

The plaintiff has identified 41 “grounds” of review. Those grounds are altogether not easy to follow.

On 8 May 2023 the plaintiff filed an amended summons. It appears that the only amendment to the summons, from the earlier one filed, is the removal of the order that sought a stay of the Local Court proceedings (order 2).

The relevant legal principles that apply to pleadings are well-established.

In an application under rr 14.28(1)(a)-(c) of the UCPR, it is generally appropriate in an application of this kind to consider at least three of them.

The first are the general principles that inform the nature and function of a pleading. In Young v Hones [2013] NSWSC 580 at [79]-[80], Garling J succinctly summarised the function of pleadings:

A number of these principles are reflected in the UCPR: see rr 14.6-14.20. In the context of proceedings for judicial review, they are reflected in r 59.4. In particular that rule requires that any summons in proceedings for judicial review “must state … with specificity, the grounds on which the relief is sought”: r 59.4(c). The importance of compliance with this requirement has been repeatedly emphasised: Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113 at [68]; CSR Limited v Ewins [2020] NSWSC 511 at [69].

The second are the more specific principles that apply to particular claims. For example, certain matters must be specifically pleaded “that, if not pleaded, may take the defendant by surprise”: r 14.14 of the UCPR. These are not presently relevant.

The third relates to the function of the Court. It is not the role of the Court to assist parties in drafting pleadings which comply with the UCPR: Gunns Ltd v Meagher [2005] VSC 251 at [57] (‘Gunns’); McGuirk v The University of New South Wales [2009] NSWSC 1424 at [35]. Rather, as noted in Gunns at [57], the Court is concerned with ensuring

Rule 13.4(1) of the UCPR provides:

A purpose of r 13.4 is to “save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings” and to protect “the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications”: Ugur v Attorney-General for NSW [2019] NSWCA 86 at [70].

The relevant principles that govern summary relief are settled: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; [1949] HCA 1; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129; [1964] HCA 69 (‘General Steel’). In General Steel, Barwick CJ explained the principles in these terms (at 129):

The Court of Appeal summarised the relevant principles in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200]:

It is sufficient simply to note that an order under r 13.4(1) is not appropriately made except in the clearest of case, and the power that is available is to be exercised sparingly and with restraint.

Rule 14.28(1) of the UCPR provides:

When a pleading is “unintelligible, ambiguous, vague or too general”, the rule typically employed in those circumstances is r 14.28(1)(b): Gunns at [57]. The rule is also available when a pleading does not comply within the general or specific principles of pleading such as those set out in rr 14.6-14.20 of the UCPR: Clarke v State of New South Wales (No 4) [2015] NSWSC 1054 at [33]-[45]. Generally speaking, in these situations, where a deficiency in a pleaded claim is curable by amendment, the Court may strike out the proceeding and grant a party leave to replead.

Here, as the proceeding by the plaintiff was commenced by summons, and not a statement of claim, r 14.28 of the UCPR does not strictly apply: that is because Part 14 applies to “proceedings commenced by statement of claim and to proceedings in which a statement of claim has been filed”: r 14.1 of the UCPR; Hassan v Sydney Local Health District [2022] NSWSC 954 at [81]. Notwithstanding, the Court has, as an incident of its jurisdiction, the power to control its own proceedings and procedure: as was said in Global Partners Fund Ltd v Babcock & Brown Ltd (In Liq) (2010) 267 ALR 144; [2010] NSWSC 270 at [77], the Court thus has

As I have earlier noted, the defendants seek summary relief relying upon rr 14.28(1) and 13.4 of the UCPR.

The essential argument of the defendants is that, in order for this Court to have jurisdiction under s 69 of the Supreme Court Act 1970 (NSW), it is necessary that the grounds identify a “question of law” – but the summons uniformly fails to do this (defendants’ submissions at [17]).

Subject to one matter, I accept this submission.

The reservation – which is modest – is this. The supervisory jurisdiction of the Court, under s 69 of the Supreme Court Act, is available to correct jurisdictional error, or error of law on the face of the record, and only errors in fact-finding when the error is within one of these categories: Folbigg v Attorney General of New South Wales [2021] NSWCA 44 at [12]. That is, the grounds are not required to identify a “question of law”, but error of law (or jurisdictional error as a category of error of law: Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 at [9]). Nevertheless, as I have indicated, I accept the broad thrust of the defendants’ submission: nothing that appears in the plaintiff’s amended summons turns upon any fine distinction between an error of law, and a question of law.

The manner of expression of the “grounds” of review would make summarising them difficult. There is, however, little point in attempting that unenviable task because what is alleged in the amended summons, in my respectful view, patently fails to clearly identify any error of law – or anything approaching it. There is, contrary to r 59.4(c) of the UCPR, no specific identification of the grounds relied upon to support the relief sought. Given that error of law forms the subject matter of the application for judicial review, the grounds of appeal are unquestionably required to explicitly identify the error of law raised: Ferella v Chief Commissioner of State Revenue (2014) 96 ATR 875; [2014] NSWCA 378 at [6] and [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [26].

The defendants submit that the amended summons is “convoluted, disorganised, ambiguous and contains allegations spread across some 41 grounds” and otherwise makes allegations that are “unspecified, bare and provide insufficient details”. I agree.

During submissions, the plaintiff argued that the essence of his complaints extended to the fact that there was no offence; that there were “faulty” warrants – including one which he alleged was fabricated; that the transcript of the proceedings in the Local Court was also “faulty”; and that the defendants failed to comply with a notice of discovery. These submissions only reinforce the gravamen of the defendants’ complaints, in my view.

The defendants further submitted that the plaintiff has erroneously sought judicial review when a statutory right of appeal is available – and this provides a further ground upon which to exercise summary relief. I will explain this.

The offence for which the plaintiff was convicted is an environmental offence (as to which see s 9.57 of the EPAA) – with the consequence there is no appeal as of right conferred by s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (‘the CAR Act’). That section provides:

Rather, as an environmental offence, the defendants submitted that, the plaintiff’s right to challenge the decision of the Magistrate was by appeal under (and confined by) s 53(2) of the CAR Act and, separately, not by way of judicial review. Section 53 provides:

By its terms s 53(2) imposes two restrictions on any appeal to this Court – first, the appeal is limited to a ground that involves “a question of law alone”; and, secondly, any appeal is by way of leave of the Court.

The defendants also argue that, by this statutory right of appeal, the plaintiff is required to identify, with precision, the “question of law alone”, but has failed to do so. For the reasons earlier given, I accept that submission.

The defendants further argued that any application for leave to appeal this decision would be in breach of the time stipulation in Part 51B r 5(3) of the Supreme Court Rules 1970 (NSW) (namely, 28 days from the decision of the Local Court). Strictly, this argument is correct. Notwithstanding, I do not accept the submission. As to it, I would simply observe that the plaintiff did file a summons in this Court on 3 March 2023 and I would not be prepared to entertain summary relief on the basis of any suggested improbability of the plaintiff securing an extension of time to file a summons in the appropriate form or that there could be no arguable basis for a grant of leave to appeal if the plaintiff could do so.

For these reasons, the defendants are entitled to an order striking out the amended summons.

For completeness, I add the following. The defendants did not argue that there had been any improper bifurcation by the filing of the summons for judicial review rather than pursuing (and only pursuing) an appeal under the CAR Act – in particular, the defendants did not contend that the plaintiff sought judicial review, rather than an appeal under the CAR Act, in order to gain a juridical advantage (the most obvious being the circumvention of any requirement to secure a grant of leave to bring an appeal). Issues of that broad kind were considered in Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [6]-[14] and Benjamin & Benjamin v Geneville Constructions Pty Ltd [2022] NSWSC 982 at [33]-[37]. Given no issue was raised, it is unnecessary to deal with it further.

The defendants sought, in the alternative, an order that the proceedings be dismissed under r 13.4(1) of the UCPR. In short, it was argued that, given the nature of the offence, it is almost inconceivable that an error of law could possibly arise. There is some force in that submission. Nevertheless, I am not persuaded to make that order, for the following reasons. First, although I entertain some considerable doubt about this, particularly given the plaintiff has already filed a summons and an amended summons has been filed, I cannot exclude the possibility that there is the kernel of a claim that is capable of being advanced by the plaintiff – and, given the degree of caution and restraint required in exercising summary relief, I am not presently disposed to grant summary relief notwithstanding the reservations that I have. Secondly, even if I were to dismiss the proceedings, the plaintiff would, in the absence of an order to the contrary effect, be entitled to file further proceedings having regard to s 91 of the Civil Procedure Act 2005 (NSW).

For the above reasons I make the following orders: