Cooper v Lake Macquarie City Council

Pursuant to a Notice of Motion filed on 29 July 2025, the defendants, being the Lake Macquarie City Council (“the Council”) and five individuals who are all council officers or agents of the Council, seek orders pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the proceedings be dismissed against the second to sixth defendants and, in the alternative, pursuant to r 14.28 of the UCPR, that the whole of the Statement of Claim be struck out.

On the hearing of the application today, Mr Boncardo of counsel appeared for the defendants and the plaintiff appeared unrepresented.

Mr Boncardo explained the basis on which the orders were sought, being that:

Having said that, by the end of the hearing and having regard to the submissions made by the parties and the very practical and appropriate way that the argument was pursued by Mr Boncardo, the real problem which the defendants seek to have addressed is that they do not know the case they have to meet. They wish that the case be properly pleaded so that they can understand the case they have to meet.

In support of the application, the defendants relied on an affidavit of their solicitor, Elizabeth Radley, dated 26 August 2025. The plaintiff relied on her own affidavit dated 16 September 2025.

As often happens in these types of applications, the real issues in dispute were narrowed, such that it is not necessary to address all of the submissions of the parties or even all of the evidence relied upon by the parties.

The plaintiff filed a Statement of Claim on 2 June 2025 against six defendants, as follows:

The plaintiff pursues two causes of action against all defendants, being:

The origin of the dispute is that the plaintiff, who is a council officer, says that she made a complaint to the second defendant on 8 September 2022 to the effect that she had concerns that compliance certificates had been issued in respect of a building when, in her view, the building was obviously noncompliant. As the plaintiff tells me today, that building was in fact the building next door to her home.

It is unclear at this stage whether the plaintiff is making more general allegations that there may be many noncompliant buildings or more than one certificate issued when the building was noncompliant. However, the origin of these proceedings is the complaint she made on 8 September 2022.

As a result of both her concerns as to certain things that happened to her and dissatisfaction with the Council’s response to her complaint, she escalated the complaint to the third defendant on 5 March 2023. He then delegated the complaint to the fourth defendant, who engaged the fifth defendant to look into the issue. At a later time, the sixth defendant, who holds the position of internal ombudsman, became involved and made some decisions about which the plaintiff raises further complaint.

In general terms, the plaintiff says that consequent upon her complaint or complaints, she has suffered detrimental action, which includes the fact that, on her case, very shortly after she made the complaint, the Council instituted a process whereby there was an order for demolition of her carport and, further, she has been the subject of other conduct directed towards her.

Whilst she remains employed by the Council (albeit there was an earlier attempted dismissal), she is not working full-time and says that she has suffered loss and damage as a result of the conduct towards her or stemming from the original complaint. She says that she has suffered a loss of income, loss of opportunity to advance in employment, loss of enjoyment in life, humiliation, reputational damage and detrimental effect on her family life.

The claim under the Public Interest Disclosures Act 1994 (NSW) is made pursuant to s 20A, which is headed “Compensation for reprisals”.

As set out in s 20A(1):

“Detrimental action” is defined in s 20(2) to mean:

The plaintiff alleges that the defendants have taken detrimental action against her that is substantially in reprisal for her making a public interest disclosure. The public interest disclosure is the complaint she originally made on 8 September 2022, albeit there may be issues as to whether further complaints she made would also constitute a public interest disclosure. Section 14 of the Public Interest Disclosures Act 1994 (NSW) specifies that to be protected by the Act, a disclosure by a public official, who the plaintiff was, to the principal officer or another officer:

In simple terms, the plaintiff says that she has made a public interest disclosure; she was an officer of the Council at the time; she has made that disclosure to persons more senior to her; she has suffered reprisals; and she seeks compensation consequent upon the loss or damage she has suffered as a result of those reprisals.

The alternative case is in misfeasance in public office.

As was said in Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65 per Brennan J at 357:

The plaintiff’s Statement of Claim comprises 92 paragraphs. On one view it is a well set out document with the pleading of many facts relevant to her case. On another view, some of the matters which she is required to plead are not present. In my view, the document is not such that the defendants would have no idea of the cases they are required to meet but it is lacking in some particularisation on a number of matters.

As is well known, a party seeking a dismissal of proceedings at this preliminary stage faces a high bar. The defendants must show that the action that the plaintiff is pursuing is so obviously untenable that it cannot possibly succeed, or that there is no arguable cause of action, or that it is manifestly groundless. As the defendant accepts, the Court must be satisfied to a high degree of certainty of the ultimate outcome of the proceedings if it were allowed to go to hearing in the ordinary way: see Pi v Zhou [2016] NSWCA 148 per Gleeson JA and Moussa v Camden Council (No 3) [2022] NSWSC 913; (2022) 162 ACSR 586 at [19]-[21] per Garling J.

Having regard to the evidence and submissions, I am not satisfied that the cause of action the plaintiff pursues against any particular defendant is manifestly groundless or so untenable that it should be dismissed at this stage. The allegations against the defendants are not necessarily all complete or are lacking in detail, but there can be no doubt that the plaintiff is asserting a claim for damages under the Public Interest Disclosures Act 1994 (NSW) and the Public Interest Disclosures Act 2022 (NSW), and based on the tort of misfeasance in public office.

It is plain from her Statement of Claim that she is asserting that, following and subsequent upon her complaint, she was subject to various forms of conduct, which she says would constitute reprisals, and that this has led to her suffering loss and damage.

I emphasise that I am not determining the outcome of the proceedings or making any factual findings as to the merits of her case (at this stage).

In all the circumstances, I am not satisfied that the plaintiff’s case against any of the defendants should be dismissed at this time.

The defendant is on stronger ground in respect of its complaint relating to the pleadings. I accept Mr Boncardo’s criticisms about a number of matters relating to the pleadings, including that the plaintiff does not plead the reasonable grounds on which she had a honest belief that the conduct showed either corrupt conduct, malice, maladministration, or one of the other matters referred to in s 14, nor does she plead the detrimental action which is defined in s 20 of the Public Interest Disclosures Act 1994 (NSW). I accept that it is necessary for her to do so.

Further, whilst she refers to misfeasance in public office, it is not clear from the Statement of Claim what conduct is said to give rise to the allegation of misfeasance in public office.

I raised with the plaintiff that making these types of allegations against individuals is very serious, in the sense that misfeasance in public office necessarily involves an assertion that the council officer has not performed his or her role honestly, that is for an improper purpose.

The plaintiff says that she has evidence and maintains her allegations in respect of each of the six defendants. Again, I am not in a position to determine the merits or otherwise of her assertions at this time.

The question which thus arises is how to solve the problem in circumstances where the Statement of Claim is already an extensive document. It would be in no one’s interest that the plaintiff be required to replead and add many more paragraphs to the document.

Experience shows that self-represented persons, irrespective of their obvious intelligence, are not generally familiar with the rules of pleadings, and things can get worse if they are required to start again. I do not propose to order the plaintiff to do so in this case.

Rather, as discussed with the parties, and as generally agreed to on behalf of the defendant, I will make orders which will require the plaintiff to identify on a number of separate pages the matters about which the defendants complain.

Before making those orders, I should say something about the issue raised by the defendant in terms of legal costs. As Mr Boncardo points out, as set out in s 38 of the Public Interest Disclosures Act 2022 (NSW), a person who institutes proceedings under s 38 is not liable to pay costs incurred by another party to the proceedings. There is no similar provision in the Public Interest Disclosures Act 1994 (NSW).

The defendants rely only on s 38(1)(b) in that they assert the plaintiff’s unreasonable act or omission caused them to incur the costs, being the costs of this application. They point to their letters to the plaintiff inviting her to replead. It is not asserted for the purposes of the costs issue that the plaintiff instituted the proceedings vexatiously or without a reasonable case. It is asserted that the plaintiff was unreasonable in not repleading to deal with the alleged deficiencies.

A defendant may be on good ground in asserting that a represented party who continues to decline to replead, might be engaged in conduct that is unreasonable within the meaning of that word in s 38.

However, unrepresented persons are in a slightly different position. Whilst the same rules apply to unrepresented persons in terms of evidence, pleadings and the running of the case, experience shows that pleading is often a challenging task for unrepresented persons.

I accept that the plaintiff has done her best on this occasion, and that she considers that the matters raised by the defendant are contained in the body of the Statement of Claim. At least to a certain extent, they may be.

In the particular circumstances of this matter, I do not consider it unreasonable (as that term would be understood within the meaning of s 38(1)(b)) for the plaintiff to have not filed a new Statement of Claim or redrafted all her pleadings.

In the circumstances, there should not be any costs order in respect of the determination of this application.

I say this for the following reasons:

Section 38 must be interpreted beneficially in favour of persons such as the plaintiff. Whilst it is not an “exceptional circumstances test”, as those words are not used in s 38, the phrase “unreasonable” or “omission” must be interpreted narrowly to give effect to the purpose of s 38.

In the circumstances, I will not make either of the orders sought by the defendant on the motion, but I will make orders which will have the effect of the defendant obtaining the information it wants and forcing the plaintiff to provide further particulars.

The way in which this will be achieved is by directing the plaintiff to prepare on a separate piece of paper, which will be an addendum to the existing Statement of Claim, further particulars of the matters sought. I will come to that shortly.

Finally, as part of my role in case managing these sorts of matters, I raised with the plaintiff why she felt it necessary to have defendants two to six as defendants in circumstances in which the Council, being the first defendant, would plainly be liable for their conduct. Mr Boncardo, on behalf of the Council, stated in Court that the Council accepted that it would be liable for the conduct of each of the second to sixth defendants and would be liable to pay any damages that they might be liable to pay should they be sued personally.

The point of raising this is to observe that the plaintiff, by continuing her action against six defendants, might expose herself to adverse costs orders if she does not succeed against all of those defendants. I emphasised to the plaintiff that the allegations she was making against each of the defendants were serious allegations and she needed to be satisfied there was a sufficient basis to make them.

I am not sure why it is necessary to name each of the individuals as defendants in all these circumstances. In my experience the naming of six defendants unnecessarily complicates matters and leads to the incurring of much more substantial costs.

Further, whilst I make no comment on the merits of the allegations against each defendant, I understand the position of each of the individuals that they should not be named as individual defendants unless it is necessary to do so.

In all these circumstances the orders I make are as follows: