Citation: Mills v Perras & Ors [2011] NSWSC 581
Court: Supreme Court of New South Wales
Date: 3 June 2011
Judge: McCallum J
Background
The plaintiff brought proceedings against three defendants arising from the aftermath of an unsuccessful private prosecution he had brought in the Local Court in 2005. The original prosecution alleged trespass under the Inclosed Lands Protection Act 1901, after the first defendant had briefly entered the plaintiff's property to retrieve his German Shepherd. The Magistrate dismissed the charge, finding the first defendant had established a lawful excuse, and ordered the plaintiff to pay costs.
The plaintiff subsequently appealed to the Supreme Court, where Associate Justice Harrison dismissed the appeal, and apparently then to the Court of Appeal. He also attempted, unsuccessfully, to bring the matter before the High Court. These proceedings represented yet another attempt to obtain relief connected to that same underlying dispute.
The plaintiff filed a summons naming the neighbour who had been prosecuted, the solicitor who had acted for that neighbour in the Local Court, and the Crown. He claimed $800,000 in damages for the alleged loss of his house property. The second and third defendants brought motions to strike out the pleadings and dismiss the proceedings.
Legal Issues
- Whether the summons and statement of claim disclosed a reasonable cause of action against any of the defendants
- Whether the claims against the Crown, based on alleged breaches of the Constitution Act 1902 and the Supreme Court Act 1970, were legally sound
- Whether the proceedings should be dismissed under rules 13.4 or 14.28 of the Uniform Civil Procedure Rules 2005
Decision
McCallum J examined the summons and statement of claim together, finding the claims were difficult to understand on their face. Against the neighbour, the plaintiff alleged deceit arising from contradictory evidence given during the Local Court proceedings, and a separate claim in negligence for allowing the dog to enter his property. Against the solicitor who had appeared for the neighbour, the plaintiff claimed negligence for failing to correct those allegedly contradictory statements. In both cases, there was simply no disclosed basis upon which either of those events could have caused the loss of the plaintiff's property.
The claims against the Crown rested on the proposition that the Constitution Act 1902 and the Supreme Court Act 1970 imposed statutory duties on public servants and agents to ensure fairness and justice in individual cases. McCallum J rejected both propositions as plainly misconceived. The legislative power conferred by section 5 of the Constitution Act cannot be mistaken for a duty owed to individual citizens, and the preamble to the Supreme Court Act similarly creates no such enforceable obligation.
As with the claims against the individual defendants, the claim against the Crown disclosed no rational connection between the conduct complained of and the relief sought. The court was satisfied that no reasonable cause of action was disclosed in either the summons or the statement of claim, read together, as against any of the three defendants.
The plaintiff did not appear on either occasion when the matter came before the court. The court was satisfied proper service had been effected and proceeded to hear the applications in the plaintiff's absence under rule 18.7 of the UCPR. Although the first defendant had not been served with any originating process, the court considered it appropriate to dismiss the proceedings as against all three defendants given the applications by the second and third defendants had revealed that no reasonable cause of action existed against any of them.
Orders Made
- The proceedings were dismissed as against each of the defendants.
- The plaintiff was ordered to pay the costs of the second and third defendants.
Key Takeaways
- A claim for damages requires a pleading that discloses a rational connection between the conduct complained of and the loss claimed; the absence of any such connection will render the pleading liable to be struck out under rules 13.4 and 14.28 of the UCPR.
- Legislative power conferred on Parliament under the Constitution Act 1902 does not give rise to a statutory duty owed to individual citizens to ensure that power is exercised in a particular way.
- The preamble to the Supreme Court Act 1970, which describes the Act's objects, does not impose enforceable obligations on public servants or agents of the Crown to deliver fairness or justice in individual cases.
- Where proceedings disclose no reasonable cause of action against served defendants, the court may, in appropriate circumstances, dismiss the proceedings as against all defendants, including those not served.
- Proceedings may be heard and dismissed in the plaintiff's absence under rule 18.7 of the UCPR where the court is satisfied that notices of motion and relevant affidavits have been duly served and the plaintiff has been notified of the hearing date.
Legislation and Cases Referenced
Legislation:
- Uniform Civil Procedure Rules 2005 (NSW), rules 6.3, 10.5, 13.4, 14.28, 18.7
- Constitution Act 1902 (NSW), s 5
- Supreme Court Act 1970 (NSW)
- Inclosed Lands Protection Act 1901 (NSW), s 4(1)
Cases:
- Mills v Perras [2005] NSWSC 1184 (Associate Justice Harrison)