SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Jackson v Redcliffe CC & Anor [2009] QCA 38 PARTIES: VANESSA CAROL ANN JACKSON (plaintiff/appellant) v REDCLIFFE CITY COUNCIL (first defendant/first respondent) GWENDA MAY LANCEFIELD (second defendant/second respondent) FILE NO/S: Appeal No of 2008 DC No 3678 of 2007 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal General Civil Appeal District Court at Brisbane DELIVERED ON: 27 February 2009 DELIVERED AT: Brisbane HEARING DATE: 20 February 2009 JUDGES: ORDER: CATCHWORDS: de Jersey CJ, Fraser JA and Chesterman JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Appeal allowed 2. Judgment and orders of the District Court of 20 October 2008 set aside 3. The amended statement of claim filed 8 May 2008 is struck out, with leave granted to the appellant to file and serve a further amended statement of claim, and amended claim, within 45 days 4. No order as to costs, both of appeal and of the applications in the District Court LIMITATION OF ACTIONS CONTRACTS, TORTS AND PERSONAL ACTIONS WHEN TIME BEGINS TO RUN PARTICULAR CAUSES OF ACTION OTHER CAUSES OF ACTION where the appellant appealed against a judgment given in the District Court on 20 October 2008 where the claim was struck out because it was timebarred whether the primary judge was correct in determining that the claim was time-barred Limitation of Actions Act 1974 (Qld), s 10(1), s 10(3), s 10(4), s 31

2 2 COUNSEL: SOLICITORS: Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321; [2001] 4 All ER 737, cited Earl of Harrington v Corporation of Derby [1905] 1 Ch 205, cited Hole v Chard Union [1894] 1 Ch 293, cited Masters v Brent London Borough Council [1978] QB 841; [1978] 2 WLR 768, cited The appellant appeared on her own behalf A L Brook for the first respondent G T Sara for the second respondent The appellant appeared on her own behalf McCullough Robertson for the first respondent Rhonda Penny Lawyers for the second respondent Introduction [1] de JERSEY CJ: The appellant, who appears without legal representation, has appealed against a judgment given in the District Court on 20 October The learned primary Judge entered judgment summarily for the defendants against the appellant (plaintiff), and ordered the appellant to pay the defendants costs, assessed on the standard basis. [2] The appellant filed her amended claim and statement of claim on 8 May In its amended defence, the first defendant, Redcliffe City Council, objected to the vast bulk of the amended statement of claim on the basis that it was irrelevant, scandalous, unnecessary and/or frivolous (the language of Rule 171 of the Uniform Civil Procedure Rules). [3] On 11 July 2008 the appellant filed an application for judgment, which should be taken to have been an application for summary judgment under Rule 292. Then on 14 July 2008, the first defendant filed an application for orders, striking out the statement of claim under Rule 171(1)(a) as disclosing no reasonable cause of action, and for summary judgment under Rule 293. The second defendant filed a similar application on 4 August [4] The Judge gave judgment to the defendants because of his conclusion that the claim had no prospect of success, because it was time-barred. The primary judgment [5] The learned Judge summarised so much as may confidently be drawn from the appellant s amended statement of claim in the following paragraphs of his reasons for judgment: [4] The amended statement of claim runs to 19 pages. The pleading and some affidavits filed by Ms Jackson make it

3 3 clear she purchased the property in In the pleadings she says that so soon as her family moved in it was apparent her land was being abused by stormwater run-off from up-hill properties when it rained the bottom of the yard turned boggy. This problem is said to have been caused (at least in part) by the owner of 57 McCulloch Street, Ms Lancefield. Changes to the properties and contact with Council staff have never, Ms Jackson says, solved these problems. Council has allegedly failed to investigate and act appropriately to resolve them when, it is also alleged, they involve breaches of its own by-laws. In 1998 and 1999 there were proceedings in the Small Claims Tribunal and attempts at mediation. [5] In 1999 Derrington J apparently heard an application to review by Ms Jackson and remitted the case to the Small Claim Tribunal for re-hearing. The outcome is unclear but it seems the result was much the same and, in any event, unsatisfactory to Ms Jackson. She has also sought assistance and a relief or remedy through other means, including the Ombudsman. [6] Her pleading is verbose but it appears she alleges the Council is in breach of a duty of care to protect her property from unlawful drainage and/or has acted negligently and/or in breach of its statutory duty arising from its jurisdiction over drainage matters. There is also an allegation, at page 15 of the statement of claim, of negligence by misstatement, alleged to arise from Council s failure to access all relevant information to pass on appropriately the details to all parties involved to prevent people, property, etc. ending up in a hell of a mess ; and, a claim at p 18 for negligence causing economic loss advanced, it appears, on much the same grounds. [7] It is difficult to discern the precise nature of the claim against the second defendant but the pleading does contain allegations that she lied to the Small Claims Tribunal and the Supreme Court; and, as can be gleaned from some of the plaintiff s affidavits, she continues to assert that Ms Lancefield s acts have been causative of the problem, or aggravated it. [8] Ms Jackson s material is persuasive that, in wet weather, her property is inundated; that this has, unsurprisingly, caused expense and unhappiness; and, that she has pursued relief through many sources including a variety of Council representatives and officers including the Mayor, the police, the Magistrates Court, the Small Claims Tribunal, the Ombudsman, lawyers and engineers. Late in the proceedings she produced an engineer s report showing, convincingly,

4 4 that her property has been damaged and quite substantial repairs are necessary. It is impossible not to feel a measure of sympathy and concern for her. [9] It also seems from her pleading, however, that she alleges the acts of other neighbours are causative of her drainage problems. One is named Mrs Dawn Kopp and there is a reference to unlawful drainage changes made by my two new neighbours in December 1998 at p 5. I may be misunderstanding the references; the pleading is not easy to read. In any event it appears that the core of her claim is compensation for damage to her property allegedly sustained from storm water run-off from neighbouring properties as a result of changes to fencing and drainage. [6] The Judge concluded that the appellant s claims were time-barred. He identified an applicable six year limitation period, under s 10(1) of the Limitation of Actions Act 1974 (Qld), being the period applicable to actions in nuisance, negligence, negligent misstatement, breach of statutory duty and the like. He considered that the requisite damage was sustained, at the very latest, by June or July 1999, so that the proceeding, commenced in December 2007, was out of time. [7] His Honour analysed the matter as follows: [11] It is inescapable that the problem has been apparent for many years, and that the current proceedings are statute barred. Ms Jackson s own material shows she has known for a long time that the real source of her difficulties is storm water drainage from adjoining properties. Affidavits filed on behalf of the Council show that so long ago as 17 March 1994 its officers identified that source, and informed her in a letter. In another letter, of 10 November 1998, a Council officer suggested she seek legal advice concerning remedies against adjoining property owners [Affidavit Sean Magee Fitzgerald filed 14 July 2008, paras 8 and 13(a)]. [12] It is plain that Ms Jackson herself believes that she first suffered damage as a result of drainage problems as early as Dates mentioned in her amended pleading shows that, at the latest, the approximate start of the dispute with Ms Lancefield was around November 1997 [Amended statement of claim filed 8 May 2008, p 8]. Certainly, the pleading makes several references to what is alleged to be substantial property damage caused by flooding in the first part of 1999 (and, to a great deal of flooding in 1994). On any view damage was sustained well before, and in any event at the latest by, June or July in [13] The action was not commenced until December 2007, more than two years after the expiry of the limitation period on

5 5 the most generous construction of her pleading. There is nothing to suggest Ms Jackson was somehow prevented or inhibited from bringing action within the limitation period as the result of any conduct on the part of the defendants. Indeed, the evidence establishes that she believed she had a cause of action as early as 1998 she sought legal advice in 1998 [Amended statement of claim, para 15]; and, began an action for damages against the second defendant in the Supreme Court in December 1998 which was referred to the Small Claims Tribunal and heard and determined in June She also lodged a claim with her insurance company in mid 1999, which was refused in August of that year. [8] As His Honour put it, for the sake of completeness, he also expressed his conclusion there was nothing to suggest any basis for an application for an extension under s 31 of the Limitation of Actions Act 1974 (Qld). [9] I note at once that insofar as s 31(1) requires that the damages claimed must consist of or include damages in respect of personal injury to any person, the appellant alleges in the amended statement of claim adverse impact upon the health of a member of her family (Briony) because of the drainage problem, but does not allege that she herself suffered personal injury. Accordingly this proceeding, brought by the appellant alone, would not fall within s 31. In any event, the appellant has not claimed an extension of time, and in her outline of argument in reply to the respondents outlines, she specifically disavows that course, saying: I have not sought an extension of time under the Limitation of Actions Act [10] His Honour concluded that there was no discernible prospect that the appellant could succeed, and that the proceeding ought to be struck out on the basis, at least, that (it) is statute barred. He went on to say that the pleading itself is also, in many places, incomprehensible and does not coherently set up facts or matters establishing a possible entitlement to relief of the kind sought. [11] The learned Judge was fully alive to the circumstance that the appellant, appearing without legal representation, was in a position of difficulty. He said: I appreciate Ms Jackson is doing the best she can, and that her pleading contains something of a narrative of things which have caused her great unhappiness and that, ultimately, she simply wishes to find a remedy, somewhere, for the drainage problems which beset her. It is unavoidable, however and this conclusion is not reached without some regret that the present action cannot achieve that and will only, ultimately, lead to greater dissatisfaction for her, and financial loss in costs. The notice of appeal [12] It is necessary to address the expressed grounds of appeal, so far as they may be gleaned from the notice of appeal.

6 6 [13] In her notice of appeal, which extends to seven closely-typed foolscap pages, the appellant traverses many of the factual matters alleged in the amended statement of claim, leading to a complaint that the respondents, in applying for summary judgment against her, were improperly motivated. Any question of the relevance of that aside, it is based on an assumption as to the tenability of the appellant s claims. The flavour of the complaint may be gauged from her concluding paragraph: The principle of the court system is to serve and determine justice however, its process should not be abused by those who seek to reward themselves by cheating those already at a disadvantage, by using their position to deviate from the natural course of justice, by misrepresenting the facts, withholding evidence necessary to an informed judgment, drawing attention to false evidence, as contained within the documented affidavits of the defendants and the Ronald Biggs report and, with great regret, nor do they resolve the differences nor the distance that have arisen from deception, concealment and fraud, in respect of their contribution to prior statute action. [14] No more need be said of that complaint. [15] A somewhat more comprehensible contention is that because the amount of the appellant s claim exceeded the monetary jurisdiction of the District Court, the primary Judge lacked jurisdiction. At an earlier stage, the respondent Council brought proceedings in the Magistrates Court against the appellant for the recovery of unpaid rates, and in those proceedings, the appellant counter-claimed for more than $250,000 damages based on the sorts of allegations raised against the Council in the instant proceeding. But in neither the amended claim, nor the amended statement of claim in this proceeding, did the appellant provide any particulars of the amounts of her claims. Furthermore, no such challenge was raised before the primary Judge. It is absurd, of course, to conceive that it would have been, because it would have involved a contention by the appellant that her own claim was incompetent. [16] Mention should also be made of paragraph 19 of the notice of appeal, in which the appellant appears to identify a number of material facts of a decisive character relating to a right of action, in the context of s 31 of the Limitation of Actions Act 1974 (Qld). I have already stated at paragraph 9 why this cannot bear on the determination of the appeal. [17] In her outline of argument, the appellant makes reference to s 10(3) and s 10(4) of the Limitation of Actions Act 1974 (Qld), which deal respectively with actions upon a specialty and actions upon a judgment, where a 12 year limitation period applies. But this was not such a case. Further discussion [18] The appellant s claim is based in alleged nuisance, negligence and breach of statutory duty, for which a six year limitation period applies.

7 7 [19] Having found that by mid-1999 at the latest, the appellant was aware of the damage allegedly arising from the acts or omissions of the respondents, His Honour held that the subsequently commenced proceeding was time-barred. He considered that position so clear as to warrant the summary termination of the proceeding. [20] It does however seem clear that the appellant is complaining of recurrent damage, occurring every time it rains. While recovery would appear to be barred in respect of the period prior to December 2001, for the reasons expressed by His Honour, a claim could be mounted in respect of any actionable losses thereafter, up to December 2007 when the proceeding was commenced. [21] Where damage is continuing or recurrent, as here, a new cause of action arises from day to day, or upon the occurrence of fresh damage. See Hole v Chard Union [1894] 1 Ch 293, 295-6; Earl of Harrington v Corporation of Derby [1905] 1 Ch 205, 227; Masters v Brent London Borough Council [1978] QB 841, 848-9; Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321, [22] Allowing for that now, may be considered rather generous to the appellant. The amended statement of claim presents as a confusing jumble; it is difficult to recognise any readily comprehensible recitation of material facts basing a cause of action, quite apart from clear distinctions in the claims against the two defendants, and the bases of their particular responsibilities. But it suffices, for the determination of the appeal, to note the appellant s claim in nuisance, and its continuing recurrent consequences. [23] While the Judge was plainly right to suggest that the amended statement of claim could not survive because of its manifest deficiencies, and should be struck out under Rule 171, he should not, in my respectful view, have terminated the overall proceeding by giving judgment for the defendants. The appellant should have been given the opportunity to re-plead, desirably with assistance from QPILCH or other pro-bono source. [24] In striking out the proceeding, I consider the Judge overlooked the accruing nature of the alleged loss, and inadvertently denied the appellant the opportunity to litigate a claim in respect of so much of it as arose within the period of six years preceding commencement. It should fairly be noted that the point which I think resolves this appeal was not raised before His Honour. Especially with the appellant s being unrepresented, it should not be assumed the pleading cannot be re-cast to raise arguable causes of action in respect of that loss. At least the appellant should be given the opportunity to attempt that. [25] This point was not taken in the notice of appeal, but was fully ventilated at the hearing. Allowing for the appellant s being unrepresented, the deficiency in the notice of appeal should not ultimately tell against her. [26] There is one other matter. The relief claimed in the amended claim, which bespeaks a need for amendment, was as follows:

8 8 costs incurred arising from claim and interest arising therefrom correction of problem at defendants expense (not at expense of new neighbour) correction of damages which defendant could have claimed against their insurance compensation at the court s discretion (particulars to be supplied) Page 19 of the amended statement of claim repeats that claim for relief. I note that the appellant has not sought injunctive relief, in respect of which the six year limitation period would not apply. I would not regard the very generally expressed claim under the second dot point above as an adequate claim for injunctive relief. But of course were an injunction sought, in proper form, the six year limitation period would not apply to that particular claim, though a defence of laches may be raised. That aspect may have to be considered in any attempt to re-plead, though it is difficult to see how Ms Lancefield could be enjoined, her having left the neighbouring property, as we were informed, in Disposition of the appeal [27] In the District Court, the respective applications for summary judgment should have been refused, and there should have been an order that the amended statement of claim be struck out as vexatious, but with leave to re-plead. Allowing for the hope the appellant will in that regard obtain pro bono assistance, a longish period for repleading should be allowed. (There will be need to amend the relief claimed in the claim as well.) [28] The appropriate costs orders in the District Court, on the above basis, would have favoured the defendants; disposing of the costs of the appeal, on a stand-alone basis, would favour the appellant (albeit she is unrepresented). The fair overall result is that the parties bear their own costs at each stage. Orders [29] I would make the following orders: 1. allow the appeal; 2. set aside the judgment and orders of the District Court of 20 October 2008; 3. order that the amended statement of claim filed 8 May 2008 be struck out, with leave to the appellant to file and serve a further amended statement of claim, and amended claim, within 45 days; 4. no order as to costs, both of appeal and of the applications in the District Court. [30] FRASER JA: I agree with the orders proposed by the Chief Justice and his Honour s reasons for those orders. [31] CHESTERMAN JA: I agree with the judgment of the Chief Justice.