Jackson v Redcliffe City Council
[2008] QDC 254
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- Unreported Judgment
- Appeal Determined (QCA)
- Jackson v Redcliffe City Council[2008] QDC 254
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Jackson v Redcliffe City Council[2008] QDC 254
Jackson v Redcliffe City Council[2008] QDC 254
DISTRICT COURT OF QUEENSLAND
CITATION: | Jackson v Redcliffe City Council and Lancefield [2008] QDC 254 |
PARTIES: | VANESSA CAROL ANN JACKSON Plaintiff V REDCLIFFE CITY COUNCIL First Defendant And GWENDA MAY LANCEFIELD Second Defendant |
FILE NO/S: | 3768 of 2007 |
DIVISION: | Civil |
PROCEEDING: | Applications |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 20 October 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 August, 23 September 2008 |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: |
|
CATCHWORDS: | PRACTICE AND PROCEDURE – SUMMARY JUDGMENT – DEFECTIVE PLEADINGS – CAUSE OF ACTION STATUTE BARRED – where all parties apply for summary judgment – where self-represented plaintiff’s claim apparently out of time Limitation of Actions Act 1974 s 10(1), 31 Uniform Civil Procedure Rules, r 293 Cases considered: Commonwealth v Cornwell (2007) 229 CLR 159 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 General Steel Industry Inc v Commissioner for Railways (1964) 112 CLR 125 Queensland v Stephenson (2006) 226 CLR 197 |
COUNSEL: | Plaintiff self represented S C Holland for Redcliffe City Council G Sara for Gwenda May Lancefield |
SOLICITORS: | Plaintiff self represented McCullough Robertson for Council Rhonda Penny Lawyers for Lancefield |
- [1]Unusually, all three parties to this action seek summary judgment. The defendants each ask, in the alternative, that the plaintiff’s amended statement of claim be struck out. The voluminous material filed by Ms Jackson and the Council shows the proceedings are yet another step in a long running dispute between the parties about drainage problems at Ms Jackson’s property at 55 McCulloch Avenue, Margate.
- [2]Ms Jackson is acting on her own behalf. The defendants both assert that her claim against each of them is out of time and should be summarily dismissed. In the alternative, they say, Ms Jackson’s statement of claim should be struck out.
- [3]The plaintiff began her action by filing a claim and a statement of claim in December 2007 naming Mr Alan Sutherland (the Mayor of Redcliffe City Council) as defendant. On 8 May 2008 this court granted Ms Jackson leave to file an amended statement of claim, to substitute the Council for Mr Sutherland as first defendant, and to add Ms Lancefield as second defendant.
- [4]The amended statement of claim runs to 19 pages. The pleading and some affidavits filed by Ms Jackson make it clear she purchased the property in 1988. 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, 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.
- [10]The Limitation of Actions Act 1974 provides, in s 10(1), that the period of limitation for an action of the kinds she alleges (nuisance, negligence, negligent misstatement, breach of statutory duty and the like) lapses after 6 years from the date on which the cause of action first accrued. Accrual occurs at the time damage is sustained[1].
- [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[2].
- [12]It is plain that Ms Jackson herself believes that she first suffered damage as a result of drainage problems as early as 1994. Dates mentioned in her amended pleading shows that, at the latest, the approximate start of the dispute with Ms Lancefield was around November 1997[3]. 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 1999.
- [13]The action was not commenced until December 2007, more than two years after the expiry of the limitation period on 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;[4] 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 1999. She also lodged a claim with her insurance company in mid 1999, which was refused in August of that year.
- [14]Nor, for the sake of completeness, is there anything to suggest she may have grounds under s 31 of the Limitation Act which might allow her to seek and obtain an extension of time. The test under that provision is whether a reasonable person with the applicant’s knowledge would regard the facts as justifying an action, in her own interests. That is a test to be satisfied at a particular point in time[5]. There is no evidence to suggest any new facts or information arose after mid-1999 which would justify relief under that section.
- [15]Ms Jackson has previously attempted to rely on similar facts in an action against the Council by way of counterclaim in its proceedings against her in the Magistrates’ Court in 2005 for unpaid rates[6]. The matter – at least, Council’s claim against her – was determined in Council’s favour. The plaintiff did not appeal the Magistrate’s decision. She said, in oral submissions, that she was told her counterclaim exceeded the jurisdiction of the Magistrates Court and that was why she began the present action. It is not apparent why the counterclaim could not have been lifted up to this Court. In any event, the counterclaim was not filed in the Magistrates Court until 2 December 2005 which, again, is more than six years after the last date in 1999 when, on the most generous view, time began to run against her.
- [16]The array of legal problems she faces, considered in company with the diffuse and confusing nature of her amended pleading, compel the conclusion it would be a mercy to end the action now.
- [17]The defendants’ applications for summary judgment are brought under UCPR r 293. The court must be persuaded the plaintiff’s case has no real or reasonable prospect of success, and there is no need for a trial. The test was described in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, at 236-237 in terms that the relief will not be obtained as a matter of course, and the judge hearing the application is essentially called upon to determine whether the respondent has established some real prospect of succeeding at trial – and, if so, the matter must be allowed to go ahead. In the face of the very serious problems Ms Jackson faces with the limitations defence there is no discernable prospect that she can succeed, and the defendants should have judgment against her.
- [18]Even if that conclusion had not been reached, this discussion shows that her claim remains untenable and ought to be struck out on the basis, at least, that it is statute barred. 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. The principles attaching to an application to strike out are well known[7]: the relief will not ordinarily be granted save in the clearest of cases but this, again, is plainly of that kind.
- [19]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.
- [20]The defendants seek costs, Council on an indemnity basis. While I have found that the plaintiff’s present action cannot succeed it is clear that the matters to which her action adverts have been problematic for many years; that she has persisted, albeit intermittently, with attempts to find a remedy; and, that her major hurdle now is of a technical, legal kind. In those circumstances, the conclusion that her action should be dismissed does not properly attract the added penalty of indemnity costs.
- [21]There will be judgment for both defendants against the plaintiff, and an order that she pay their costs of and incidental to the applications before the court, and the action, assessed on the standard basis.
Footnotes
[1] Commonwealth v Cornwell (2007) 229 CLR 519.
[2] Affidavit Sean Magee Fitzgerald filed 14 July 2008, paras 8 and 13(a).
[3] Amended statement of claim filed 8 May 2008, p 8.
[4] Amended statement of claim, para 15.
[5] Queensland v Stephenson (2006) 226 CLR 197, at paras [29] – [30].
[6] The pleading is exhibit SMF-4 to the affidavit of Mr Fitzgerald filed 14 July 2008.
[7] General Steel Industry Inc v Commissioner for Railways (1964) 112 CLR 125, at 138.