JOHN FLEISCHINGER'S CLAIM AGAINST ACT PLANNING AND LAND AUTHORITY
1. The Defendant is a statutory body duly incorporated and is liable to be sued in and by its said corporate name and style.
2. The Defendant by itself, its servants and agents has the duty of care to administer correctly and lawfully the provisions of the Land (Planning and Environment) Act 1991 (the Land Act) and to comply with all other relevant ACT acts.
3. At all relevant times the Plaintiff was the owner and occupier of Block 3 Section 158 Kambah. The block was not visible from any of the surrounding areas. The Plaintiffs valued their privacy.
4. The Defendant received an ‘unclean block’ complaint about the relevant block on 03.05.02 .
5. The Defendant intentionally entered the land without the Plaintiff’s authorisation on the following occasions to obtain evidence to issue and administer a clean up order under Section 256(5)(b)(x) of the Land Act: 08.05.02, 19.06.02, 10.09.02, 13.09.02, 10.10.02, 08.11.02, 15.11.02.
6. The Defendant further intentionally entered the land without the Plaintiff’s authorisation on the following occasions: 22.06.04, 16.12.04, 21.02.05, 02.04.07, 12.04.07.
7. The Defendant issued an order 10.07.02 requiring the Plaintiff to ‘clean up a leasehold by removing the accumulation of miscellaneous items and debris from the land.’ The terms of the order were not defined so he relied on the Defendant for guidance.
8. The Plaintiff applied to the Administrative Appeals Tribunal (the AAT) asking for an extension of time to do the clean up himself.
9. The Defendant relied on the unauthorised inspections of Block 3 Section 158 Kambah for its evidence in the AAT proceedings.
10. On 21.10.02 a consent order (the consent order) was mediated. The order as issued by the Defendant was affirmed; the Plaintiff was given until 25.11.02 to comply; and, the Defendant was given the option of granting him an extension of time.
11. The Defendant did not have any formal guidelines to interpret Section 256(5)(b)(x) of the Land Act to ‘clean up a leasehold’ so discretionary standards were applied.
12. The Defendant applied different discretionary standards to the consent order on: 10.07.02, 7.11.02, 8.11.02, 13,11.02 and 19.11.02. These divered from the order so as to be additional orders imposed on the Plaintiff without due process.
13. The Defendant’s discretionary standards issued 13.11.02 and 19.11.02 were too late for the Plaintiff to effect compliance by 25.11.02.
14. The Plaintiff requested an extension of time to comply with the foregoing discretionary standards which the Defendant refused. This was unreasonable as it did not give him enough time to relocate all the goods and chattels in the yards.
15. The Plaintiff continued cleaning up the land expecting that the Defendant would inspect it on 25.11.02 and inform him if he had complied with the consent order. The Defendant did not conduct an inspection on that date. Thereafter, the Defendant had no further discretion to exercise in the matter.
16. On 02-04.12.02 the Defendant forceably entered the land with the assistance of the police and against the express wishes of the Plaintiff in order to execute the consent order without the relevant statutory power to do so.
17. The Defendant threatened the Plaintiff several times over the 2-4.12.02 that the police would be recalled to the site if he impeded the Defendant’s actions.
18. The Defendant authorised the contractors to remove all the Plaintiffs’ goods and chattels that were on the land and to take them to the nearest ACT Waste Management Facility.
19. The Defendant authorised contractors to empty an enclosed terrace attached to the house and dispose of the goods and chattels therein. The terrace was beyond the Defendant’s jurisdiction in respect to the consent order.
20. The Defendant authorised the contractors to empty goods and chattels from three sheds, to demolish the sheds and dispose of the goods and chattels therein. These structures were beyond the Defendant’s jurisdiction in respect to the consent order.
21. The Defendant breached the Plaintiff’s privacy by inviting potential contractors 10.09.02 onto his land without his authorisation and giving them information about his goods and chattels.
22. The Defendant breached the Plaintiff’s privacy by disclosing confidential proceedings of the AAT mediation in an office memo 11.09.02 and to the Ombudsman 10.01.08.
23. On several occasions on or about 12.11.02, the Defendant breached the Plaintiff’s privacy by allegedly asking his neighbours to provide information about him and his property.
24. The Defendant breached the Plaintiff’s privacy by informing members of the public watching the clean-up on or about 2-4.12.02 that an order was being enforced against him.
25. As a statutory authority the defendant solicits complaints about matters arising from its delivery of services according to its Complaints Handling Policy.
26. From 2003 to 2007, the Plaintiff frequently complained to the Defendant, members of the Legislative Assembly, the Ombudsman and the Privacy Commission about matters arising from the issuing and execution of the consent order.
27. The Defendant’s responses to the Plaintiff's’complaints, to the Ombudsman’s and the Privacy Commissions questions and in its briefings to relevant Ministers often contradicted its own and/or the plaintiff's documentary evidence. Otherwise, the defendant did not provide specific or relevant answers or was silent about the matters.
28. The Defendant had the opportunity to apologise for its alleged wrongdoing and to make restitution to the Plaintiff. The Defendant did not do this.
Particulars of Negligence
29. It is alleged that the Defendant by its servants and agents was guilty of negligence in that it:
(i) failed to formulate guidelines at the relevant time to assist its servants in administering Section 256(5)(b)(x) of the Land Act and to assist the Plaintiff in complying with that Section of the Act;
(ii) failed to inform the Plaintiff of his rights to refuse the Defendant access to the land for the purpose of conducting inspections;
(iii) issued the order and mediated the AAT consent order based on evidence obtained by entering and inspecting the land without the Plaintiff’s authorisation;
(iv) failed to allow the Plaintiff an opportunity to negotiate with the Defendant over the interpretion of the consent order;
(v) failed to formulate one discretionary standard for complying with the consent order and adhering to it;
(vi) imposing on the Plaintiff additional orders without due process in purportedly administering the consent order;
(vii) failed to train its servants in the interpretation and administration of the Sections of the Land Act that was their particular responsibility and in other related laws;
(viii) failed to train and supervise its servants in the legalities and correct administration of the Defendant’s discretionary and or coercive powers;
(ix) failed to properly and/or impartially investigate complaints by the Plaintiffs about matters arising from the issuing and execution of the consent order;
(x) issued mis-statements to the Ombudsman and the Privacy Commission in response to questions put as a result of the Plaintiffs’ complaints about matters arising from the issuing and execution of the consent order;
(xi) failed to list and impound the Plaintiffs’ goods and chattels;
(xii) destroyed the Plaintiffs’ goods and chattels by instructing its contractors to take them to ACT Nowaste Facility;
(xiii) breached the consent order by failing to conduct an inspection on the date for compliance as determined by the AAT;
(xiv) breached the consent order by entering and emptying approved structures and structures not requiring approval;
(xv) breached the consent order by imposing a punitive interpretation of removal of all materials on the land;
(xvi) entered the Plaintiff’s land 2-4.12.02 and removed goods and chattels without his authorisation and without the relevant statutory power;
(xii) intimidated the Plaintiff with repeated threats to call the police if he impeded the Defendant’s purpose in cleaning up the land, which included emptying and demolishing structures on the land;
(xiii) breached the Plaintiff’s right to privacy by making information concerning the consent order available to his neighbours, the public, the Ombudsman and by entering same in the Defendant’s filing system.
Particulars of Breach of Statutory Duty
30. It is alleged that the Defendant by its servants and agents was guilty of breaches of certain statutory duties in that it failed to comply with:
(i) Land (Planning and Environment) Act 1991, Sections 266 Inspections and 267 Consent to Entry;
(ii) Land (Planning and Environment) Act 1991, Section 259 Noncompliance;
(iii) Land (Planning and Environment) Act 1991, Section 255 Offenses orders;
(iv) Crimes Act 1900, Section 153 Disclosure of information by public employees;
(v) Public Sector Management Act 1994 Section 9 (b)(c)(e)(d)(h)(m);
(vi) The Privacy Act