ABC (A Pseudonym) v Reader Lawyers & Mediators
[2021] WASCA 202
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ABC (A PSEUDONYM) -v- READER LAWYERS & MEDIATORS [2021] WASCA 202
CORAM: MURPHY JA
BEECH JA
TOTTLE J
HEARD: 14 OCTOBER 2021
DELIVERED : 1 DECEMBER 2021
FILE NO/S: CACV 26 of 2020
BETWEEN: ABC (A PSEUDONYM)
Appellant
AND
READER LAWYERS & MEDIATORS
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: VERNON DCJ
File Number : CIV 336 of 2017
Catchwords:
Practice and procedure - Respondent's application to strike out substituted statement of claim and for summary dismissal - Summary judgment entered for respondent by primary judge - Whether primary judge erred in failing to grant appellant leave to file a further amended statement of claim - No error of principle established - Turns on own facts
Legislation:
Nil
Result:
Application for an extension of time for commencing the appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | M L Bennett |
| Respondent | : | K R Lendich SC |
Solicitors:
| Appellant | : | Bennett + Co |
| Respondent | : | Popperwell & Co |
Case(s) referred to in decision(s):
Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 258 CLR 1
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Forsayth NL v Northern Gold NL (Unreported, FCt SCt of WA, Library No 940012, 20 January 1994)
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lane v Northern NSW Local Health District (No 3) [2014] NSWCA 233
Macedonian Orthodox Community Church St Pekta Incorporated v The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Reader Lawyers & Mediators v ABC (a pseudonym) [2020] WADC 14
Smith v McCusker [2005] WASCA 226
Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356
Zaghloul v Bayly [2021] WASCA 125
JUDGMENT OF THE COURT:
Overview
On 7 February 2017 the appellant commenced an action against the respondent, a law firm who had acted on the appellant's behalf in proceedings in the Family Court of Western Australia, for damages for breach of contract alternatively for damages for negligence. On the respondent's application the primary judge struck out the appellant's substituted statement of claim and ordered that the action be dismissed and that the appellant should pay the respondent's costs of the action.[1]
[1] BAB 1.
The appellant seeks to set aside the order for summary judgment and replace it with an order that she have leave to file and serve a further amended statement of claim. At this court's direction the applicant filed a version of the pleading on which she wished to rely if her appeal were to succeed.[2]
[2] This pleading was entitled 'Minute of proposed substituted statement of claim'.
The appellant does not contend that the primary judge erred in striking out the substituted statement of claim. Rather the appellant contends the primary judge erred by failing to afford her an opportunity to replead her case by filing a further statement of claim or a minute of proposed substituted statement of claim. For the reasons given below the primary judge did not err in the manner contended for by the appellant and the appeal will be dismissed as will the appellant's application for an extension of time for commencing the appeal.
Background
Save for the pro bono assistance to which reference is made below, the appellant represented herself in the District Court proceedings. The substituted statement of claim was the third version of the appellant's pleaded case.[3] The appellant had agreed to amend the two earlier versions following conferral with the respondent's solicitors.[4]
[3] BAB 52.
[4] A statement of claim was filed on 27 February 2017 and a second statement of claim was filed on 12 February 2018.
On 20 June 2018 a member of the independent bar, Mr Greg Pynt, agreed to assist the appellant on a pro bono basis. Mr Pynt prepared and signed the substituted statement of claim which was filed and served on 24 January 2019.
Because the appellant does not challenge the primary judge's decision to strike out the substituted statement of claim it is unnecessary to refer to the factual allegations that formed the basis of the appellant's claims against the respondent in detail. In summary the factual basis of the claim was as follows:
(a)In 2014 the appellant was a party to proceedings before the Family Court and in July 2014 she retained the respondent to act on her behalf.
(b)A trial of the proceedings took place in two parts, with the first part taking place over nine days in November 2014 and the second part taking place over 13 days between December 2015 and February 2016.
(c)The respondent ceased acting for the appellant in January 2015 and another law firm commenced acting in July 2015.
(d)The orders made by the trial judge in the Family Court did not constitute a favourable outcome from the appellant's perspective.
The gravamen of the plaintiff's negligence claim against the respondent involved three inter-related complaints about the respondent's conduct of the proceedings before the Family Court. The complaints were to the effect:
(a)the respondent failed to convey the appellant's position in relation to certain matters to the trial judge and to the other party's lawyers;
(b)the appellant alleged the respondent failed to tender the report of an expert witness in support of her position in relation to the matters referred to in (a); and
(c)the respondent failed to obtain expert evidence on a particular issue.
The appellant pleaded that, had the respondent not breached its duties to her in the manner alleged, the trial judge in the Family Court may have come to different conclusions and the outcome of the proceedings may have been more favourable from her perspective.
On 30 January 2019 the respondent applied to strike out the substituted statement of claim on the basis it disclosed no reasonable cause of action or constituted an abuse of process under O 20 r 19 of the Rules of the Supreme Court 1971 (WA) (RSC). In the alternative, the respondent sought judgment, or a permanent stay of proceedings, under O 16 r 1 RSC and the court's inherent jurisdiction.
The application was heard by the primary judge on 15 May 2019. Mr Pynt represented the appellant at the hearing. The primary judge reserved her decision and delivered reasons for decision on 5 February 2020 and made the orders against which the appellant appeals.
In reaching the conclusion the substituted statement of claim should be struck out and that judgment should be entered in favour of the respondent, the primary judge accepted the respondent's argument that the principle of advocate's immunity, as explained by the High Court in Giannarelli v Wraith,[5] D'Orta-Ekenaike v Victoria Legal Aid,[6] and Attwells v Jackson Lalic Lawyers Pty Ltd,[7] operated to defeat the appellant's pleaded claims.[8] The primary judge held that: it was not reasonably arguable that advocate's immunity did not apply, the respondent had a good defence on the merits and there was no serious question to be tried.[9] Further, the primary judge held that, even if the principles of advocate's immunity did not apply, allowing the appellant's action to proceed would involve re-litigating in the District Court issues determined in the Family Court and that would bring the administration of justice into disrepute. On that basis the primary judge held the action constituted an abuse of process.[10] For those reasons the primary judge ordered that the substituted statement of claim be struck out and judgment be entered for the respondent.
[5] Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543.
[6] D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1.
[7] Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 258 CLR 1.
[8] Reader Lawyers & Mediators v ABC (a pseudonym) [2020] WADC 14 (Primary reasons) [57] - [66].
[9] Primary reasons [81].
[10] Primary reasons [79] - [80].
Mr Pynt did not apply for leave to replead the appellant's claim in the event the substituted statement of claim was struck out.[11] Nor was a submission made to the primary judge to the effect that if the substituted statement of claim were struck out there were other potentially viable causes of action open to the appellant.
[11] Appeal transcript 12.
The opposing arguments
The appellant's argument on appeal was a confined one. It rested on the proposition that the primary judge should have afforded the appellant, as a litigant in person, an opportunity to recast her claim to put forward a viable cause of action. In support of this proposition the appellant made four points:
(a)The substituted statement of claim was based on a sub-set of the 'basket of facts' alleged in the indorsement on the writ of summons. Thus, there was potential for the appellant to plead an alternative case within the bounds of the indorsement which would not attract the advocate's immunity defence or constitute an abuse of process.
(b)Repleading should ordinarily be allowed, provided any injustice arising to the other party from doing so can be compensated by the imposition of terms.
(c)In this case denying the appellant the opportunity to attempt to replead a viable cause of action was ultimately to deny the appellant her entitlement to litigate her claim.
(d)This was not a case in which there were case management considerations that favoured denying leave to replead.
Counsel for the appellant, Mr Bennett, accepted that the primary judge was exercising a discretion and that it was necessary for the appellant to demonstrate that the primary judge had either made an error of principle or that error could be inferred from a result that was so plainly unreasonable or unjust that error in the exercise of the discretion could be inferred.[12] Mr Bennett contended that the primary judge had made an error of principle. He expressed the principle for which he contended as follows: unless the court is satisfied that given an opportunity to replead a party would be unable to articulate a cause of action, the proper exercise of the court's discretion would be to give the plaintiff an opportunity to replead and that was the case whether or not there was a request for leave to replead.[13] Mr Bennett contended that support for this principle was to be found in the decision of the New South Wales Court of Appeal in Tanious v South Eastern Sydney Local Health District.[14]
[12] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
[13] Appeal transcript 15 - 16.
[14] Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356 [18] (Basten, Meagher & Ward JJA).
Mr Bennett contended the minute of proposed substituted statement of claim filed in response to the court's direction raised causes of action that fell within the bounds of indorsement on the writ and raised causes of action which did not attract the advocate's immunity principles.[15] Mr Bennett accepted that the claim the appellant sought to advance in the minute of proposed substituted statement of claim was of a different substance and quality to that advanced in the substituted statement of claim but suggested that the two preceding versions of the statement of claim would have alerted the primary judge to 'more generalised assertions' the appellant wished to make.[16] We interpolate that Mr Bennett's acceptance of the proposition that the claims advanced in the minute of proposed substituted statement of claim were different in substance and quality to that advanced in the substituted statement of claim means that it is unnecessary to refer to the nature of the claims in the minute.
[15] Appeal transcript 16 - 22.
[16] Appeal transcript 35.
The respondent's written submissions were directed primarily to defending the merits of the primary judge's reasoning in relation to the applicability of the advocate's immunity principles - a matter ultimately not contested by the appellant. In relation to the appellant's argument regarding leave to replead, the respondent's submissions may be summarised as follows:
(a)The appellant has not demonstrated any basis upon which this court should interfere with the primary judge's discretionary judgment.
(b)The authorities make it clear that when a court is dealing with an application for summary dismissal of a plaintiff's claim, it should have regard to the statement of claim on which the plaintiff's case is based not on any potentially repleaded case.
(c)In assessing the appellant's contention that she was deprived of the opportunity to attempt to replead a viable cause of action drawing on 'the basket of facts' in the indorsement, it was relevant that the statement of claim was the appellant's third pleading.
Grounds of appeal
The grounds of appeal were to the effect the primary judge: erred in ordering that the action be dismissed and judgment be entered for the respondent and in failing to afford the appellant an opportunity to file a repleaded statement of claim; and, the primary judge should have provided the appellant with a limited opportunity, in all the circumstances not less than 28 days, to file a further statement of claim, alternatively minute of proposed substituted statement of claim.[17]
[17] WAB 61.
Leave to appeal and extension of time
The respondent pointed out that the order striking out the substituted statement of claim was interlocutory in nature and thus the appellant required leave to appeal in respect of that order. The question of leave was, however, of no significance in the overall context of this appeal because leave to appeal was not required in respect of the order for entry of summary judgment.
Disposition
The approach to be taken to a summary judgment application under O 16 is not in doubt. In Zaghloul v Bayly,[18] this court described the approach by reference to what had been said by Franklyn J in Forsayth NL v Northern Gold NL,[19] and stated:[20]
It is well-established that:
'It is not for the court, on an O 16 application, to identify or accept some other cause of action, not pleaded, which the evidence before it might arguably support and which, possibly for good reason, was not relied on by the plaintiff in his statement of claim and to then allow the statement of claim to remain on foot in reliance on a possible subsequent amendment. The action is as identified by the statement of claim. If that action must fail it will be regarded as frivolous or vexatious.'
That passage is concerned with an entirely separate and discrete unpleaded cause of action rather than a nuance or variant on the basic cause of action as pleaded. The cause of action as pleaded may be approached with some flexibility (especially where, as here, the pleading is the work of a self-represented litigant). Accordingly, the statement reproduced [in the preceding paragraph] remains the approach of the court to an application under O 16 RSC, but with the added understanding that the statement of claim is construed broadly and generously and that ambiguities are either clarified or assumed in favour of a plaintiff and provided that no reasonable application to amend is rejected.
[18] Zaghloul v Bayly [2021] WASCA 125 (Murphy, Mitchell & Vaughan JJA).
[19] Forsayth NL v Northern Gold NL (Unreported, FCt SCt of WA, Library No 940012, 20 January 1994).
[20] Zaghoul v Bayly [81] - [82], citing Forsayth NL v Northern Gold NL (Unreported, FCt SCt of WA, Library No 940012, 20 January 1994), 7 (Franklyn J).
Zaghloul v Bayly involved an appeal from a decision of the District Court to strike out the appellant's statement of claim and order summary judgment in favour of the respondents. The appellant, who was a litigant in person, sought to raise a claim not included in the version of the statement of claim before the primary judge which the court described as 'totally new'.[21] One of the appeal grounds challenged the primary judge's decision not to grant leave to replead but the ground did not advance any identifiable discretionary error within the House v The King principles. The court observed this difficulty was compounded by the circumstances that the appellant had not sought leave to replead from the primary judge and the appellant had not articulated before the primary judge the new claim advanced on appeal or argued that if the claim was struck out as not disclosing a reasonable cause of action, there was another form of claim he should be allowed to pursue (the appellant had prepared a further version of his statement of claim that was before the primary judge but that further version did not advance the claim raised on the appeal).[22] In dismissing this ground of appeal the court observed:[23]
It was reasonably open to the primary judge to strike out the misleading or deceptive conduct claim without granting leave to re-plead. The [further amended statement of claim] was the third iteration of a statement of claim on the part of the appellant. The claim had been on foot for nearly two years at the time that the respondents' application came on for hearing. The appellant did not seek leave to re-plead if the claim was struck out. Nor, despite filing [the second further amended statement of claim], did the appellant suggest to the primary judge that there was some other viable misleading or deceptive conduct claim or some s 60 consumer guarantee claim. In all the circumstances it was reasonably open to the primary judge to take the view, in the interests of justice, that the appellant had been afforded a reasonable opportunity to plead his claim and that - the appellant not having pleaded a reasonable cause of action - the private interests of the respondents in having the claim finalised and the public interest in the efficient use of the resources of the court militated against the grant of leave to re-plead.
[21]Zaghloul v Bayly [46].
[22] Zaghloul v Bayly [75].
[23] Zaghloul v Bayly [77].
In Smith v McCusker,[24] Wheeler JA (with whom Roberts-Smith and McLure JJA agreed) cited Franklyn J's statement of principle in Forsayth NL v Northern Gold NL with approval and added the following observation:[25]
It is not only the defendant who is protected when the Court puts an end to useless and futile proceedings. A plaintiff in person can waste many years, suffer great stress, and incur costs in the way of travel, photocopying, income foregone and the like, in pursuing proceedings under a mistaken belief that, because a Court has not put an end to them despite having been invited to do so, those proceedings must ultimately have some good or reasonable prospect of success ... While the discretion to grant summary judgment on the application of a defendant should be exercised sparingly then, it is plain that it is in the interests of justice that, where the Court is convinced the test to which I have referred is satisfied, it should order summary judgment.
[24] Smith v McCusker [2005] WASCA 226 [37], (Wheeler JA with whom Roberts-Smith & McLure JJA agreed).
[25] Smith v McCusker [39].
In Tanious v South Eastern Sydney Local Health District the respondent had applied to strike out the appellant's statement of claim. No application for the summary dismissal appears to have been made, however, the Associate Judge (Harrison AsJ), who heard the application, not only struck out the statement of claim but dismissed the proceedings. The decision was upheld on a review application to a single judge (Price J) and, with leave, the appellant appealed to the Court of Appeal. At the hearing of the application for leave to appeal, the respondent agreed that Price J erred in concluding that none of the appellant's pleaded complaints were capable of giving rise to a duty of care by the doctor or the hospital to the appellant.[26] The Court of Appeal discerned from the appellant's pleading that he had sought to advance 'a secondary or derivative claim' (of the nature explained in Lane v Northern NSW Local Health District (No 3)),[27] for injury suffered by him consequent upon alleged medical mistreatment of his elderly father by the respondents (a hospital and a doctor employed by the hospital). The reasons for allowing the appeal were encapsulated in the following paragraphs:[28]
The matters identified by Price J (at [38]) were arguable bases for alleging a breach of duty on the part of the defendants to the appellant’s father. (Whether they could be established as matters of fact is a different issue.) Although it is true that the nature of the duty owed to the appellant was not articulated in terms which would be expected of a competent legal practitioner, the allegations of breach of duty to the appellant’s father, together with the harm allegedly suffered by the appellant, arguably indicate an intention to rely on a secondary or derivative duty of the kind referred to in Lane.
In these circumstances, the Court below was entitled to strike out the amended statement of claim. However, unless, for reasons which were not articulated, the Court were satisfied that, given an opportunity to replead the appellant would be unable to articulate an available cause of action or there was some other reason why liberty to replead should not in the proper exercise of the Court’s discretion have been granted, an opportunity to replead on the limited basis identified above, with respect to the Local Health District and Dr Dedousis alone, should have been provided. Other than in relation to a request by the appellant to amend his claim from a claim for exemplary compensation under the Civil Liability Act to a claim for compensation under the Compensation to Relatives Act 1897 (NSW), Price J did not address the question whether there had been an error by Harrison AsJ in the exercise of the discretion whether to grant liberty to replead; nor did Price J address the question whether such leave should be granted. (It may be that this was because he was not asked to do so.)
[26] Tanious v South Eastern Sydney Local Health District [19].
[27] Lane v Northern NSW Local Health District (No 3) [2014] NSWCA 233 [7].
[28] Tanious v South Eastern Sydney Local Health District [17] - [18].
The decision in Tanious is distinguishable on the ground that the application was to strike out the statement of claim and did not include an application for summary judgment. Moreover, the New South Wales Court of Appeal concluded (as had been accepted by the respondents) that the appellant's pleading disclosed arguable breaches of duty and arguably indicated an intention to rely on a secondary or derivative duty. Nothing said by the Court of Appeal in Tanious necessitates any reconsideration or refinement of the well-established approach to applications under O 16 described in Zaghloul.
The primary judge made no error of principle that would attract appellate intervention for the following reasons.
First, the primary judge was not called on to exercise a discretion to grant or refuse leave to replead because the appellant made no application for leave to replead. When a court is invited to make a discretionary decision, to which many factors are relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless those matters were fundamental and obvious.[29] A fortiori it is incumbent on a party, who contends on appeal that a discretion should have been exercised, to have invited the primary judge to exercise the discretion unless the requirement for its exercise was obvious or fundamental. In this case, although the appellant was a litigant in person, she was represented on the application by experienced counsel, who did not seek leave to replead. The exercise of the discretion to give leave to replead was neither fundamental nor obvious and there is no basis upon which it could be said the primary judge's discretion miscarried.
[29] Macedonian Orthodox Community Church St Pekta Incorporated v The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [120] (Gummow A-CJ, Kirby, Hayne and Heydon JJ).
Second, the primary judge determined the application for summary dismissal of the appellant's claim as was she was required to do, that is by reference to the substituted statement of claim. This was not a case in which a viable nuance or variant of the cause of action for negligence could be discerned from the substituted statement of claim. And, it was certainly not incumbent on the primary judge to search the court file for earlier versions of the statement of claim and consider whether the elements of a reasonable cause of action might be found within them.
Third, the cause of action upon which the appellant wishes to rely as pleaded in the minute of proposed substituted statement of claim differed in substance and quality from those pleaded in the substituted statement of claim. To adopt the language used in Zaghoul the cause of action pleaded in the minute of proposed substituted statement of claim is 'entirely separate and discrete'. There was nothing before the primary judge to alert her to the possibility that such a cause of action might be relied on by the appellant.
Conclusion and orders
Orders will be made dismissing the appeal and the application for an extension of time within which to appeal.
The court will hear the parties in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
1 DECEMBER 2021
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