Butler v Crowley & Galvin Solicitors - [1999] QSC 6

IN THE SUPREME COURT
OF QUEENSLAND
No. 9292 of 1996
Brisbane
Before Mr Justice Muir
[Butler v Crowley & Galvin Solicitors]
BETWEEN:

CLIVE GEORGE BUTLER
Plaintiff
AND:

SIMMONDS CROWLEY & GALVIN Solicitors
Defendant

CATCHWORDS: PRACTICE AND PROCEDURE - strike out application - failure of statement of claim to comply with Rules of the Supreme Court Order 22 rule 1.

Counsel:Mr C.G. Butler, in person for the plaintiff
Mr R.M. Derrington for the defendant

Solicitors:Minter Ellison for the applicant

Hearing date: 19 January 1999

REASONS FOR JUDGMENT - MUIR J
Judgment delivered 28 January 1999

The defendant in this action applies to strike out the amended statement of claim delivered on 5 November 1998 on the grounds that it tends to prejudice, embarrass or delay the fair trial of the action and alternatively, it seeks that it be struck out in the exercise of the Court’s inherent jurisdiction. Also, before me are the following further applications -
a.an application by Fisher Robinson, the defendant in action 3735 of 1997, to strike out the statement of claim delivered by the plaintiff on 27 May 1998;
b.an application by Crowley and Greenhalgh (formerly Lyn Crowley & Company) in action 6521 of 1996 to strike out a statement of claim delivered by the plaintiff on 13 November 1998;
c.a summons by the plaintiff in action 9292 of 1996 seeking a stay of the strike out application pending the outcome of an appeal from the judgment of Chesterman J in action 4227 of 1997. Alternatively an application that -
“the matter be set down for preliminary hearing, in order that the evidence be properly and fully examined and tested before the court.
Further, an order that the defendant’s defence be struck out as disclosing no defence of the plaintiff’s claims.”;
d.a summons by the plaintiff in action 6521 of 1996, identical in terms to the above summons in 9292 of 1996;
e.a summons by the plaintiff in action 3735 of 1997, identical in terms to the above summons in action 9292 of 1996.
The amended statement of claim in action 9292 of 1996
The document has 147 paragraphs. Paragraphs 10 to 111 inclusive contain allegations concerning an action in the Magistrates Court commenced by one Vize against the plaintiff in which the defendant acted as the plaintiff’s solicitors. Paragraphs 1 to 9 inclusive are largely concerned with a Supreme Court action by the plaintiff against Tomik which had been conducted on the plaintiff’s behalf by another firm of solicitors and in respect of which the plaintiff allegedly was seeking advice from the defendant. The allegations in respect of the Tomik matter are resumed in para. 112 and continue until para. 141. Paragraphs 142 to 147 contain allegations of loss and damage.
A summary of defects in the statement of claim
The pleading is deficient in a great many respects. Without purporting to be exhaustive it -
a.contravenes the requirements of O 22 r 1 of the Rules of the Supreme Court by failing to contain…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] QSC 6
Decision Date: 28 January 1999

CaseChat Overview and Summary

The case of Butler v Crowley & Galvin Solicitors involved a plaintiff, Clive George Butler, who sought damages against the defendant, Simmonds Crowley & Galvin Solicitors, for alleged professional negligence in handling two separate legal matters. The defendant moved to strike out the plaintiff's amended statement of claim on the grounds that it failed to comply with the Rules of the Supreme Court and would prejudice, embarrass, or delay the fair trial of the action. The plaintiff opposed the strike out application, sought a stay pending an appeal, and requested a preliminary hearing to fully examine and test the evidence.

The court was required to determine whether the amended statement of claim complied with the rules governing pleadings and whether striking it out would be just in all the circumstances. The court also had to consider the plaintiff's applications for a stay and a preliminary hearing.

The court found that the amended statement of claim was deficient in numerous respects, including failing to set out a brief statement of the material facts, containing evidence rather than facts, including unnecessary and scandalous material, being unintelligible and ambiguous, making allegations not linked to any breach of duty or causation, lacking in sufficient particularity, and including irrelevant allegations. The court held that the deficiencies in the pleadings would prevent the defendant from identifying the case it had to meet and would unnecessarily increase the duration and cost of any trial. The court held that the objectionable matter was so closely intertwined with other matter that it was desirable to strike out the entire pleading. The court dismissed the plaintiff's applications for a stay and a preliminary hearing, holding that the appeal was not in the same action and that the pleadings were such that it was improbable that an appellate court would reverse the previous order striking out the statement of claim.

The court ordered that the amended statement of claim be struck out, that the plaintiff pay the defendant's costs of the application, and that the plaintiff have liberty to deliver a further amended statement of claim by a specified date. The court dismissed the plaintiff's summons with costs.

Orders