Cachia v Westpac Financial Services Ltd

[1998] FCA 1761

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3723 of 1996

BETWEEN:	SALV LAURENCE CACHIA APPLICANT
AND:	WESTPAC FINANCIAL SERVICES LIMITED RESPONDENT

JUDGES:	EINFELD, CARR & HELY JJ
DATE:	10 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT OF THE COURT

The present proceedings commenced with the filing of an application by the applicant on 29 October 1996.  The matter came into Lindgren J’s list for directions on 13 December 1986 when his Honour ordered an amended application and points of claim to be filed.  The amended application was in almost identical form to the first application except that the word "damages" had been substituted for the word "compensation" in paragraph 5.  The points of claim and amended application so filed were considered by his Honour in a directions hearing on 18 December 1996 and he ordered a further amended application to be filed, together with a statement of claim.  His Honour gave an explanation as to the reasons why the amended application and points of claim were not adequate to present this case and gave some not insignificant reasons to support his view.  These reasons are now contained in the appeal papers before this Full Court and it is clear that his Honour was attempting to give assistance to the applicant as a litigant in person in framing his case in an acceptable way for the Court and for the respondent.

The “new” documents were filed on 28 January 1997.  Once again the amended application was in substance in the same form as the original version.  Again the word "damages" appeared in place of "compensation" and a number of other minor changes were made but none changed the essence of the document.  The document did not address the matters raised by his Honour.  Accordingly, the respondent moved by motion of 14 February 1997 for the striking out of the statement of claim and the summary dismissal of the action.  This motion was heard on 17 April 1998 when Lindgren J struck out the statement of claim but expressly declined to dismiss the action summarily, formulating his orders in a way which permitted the applicant to re-plead his case.

In the course of his reasons for judgment, the learned Judge again explained with some particularity what was wrong with the statement of claim in legal terms and gave further assistance to the applicant as a litigant in person in understanding its weaknesses.  In the course of his remarks, his Honour recommended in clear terms that in complex commercial litigation of this kind, it is highly desirable that litigants have the benefit of professional legal representation.  We would just add that in the event that impecuniosity prevents private professional legal representation, there are now any number of pro bono schemes available to assist litigants in this way, some run by professional associations of lawyers, others by private legal firms.

In the event, Lindgren J made a number of orders.  He struck out the statement of claim.  He gave leave to the applicant to file a further amended application and an amended statement of claim and fixed 15 May 1998 as the outer date for the filing of the new pleadings.  So far as the amended application was concerned, he limited its nature and gave advice as to how to constitute it properly.  He made an order for the costs of the respondent to be paid by the applicant and gave leave to the respondent to tax the costs forthwith. 

Instead of filing an amended statement of claim, the applicant applied for leave to appeal from his Honour’s orders and that is the matter now before this Full Court.  The applicant has filed a draft notice of appeal to indicate the matters which he would wish to advocate in the event that leave to appeal was granted.  The conclusion reached by Lindgren J was that, in contravention of Order 11 rule 16, the statement of claim did not plead a reasonable cause of action in an non-embarrassing way.  The order from which leave to appeal is sought is interlocutory in nature on a matter relating to practice and procedure.  Because leave to re-plead was given, the order does not affect the substantive rights of the parties.

It has long been laid down that the relevant considerations for the Court in considering whether leave to appeal should be granted are essentially twofold: first, whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant its reconsideration by a Full Court; and second, whether substantial injustice would result if leave were refused supposing the decision to be wrong.

Appellate courts have always exercised particular caution in reviewing decisions pertaining to practice and procedure and we think that this is a case where caution advises that there should be no interference with the judge's decision.  We do not think that the relevant conditions have been satisfied or that it is otherwise appropriate for the decision of the primary judge on this matter of pleading to be reviewed by a Full Court.  Moreover, we cannot imagine that the conclusion of a Full Court would be any different to that of the primary judge.  Just as his Honour was conscious of the applicant's position as a litigant in person, we have had regard to the proper approach to be taken to a case pleaded by an unrepresented litigant, as referred to in the cases  collected by Sackville J in Morton v Vouris in (1996) 21ASCR 497 at 513. 

Leave to appeal is refused.  We extend the time for filing the statement of claim or allow a further time for the filing of an amended statement of claim to Friday 4 December 1998.

[After discussion]

The Court orders that the applicant pay the respondent's costs of this application for leave to appeal.  We refer to Lindgren J the question as to whether leave should be given to have those taxed forthwith because his Honour gave leave to apply for such leave in relation to the costs before him and the two hearings will no doubt stand together in this regard.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Full Court of the Federal Court of Australia

Associate:

Dated:             10 November 1998

The applicant appeared in person.
Counsel for the Respondent:	Mr N. Perram
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	10 November 1998
Date of Judgment:	10 November 1998