Collett v Forrest

[2021] WASC 112

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   COLLETT -v- FORREST [2021] WASC 112

CORAM:   MASTER SANDERSON

HEARD:   ON THE PAPERS

DELIVERED          :   16 APRIL 2021

PUBLISHED           :   16 APRIL 2021

FILE NO/S:   CIV 1679 of 2020

BETWEEN:   DAVID JOHN COLLETT

Plaintiff

AND

JEAN EULALIA FORREST

Defendant

Catchwords:

Practice and procedure - Failure of plaintiff to file a proper indorsement of claim - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Plaintiff's indorsement of claim struck out
Judgment entered for the defendant

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	In Person
Defendant	:	Glen Mcleod Legal

Case(s) referred to in decision(s):

Nil

MASTER SANDERSON:

1. On 16 June 2020, the plaintiff issued a writ which contained an indorsement of claim.  The plaintiff is and remains self‑represented.  The indorsement of claim read as follows:

   The plaintiff's claims is for $5,728,628.00 Being for unpaid debts, costs and loss of income for the Plaintiff and his wife, Anne Marie Collett, and compensation for the damage to the Plaintiffs mental health caused by the intentional infliction of emotional distress by the Defendant on the 18th February 2016 and continued for 4 years.

1. On 10 August 2020, the defendant filed a chamber summons which sought to strike out the plaintiff's indorsement of claim under O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA). It was said the indorsement disclosed no cause of action. The chamber summons sought to have the action in its entirety dismissed. On 5 October 2020, I made orders striking out the indorsement of claim. I gave the plaintiff leave to file and serve an amended indorsement of claim by 19 October 2020. On 19 October 2020, the plaintiff filed a statement of claim.

2. The plaintiff pleaded his claims in three parts.  In pars 3 through to 13 the plaintiff pleads what he describes as the 'first claim'.  The plaintiff pleads that in October 2014 he engaged the defendant to undertake tiling, paving, paint preparation and like services at the plaintiff's property in Picton.  Certain terms of this engagement are pleaded.  The plaintiff pleads work was undertaken between January 2015 and December 2015.  Invoices were submitted by him for payment and the plaintiff says they were certified by the defendant's architect.  The plaintiff says no invoices were paid by the defendant after October 2015.  He says he is owed a balance of $109,294.23.  No particulars of this amount are provided.  It is said particulars would be provided 'at trial'. 

3. The second claim is pleaded in pars 15 through to 22.  The plaintiff says that on 21 December 2015 he ceased working at the defendant's property and left the majority of his tools and equipment on the property.  He also left on the property certain goods and materials for which he had paid and which were yet to be installed.  He says that he was locked out of the property and was unable to recover his tools and goods for a period of 12 months.  This, he says, caused him to suffer loss and damage.  The amount claimed is $134,400.  No particulars are provided.

4. The third claim is difficult to identify.  The plaintiff appears to be claiming that, as a consequence of the defendant's failure to make payment of the outstanding invoices, he suffered mental distress and loss of reputation.  There is reference to the City of Bunbury's Local Planning Scheme No 8 which is said in some way to be relevant to the plaintiff's claims.  Other loss is said to have flowed from the defendant's actions.  The plaintiff makes a claim for many millions of dollars.  By no measure is the third claim comprehensible.

5. On 27 October 2020, I struck out the plaintiff's statement of claim.  I allowed the plaintiff 28 days to file and serve a substituted indorsement of the writ of summons.  On 1 December 2020, a substituted indorsement was filed.  The indorsement reads as follows:

   The Plaintiff's total claim is for $4,380,192.00 plus interest pursuant to section 32 of the Supreme Court Act 1933 at the rate of 6% pa.

   The Plaintiff claims $206,840.00 for work done, materials supplied and installed, loss of income and damages arising from the wrongful and unlawful retention of the Plaintiff's tools and equipment by the Defendant's said actions, together with costs and interest.

   The Plaintiff also claims $4,173,532.00 under the Civil Liability Act 2002 5R (2) for compensation for the mental injury and Post-Traumatic Stress Disorder caused to him by the Defendants said actions including but not limited to the wrongful and unlawful interrogation on 18^th February 2016 in Perth under the directions of the Defendant and the retention of his tools and equipment.

   The initial mental injury was then compounded by the mental harm he suffered in the 5 year prolonged court proceedings trying to clear his name, that has so far successfully denied the Plaintiff his day in court, caused by the contempt and misinformation by the Defendant to the Bunbury Magistrates Court from December 2016 and then Bunbury District Court and now in the Supreme Court.

6. In response to the substituted indorsement counsel for the defendant filed submissions as to why the indorsement could not stand.  The flavour of those submissions can be seen by quoting one paragraph:

   23.In short, the Substituted Indorsement is inscrutable. It is a medley, displaying features suggestive of certain causes of action, but from which no cause of action can be identified with any certainty.

7. The defendant's submissions were correct.  Even taking the most benign approach and making every allowance for the fact the plaintiff is self‑represented, the indorsement was incomprehensible.  The plaintiff appeared to accept that was the case and on 2 February 2021 I made an order giving the plaintiff leave to file and serve an amended indorsement of claim by 16 February 2021.  The time for compliance with that order was extended and eventually an amended indorsement of claim was filed on 2 March 2021.  That indorsement reads as follows:

   The 2015 agreement was the first agreement between the Defendant and the Plaintiff and witnessed by Ian Molyneux in January 2015.  The agreement functioned without incident until 19 November 2015.  The Plaintiff supplied labour and materials to the project under the directions and authority of the Defendant.  The Plaintiff issued 20 fortnightly invoices to be certified by the Architect Project Manager, who then passed the certified invoices to the Defendant, who paid 20 invoices totalling $289,184.50 for the labour of 4 men working fulltime on her property for a year in Picton Industrial Area near Bunbury.

   On 19 November 2015, the Defendant then breached her Duty of Care to the Plaintiff against their agreement made in January 2015 by not paying the presented invoices, but promising payment before Christmas 2015, encouraging the men to continue working without pay until Christmas.

   The Plaintiff claims for the financial loss and damage caused by the Defendant’s refusal to pay $88,694.25 plus interest. Made up of $38,250.00 less amount paid $20,000.00.  Leaving a total of $18,250.00 owing for labour of 4 men between November 2015 and 21 December 2015, plus $3,391.00 owing to Bunbury Creditors $67,053.17 worth of materials paid for by the Plaintiff in 2015 and installed at Lot 91 South West Highway, Picton Industrial Area, Bunbury WA, property belonging to the Defendant. 

   The Plaintiff claims Trespass to Chattels for the 12 months spent without his tools and equipment locked up and held for ransom by the Defendant at her property from 21 December 2015 until 10 January 2017.

   The Plaintiff also claims for the 3 ½ hours on a promise of payment being subjected to an interrogation at Cottesloe on 18 February 2016.

   The Plaintiff also claims for financial loss and damages arising from the mental injury of Post-Traumatic Stress Disorder caused by the 3 ½ hour interrogation conducted on 18 February 2016 under the instructions of the Defendant. 

   The Plaintiff’s mental injury was then compounded by the mental harm suffered by the malicious prosecution, initiated by the Defendant on 16 January 2017, when her Agent ambushed the Plaintiff while he was finally permitted to collect his tools, and served on him a Notice of Proposed Complaint to the Western Australian Building Commission.  The Defendant continued the Malicious Prosecution with a Counterclaim on 20 January 2016.  After the Plaintiff was eventually permitted to witness the Defendant’s documents and found the Defendant had no evidence to back her claims.  The Defendant discontinued the matter in the District court on 20 November 2019.

   A monetary remedy can relieve the Plaintiffs situation in attempt to make him feel whole again, the Plaintiff claims $4,380,192.00 plus interest, pursuant to section 32 of the Supreme Court Act 1933 at the rate of 6%pa.

8. Taking each paragraph of this indorsement in turn, par 1 sets out background facts.  Strictly speaking, it is not in a form which would normally be anticipated in an indorsement but it is not offensive and may be seen as setting up a contractual arrangement between the plaintiff and the defendant.

9. The second paragraph can perhaps best be seen as a debt claim.  The reference to duty of care is misplaced but leaving that to one side, the paragraph is comprehensible.  Paragraph 3 quantifies a loss at $88,694.25.  In other words, that would seem, is the amount the plaintiff says he is owed for unpaid invoices.

10. The rest of the claim is unintelligible.  The allegation of 'trespass to chattels' is really a plea devoid of content.  An indorsement of claim requires a short statement of facts which ground an underlying cause of action.  The third paragraph of the indorsement and the rest of the indorsement simply do not do what is required under the rules.  In particular, any claim for 'mental distress' consequent upon a breach of contract is unsustainable as a matter of law. 

11. In the circumstances, I am of the view the indorsement of claim ought be struck out and so should the claim itself.  If the plaintiff has a claim for work he has undertaken and for which he has not been paid, it would appear it is a claim which should be brought in the Magistrates Court.  If it is not to be brought in the Magistrates Court, it should perhaps be brought in the District Court.  It is certainly not a matter which should proceed in this court.  To allow this action to continue would not be in the interests of justice and would visit a manifest unfairness on the defendant. 

12. The plaintiff's indorsement of claim filed 2 March 2021 will be struck out.  There will be judgment in the action for the defendant.  The plaintiff ought pay the defendant's costs, including the reserved costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CB

Associate to Master Sanderson

16 APRIL 2021