Colton v Stuart James Percy trading as Stuart Percy and Associates
[2013] NSWDC 4
•24 January 2013
District Court
New South Wales
Medium Neutral Citation: Colton v Stuart James Percy trading as Stuart Percy & Associates [2013] NSWDC 4 Hearing dates: 24 January 2013 Decision date: 24 January 2013 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) On the application of the plaintiff for leave to amend the Statement of Claim, the hearing of the defendant's Notice of Motion is stood over for hearing to Thursday 4 April 2013.
(2) Costs reserved.
(3) Grant leave to the plaintiff to amend the Statement of Claim conditional upon any such amendment being served on the defendant no later than 21 February 2013.
(4) Order the parties to attend mediation (the expense for which is to be equally divided between them) before a mediator selected by the NSW Bar Association, such mediation to take place no later than 28 March 2013.
(5) The defendant's Notice of Motion stood over for further hearing to Thursday 4 April 2013 at 10:00am before Gibson DCJ.
Catchwords: PRACTICE AND PROCEDURE - application for summary judgment - pleadings fail to disclose cause of action - application for leave to amend statement of claim granted Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), r 12.1Cases Cited: P & W v Manny [2010] ACTSC 50
Tame v The State of New South Wales (2002) 211 CLR 317Texts Cited: - Category: Interlocutory applications Parties: Plaintiff/Respondent: Eric Thomas Colton
Defendant/Applicant: Stuart James Percy trading as Stuart Percy & AssociatesRepresentation: Plaintiff/Respondent: In person
Defendant/Applicant: Mr W Carney
Plaintiff/Respondent: In person
Defendant/Applicant: In person
File Number(s): 2012/284374 Publication restriction: None
Judgment
The application before the court
The defendant in these proceedings, which were commenced by Statement of Claim filed on 12 September 2012, seeks orders that the plaintiff's claim be struck out or dismissed with costs.
Although the basis upon which the application is brought is not identified in the Notice of Motion (filed on 12 December 2012), it needs little explanation, given the prolixity of the pleading and the failure of the plaintiff, a litigant in person, to identify with any precision what the cause(s) of action may be.
The circumstances which led to the plaintiff bringing these proceedings warrant more than the usual care when considering what steps to take to ensure that a "just, quick and cheap" (s 56 Civil Procedure Act 2005 (NSW)) resolution of the parties' dispute can be obtained, as will become apparent from the history of events leading to these proceedings.
For the reasons set out more fully below, I have adjourned this application part-heard so that the parties can attend mediation and the plaintiff can have an opportunity to amend the frankly hopeless pleadings upon which he seeks to rely. The purpose of this judgment is to assist any legal practitioner consulted by the plaintiff as well as any person participating in the mediation which I have ordered to take place. Given the short timetable and comparative urgency, as the parties are to attend a mediation, this judgment has been prepared in haste, and is structured in an informal manner. Ascertaining what the history was has been difficult and time-consuming, as neither party has provided a chronology and the plaintiff's degree of connection with events makes it hard for him to address the issues in his own claim in a coherent fashion.
The history of these proceedings
The plaintiff, who was born in 1927, is now 85 years of age and in poor health. The defendant is one of a series of solicitors he consulted following difficulties the plaintiff had with his first solicitor, a Mr Kozera, who acted for him in relation to a motor vehicle accident which occurred in 1995.
Mr Kozera's conduct of the plaintiff's motor vehicle accident claim was considered by the plaintiff to be too slow. By early 2000, five years after the plaintiff's accident, the plaintiff wanted his claim finalised. He terminated Mr Kozera's retainer and appointed another solicitor, a Mr David Loveband. Mr Loveband acted expeditiously, and the motor accident claim was finalised quickly and to the plaintiff's satisfaction.
As well as coping with disabilities following his motor vehicle accident, the plaintiff was the carer for his wife, who had suffered from stroke-related dementia since 1991. Despite what the medical records show as devoted nursing by the plaintiff, she deteriorated and died in March 2000, at about the time that the plaintiff's personal injury claim was settled. The psychiatric evidence included in the plaintiff's tendered documents refers to the painful impact on the plaintiff of the death of his wife, after a lengthy and close marriage.
After the personal injury proceedings were settled, Mr Kozera sought payment of his costs and commenced proceedings against the plaintiff to recover his fees. He also went to the police and made very serious allegations against both Mr David Loveband and the plaintiff. These included allegations that both the plaintiff and Mr Loveband had committed criminal offences in the preparation of the personal injury claim. In addition, Mr Kozera told police that the plaintiff murdered his wife to obtain an adjournment of the court case and/or for the purpose of obtaining more damages from the personal injury claim.
It is clear from the report of A/Inspector G R Warfield (Exhibit C) that police were suspicious from the first about Mr Kozera's honesty and motives in making these very serious allegations. Mrs Colton's death, at an advanced age and as the inevitable result of her very poor health, had not been a coroner's matter, and the certificate issued by the medical practitioner was compelling. The grounds put forward by Mr Kozera for his suspicions were, in A/Inspector G R Warfield's opinion, "speculative and contradictory" and "due to personal antipathy". However, these allegations were so serious that they had to be investigated. Police executed a search warrant on the plaintiff's home in March 2001 (apparently at the behest of Mr Kozera). This occurred at a time when the plaintiff was in hospital (where he remained for five weeks) as a result of a very serious lung infection which required surgical removal of part of his lung. Already seriously ill, he was greatly distressed by the allegations and the actions of the police in investigating them, according to the reports of Dr Delaforce, who provided medico-legal reports concerning the plaintiff's deteriorating mental condition over the next decade.
It was not until 20 February 2004, more than three years later, that police were able to confirm that no further action would be taken in relation to Mr Kozera's allegations. Detective Inspector Robert E Drew wrote to the plaintiff confirming this, and stating that "Mr Kozera has been informed of this course of action" (Exhibit C). It would appear that Mr Kozera did not accept this finding. The matter was then further investigated by A/Inspector G R Warfield, who prepared a report dismissing Mr Kozera's allegations in no uncertain terms as being maliciously motivated by extraneous and improper purposes, and concluded :
"I concur with the investigating officers that there is insufficient evidence to warrant the prosecution of Mr Coulton or Mr Loveband for the alleged offences."
In the meantime, however, the plaintiff had become "obsessed" with Mr Kozera's allegations, according to Dr Delaforce. He gradually ceased having contact first with neighbours and then with his own family, becoming completely isolated. The allegations about him were widely known in the small local community in which he lived; for example, the plaintiff told Dr Delaforce that it was "terribly disappointing" that one particular woman friend now shunned and avoided him, after police executed another search warrant at the local council. He also suffered financial restraints, due to the cost of defending himself from these allegations. In addition, he suffered from substantially worse medical problems, in which the stress caused by Mr Kozera's allegations played a significant part.
Although the plaintiff had paid Mr Kozera his legal costs on 21 August 2001 (in the sum of $12,532.27), Mr Kozera refused to return the file. The plaintiff told me, from the bar table, that he complained to the Legal Services Commission, both about the false allegations and his former solicitor's failure to return his documents despite being paid. According to the plaintiff, the Legal Services Commission did "absolutely nothing" about any of these complaints.
As the plaintiff wanted his documents back (and it must be remembered that Mr Kozera had given certain of these to the police), he consulted another solicitor, who sought the return of the file. Mr Kozera refused. The plaintiff, through his new solicitors, Egan Murphy, took the extraordinary step of commencing proceedings in the Tamworth Local Court to recover the file and to seek damages from Mr Kozera for his alleged misuse of material the subject of legal professional privilege for the purpose of providing these documents to the police.
Two years after the Local Court proceedings were commenced, the matter had not come on for hearing. The plaintiff then consulted Mr Percy, the defendant in these proceedings. He continued to retain the same counsel as before, and senior counsel was also retained.
The nature and extent of the defendant's retainer is set out in the Client Service Agreement of 28 November 2005. The Local Court claim was described as a claim for detinue and conversion of the file, breach of retainer and "possible action for lost opportunity". Costs of $5,000 and disbursements of $1,500 were estimated.
The matter was transferred to the District Court. The solicitors for Mr Kozera, Phillips Fox, made requests for particulars which they complained were unanswered. A show cause hearing was set down and Phillips Fox's chronology (14 June 2006) demonstrates failure by the plaintiff's solicitors to comply with orders. The plaintiff told me from the bar table he had no idea these delays were occurring.
According to the Statement of Claim filed by Mr Percy seeking payment of legal costs, his retainer was terminated on 6 June 2006. The plaintiff retained a new solicitor, Mr Stephen Pratt. Although Mr Percy refused to release the file until he was paid, Mr Pratt was able to revive the claim, which was eventually listed for hearing in the District Court at Wollongong and later settled at mediation, but there has been total non-compliance (even to this day) by the solicitors for the defendants with the order to pay the plaintiff's costs, on the basis that certain receipts have not been provided. This is important, the plaintiff says, because the need to obtain these documents is one of the reasons for bringing these proceedings.
Mr Percy brought proceedings for payment of $19,852.72 costs and disbursements (exclusive of counsels' fees) on 13 November 2006. This seems to have been premature, as the costs had not been assessed. The Costs Review panel provided certificates of costs for $15,501.39 (less a credit of $6,219) and $962.50. I have seen a bill from counsel for $42,450 but do not have any information about whether or not it has been paid; it fell outside the retainer for Mr Percy in any event.
The plaintiff paid the assessed bill, but claims that Mr Percy would still not give him his file. This meant he could not recover his costs of the District Court proceedings which had been before Judge Goldring, because the relevant receipts sought by the solicitors for the defendant in those proceedings were in this file, so the costs due to him could not be finalised.
During 2008 the plaintiff became increasingly distressed. He claimed he did not understand what had happened in the mediation of his action against Mr Kozera, and sought to set the mediated agreement aside. In April 2008 Judge Goldring rejected these submissions and ordered him to pay Mr Kozera's costs of the application (which Mr Kozera's solicitors later stated to be $29,000) on an indemnity basis. The plaintiff has paid these costs, but his own remain unpaid.
By December 2008, the plaintiff's mental state was such that the Guardianship Tribunal committed his estate to the Protective Commissioner. He sought this step himself. His legal affairs appear to have been looked after by a Mr Hugh Piper. It is unclear what the status of this arrangement is, but the Tribunal obtained advice in 2009 from Armidale Health Service indicating that the plaintiff was no longer under a disability so I assume it is at an end.
The plaintiff made several more attempts to obtain his file from Mr Percy. In October 2010 another firm of solicitors, Levitt Robinson, wrote to Mr Percy asking for the file. On 11 November 2010 Mr Percy replied saying that Levitt Robinson would have to undertake to pay all photocopying costs.
The plaintiff also brought a cross-claim against Mr Percy, although whether that cross-claim (the text of which is set out in Exhibit C) was actually filed is unclear, as is its fate. It consisted essentially of a challenge to claiming costs in excess of the amount in the costs agreement and complaints of neglect of the action. I note it only for completeness.
Proceedings in Armidale Local Court
It was in these circumstances that the plaintiff commenced further proceedings, against Mr Percy, by filing a statement of claim on 12 August 2011 in the Local Court at Armidale, seeking the following relief, according to paragraph 26 of the Statement of Claim in these proceedings:
"PARTICULARS OF PROFESSIONAL MISCONDUCT
(i) Breached a duty, to the Plaintiff, of care.
(i) Took advantage of the Plaintiff's mental impairment for personal gain.
(ii) Charged excessive fees in connection with the practice of law and pursued payment of those fees by way of harassment, threats of Court action and Court proceedings.
(iii) Failed to exercise professional skill and diligence by non compliance with the requirements of the procedural timetable.
(iv) Breached the term of mutual trust and confidence between solicitor and client to the extent of forming a cooperative association with the other side for the purpose of having his client's claim struck off causing further harm to his client, Eric Colton.
(v) Made false and misleading statements to the Court during a District Court hearing on 8 June, 2006 with intention to disadvantage the Plaintiff.
(vi) Gave false information in 2 statements of claim with intent to deceive the Court and gain a litigious and financial advantage.
(vii) Has withheld the plaintiff's file since August, 2009 and continues to withhold part of "the file" to the present time and causing disadvantage to the plaintiff by delaying settlement of District Court matter number 1264 of 2006." (Exhibit C, paragraph 26)
Particulars of injuries and disabilities were provided.
The Local Court gave a timetable, and the matter was adjourned to 23 April 2012. Some of the documents were provided immediately. Mr Percy says there are no more to provide.
The matter was next in court on 11 May 2012. The plaintiff thought it was set down for hearing. Mr Percy did not attend and was not represented. The plaintiff told the magistrate, according to paragraph 16 of the statement of claim in these proceedings, that his medical conditions were inoperable, and that:
"Because of these [medical] findings I requested the Local Court to allow the matter to proceed to the District Court, as a new claim and seeking compensation that would include and cover my future medical expenses."
The court granted leave to the plaintiff to discontinue the proceedings, pursuant to Uniform Civil Procedure Rules 2005 (NSW) Pt 12 r 12.1. This is a serious problem for the plaintiff, because if the action had been transferred instead of discontinued, the limitation arguments now put by the defendant, Mr Percy (which were not raised before) might not be applicable to some of the claims the plaintiff now brings in this court.
This brings me to the difficult question of just what claim the plaintiff is bringing in this court.
The plaintiff's claim in this court
The plaintiff's claim is for personal injury, delivery up of his files and reimbursement of costs paid by the plaintiff in relation to the assessment of costs. The particulars of the claim run for many pages, in a meandering fashion. The claims are for professional misconduct for excessive charging, incompetence, breach of fiduciary relationship, giving false information and, it would appear, the matters the subject of the Armidale Local Court claim.
It has not been possible for me to deal with the defendant's objections to these claims, for two reasons. First, the plaintiff has acknowledged that the claim needs to be redrafted, and to deny the plaintiff even one chance to amend his pleadings would be contrary to the spirit of s 56 Civil Procedure Act. Secondly, the approach taken by the defendant has been a generalised attack on the whole of the pleadings, on the basis that the form and content are so hopeless and time-barred that the claim should be struck out without any detailed analysis, rather than an attempt to salvage some part of the cause of action.
It is not appropriate for me, as the judge hearing the matter, to seek to determine what the plaintiff's cause of action should be. These are matters about which he should take advice. One of the purposes of this judgment is to set out the facts as clearly as I am able, in the hope of assisting whichever member of the legal profession gives that advice. The plaintiff told me he had consulted between 45 and 60 members of the legal profession but that they had turned him away. The manner of presentation of his documents and his lack of understanding of the relevant principles of law would be formidable hurdles for those practitioners.
To be fair to the defendant, Mr Percy took over a matter which had been started by another solicitor. After he had ceased acting, another solicitor settled those proceedings, on terms which were not advantageous to the plaintiff. It is hard to see how Mr Percy can be blamed for these persons' actions (or inactions). In addition, Mr Percy retained counsel to advise and relied upon Senior and Junior Counsel to tell him what needed to be done.
I will, however, make the general observation that the basis of the plaintiff's whole claim is misconceived, and not only by Mr Percy. This cannot be a claim for "personal injury". This is a case where the plaintiff claims to have been damaged by what a third party told others about him. The claims which were brought on his behalf were, however, claims for the delivery up of documents or for negligence (or, to quote the latest pleadings, "professional misconduct").
In Tame v The State of New South Wales (2002) 211 CLR 317 the plaintiff commenced proceedings for negligence when a police officer incorrectly recorded that she had a blood alcohol level of 0.14. The uncorrected report had been provided to others, including the insurance company handling the driver's claim against the nominal defendant. The plaintiff alleged negligence and claimed to have suffered psychiatric injury as a consequence.
The High Court held the police officer did not owe a duty to take reasonable care to avoid psychiatric injury to the driver. Gleeson CJ at 335 made the following observation:
"Furthermore, as in Sullivan v Moody, this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation and the same need to preserve legal coherence. In the events that occurred Mrs Tame's reputation was not harmed. But supposing it had been. Then the law would have engaged in an exercise of balancing the rights and responsibilities of Mrs Tame and Acting Sergeant Beardsley by reference to considerations many of which would be rendered irrelevant by the application of the law of negligence [emphasis added]."
McHugh J explained at [122]-[123]:
"[122] Mrs Tame's psychiatric illness is the product of her concern for her reputation. There is no doubt that the publication of the P4 report to the insurer defamed her. She could have sued for damages for defamation. If successful, she could have recovered all the damages in that action that she sought in the present action including damages for her psychiatric illness.
[123] In determining whether Acting Sergeant Beardsley owed a duty of care to Mrs Tame, it is proper to take into account - quite apart from the issue of reasonable foreseeability - that the law of defamation appears a more appropriate medium for dealing with the facts of her case than the law of negligently inflicted nervous shock. Her action arises out of a communication to a third party, her concern is with her reputation and the law of defamation has various defences that reconcile the competing interests of the parties more appropriately than the law of negligence. This Court has already taken the view that, independently of policy issues relevant to the interests of the parties and persons like them, the need for the law to be coherent is a relevant factor in determining whether a duty exists. In Sullivan v Moody, the Court said that coherence in the law was a relevant factor in determining whether a duty of care existed. In Sullivan, the Court held that officers of the Department of Community Welfare owed no duty of care to a person affected by a communication made as the result of investigating, under a statutory power, a sexual assault allegation."
The circumstances in which Mr Kozera made allegations to the police about the plaintiff, resulting in injury to health, needed to be framed in accordance with the principles enunciated by the High Court in Tame. This was never done. The limitation period for any action for defamation (which, at the time of publication by Mr Kozera, was six years) expired in or about October 2006. As to the entitlement to bring proceedings for defamation for statements made to police officers, see the cases discussed in P & W v Manny [2010] ACTSC 50.
Whatever cause of action is pleaded by the plaintiff against the defendant, and whether or not it consists of a failure to advise of the correct cause of action, it must be pleaded clearly and succinctly.
Concluding remarks
These proceedings demonstrate the difficulties courts face when litigants in person draft their own pleadings. While litigants in person are entitled to a degree of additional assistance, the degree of assistance a court can give is limited. Having noted this, I should add that the long and unfortunate history of unhelpful professional advice and delay in relation to the plaintiff's claims does not reflect well on some of the legal practitioners involved. Whether or not any of that conduct can be attributed to Mr Percy, or can be the subject of any claim by the plaintiff, is another matter, and one where the burden lies, as Mr Carney reminded me during the hearing, on the plaintiff, and not upon others.
Orders
(1) On the application of the plaintiff for leave to amend the Statement of Claim, the hearing of the defendant's Notice of Motion is stood over for hearing to Thursday 4 April 2013.
(2) Costs reserved.
(3) Grant leave to the plaintiff to amend the Statement of Claim conditional upon any such amendment being served on the defendant no later than 21 February 2013.
(4) Order the parties to attend mediation (the expense for which is to be equally divided between them) before a mediator selected by the NSW Bar Association, such mediation to take place no later than 28 March 2013.
(5) The defendant's Notice of Motion stood over for further hearing to Thursday 4 April 2013 at 10:00am before Gibson DCJ.
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Decision last updated: 29 January 2013
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