Cristovao v Geoffrey Dutton t/as Dutton Legal [No 2] - [2016] WADC 66

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CRISTOVAO -v- GEOFFREY DUTTON t/as DUTTON LEGAL [No 2] [2016] WADC 66

CORAM: EATON DCJ

HEARD: 9 MAY 2016

DELIVERED : 18 MAY 2016

FILE NO/S: CIV 1628 of 2015

BETWEEN: ROGERIO MARTINS CRISTOVAO
Plaintiff
AND
GEOFFREY DUTTON t/as DUTTON LEGAL
Defendant

Catchwords:

Practice and procedure - Appeal from a registrar's decision - Application for summary judgment pursuant to O14

Legislation:

District Court Rules 2005
Rules of the Supreme Court 1971

Result:

Both the plaintiff's appeal and application for summary judgment are dismissed with costs

Representation:

Counsel:

Plaintiff: In person
Defendant: Ms C E Moss

Solicitors:

Plaintiff: Not applicable
Defendant: Jackson McDonald

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

Phillips v Commonwealth [1964] HCA 22; (1964) 110 CLR 347

EATON DCJ: Rogerio Martins Cristovao sued Geoffrey Dutton by writ of summons filed in this court on 11 May 2015. The writ was accompanied by an indorsement of claim in lengthy terms. Specifically, the plaintiff claimed special damages in the sum of $50,000 being an amount said to have been lost by him to Forensic Document Examiners Pty Ltd, the loss said to have been caused by Mr Dutton's negligence in that he commenced a claim in the Magistrates Court at Perth on behalf of the plaintiff against Forensic Document Examiners Pty Ltd as a general procedure claim instead of as a minor case claim. The defendant was, at all material times, a certified legal practitioner.
In his prayer for relief the plaintiff sought general damages particularised to be $45,000 being expenses incurred by him, costs accruing to him by reason of an enforced stay in Australia and damages for pain and suffering.
On 3 June 2015 Mr Dutton entered an appearance.
On 22 June 2015 the plaintiff filed an amended writ of summons with an amended indorsement claim. The substance of his claims appeared to remain the same.
On 23 July 2015 the defendant filed a notice of appointment of solicitors indicating that the firm, Jackson McDonald, would act on his behalf. On that day that firm filed a defence to the amended writ of summons and amended indorsement of claim. In substance the defendant pleads that he, as solicitor for the plaintiff and in accordance with the plaintiff's instructions, filed a general procedure claim in the Magistrates Court of Western Australia on behalf of the plaintiff on 2 February 2010. He further pleads that the plaintiff obtained default judgment in that action, with his assistance, on 1 June 2010. A certificate of judgment is said to have issued on 26 August 2010.
Further, the defendant pleads that in or about late 2010 or early 2011 he ceased to act for the plaintiff in that matter. In essence the defendant denies that he was negligent, admits that he received $2,970 from the plaintiff as payment for his legal services and does not admit that the plaintiff incurred out-of-pocket expenses in the sum of $45,000 in pursuing Forensic Document Examiners Pty Ltd. The defendant denies the claim for special damages and the plaintiff's claim for damages in general. The defendant denies that the plaintiff is entitled to the relief claimed or any relief.
The defendant further asserts that if, which is denied, the plaintiff suffered loss and/or damage such loss and/or damage was caused or contributed to by the plaintiff's own actions in maintaining the proceedings and instigating further proceedings without the involvement of the defendant and contrary to the defendant's advice to accept an offer of settlement on 28 March 2011.
The defendant finally pleads that the action commenced in this court is 'an impermissible collateral attack on matters already determined by the courts of Western Australia and works an abuse of process' and that the matters complained of by the plaintiff concern the defendant's work out of court, intimately connected with and affecting the conduct of the proceedings in court, such that advocate's immunity applies to his work rendering him immune from any liability to the plaintiff in relation to his work.
Following the filing of the defence the parties were advised by the court registry that, in accordance with the case management timetable applicable to the action, the plaintiff would be required to enter the matter for trial before 20 November 2015. The advice informed the plaintiff as to the consequences of failure to do so.
On 5 August 2015 Principal Registrar Melville made certain procedural orders relating to, inter alia, discovery of documents and pending strike-out applications. Both parties appear to have, subsequently, complied with the requirement for discovery of documents.
On 5 August 2015 the plaintiff filed a chambers summons for orders striking out portions of the defence. The application was opposed. Both sides filed documents in support of or in opposition to the application, respectively. The application was heard by Registrar Harman on 11 September 2015. He ordered that the particulars of par 2(a) of the defence be struck out, that the application be otherwise dismissed and that the plaintiff pay 75% of the defendant's costs of the application, there being, otherwise, no order as to costs.
On 21 September 2015 the plaintiff filed a notice of appeal against the orders made by Registrar Harman. The matter was administratively listed for a directions hearing before a registrar in chambers on 20 October 2015. The entry for trial milestone was deferred to 8 December 2015. The appeal, being opposed, was listed for hearing on 4 March 2016 before a judge.
By notice of motion dated 15 February 2016 the plaintiff applied to adjourn that hearing. That application was unsuccessful.
On 17 February 2016, at the request of the plaintiff, the court issued two subpoenas directed to the defendant, one requiring him to attend this court to give evidence on 4 March 2016 at 11.30 am and the other requiring him to produce a range of documents particularised in the schedule to that subpoena at that time and place. It is clear that the plaintiff required that the defendant attend the hearing of his appeal to give evidence and produce documents.
By chambers summons dated 25 February 2016 the defendant applied to strike out the subpoenas addressed to him and for costs. The application was supported by an affidavit filed by the defendant's solicitor, Ms Moss, and written submissions. The plaintiff opposed the application. It was heard by his Honour Judge Gething on 4 March 2016. He set aside both subpoenas. The plaintiff was ordered to pay the defendant's costs of the application to strike out both subpoenas. The plaintiff's appeal, also listed for hearing on that day, was adjourned sine die with liberty to re‑list by letter to the registry.
Shortly following Judge Gething's decision the plaintiff filed a further chambers summons seeking summary judgment against the defendant pursuant to O 14 r 1 of the Rules of the Supreme Court 1971. He filed an affidavit in support of that application along with written submissions and a list of authorities. That application was opposed. The matter came before her Honour Judge Wager on 4 April 2016. She adjourned the application to a special appointment for hearing by a judge on 9 May 2016. The defendant, in due course, filed an affidavit in opposition to the application for summary judgment along with written submissions in that regard.
By letter of 28 April 2016 the court registry advised the parties that the appeal from the decision of Registrar Harman was re‑listed for hearing before a judge on 9 May 2016 to be heard together with the summary judgment application. The entry for trial milestone was administratively extended to 30 September 2016.
On 9 May 2016 I heard both the appeal and the application for summary judgment. The plaintiff, as he has done throughout these proceedings, appeared in person and unrepresented. Ms Moss appeared for the defendant.
As to the summary judgment application I attempted to explore with the plaintiff the reasons, if any, for his delay in bringing the application. Order 14 r 1 provides that where a statement of claim has been served on a defendant and the defendant has entered an appearance the plaintiff may, within 21 days after appearance or at any later time by leave of the court, apply to the court for judgment against the defendant. I pointed out to the plaintiff that the 21 day period had long since expired. He was unable, in oral submissions, to enunciate a reason for the delay in bringing the application. It is the case that in both his affidavit in support and written submissions he also failed to do so.
In opposing written submissions, augmented by oral submissions before me, counsel for the defendant noted that the defendant's appearance was filed on 3 June 2015, some 9 months prior to the plaintiff's application, and submitted that there was nothing in the plaintiff's affidavit sworn 15 March 2016 which would serve to explain his delay in bringing the summary judgment application.
The time limit of 21 days reflects the policy behind the rules that summary judgment applications should be brought at an early stage in the proceedings before too much expense has been incurred. It is clearly the case that the burden is upon the applicant to demonstrate that the delay is justifiable in all of the circumstances.
Ms Moss points to the undeniable fact that, since the entry of an appearance, there have been a number of interlocutory skirmishes initiated by the plaintiff, including the plaintiff's strike-out application and his appeal against the decision of Registrar Harman. In addition, the plaintiff's subpoenas to the defendant brought on the defendant's successful application to set them aside. Both parties have given discovery on oath. As mentioned, the entry for trial milestone has been deferred on several occasions by reason, predominantly, of the plaintiff's interlocutory manoeuvres.
Given that the plaintiff is well out of time for the filing of a summary judgment application, that there is no satisfactory explanation for the delay and that there clearly is a triable issue I decline to grant leave or an extension of time within which to file the application for summary judgment. That application is dismissed. In doing so, I note that the plaintiff, in written submissions in support of that application filed 30 March 2016 asserts that his application is confined to what he describes as the single issue in dispute between the parties, namely the defendant's claim for advocate's immunity vis-a-vis his work in filing a general procedure claim in the Magistrates Court of Western Australia as opposed to a minor case claim.
In oral submissions before me on 9 May 2016 the plaintiff, time and again, returned to the claim of advocate's immunity as the central issue between the parties. The essence of the claim in negligence is that the plaintiff's loss was caused by the defendant's initiation and prosecution of the general procedure claim, allegedly done without his instructions. The defendant, in response, contends that he commenced that action in the Magistrates Court in accordance with the plaintiff's oral instructions to do so.
It is clear that, at the very least, there are two triable issues as between the parties; the first perhaps turning very much on the matter of credibility relating to whether or not the defendant acted in accordance with the plaintiff's instructions and the second arising from the defendant's claim of advocate's immunity. Both, in my view, are matters for trial.
As to the appeal, r 15 of the District Court Rules 2005 provides that an appeal lies from a registrar to a judge of this court. It provides that an appeal is to be by way of a new hearing of the matter that was before the registrar. It is the essence of a new hearing or hearing de novo that the appeal court 'pronounce anew upon the rights of the parties as disclosed by the evidence before it': Phillips v Commonwealth [1964] HCA 22; (1964) 110 CLR 347 per Kitto, Taylor and Owen JJ. The court must form its own view of the facts as far as it is able to do so.
Order 20 r 19 of the Rules of the Supreme Court deals with striking out pleadings. It provides that the court may, at any stage of proceedings, order the striking out or amending of any pleading or the indorsement of any writ in the action on the ground that:
(a)it discloses no reasonable cause of action or defence, as the case may be; or
(b)it is scandalous, frivolous or vexatious; or
(c)it may prejudice, embarrass or delay the fair trial of the action; or
(d)it is otherwise an abuse of the process of the court.
The court may order that an action be stayed or dismissed or judgment be entered, as the case may be. No evidence is admissible on such an application. It must be made within 21 days of the service of the pleading under attack and must specify the ground of the attack and those parts of the pleadings which the plaintiff seeks to have struck out.
The plaintiff's chambers summons to strike out was accompanied by a table of objections to the various paragraphs of the defence with associated reasons for striking out. For example, par 1 is said to be the defendant's 'implied admission of the plaintiff's cause of action'. The plaintiff further contends that the defendant's conduct in instituting the general procedure claim in the Magistrates Court was serious neglect and misconduct. The plaintiff contends that par 1 discloses no reasonable cause of defence.
In fact, par 1 of the defence admits a particular outcome in the Court of Appeal in this State and denies that the plaintiff is entitled to the relief claimed or any relief whatsoever in his action in this court. It is true that that paragraph alone discloses no cause of defence beyond a general denial. That, in itself, is innocuous in the context of the entire document.
As par 2 of the defence the plaintiff asserts, firstly, that it is a 'fabricated lie' and, secondly, that it is 'frivolous, vexatious, embarrassing and will prejudice a fair trial of the plaintiff's cause of action'.
In par 2 the defendant admits that he, on the plaintiff's instructions, filed a general procedure claim in the Magistrates Court of Western Australia on 2 February 2010. The defendant particularised the pleading by asserting that in or about January 2010 the plaintiff orally instructed the defendant to institute the proceedings as a general procedure claim so that the defendant could appear on the plaintiff's behalf at a pre‑trial conference despite certain oral advice given by the defendant to the plaintiff that the prospect of his claim failing was 'very high and that in the event of failure the plaintiff would be liable in costs including the costs incurred by the plaintiff's opponent in engaging an expert'.
Deputy Registrar Harman saw fit to strike out the particulars of par 2 of the defence but otherwise dismissed the plaintiff's application. The submission as to a 'fabricated lie' is likely to give rise to a credibility issue at trial but otherwise I do not regard the pleading, including the particulars, as being frivolous, vexatious or embarrassing. Paragraph 2, as drafted, will not prejudice the plaintiff or delay the fair trial of his cause of action. In fact, as matters have transpired, the plaintiff's trial has been delayed by reason of his own interlocutory manoeuvres.
Paragraph 3 of the defence responds to par 3 of the amended indorsement of the plaintiff's claim, asserting that the plaintiff, with the assistance of the defendant, obtained default judgment in the matter before the Magistrates Court on 1 June 2010 and subsequently obtained a certificate of judgment in that regard. It further pleads that in or about late 2010 or early 2011 the defendant ceased to act for the plaintiff in that matter and provides certain particulars.
Again, the plaintiff's complaint about par 3 is that it is frivolous, vexatious or embarrassing and will prejudice and delay the fair trial of his cause of action. I do not accept that to be so.
By par 4 of the defence the defendant denies pars 4 and 5 of the amended indorsement of claim and by par 5 admits that he received $2,970 from the plaintiff as payment for legal services. There is no admission that the payment was without receipt, invoice or bills of costs.
By par 6 of the defence the defendant does not admit that the plaintiff incurred out-of-pocket expenses in the sum of $45,000 in pursuing Forensic Document Examiners Pty Ltd, denies that the plaintiff is entitled to special damages of $51,120 or at all, says that the defendant has predominantly resided in Australia since about 1978 and asserts that the defendant has been involved in unrelated litigation within Australia since 28 September 2012.
In objection the plaintiff asserts that those paragraphs are evasive denials which fail to answer 'the gist' of the plaintiff's allegations and are for the purpose of avoiding responsibility and liability.
While the assertion relating to other actions in which the plaintiff has been involved might well be tangential the remainder of the pleading comprising par 6 is, in my view, innocuous and is not susceptible to being struck out as alleged by the plaintiff, having regard to O 20 r 19(1) of the Rules.
Paragraph 7 of the defence is a pleading of contributory negligence with particulars. Paragraph 8 pleads that the plaintiff's action in this court is 'an impermissible collateral attack on matters already determined by the courts of Western Australia and works an abuse of process'. Particulars are provided.
Paragraph 9 is addressed to the whole of the plaintiff's claim, pleading advocate's immunity such that the defendant is immune from any liability in relation to the work carried out by him for the plaintiff.
As to paragraphs 7, 8 and 9 of the defence, the plaintiff asserts that the pleadings are frivolous, vexatious and embarrassing and will prejudice or delay the fair trial of his cause of action.
In summary, having heard the plaintiff's oral submissions on both the appeal and the strike out application and read both his written submissions and affidavits in support in each case, it is clear, firstly, that there is no substance to the strike-out application and, accordingly, no substance to the appeal. What is clear is that the plaintiff challenges the defendant's credibility and, somewhat emphatically, his claim for advocate's immunity.
In my view, while the defence filed might have been differently or better pleaded it does serve to define the issues as between the parties. It is clear that questions of credibility have arisen and that there are issues which must necessarily proceed to trial.
In conclusion, I dismiss both the appeal and the summary judgment application. With regard to the former, the defendant seeks that the plaintiff pay the defendant's costs of the appeal to be taxed, if not agreed, and with regard to the latter, the defendant seeks that the plaintiff pay its costs forthwith pursuant to the provisions of O 14 r 8 of the Rules in the court's general discretion.
It is the case that, in the course of the hearing, the plaintiff made it very clear that the defendant's claim of advocate's immunity was a threshold question, a preliminary issue to be decided before trial. While not conceding the merit of that proposal, it is clear on the plaintiff's own contentions that there is a triable issue. The defendant submits that the plaintiff's application for summary judgment should never have been made. In that context, it follows, submits counsel for the defendant, that it would be a proper exercise of the court's discretion to award costs against the plaintiff and that modern case management principles require a particular weight to be given to the elimination of delay, the reduction of cost and the efficient disposal of the business of the court.

In that regard, it does seem to me to be clear that the plaintiff has, while complaining in his strike-out application of being prejudiced in the prosecution of his cause of action, delayed his cause of action by interlocutory manoeuvres, such as the issue of subpoenas set aside by Judge Gething.
Counsel for the defendant submits that the application for summary judgment is a further example of the plaintiff's focus upon interlocutory processes in contravention of established case management principles.
It is true that the plaintiff, who is unrepresented, is now the subject of several adverse cost orders consequent upon those interlocutory processes.
It does appear to me that the plaintiff knew that the defendant relied upon a contention which would entitle him to unconditional leave to defend and that he, nevertheless, pursued a summary judgment application which, patently, could not succeed. He did so while his appeal from the decision of Registrar Harman was pending. In such circumstances I order not only that the plaintiff pay the defendant's costs of the application but that they be paid forthwith. As with the costs of the appeal I direct that the costs awarded in respect of the summary judgment application be taxed if not agreed and paid forthwith.