De Alwis v Watters [No 2]
[2017] WADC 13
•3 FEBRUARY 2017
DE ALWIS -v- WATTERS [No 2] [2017] WADC 13
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 13 | |
| Case No: | CIV:4090/2014 | 21 OCTOBER 2016 | |
| Coram: | O'NEAL DCJ | 3/02/17 | |
| PERTH | |||
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | VIJITHA GAMINI DE ALWIS SIMON WATTERS |
Catchwords: | Application to extend time for compliance with a springing order Turns on own facts |
Legislation: | Nil |
Case References: | A v C [No 2] [2015] WASCA 199 Adams v State of NSW [2008] NSWSC 1257 Brocx v Hughes [2008] WASC 34 Clavel v Savage [2013] NSWSC 775 De Alwis v Minister for Corrective Services [2013] WASC 275 De Alwis v Minister for Corrective Services [2013] WASC 288 De Alwis v The State of Western Australia [2014] WASC 161 De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 De Alwis v The State of Western Australia [No 3] [2015] WASCA 41 De Alwis v The State of Western Australia [No 4] [2015] WASCA 43 De Alwis v Watters [2015] WADC 97 Giannarelli v Wraith (1988) 165 CLR 543 Hancock Family Memorial Foundation v Fieldhouse (2005) 30 WAR 398 MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SIMON WATTERS
Defendant
Catchwords:
Application to extend time for compliance with a springing order - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : In person & Ms S M De Alwis
Defendant : Ms A Bishop
Solicitors:
Plaintiff : Not applicable
Defendant : DLA Piper Australia
Case(s) referred to in judgment(s):
A v C [No 2] [2015] WASCA 199
Adams v State of NSW [2008] NSWSC 1257
Brocx v Hughes [2008] WASC 34
Clavel v Savage [2013] NSWSC 775
De Alwis v Minister for Corrective Services [2013] WASC 275
De Alwis v Minister for Corrective Services [2013] WASC 288
De Alwis v The State of Western Australia [2014] WASC 161
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
De Alwis v The State of Western Australia [No 3] [2015] WASCA 41
De Alwis v The State of Western Australia [No 4] [2015] WASCA 43
De Alwis v Watters [2015] WADC 97
Giannarelli v Wraith (1988) 165 CLR 543
Hancock Family Memorial Foundation v Fieldhouse (2005) 30 WAR 398
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
- O'NEAL DCJ:
Introduction
1 This is an application by the plaintiff to set aside a springing order made by Birmingham J. That order required the plaintiff to file a statement of claim by 29 January this year. As will become clear, with the agreement of the parties, I determined to treat the application as an application to extend time for compliance.
2 The plaintiff is a self-described international law and human rights lawyer. Although he does not hold a current practising certificate in this state, he says that he did hold one between 1995 and 2000. Originally from Sri Lanka, I was told from the bar table that he practised there as a lawyer, indeed as a prosecutor, until the fall out from the prosecution of a 'top politician' caused him to flee to Australia. At the hearing on 7 November the plaintiff told me that he currently holds a practising certificate in Sri Lanka, has a practice there, and appears in the Supreme Court of that country. He is self-represented in this matter, with the assistance of his daughter who has been allowed to assist as a McKenzie friend. Why he needs that assistance, given that he claims to represent others in the courts of Sri Lanka, is just one of the unusual features of this litigation.
Background
3 This action was originally commenced by what might loosely be described as an indorsed writ, filed on 11 December 2014. In the indorsement the plaintiff asserts a claim against the defendant for damages for professional negligence. What can be gleaned from the indorsement is that the plaintiff was complaining about the defendant's,
… Failure and neglect to take instructions, prepare the necessary documents properly or at all, file in court and duly serve them on … the State of Western Australia, to act for the plaintiff and provide him with all necessary legal advice and to represent in the Court of Appeal of the Supreme Court of Western Australia represent the plaintiff properly or at all in his Appeal against the conviction in the District Court … and failing to represent the plaintiff properly or at all as required since the Defendant was awarded a grant of legal aid and was retained by the Plaintiff to act for him in his appeal. [sic]
4 There are other complaints that allege variously that, without instructions, the defendant engaged a solicitor and failed to follow the plaintiff's instructions 'properly or at all' or keep the plaintiff 'duly informed of the progress of the matter as required and as necessary'. For good measure, the indorsement concludes with a claim for
… interest at the rate of 6% for attempting to pervert the course of Justice from the date the Defendant was awarded a grant of legal aid to the date of judgment in this claim.
5 Whatever criticisms may be made of the defendant's conduct of the plaintiff's appeal, I will record here that nothing whatsoever has been put forward by the plaintiff that could begin to justify an allegation of 'attempting to pervert the course of justice'. The fact that the plaintiff who is or was himself a lawyer is prepared to make an unsubstantiated allegation of this kind, in this way, is telling in my view.
6 The plaintiff's unhappiness arises from the defendant's conduct while representing the plaintiff in the appeal of the plaintiff's conviction and sentence for an offence of, 'with intent to harm, doing bodily harm'. That is a general description of the offence, sufficient for my purposes here, but obviously a matter of considerable importance in the plaintiff's estimation in his various court proceedings.
7 The offence for which the plaintiff was convicted involved an occasion where, according to the verdict of the jury at trial, he struck his estranged wife in the head with a shovel, knocking her unconscious. She fell to the ground and was subsequently treated in hospital for an injury to her head. At the time, the victim had a violence restraining order in place against the plaintiff. There was a history of accusations of infidelity by the plaintiff towards the victim.
8 The plaintiff gave evidence at his own trial. The full flavour of his evidence can be found at [29] of the decision of the Court of Appeal in De Alwis v The State of Western Australia [No 2] [2015] WASCA 42. In summary however, the plaintiff told the jury that he was depressed and had decided to dig a grave for himself in the vicinity of the place where his estranged wife worked. For that reason he had equipped himself with a shovel. He had also brought along a meat cleaver 'to cut his wrists'. While he was so engaged he said, his estranged wife effectively chanced upon him and she then ran at him shouting words to the effect of, 'You dirty dog. Give me that here. I will kill you'. She then wrenched the shovel from him and in doing so hit herself in the face, injuring herself. The plaintiff told the jury that earlier this same day he had suffered a 'massive heart attack' and should have called an ambulance but did not.
9 Unsurprisingly, quite apart from the fact that there was third party eye witness testimony contradicting the plaintiff and corroborating the evidence of the victim, the jury rejected the plaintiff's version of events. Two independent witnesses corroborated the victim's evidence that the plaintiff had run at the victim, brandishing the shovel. One of the witnesses actually observed the plaintiff striking the victim in the head with the shovel, and gave that evidence at trial.
10 Eventually, on 16 November 2012 the plaintiff was sentenced by his Honour Wisbey DCJ to a term of 4 years and 9 months backdated to 4 April 2011. I say 'eventually' here because the plaintiff's sentencing was delayed by what must now be recognised as a chronic pattern of delay caused by the last moment sacking of legal representatives, applications for adjournments and on the refusal of the adjournment, a forced adjournment because of a complaint of ill-health by the plaintiff. I refer in that respect to what was said by McLure P in De Alwis [No 2] [13] - [16].
11 From 18 September 2012, following a grant of legal aid, the defendant was engaged to investigate and advise the plaintiff on a possible appeal. Between 18 September 2012 and 18 December 2012 the defendant, with the assistance of the plaintiff's daughter Sonali De Alwis, took steps to advance the plaintiff's appeal. Ms De Alwis was then on the roll of practitioners. She was first admitted as a legal practitioner in 2005, and had practised mainly in the area of family law. She told me from the bar table that as of 1 July 2016 she no longer held a practising certificate.
12 The steps taken with the assistance of the defendant included the filing and service of notices and amended notices of appeal. By a letter dated 18 December 2012 however, the plaintiff accused the defendant of being negligent and instructed him to cease acting. The defendant did so. Thereafter the plaintiff, with the assistance of his daughter, acted on his own behalf in the appeal of his conviction and sentence.
13 In the course of the hearing of this application the nature of the plaintiff's complaint against the defendant and the alleged resulting harm became plain, if in fact there has ever been any doubt in that respect.
14 The plaintiff does not accept that he should have been convicted. Indeed according to the plaintiff he should never have been charged. From the bar table he told me, 'I committed no offence whatsoever, your Honour. I am a totally, totally innocent man'.
15 As the plaintiff said, his belief is that had the defendant properly discharged his duties towards the plaintiff, the plaintiff would have been 'acquitted and discharged by the Court of Appeal' and it is for that failure that the defendant must answer in this action. It is for that alleged harm that the plaintiff says the defendant must 'pay me good damages'.
Proceedings in respect of the plaintiff's conviction and sentence
16 The plaintiff was charged on indictment, pursuant to s 294(1) of the Criminal Code (WA) that, on 4 April 2011 at East Perth he, with intent to maim, disfigure, disable or do some grievous bodily harm to another, unlawfully wounded that other. The plaintiff was tried by a judge and jury in the District Court of Western Australia. At his trial, which lasted nine days, the plaintiff defended himself. That occurred because he had twice dismissed experienced criminal barristers who had been briefed to represent him. On each occasion those dismissals occurred on the day the trial was listed to commence.
17 The trial should have taken no more than three days. The fact that the trial lasted nine days was 'solely attributable to the conduct of the [plaintiff]': De Alwis [No2] [75].
18 At the conclusion of his trial the plaintiff was acquitted of the offence charged on the indictment, but convicted of a lesser included offence. He was convicted of the offence of 'with intent to harm … does any act … as a result of which bodily harm is caused to any person' contrary to s 304(2)(a). In due course he was sentenced for that offence by his Honour Judge Wisbey.
19 There was an error in the warrant of committal after sentence. Instead of describing the offence that the plaintiff was in fact convicted of, it described the offence in the same terms as the indictment, as, 'with intent to do grievous bodily harm, unlawfully wounds another'. The error was corrected by an amended warrant of committal, following an application for the issue of a writ of habeas corpus brought on the plaintiff's behalf by his daughter. This issue is canvassed in detail in the decision of the Chief Justice in De Alwis v The State of Western Australia[2014] WASC 161. It was raised by the plaintiff again and dealt with again in De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [46] - [49]. I state these matters as facts given the conclusions reached in the decisions of the Chief Justice and of the Court of Appeal. The plaintiff does not accept that these are the facts.
20 In support of an application for summary judgment in this action, affidavits were sworn by the defendant's solicitor. Mr Edward's affidavit of 10 March 2015 annexed copies of decisions made by the Court of Appeal with respect to the plaintiff's appeal and various applications made in respect of it. That includes the decision of the court in De Alwis [No 2] which I have already referred to, as well as the decisions in De Alwis v The State of Western Australia [No 3] [2015] WASCA 41 and De Alwis v The State of Western Australia [No 4] [2015] WASCA 43. These latter two decisions relate to applications by the plaintiff to require the President of the Court of Appeal and Mazza JA to recuse themselves on the basis of bias, actual or apprehended.
21 The decision in De Alwis [No 2] deals, at considerable length, with the plaintiff's application to set aside orders dismissing his conviction and sentence appeals for an extension of time to file the appellant's case in both appeals. As her Honour the president observed, the appeals had 'a long and sorry procedural history'. It is sufficient to observe that the original notices of appeal were filed on 5 December 2012 in respect of the appeal against conviction. That was about three months out of time. The Court of Appeal however continued to entertain applications in respect of the appeals, and orders were made on 26 March 2013 and again on 17 April 2013 requiring the appellant to file his cases on the appeal, by the times then provided. On 3 May 2013 the appeals came again before Mazza JA who ordered in respect of each appeal that:
The appeal be dismissed unless the appellant files and serves the appellant's cases by 4.00 pm on 20 May 2013.
22 That did not occur and orders were made dismissing both appeals.
23 Subsequently, other applications were made for the springing orders made by Mazza JA to be set aside and for the appellant to be granted an extension of time. Matters came before the Court of Appeal again on 10 April 2014 when the court heard from Mr McIntyre SC. While not representing the plaintiff, Mr McIntyre advised that the appellant had been provided with sufficient legal aid for Mr McIntyre to provide an opinion on the merits of the conviction appeal. The court adjourned the hearing of the extension applications and once again ordered that the appellant file an appellant's case, this time within 28 days.
24 On 17 April 2014 the appellant finally filed his case in his appeal against conviction and the appeal against sentence. It appeared however that legal aid had been refused, because the cases were signed by the appellant as opposed to a legal practitioner. Other applications were made but ultimately the plaintiff's application for an extension of time was heard on 10 December 2014 and decided by the court in De Alwis [No 2].
25 As her Honour the president observed, there were numerous problems in respect of the appellant's conduct, of which the original failure to commence the appeal against conviction within time was just one. Subsequent to that there was the plaintiff's failure to comply with the rules and with three court orders for the filing of his cases. Finally there was the sheer length of delay at that point, which was described as gross. Little explanation was offered by the plaintiff for the delay and, as her Honour observed, the affidavit that was provided contained little relevant information and much irrelevant detail, leaving the gross delay unexplained. Therefore the plaintiff was in a position where he had to establish that there had been a miscarriage of justice which would warrant the court setting aside the verdict or sentence. Her Honour then proceeded to consider the circumstances underlying the conviction and sentence, and each of the numerous grounds of appeal that the plaintiff wished to advance. As the court held, none of the grounds had a reasonable prospect of succeeding. Both extension applications were dismissed.
26 After the hearing of the applications for an extension of time the appellant filed an application seeking 14 further orders, including orders that the president of the court and Mazza JA recuse themselves from determining the matters that had been argued. In their respective decisions of De Alwis [No 3] and De Alwis [No 4] those applications were rejected.
History of this action
27 Like the appeals from conviction and sentence, this action has 'a long and sorry procedural history', to put it mildly.
28 After the writ was served, an appearance was entered by the defendant on 19 December 2014.
29 On 23 January 2015 Registrar Kingsley ordered that the plaintiff file and serve a statement of claim on or before 27 February 2015. The defendant was granted an extension of time to bring summary judgment application until 6 March 2015. Other consequential directions were made.
30 The statement of claim was not filed. The defendant duly brought an application for summary judgment pursuant to O 16, alternatively asking that the action be dismissed as an abuse of process.
31 The defendant's application for summary judgement was supported by the affidavit of Richard Edwards sworn 10 March 2015. On 10 April 2015 the principal registrar ordered that by 5 June 2015 the plaintiff file and serve his statement of claim. Other orders listed the hearing of the defendant's application for summary judgment for a special appointment on 19 June 2015.
32 The statement of claim was not filed.
33 Mr Edwards filed a supplementary affidavit in the summary judgement application, sworn 9 June 2015.
34 On the defendant's application, on 19 August 2015, Registrar Kingsley ordered that judgment be entered for the defendant, pursuant to O 16 r (1). He provided written reasons for doing so: De Alwis v Watters [2015] WADC 97. His decision was based on his conclusion that the defendant had established that there was no serious case to be tried on any matter raised by the plaintiff's writ of summons. The registrar's decision turned on the immunity of barristers for work intimately connected with the representation of a party in court, or as here, the anticipated representation of the plaintiff in his appeal. The registrar's conclusion was based on what could be gleaned from the indorsement on the writ of summons, the plaintiff having repeatedly failed to comply with orders to file a statement of claim.
35 The plaintiff appealed that decision. The appeal was heard on 2 December 2015 by his Honour Judge Birmingham. A transcription of that hearing, including his Honour's oral reasons for decision, was provided to me.
36 In the course of the hearing his Honour asked the plaintiff about his failures to file a statement of claim. The plaintiff's answers revealed that failure to file a statement of claim, in the face of previous orders to do so, was deliberate. The plaintiff said that he believed that it was 'premature' for him to file a statement of claim, until the High Court finally resolved the matter of his conviction and sentence. That matter was still, he said, 'in the High Court'.
37 (At the hearing before me, I attempted to discover whether a current application was before the High Court. From the bar table, the plaintiff told me 'the High Court has thrown it out. Therefore the only avenue left to me is to go the Human Rights Committee of the United Nations, which … I have already done. Hopefully it will be heard soon.')
38 In the result, his Honour allowed the plaintiff's appeal and reversed the decision of Registrar Kingsley.
39 His Honour's reasons for doing so appear to focus on the imprecision of the indorsement on the writ, and the question in his Honour's mind as to whether the allegations of breach of duty against the defendant might be based on work performed as a solicitor as opposed to as a barrister, whether the action was perhaps being brought in contract as well as negligence, and what precisely the nature of the damages claimed was. His Honour identified some obvious deficiencies in the original notice of appeal filed by the defendant and said,
seemingly the notice of appeal was filed without any real regard as to the contents, simply to preserve the time limit in a hopeful expectation that a fresh notice or fresh amended grounds would be filed later, the time for filing the appeal being preserved by the filing of the first notice.
40 In dealing with the question of the principle of a barrister's immunity from suit that had underpinned the learned registrar's decision, his Honour said,
The application of the immunity conferred on counsel depends on a question of fact, whether the alleged conduct occurred in court and was intimately connected with the hearing of the case in court. That wasn't apparent on the papers.
The material that was filed raised an issue as to, indeed the role that Mr Watters performed. It's not possible to discern from the material before the court save for the materials that were filed by the defendant seemingly to justify or as to what the precise role was of Mr Watters.
At first blush the documents filed would seemingly justify the conclusion that Mr Watters appeared to have been engaged as solicitor and the engagement of an instructing solicitor to go on the record was done without client approval.
…
At the highest there is a criticism of Mr Watters for his conduct in relation to the preparation of an appeal and providing advice in relation to it. It's not possible to discern precisely what that criticism is and how that would ultimately, if at all, found in damages. It's not possible to discern with any particularity or certainty the basis upon which Mr Watters was in fact engaged and whether he was acting as a solicitor, or as a barrister or both.
Those matters or issues that arise from an examination of the papers filed before the court and in circumstances where there is a sense of disquiet about this matter being summarily terminated and foreclosing on a plaintiff without the matter being properly addressed.
41 Birmingham DCJ reached a different conclusion than the learned registrar with respect to the application of the principles of barrister's immunity from suit or what is more properly characterised as 'advocate's immunity'. As Mason CJ said in Giannarelli v Wraith (1988) 165 CLR 543, 559, 'It is the function performed, not the label attached, which gives rise to the limited immunity'.
42 It is not however necessary for me to further explore this aspect of his Honour's conclusion.
42 No statement of claim was filed. On the last day for compliance with the springing order – 29 January - the plaintiff filed an application for further directions asking that the springing order be set aside. I am told however that, when filed, the plaintiff marked the document with the wrong case number.
43 On 1 February 2016, not knowing of the misnumbered application, the defendant filed for judgment on the basis of the plaintiff's non-compliance with the springing order. On 4 February 2016 judgment was entered for the defendant. In the absence of either compliance with the order or a further order extending time, the judgement was properly and regularly obtained. The plaintiff does not contend otherwise.
44 The plaintiff's error was discovered. The current application was made in this action on 10 February 2016, seeking to set aside the springing order made by Judge Birmingham. That is now the application me.
45 A handwritten affidavit sworn by the plaintiff was provided in support of his application. The affidavit focuses to a considerable degree on the plaintiff's health problems. As he says:
I am very ill now.
46 He goes on to describe the fact that he suffers from bowel cancer and has had seven surgeries to date for that. He has four hernias and requires surgeries for those 'soon'. He says that he has heart disease and has suffered two heart attacks with two stents having been implanted in 1996 and 2011. He claims to have six more severely blocked blood vessels in his heart wall and has suffered 15 minor strokes. If this were not bad enough, according to the plaintiff he also suffers from frequent migraines, frequent angina and acute angina as well as severe arthritis in several parts of the body, and bursitis in his left shoulder following an unsuccessful rotator cuff repair. As well, he claimed to be experiencing severe back pain due to trauma at the L5/S1 level causing his left leg to feel numb and painful as well as apparently causing back spasm. In addition to this, there was severe neck pain, neuralgia and stomach ulcers with the result that as the plaintiff said, 'I am disabled now'.
47 In addition to these health issues the plaintiff refers to having been taken on 29 December 2015 to the Frankland Centre of Graylands Hospital and his property 'including his files', apparently being taken from him, and not released until a few days prior to swearing his affidavit. I observe that this was some weeks after Judge Birmingham admonished the plaintiff as to the necessity to comply with his order. The plaintiff further asserted that after this he needed further time to get his files and to prepare a statement of claim. It would take he said 'several days' to sift through his files, which were at his daughter's house, and find the file 'in this matter'.
48 The affidavit annexes the plaintiff's summary of argument in his High Court proceedings.
49 Affidavits in support of the plaintiff's application were sworn by Sonali De Alwis on 29 January and 1 February 2016. In her affidavits Ms De Alwis deposes at length about the conduct of her father's criminal trial and the subsequent failings of the defendant, and proceedings in the High Court of Australia. She says little about the failure to comply with Judge Birmingham's order. She refers to her father's health problems including 'terminal cancer' for which 'part of his stomach and other internal organs were removed' and 'possible brain damage as a result of inappropriate medication while incarcerated…'. She says she was aware of the springing order and its importance, but says 'my father is unable to comply for very good reasons, however he is presently unable to communicate those reasons'.
50 Against that background, and given the references to the plaintiff's psychiatric condition referred to by McLure P in De Alwis [No 2] [116] it appears that when the matter came before him on 29 February 2016, his Honour Judge Eaton was moved to inquire as to the plaintiff's mental capacity. That apparently was the reason that supported his Honour's decision to adjourn the plaintiff's chamber summons to a further directions hearing on 2 May 2016.
51 I will record that, after some delay, material was filed in this court on behalf of the plaintiff that satisfies me that the plaintiff has sufficient mental competence at least to be party to an action in this court without the need for the appointment of a legal guardian.
52 On 2 May 2016 the matter came before his Honour Judge Stavrianou for a directions hearing in respect of the plaintiff's application. The plaintiff attended by audio link. His daughter was present in court. Although she then held a practising certificate in Western Australia, she was not on the record to act for her father. She advised Judge Stavrianou that she would 'rather not' go on the record. Instead, she sought to act as a Mackenzie friend as she had been allowed to do in proceedings brought by the plaintiff in the Supreme Court: De Alwis v Minister for Corrective Services [2013] WASC 275, and see also De Alwis v Minister for Corrective Services [2013] WASC 288.
53 Judge Stavrianou, no doubt recognising the irregularity of what was proposed, adjourned the matter to a special appointment, ordered that the plaintiff file written submissions 'in support of his application dated 29 January 2016 to set aside the default judgement entered 4 February 2016' [sic], and also ordered that the application that Ms Sonali De Alwis be allowed to act as a McKenziefriend for the plaintiff stand adjourned to the special appointment.
54 Ms De Alwis swore an affidavit dated 13 May 2016 in support of the application that she be appointed a Mackenzie friend. In the course of that affidavit at par 20 she refers to her father's health status as 'unstable', and in that respect swears that 'He was diagnosed with terminal cancer and had his stomach and other organs removed in August 2014 … I received a letter confirming his terminal cancer had spread to his lymph nodes as at February 2013 … '. She refers to an annexed letter, 'SDA 6'.
55 The plaintiff's 'terminal cancer' is a recurring theme in the affidavits of Ms De Alwis, and her correspondence with the court, particularly when she is seeking an indulgence.
56 I have no doubt that the plaintiff has some significant health issues. Working out what exactly they are and what they really mean in terms of any disability is not possible. The plaintiff's history of 'crying wolf' is just one factor in that.
57 The letter annexed to Ms De Alwis' letter shows that the plaintiff was diagnosed with 'a cluster of neuroendocrine tumours in the part of the intestine … that continues after the end of the stomach …'. The affected portion of the intestine (not 'his stomach and other organs') was removed and the intestine reattached. There was evidence that the cancer had been detected in a nearby lymph node leading to a conclusion that it had 'spread to nearby lymph nodes'. The full story however was that this particular tumour,
…is a comparatively slower, more indolent cancer than the more common adenocarcinoma … Even with the spread to nearby lymph nodes his long term survival is very likely to exceed five years and probably approach ten years …
58 When this was raised with Ms De Alwis she was unable to offer any satisfactory explanation for her assertions in light of the contents of the letter.
59 The plaintiff was born in 1945 and is now 71 years old. I accept that he has some health problems. But the kind of wholesale exaggeration seen in Ms De Alwis' affidavits on this subject makes it difficult to give weight to what she says.
60 On 7 June 2016 the matter came before his Honour Judge Gething, who made some further programming orders.
61 On 16 September 2016 his Honour Judge Gething made a number of further orders for directions with respect to the hearing of the plaintiff's application of 10 February 2016. He gave Ms De Alwis leave to act as a McKenzie friend on behalf of the plaintiff, on the hearing of this application on certain conditions.
62 It has to be said that the role that Ms De Alwis has assumed in this proceeding stretches the role of the McKenzie friend to limits previously unknown. Seemingly however it was accepted that, without assistance, the plaintiff would be unable to deal with the issues arising in the applications before the court. That might also be a pragmatic choice. But it does not appear to have been disclosed that the plaintiff was, as he told me, an 'international law and human rights lawyer', with a legal practice in Sri Lanka. Perhaps that only occurred between 16 September and 7 November when the plaintiff appeared before me in person. That seems unlikely.
63 Between 16 September and late October, the court file reflects the steps taken by the court to try to ensure that, if the plaintiff was to have the assistance of his daughter as a McKenziefriend, the plaintiff himself was actually present when his application was heard, either in person or by video link. It was not easy to achieve that. Reasons were offered by letter as to why the plaintiff should not or could not comply with orders that had been made for this purpose.
64 The hearing of the plaintiff's application was ultimately adjourned to a time when he was to be in Perth for other reasons.
65 When he appeared before me on 7 November, although showing some infirmity, the plaintiff appeared to be physically capable of representing himself. He did effectively represent himself, sitting at the bar table and arguing at some length. His daughter sat behind him, acting for the most part in the apparent role of a solicitor. Often when she did offer assistance or seek to interject, she was shushed by the plaintiff. That happened on more than one occasion. When the plaintiff allowed Ms De Alwis to speak on his behalf, it was either to cover ground that he had already dealt with, or it reflected a sharing or division of some issues, much like co-counsel.
66 The problem with the plaintiff's presentation of his case was that he continued to try to advance factual and legal issues long since resolved against him, while diverging into lengthy irrelevancies. Based on all the material before me, this did not appear to be the result of any change in his mental capacity or cognitive ability, so much as a matter of deeply ingrained habit or personality.
67 The role that the plaintiff has had his daughter assume, appears to me to be more a matter of convenience to the plaintiff, because of his usual residence in Sri Lanka, than any reason that would justify the appointment of a Mckenzie friend. Other than to observe the degree of disquiet that this gives me as to the good faith of the plaintiff in seeking to employ his daughter in this way, it is unnecessary for me to do anything further about this issue at this time.
The minute of statement of claim
68 One of the programming orders made by his Honour Judge Gething required that by 31 August 2016 the plaintiff file a 'minute of proposed statement of claim'.
69 On 31 August 2016 a document entitled 'statement of claim' was filed. I will treat that as the minute that was required by Judge Gething's order.
70 Consistently with virtually every other document filed by or on behalf of the plaintiff in this matter, or in the appeal proceedings against conviction and sentence, much of what is contained is either entirely irrelevant to any matter in issue, substantially repetitive, or both.
71 The gist of the statement of claim is that the plaintiff alleges that the defendant owed a duty of care to the plaintiff as a barrister and solicitor and that the defendant breached that duty. He is said to have done so by:
• breaching his 'retainer/professional obligations and duty of care to the plaintiff' (par 22);
• providing erroneous advice with respect to the date for filing an appeal against conviction (par 14);
• failing to file an accurate appeal notice, failing or refusing to communicate with the plaintiff and the plaintiff's daughter and disregarding 'the plaintiff's daughter's instructions' (par 16);
• making 'significant errors' in an opinion dated 12 November 2012 that the defendant prepared about the prospects for the appeal (par 17);
• failing to obtain or advise the applicant [sic] 'in relation to the seven notes by the jury to the trial judge' during the trial (par 18); and
• failing to ensure that the plaintiff had a copy of the conditions of the grant of legal aid and fully understood them (par 19).
72 The instructions which the defendant is alleged to have either positively ignored or failed to have adequate regard to are set out at par 10 under the heading 'Errors in Conviction/Legal Matters'. In substance, two matters are referred to. First there is a complaint about the fact that the defendant was 'self-represented from isolation at Casuarina prison', making the trial unfair. Second is what is described as the 'primary error in the Criminal Appeals', an assertion that the plaintiff was convicted of an offence against s 304(1) of the Criminal Code but sentenced on the basis of an offence against s 304(2). This latter point, reworked in a variety of ways, is the focus of many of the allegations in this document. As I have discussed earlier in these reasons this point has been considered at length by the Chief Justice in De Alwis v The State of Western Australia and disposed of in both that decision and the decision of the Court of Appeal in De Alwis [No 2].
73 The plaintiff also complains (at par 16) that he was unable to proceed with his criminal appeals for a time 'due to the circumstances of his incarceration'. I observe that it is fairly common for the Court of Appeal to deal with unrepresented litigants serving terms of imprisonment (rarely it must be said unrepresented litigants who are themselves lawyers aided by their legal practitioner children) and, from time to time, for such appeals to be successful.
74 The harm or injuries said to arise from these breaches of duty are set out at par 24 of the document:
• the plaintiff had difficulty obtaining a transfer of legal aid or further aid as significant amounts had been paid out to the defendant for his negligent work;
• the plaintiff therefore had to represent himself;
• in his circumstances of confinement he was unable to do so;
• the work conducted by the defendant was of limited benefit, if any, to the plaintiff as a result of the defendant's negligence including an opinion based on incorrect section and other significant errors as outlined in the statement of claim.
75 The last category of harm or loss which is alleged is described at par 25:
• the plaintiff suffered anxiety, disappointment, distress, inconvenience, depression and a significant impairment of his mental condition/mental harm as a result of the defendant's conduct;
• The plaintiff sustained pain and suffering and the loss of expectation of life as a result of the defendant's conduct;
• the plaintiff has sustained out-of-pocket expenses (legal costs) in attempts to address the defendant's negligence; and
• if not for the defendant's negligence the plaintiff's criminal appeals against conviction and sentence would have succeeded.
Consideration of the application
76 It is difficult to conceive that an application to simply set aside the springing order made by Judge Birmingham could ever be successful, against the background of the plaintiff's conduct. I will, favourably to the plaintiff, treat it as an application for an extension of time within which the order could be complied with. Order 3 r 5 gives the power to extend time for compliance with a springing order, even after judgment has been entered by its operation.
77 It has been said that there are four general factors to take into account when exercising the discretion to set aside judgment entered as a result of non-compliance with a springing order. That is effectively the exercise that I am asked to undertake here. The four factors are:
(a) the circumstances in which the springing order came to be made;
(b) the reason for the non-compliance of the springing order;
(c) the prejudice to the defaulting party if time is not extended; and
(d) the prejudice to the other party if the time were extended: MTQ Holdings Pty Ltd v Lynch [2007] WASC 49; A v C[No 2] [2015] WASCA 199 [3].
78 It is relevant to consider the merits of the action that is sought to be maintained. A fundamental principle of the administration of justice is that serious claims should be determined upon their merits. It is of course appropriate to consider the merits of an action, at least to some extent, because there is no point in resurrecting a case that is devoid of merit: Brocx v Hughes [2008] WASC 34 [32]. However, even the fact that a party has an apparently meritorious case does not mean that the party can be permitted to act insulated from the consequences of a failure to comply with a peremptory order of the court: MTQ Holdings Pty Ltd v Lynch; and Brocx v Hughes [61].
Merits
79 I will turn first to what is revealed about the plaintiff's claim by the statement of claim or minute of statement of claim filed on 31 August 2016. As might be expected given by what is revealed in the reasons of the decisions of other courts in proceedings brought by the plaintiff, the statement of claim contains many matters that are simply irrelevant to what was raised in the indorsement on the writ. Doing the best that I can to penetrate those irrelevancies, the plaintiff's fundamental complaint is that he was wrongfully convicted and sentenced for an offence against s 304(2) of the Criminal Code when 'in reality he was convicted of an offence against s 304(1) of the Code'. There are various complaints about a lack of diligence or competence on the part of the defendant in advancing the plaintiff's appeal and in failing to file an accurate or adequate (in the plaintiff's eyes anyway) appeal notice in time, but the harm that the plaintiff alleges he suffered, from which all his other complaints flow is that,
if not for the defendant's negligence the plaintiff's criminal appeals against conviction and sentence would have succeeded.
80 It is apparent that it is fundamentally this complaint that is central to the plaintiff's unhappiness.
81 It is sufficient to say, for present purposes, that despite the plaintiff's failures to comply with a variety of orders of the Court of Appeal, subsequent to the dismissal of the plaintiff, the plaintiff's arguments about errors in his conviction and sentencing have been considered, on more than one occasion, by the Court of Appeal. In particular, the plaintiff's assertion that he was sentenced under the wrong subsection of s 304 of the Criminal Code was considered and dealt with, at length, by the Chief Justice in De Alwis [No 1]. That did not stop the plaintiff from raising them again in the matters that were before the Court of Appeal in De Alwis [No 2].
82 So far as the plaintiff's ability or otherwise to advance the matters that he wished ventilated in the appeals of his conviction and sentence, I do observe that first, it was the plaintiff who sacked the defendant, at a time when an amended appeal notice and grounds of appeal had been received, by consent, by the Registrar of the Court of Appeal. The material before me suggests that the difference between the plaintiff and the defendant arose substantially because the plaintiff's strongly held views about the merits and conduct of the appeal were at odds with those of his legal representative.
83 The plaintiff has a well-established history of dismissing legal representatives at times when it is apparent folly to do so, and then using his lack of legal representation as an argument for delay. If any harm was caused, which is doubtful, it was harm the plaintiff brought on himself.
84 Next, at a time when the plaintiff was failing to comply with directions of the Court of Appeal he was repeatedly making applications for a prerogative relief about prison disciplinary matters: De Alwis v Minister for Corrective Services [2013] WASC 275; De Alwis v Minister for Corrective Services [2013] WASC 288. He was self-represented and had his daughter's assistance. He was able to advance issues related to his grounds of appeal despite the fact that he did not have legal representation.
85 Further, the arguments that the plaintiff wanted to advance in his appeals were in fact considered by the Court of Appeal. They have been rejected as being without merit, many of them in reasonably robust terms. In the circumstances, even if the defendant was not diligent in advancing the plaintiff's appeal prior to the termination of his retainer on 18 December 2013, it is not apparent that that conduct was causative of any real loss.
86 The gist of the plaintiff's complaint is that a verdict entered against him, and the consequent sentence imposed according to law, were not overturned. That is, the judgement of conviction for which he was imprisoned remains. It is not possible to see how a claim that seeks to deny those facts could be anything but futile: Adams v State of NSW [2008] NSWSC 1257, applied in Gillies v Brewer [32], and Clavel v Savage [2013] NSWSC 775, applied in Gillies [33].
87 The absence of merit in the claim which the plaintiff wishes to advance against the defendant is a factor that militates against an extension of time. His insistence on trying to re-litigate issues in this case which have been repeatedly decided against elsewhere leads me to the conclusion that this action is or has become an abuse of process.
Circumstances in which the springing order came to be made
88 Looking at the circumstances in which the springing order came to be made, it might be thought that the resurrection of the plaintiff's action after the decision of Registrar Kingsley was somewhat miraculous. It came against a background of repeated delays by the plaintiff as well as a disregard for earlier orders for directions, orders to file a statement of claim. The plaintiff's non-compliance with orders to file a statement of claim was deliberate.
89 It is apparent that the springing order made by his Honour Judge Birmingham was made in recognition of the plaintiff's conduct to that point.
Reasons for non-compliance
90 So far as the reason for the plaintiff's non-compliance with the springing order, it is difficult to identify exactly what prevented him from complying, if only imperfectly, with the requirement to file a statement of claim.
91 The plaintiff was imprisoned for part of the time in which the springing order ran. It is apparent however that while in prison he was able to conduct other litigation. The affidavit material contains numerous complaints about the plaintiff's treatment while incarcerated. What it does not mention is any attempt even to try to comply with Judge Birmingham's order in the weeks that were available.
92 That the plaintiff has health issues I do not doubt. It also seems apparent however that the plaintiff has traded on some health issues and exaggerated them in seeking to avoid or overcome requirements of the court. I should also observe that the version of events that he presented at the criminal trial that underlies all of this, was so far-fetched and so contrary to other credible evidence, as to make me reluctant to accept assertions made by the plaintiff or based on his instructions.
93 I have referred to the notable example of exaggeration in the affidavits of Ms De Alwis. The contradiction between the plaintiff's statements in court about his circumstances, his conduct in court, and the assertions made to permit Ms De Alwis to act as a Mackenzie friend are also very troubling. The apparent ability of the plaintiff, as seen in the indorsement on the writ, to make a startling and serious allegation against the defendant without even an attempt to subsequently justify that accusation, casts further doubt on the bona fides of the plaintiff.
94 This is the plaintiff's application, and he carries the burden of proof. I am not able to find that the material filed by him or on his behalf is sufficiently plausible to pass the threshold of apparent credibility.
95 For these reasons I am left without any satisfactory explanation for the non-compliance with the springing order.
Prejudice to defaulting party
96 I will assume for the purpose of this application that unless time was extended the plaintiff's right to bring an action against the defendant will be time barred.
97 If time is not extended it is difficult to see that there is any true prejudice to the plaintiff here. There is no apparent merit revealed by the statement of claim.
98 There is, with respect, an air of unreality surrounding the plaintiff's case. Much of it - if not all of it - is nonsensical. No issue whether procedural or substantive that is determined against the plaintiff is ever finally resolved, at least as far as he is concerned. My experience of trying to get the plaintiff to actually address the real matters in issue, was that any such attempt was deflected by irrelevancies, at length, in a manner that would be described as a 'shaggy dog story' if it occurred in social conversation.
99 For the plaintiff's case to advance, it is necessary to ignore or deny facts long since established and legal issues repeatedly decided against him. It requires that his history of last minute sackings of legal representatives and his sudden health crises, for apparently tactical reasons, be overlooked. It would require this court to accept that it is a sensible and reasonable use of resources to allow a case based on the proposition that black is white to go forward.
100 So far as I can see the plaintiff loses nothing by not being allowed to advance this action.
Prejudice to defendant
101 So far as the position of the defendant is concerned, the revival of this action would, I have no doubt condemn the plaintiff to more of the same. That is, failures to comply with directions, repeated applications for adjournments and extensions of time, wasted and unrecoverable costs, and so on. The defendant however does not seek to argue that he faces prejudice in any material sense if the extension of time were granted. Therefore I do not have regard to prejudice to the defendant as a factor.
Conclusion
102 The ultimate question is 'what does justice, in all the notions or senses of it that are relevant, require in the circumstances of this case?': Hancock Family Memorial Foundation v Fieldhouse (2005) 30 WAR 398, 414. Here I have no doubt that what justice requires is that the springing order made by his Honour Judge Birmingham be allowed to take its course. Accordingly my orders are as follows:
(1) the plaintiff's application dated 10 February 2016 is dismissed;
(2) the plaintiff do pay the defendant's costs of the application and the action.
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