Del Borrello v Friedman and Lurie (A Firm)
[2012] WASCA 44
•28 FEBRUARY 2012
DEL BORRELLO -v- FRIEDMAN & LURIE (A FIRM) [2012] WASCA 44
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 44 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:92/2011 | 24 JANUARY 2012 | |
| Coram: | PULLIN JA MURPHY JA | 28/02/12 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Application granted | ||
| B | |||
| PDF Version |
| Parties: | PETER DEL BORRELLO FRIEDMAN & LURIE (A FIRM) |
Catchwords: | Appeal Whether grounds have reasonable prospects of succeeding |
Legislation: | Nil |
Case References: | Samuels v Western Australia (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DEL BORRELLO -v- FRIEDMAN & LURIE (A FIRM) [2012] WASCA 44 CORAM : PULLIN JA
- MURPHY JA
- Appellant
AND
FRIEDMAN & LURIE (A FIRM)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File No : CIV 1868 of 1998
Catchwords:
Appeal - Whether grounds have reasonable prospects of succeeding
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Application granted
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr S R Merrick
Solicitors:
Appellant : In person
Respondent : Pynt & Partners
Case(s) referred to in judgment(s):
Samuels v Western Australia (2005) 30 WAR 473
(Page 3)
1 REASONS OF THE COURT: This hearing was listed for the appellant to show cause why the appeal should not be dismissed on the ground that there are no reasonable prospects of any ground of appeal succeeding.
2 The background is as follows. On 4 August 1998, the appellant issued a writ in the Supreme Court naming the respondent and another as defendants. His claim was for damages. The respondent was his former solicitor and the other defendant was his former counsel. His claim was that proceedings in which the respondent and his counsel had conducted the appellant's defence had been conducted negligently and resulted in a judgment against the appellant in about 1993 or 1994. The judgment against the appellant was entered in the District Court.
3 The action against his former counsel was dismissed summarily. The Supreme Court action remains on foot against the respondent.
4 On 8 November 2007 the respondent filed a defence. It consisted of one sentence in which the respondent denied each and every allegation contained in the statement of claim. On 5 August 2009 that defence was struck out by EM Heenan J. His Honour criticised the defence but also stated that the statement of claim was 'replete with all sorts of gratuitous and argumentative materials'. His Honour said that he would allow the respondent six weeks within which to file an amended defence. Within that time, on 31 August 2009 an amended defence was filed and served. The defence consists of 45 paragraphs. It dealt with the amended statement of claim in detail and either admitted or denied allegations and pleaded material facts which the defendant relied upon for the purpose of its defence. For example, the respondent admitted that it owed the plaintiff a duty to exercise reasonable care, skill and diligence in the performance of its retainer and by reason of the material facts pleaded, contended that it discharged that duty of care.
5 On 15 March 2010 a case evaluation conference was held before Registrar Powell. An order was made for the appellant to supply answers or objections to the respondent's request for particulars of statement of claim which had earlier been filed.
6 Up until 18 May 2010 the respondent was represented by solicitors. On 18 May 2010, the appellant filed a notice of intention to act in person and since then has acted in person. On 30 March 2011, the appellant filed a notice of intention to proceed.
7 On 7 June 2011, the appellant filed a chamber summons entitled 'Plaintiff's chamber summons for Directions to Enter Interlocutory
(Page 4)
- Judgment against the Defendant and to obtain an order for Directions for the assessment of damages, Pursuant to Order 22 Rule 3(1)'. Order 22 r 3(1) provides that:
Where the plaintiff’s claim against a defendant is for unliquidated damages only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, enter interlocutory judgment against that defendant and obtain an order for directions for the assessment of damages, and proceed with the action against the other defendants, if any.
9 They contended that no defence had been filed:
(a) because the defence was not a 'real defence' (page 3);
(b) because there had been noncompliance with O 21 r 9(3) (which requires the name of the judge who granted leave and the date of that order to be indorsed on the amended pleading);
(c) because there had been noncompliance with O 20 r 19(5) (which states that an application to amend pleadings consequent upon an order striking out pleadings has to be accompanied by a minute of the proposed amendment); and
(d) because of O 21 r 8 (which requires compliance with an order for granting leave to amend in the time specified and if there is noncompliance, the order shall cease to have effect).
10 Alternatively, 'for the defence to be dismissed and judgment to be entered for the [p]laintiff … for want of prosecution' because the defence:
(a) disclosed no reasonable cause of action;
(b) was scandalous, frivolous and vexatious;
(c) may prejudice, embarrass or delay the trial of the action; or
(d) is 'in continuous abuse of the process of the [c]ourt'; and
because the [d]efendant firm does not have a natural defence'.
11 The appellant's application came before Master Sanderson on 28 July 2011. The master said that the defence complied with the rules, disagreed
(Page 5)
- with the appellant's submission that there was no reasonable cause of defence disclosed, and said that insofar as there was noncompliance with the technical requirements of the rules requiring indorsements on the defence, that such noncompliance was 'water under the bridge' because the defence had been filed 'two years ago' and that it was time for the appellant to proceed to trial. The master explained to the appellant that the purpose of the defence was to confine the defendant at trial to matters in the defence. The appellant's application was dismissed.
12 The appellant has appealed against the master's decision. The appellant's discursive grounds of appeal were drafted by the appellant himself. They do not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4) which requires grounds to be stated succinctly with concise particulars. The appellant has made several attempts to file proper grounds of appeal. The process began with the respondent advising the appellant that the grounds were deficient and that the respondent intended to apply to strike out the grounds. The appellant responded by letter dated 24 October 2011 stating that he would file a 'substituted amended grounds of appeal'. He did not file such a document.
13 This application came on for hearing on 7 December 2011. On the day before that hearing, the appellant sent a document to the Court of Appeal office entitled 'uncompleted proposed minute of amendment and substitution of grounds'.
14 On 7 December 2011, objection was taken by the respondent to pars 15 and 16 of the appellant's affidavit dated 30 November 2011 which he had filed in relation to the application. The objection was on the grounds that the paragraphs contained scandalous allegations and the respondent sought an order that the paragraphs be struck out of the affidavit.
15 Orders were then made on 7 December 2011 that:
(a) the respondent's application to strike out the appellant's case and the objection to pars 15 and 16 of the appellant's affidavit dated 30 November 2011 be adjourned for subsequent hearing;
(b) the appellant had leave to file and serve a minute of proposed amended appellant's case by 14 December 2011; and
(c) if no such minute was filed and served or if such a minute was filed and served and by 16 December 2011 the respondent gave notice to the court and the appellant that it contended that the
- proposed grounds in the minute and the existing grounds had no reasonable prospect of succeeding, then the appellant show cause why the appeal should not be dismissed.
16 On 14 December 2011 the appellant filed a minute of amended grounds of appeal and on 15 December 2011, the respondent gave notice pursuant to the order dated 7 December 2011, that it contended that the proposed grounds of appeal had no reasonable prospect of succeeding.
17 The minute of amended grounds of appeal (which should stand as the amended grounds of appeal) contains seven grounds. They allege:
(a) that the master erred in holding that the irregularities in the form of noncompliance with various orders of the court was 'water under the bridge' (ground 1);
(b) that the master erred in expressing the view that the defence was 'perfectly proper and adequate' (ground 2);
(c) that the master erred 'in not having proper regards to both parties' rights and obligations to provide and be provided with the essential material facts and particulars of facts of the parties' cases' (ground 3);
(d) that the master erred in stating that the defence '"is what the Defendant is confined to" at trial' (ground 4);
(e) that the master erred in expressing the view that the action should go to trial. This ground relies on the earlier grounds (ground 5);
(f) that the master erred in concluding that the appellant was 'not going to get summary judgment or interlocutory judgment' (ground 6).
Ground 7 does not allege any error by the master.
Ground 1
18 It appears to be correct that there was noncompliance by the respondent with O 21 r 9(3) which required an indorsement on the amended defence stating the name of the judge who authorised the amendment and the date thereof (O 21 r 9(3)). However, noncompliance with an order is an irregularity: see O 2 r 1(1). An irregularity does not nullify the proceedings or any step taken. An application may be made to set aside a step taken in the proceedings for irregularity, but such an
(Page 7)
- application has to be made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. The irregularity was followed by a step taken in the proceedings and no complaint was made about the irregularity by the appellant within a reasonable time. The irregularity does not in any respect justify summary judgment against the respondent.
19 The appellant's reference to O 20 r 19(5) has no relevance. EM Heenan J struck out the defence and granted leave to amend.
20 There was no noncompliance with O 21 r 8 (the order ceasing to have effect after the period for amendment had expired). A defence was filed within the time allowed.
21 Ground 1 has no reasonable prospect of succeeding: see Samuels v Western Australia (2005) 30 WAR 473 [56].
Ground 2
22 This ground has no reasonable prospect of succeeding. The defence does properly plead to the statement of claim with admissions, denials and the pleading of material facts relevant to the defence.
Ground 3
23 This ground has no reasonable prospect of succeeding. It is argumentative and it is not correct that the master did not have regard to the parties' rights which were under consideration on the application before him.
Ground 4
24 The master did not err in stating that the defendant would be confined to its defence. This ground has no reasonable prospect of succeeding.
Ground 5
25 This ground is merely repetitive of the earlier grounds. It has no reasonable prospect of succeeding because they have no reasonable prospect of succeeding.
(Page 8)
Ground 6
26 This ground has no reasonable prospect of succeeding. The master was correct to say that the case was not one appropriate for summary judgment or interlocutory judgment.
Ground 7
27 As already mentioned, this ground does not allege error by the master.
28 Because none of the grounds have any reasonable prospect of succeeding, the appeal must be dismissed.
29 Finally, it is necessary to deal with the respondent's application to strike out pars 15 and 16 of the appellant's affidavit sworn and filed 30 November 2011. This application was made at the hearing on 7 December 2011 and submissions were made on that day in relation to that application. The two paragraphs contain allegations made by the appellant against a partner in the firm of solicitors on the record acting for the respondent. The allegations are that this partner breached his duty to the court by failing to make disclosure of matters of fact and law which the appellant alleges should have been disclosed. The allegations were that the practitioner's statements about what had to be done before a trial took place were incorrect. The allegations are irrelevant to the issues before the court on this appeal. Not only are the allegations irrelevant, but they are generalised in nature. The allegations are scandalous. An order will be made that pars 15 and 16 of the affidavit be struck out.
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