Del Borrello v Friedman & Lurie (A Firm)
[2013] WASCA 11
•18 JANUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DEL BORRELLO -v- FRIEDMAN & LURIE (A FIRM) [2013] WASCA 11
CORAM: PULLIN JA
MURPHY JA
HEARD: 20 DECEMBER 2012
DELIVERED : 20 DECEMBER 2012
PUBLISHED : 18 JANUARY 2013
FILE NO/S: CACV 102 of 2012
BETWEEN: PETER DEL BORRELLO
Appellant
AND
FRIEDMAN & LURIE (A FIRM)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :THE HON JUSTICE PRITCHARD
File No :CIV 1868 of 1998
Catchwords:
Practice and procedure - Application for an extension of time in which to appeal - Appeal against decision to strike out re-amended statement of claim - Appeal against decision to strike out affidavits - No error in striking out re-amended statement of claim or affidavits
Legislation:
Nil
Result:
Application for an extension of time in which to appeal dismissed
Application for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr S F Popperwell
Solicitors:
Appellant: In person
Respondent: Pynt & Partners
Case(s) referred to in judgment(s):
Del Borrello v Friedman & Lurie (a firm) [2001] WASCA 348
Melville v Gibbs [2012] WASCA 207
MJL v Chief Executive Officer of The Department for Child Protection [2010] WASCA 69
Samuels v State of Western Australia [2005] WASCA 193
REASONS OF THE COURT:
Introduction
This matter concerns a long-running dispute between the appellant and his former solicitors. On 30 July 2012 Pritchard J made orders striking out a re‑amended statement of claim dated 3 July 2012 filed by the appellant, removing an affidavit sworn by the appellant on 27 June 2012 from the file, and ordering that the appellant's earlier statement of claim, dated 3 December 2001, do stand as the amended statement of claim in the action (the 30 July orders). The appellant filed a notice of appeal in respect of those orders. The orders were interlocutory and the appellant required leave to appeal and an extension of time.
On 20 December 2012 this court heard an application by the respondent for orders for the dismissal of:
•the appellant's application to extend the time in which to appeal the 30 July orders;
•the appellant's application for leave to appeal the 30 July orders; and
•the appellant's appeal against the 30 July orders.
At the completion of the hearing the court made orders as sought by the respondent, and further ordered that the appellant's affidavits filed in the appeal dated 4 December 2012 and 12 December 2012 be struck out. The reasons for these decisions appear below.
Background
In August 1992 the respondent firm of solicitors was engaged by the appellant to act for him in a civil trial in the District Court in which he was the defendant (the District Court matter). The appellant had been sued by a builder, J‑Corp, for monies said to be owed under building contracts. In September 1992, after the adjournment of the trial in the District Court matter, a dispute arose between the appellant and the respondent in relation to the legal fees the appellant was liable to pay. In February 1993 a settlement was reached between the appellant and the respondent to resolve the dispute about fees. Judgment was ultimately entered against the appellant in the District Court matter.
In August 1998 the appellant commenced proceedings against the respondent and against counsel who had appeared on his behalf in the District Court matter. In May 1999 the Master of the Supreme Court granted summary judgment dismissing the appellant's claim against both respondents. An appeal against this decision was heard by the Full Court in March 2000 and on 6 November 2001 judgment was delivered in the appeal. The Full Court dismissed the appeal against the second respondent, the former counsel. However, the Full Court allowed the appeal against the solicitors (the respondent in this present matter) finding that summary judgment should not have been granted against the appellant in favour of the respondent. However, the Full Court noted that the appellant's statement of claim as it then appeared was 'unsatisfactory'. The appellant was given the opportunity to remedy this problem and the Full Court granted the appellant leave to reframe his statement of claim with respect to the respondent (not the former counsel) within 28 days of delivery of judgment (see Del Borrello v Friedman & Lurie (a firm) [2001] WASCA 348 [84] ‑ [85]). The appellant did so, and filed an amended statement of claim on 3 December 2001 (the 2001 statement of claim). This is the statement of claim which Pritchard J, in the 30 July orders, ordered should stand.
The action then did not proceed in any significant way for many years. On 8 November 2007 the respondent filed a defence stating:
The Defendant denies each and every allegation contained in the amended statement of claim dated and filed 3 December 2001 as if repeated herein seriatim.
Then, on 17 December 2007 the respondent filed an application for, inter alia, leave to extend the time to strike out the 2001 statement of claim. That application was amended on 4 March 2008. On 5 August 2009, by orders made by E M Heenan J, the respondent's defence was struck out and the respondent was given leave to file and serve a minute of proposed amended defence within six weeks. E M Heenan J refused to extend the time for an application to strike out the 2001 statement of claim. On 31 August 2009 the respondent filed and served a defence. That defence is not indorsed with a statement that it has been amended. The respondent did not file a minute of proposed amended defence. The respondent also filed a request for further and better particulars and those particulars were filed on 30 April 2010.
On 7 June 2011 the appellant filed a chamber summons for interlocutory judgment against the respondent for not filing a defence in accordance with the Rules of the Supreme Court 1971 (WA). That application was dismissed by Master Sanderson on 28 July 2011 and Master Sanderson's decision was upheld by the Court of Appeal on 28 February 2012. In summary, as at the beginning of 2012, the litigation had finally reached the stage where pleadings had been filed by both the appellant and respondent, and attempts by both parties to have those pleadings struck out and have the matter determined summarily had been unsuccessful.
On 4 May 2012 the appellant filed a re-amended substituted statement of claim. On 6 June 2012 the matter was admitted to Pritchard J's CMC List. Then, on 3 July 2012, the appellant filed another re-amended statement of claim (the July 2012 statement of claim). Following these events, the 30 July orders were made. On 28 August 2012 the appeal notice was filed against the 30 July orders and on 15 October the respondent filed its application (see [2] above), which was heard on 20 December 2012.
The statements of claim the subject of the 30 July orders
The 2001 statement of claim
The 2001 statement of claim runs for 17 pages. It lists the respondent as the sole defendant and claims damages. It covers the following ground:
•the background relating to the District Court matter;
•the preparation and running of the District Court matter by the respondent and the former counsel;
•the appellant's view of his case against J‑Corp and the matters which he stated should have been pleaded and argued;
•alleged agreements between the parties in relation to legal costs;
•the alleged breaches committed by the respondent and the former counsel, being breaches of the duty of care owed to the appellant and breaches of the alleged agreement in relation to costs;
•alleged misconduct by the former counsel and collusion by the former counsel with the counsel for J‑Corp;
•allegations against the respondent in relation to fees;
•complaints in relation to the respondent and the former counsel's ceasing to act for the appellant; and
•complaints in relation to the retention of the appellant's files by the respondent.
It is to be noted that the allegations made against the former counsel appear, despite the former counsel not being listed as a defendant and despite the Full Court upholding the summary judgment in his favour.
The July 2012 statement of claim
The July 2012 statement of claim runs for some 48 pages. It lists both the respondent and the former counsel as the defendants to the action, again in spite of the Full Court decision. The July 2012 statement of claim begins by stating that the appellant 'repeats paragraphs 3 to 24' of the 2001 statement of claim. Since the 2001 statement of claim only contains 24 paragraphs, this is effectively a repetition of the entire 2001 statement of claim.
The July 2012 statement of claim covers similar ground to the 2001 statement of claim. However, it expands greatly on the allegations contained therein and indeed adds to the allegations. By way of example, the appellant now alleges misconduct not only by his former counsel, but by counsel for J‑Corp. At par 6 he alleges an 'unfair trial and injustice' in the District Court matter caused by a multitude of wrongs including fraud, malicious prosecution, misconduct and actions that were 'deceitful, treacherous and disastrous'. At par 7 the appellant complains that he was denied 'a lawful hearing of his appeal and denied of the full extent of the justice system', in relation to a failed appeal against the decision in the District Court matter. At par 9 the appellant 'puts on hold' his 'action(s)' against his barrister and counsel for J‑Corp 'for determination by an independent criminal court or the Royal Commission'. In par 29 the appellant lists the damage he says he has suffered including, for example, 'aggravated injuries sustained whilst being submitted to engage in additional hard labour in order to pay for a wrong malicious court prosecution to avoid the threat of having the second family resident being disposed of by J‑Corp' and 'over 20 years of incarceration in oppression, anxiety, depression and stress related illness, mental anguish and psychological damages, nightmares and deprivation of the freedom to live and enjoy the normal family way of living'. He says that he claims 'for all damages, special damages, aggravated damages and exemplary damages, details whereof exceed 3 folios and will be provided prior to trial'.
The reasons for Pritchard J's orders
Her Honour gave five reasons for striking out the July 2012 statement of claim, which are recorded in the transcript of proceedings of 30 July 2012. First, by 'repeating' the earlier statement of claim, this meant that the statement of claim was contained across two documents, and contained repetition and overlap (ts 4). Second, the July 2012 statement of claim contained many paragraphs of evidence, rather than material facts, contrary to O 20 r 8(1) of the Rules of the Supreme Court (ts 4 ‑ 5). Third, the July 2012 statement of claim contained scandalous allegations of, for example, criminal conduct by the appellant's former counsel and J‑Corp's counsel. Her Honour did not see how these allegations would assist the appellant's case (ts 5 ‑ 6). Fourth, the July 2012 statement of claim included many paragraphs which constituted submissions or commentary, rather than material facts, and therefore had the potential to prejudice, embarrass or delay the fair trial of the action, and were in any event unnecessary to be included in a pleading (ts 6 ‑ 7). Finally, some paragraphs contained allegations against J‑Corp which sought to re-litigate matters already decided as between those parties (ts 7 ‑ 8).
Principles
In Melville v Gibbs [2012] WASCA 207 the court said:
The ultimate question on an application for leave to appeal against an interlocutory decision is whether, in the circumstances, it is in the interests of justice to grant leave: The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40, 56, 57, 74. Generally, however, a party seeking leave to appeal will have to establish that the decision appealed from is wrong or attended with sufficient doubt to justify a grant of leave, and that a substantial injustice would result if the decision remained unreversed: Wilson v Metaxas [1989] WAR 285, 294.
It is well-established that an appellate court will be slow to interfere with a discretionary decision on a matter of practice and procedure: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177. As the plurality pointed out in that case, unless particular caution is exercised in such circumstances the result could be that whenever a litigant has a deep pocket or is of a particularly litigious nature, the case will be subject to interminable delay and ever mounting costs as all exercises of discretion in interlocutory applications are taken on appeal (177) [29] ‑ [30].
Part V r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides, in effect, that the court may dismiss the appeal if none of the grounds of appeal 'has a reasonable prospect of succeeding' or 'the appellant has not obeyed' the rules of the court.
A ground of appeal has no reasonable prospect of succeeding if it does not have a rational and logical prospect of succeeding: Samuels v State of Western Australia [2005] WASCA 193 [56]; MJL v Chief Executive Officer of The Department for Child Protection [2010] WASCA 69 [22] ‑ [23].
Disposition
In our view, her Honour's decision, and the reasons for it, are plainly correct. The grounds of appeal are prolix in the extreme and it is difficult to give them any sensible construction.
The first ground of appeal appears to contend that the orders of Pritchard J had the effect of 'disregarding', 'undermining', 'contradicting' or 'overturning' the orders of the Full Court in Del Borrello v Friedman & Lurie. That contention is plainly incorrect. The decision of Pritchard J allowed the appellant to run his case in accordance with the 2001 statement of claim which was filed following the Full Court's decision.
Next, it appears to be said that her Honour erred in finding that the July 2012 statement of claim contains scandalous allegations. That submission is plainly untenable having regard to the matters referred to earlier.
Next, it is alleged that the judge 'erred in failing to exercise the discretion entrusted onto the Court'. This contention has no rational foundation.
It is next alleged that her Honour erred in fact. The alleged error appears to be that her Honour erred in finding that the respondents would be required to look across two documents to discern the appellant's claim if the July 2012 statement of claim was permitted to stand. Her Honour was plainly correct and no arguable error is disclosed.
It is also alleged that her Honour erred in fact and in law in finding that the July 2012 statement of claim failed to comply with O 20 r 8(1) of the Rules of the Supreme Court. It is apparent on the face of the document that the July 2012 statement of claim involves an egregious failure to comply with that rule.
The appellant then appears to repeat the contention concerning scandalous allegations. That has been addressed above.
Next, the appellant contends that it was not open to her Honour to conclude that the allegations in the July 2012 statement of claim would likely prejudice a fair trial. There is no substance to this complaint.
Finally, it is said that the judge erred in finding that certain paragraphs of the July 2012 statement of claim contained allegations against J‑Corp which, in effect, sought to re‑litigate matters previously tried and determined. Her Honour was correct and no arguable error is disclosed.
The affidavits were struck out because they contained scandalous and irrelevant material. Rather than focusing on the appeal from the 30 July orders, they repeat certain of the allegations made in the 2001 and July 2012 statements of claim. They also make bare allegations of abuse of process, perversion of the course of justice and manipulation of the court. They are of no assistance in the appeal and cannot support any contention that Pritchard J erred in making the 30 July orders.
7
1