GOODWIN v Hall No. Scciv-01-866
[2001] SASC 353
•23 November 2001
GOODWIN v HALL
[2001] SASC 353
Magistrates Appeal
Nyland J
This appeal is from an order made by a magistrate sitting in the civil jurisdiction of the Adelaide Magistrates Court on 18 May 2001, whereby the appellant’s defence was struck out for failing to comply with the Rules of Court. Judgment was then entered for the plaintiff.
The appeal lodged by the appellant was filed on 6 June 2001. As it is slightly out of time, I make an order for extension of time to that date. The only ground of appeal set out in the notice is that “the magistrate erred in striking out the defence and amended defence of the applicant and entering judgment against the applicant”.
The appellant was unrepresented in the proceedings in the Magistrates Court and also on the hearing of the appeal. Mr van Dissel appeared for the respondent both in the Magistrates Court and on the hearing of the appeal.
At the commencement of the hearing of the appeal, Mr van Dissel made an application to the court for an order declaring that the appeal was incompetent for failure to comply with SCR 97.03. That rule requires the notice of appeal to set out the grounds of appeal in sufficient detail to enable the court to know what points are being relied on in support of each ground. Mr van Dissel therefore sought to have the appeal dismissed as incompetent.
As the appellant was unrepresented I declined to rule on that application at the commencement of the hearing and deferred the decision until the conclusion of argument as to the appeal.
In order to understand the issues which arise for determination, it is necessary to have some regard to the prior history of this matter.
On 17 July 2000, a summons was issued out of the Magistrates Court by Mr Hall, a solicitor, claiming against the defendant a sum of $24,850 for fees and disbursements for his professional services. The date the debt fell due was alleged to be 1 July 1999. Judgment was signed in default of appearance. On 24 November 2000, a magistrate ordered that judgment be set aside. The appellant was ordered to file a defence within 14 days. There was an order for full mutual discovery within a further 14 days after the defence was filed. The matter was then adjourned to 2 February 2001 for further directions.
On 19 December 2000, the appellant filed a defence in which he alleged:
“The plaintiff negligently or carelessly conducted the defendant’s case in Action No. 97/2014, in that he:
(1)failed to go through conduct of case with defendant prior to each court presentation.
(2)failed to call appropriate parties as plaintiff.
(3)failed to present defendants case in accordance with the facts on which the defendant had instructed him, or with defendants oral instructions.
(4)failed to call witnesses.
(5)failed to call appropriate witnesses.
(6)failed to call evidence as defendant instructed, or with defendants oral instructions.
(7)failed to call appropriate evidence.
(8)failed to inform defendant of appropriate actions,
(a) for witness requirements,
(b) for evidence requirements.
Also the plaintiff:
(1)failed to account fully and properly to the defendant for monies received and or disbursed for and on behalf on defendant’s account.
Between 5-6-95 and 17-12-2000.
Also the plaintiff held the defendant in duress:
in that he
(1)had the defendant sign over access to the plaintiff of the defendant’s real property as security to account after significant instruction.
(2)Similarly the plaintiff negligently or carelessly failed to present the defendant’s case to Legal Aid as instructed.”
On 2 February 2001, Mr van Dissel appeared on behalf of Mr Hall in the Magistrates Court when a magistrate ordered mutual discovery within 28 days. Mr van Dissel indicated to the magistrate on the hearing of this particular application that he would seek further and better particulars from the appellant. The matter was then adjourned to a conciliation conference on 30 March 2001.
On 2 March 2001, an application was filed by Mr van Dissel for the plaintiff seeking an order:
“1. That the Defendant’s Defence be struck out.
2.That judgement (sic) be granted to the Plaintiff in the amount of his claim together with interest and costs.”
In the alternative, further and better particulars of the defence were sought as set out in a letter to the appellant dated 8 February 2001.
In an affidavit sworn on 2 March 2001, and filed in the Magistrates Court with respect to this application, Mr van Dissel (inter alia) said that Mr Hall had died on 20 December 2000. Mr van Dissel said he was the executor of the estate. He has continued to be involved in these proceedings as the solicitor representing the estate. That has been the subject of considerable complaint by the appellant.
The strike out application came on for hearing before a magistrate on 9 March 2001. An order was made that the appellant file an amended defence within 21 days and an order was made for mutual discovery within 28 days. The matter was then adjourned to 27 April 2001 and the date for the conciliation conference was vacated.
On 11 April 2001, the plaintiff filed a further application to strike out the appellant’s defence. That was supported by an affidavit of Mr van Dissel in which he referred to the order of the magistrate made on 9 March 2001 requiring an amended defence be filed within 21 days. Mr van Dissel said since 9 March 2001, the only communication he had received from the appellant was a letter dated 27 March 2001 which was in the following terms:
“Mr J. V. Dissell 493 The Parade
70 St Bernards Road Rosslyn Park 5072
Magill 5072 27-3-01Dear sir,
Show cause for my not approaching the appropriate disciplinary authorities regarding your behaviour and conduct in this case, concerning your insistence on representing an estate without the substantiation of the appropriate letters of administration or probate in the estate.
You have, from my information at the Probate court, in particular not attempted to redress the shortcoming.
Also your not acknowledging my repeated requests for the account details, and instructions, together with your not delivering them to me, either by post, in person, or to me at court.”
As the defence did not comply with the Rules of Court, Mr van Dissel sought orders striking out the defence and for judgment to be granted in favour of the plaintiff.
On 20 April 2001, the appellant filed an application in the following terms:
“An APPLICATION by the DEFENDANT will be heard on the 20th April 2001 at 2-30 pm at the TRIAL COURT for an order as follows:
(1)That this application be made specially returnable, on the 20th April 2001 at 2-30pm, to be heard in conjunction with other associated matters, listed for this date/time/court
(a) the amended defense (sic) attached hereto be admitted
(2)the PLAINTIFF’S APPLICATION of 11th April be struck out, on the basis of the letters of administration or probate in the estate of Bill Hall not being forthcoming to the court, by Jacob Van Dissel, or indeed by anyone
(3)The PLAINTIFF’S JUDGMENT of claim, with costs, as set aside, be struck out on the basis of letters of administration or Probate not granted
(4)That this court note the of (sic) Probate Registry, Supreme Court letter attached to the DEFENDANT’S affidavit of this date
(5)(a) The PLAINTIFF to discover for inspection by the DEFENDANT within 14 days, all accounts of monies both into and out of, and incidental to the affairs of the Lexus/Sigma collision of 5th June 1995 and subsequent dealings of GOODWIN and BILL HALL to this event
(b) The PLAINTIFF deliver up to the DEFENDANT within 14 days, all noted instructions, from the DEFENDANT to the PLAINTIFF. Together with the outcome of these instructions, the non-outcome or otherwise.
(6) Any other orders the court deems fit”
The appellant’s affidavit in support of this application disputed the right of Mr van Dissel to represent Mr Hall. The appellant relied upon a letter he had obtained from the Supreme Court Probate Registry as to the lack of record of any grant of probate or letters of administration. The affidavit also exhibited a copy of the amended defence which was in the following terms:
“AMENDED DEFENCE:
The plaintiff is deceased and has no personal legal representation appointed for his estate, nor has any grant of probate of any will of the deceased or letters of administration of his estate been applied for or been granted.
The plaintiff negligently or carelessly conducted the defendant’s case in Action No.97/2014, in that he:
failed to go through conduct of case with defendant prior to each court presentation.
(2) failed to call appropriate parties as plaintiff.
(a) Insurance company as subrogate to owner of (Lexus) car,
(b) Insurance company as subrogate to repairer of (Lexus) car
(c) Insurance company as subrogate to driver in charge of (Lexus) car
(d) All parties with claim to outcome of collision incident 5th June 1995
(3)failed to present defendants case in accordance with the facts on which the defendant had instructed him, or with defendants oral instructions.
(4) failed to call witnesses.
(a) Witnesses of collision
(b) Tow truck operator
(c) Tow truck owner/manager, franchise owner
(d) Engineer responsible for road surface, and alignment
(e) Lexus dealer workshop engineer
(5) failed to call appropriate witnesses.
(a) As in (4)(a-e) above
(b) Two witness’s (sic) adjacent to west of collision scene, 35 mm photo’s (sic), TWO cars, AIRBAG
(c) Two witness’s (sic) adjacent to north of collision scene, Polaroid photo’s (sic), TWO cars
(6)failed to call evidence as defendant instructed, or with defendant’s oral instructions.
(a) Lexus drivers driving record
(b) Lexus driver’s accident report expiry details
(b)(sic) Details of towing – removing damaged Lexus from collision scene
(b)(sic) Details of relationship of Lexus owner to Heath the Tyreman
(c) Lexus panels and other parts damaged in and associated with collision
(7) failed to call appropriate evidence.
(a) Original insurance photo’s (sic), negatives in a timely manner
(b) Site, - road alignment and surfacing plan of collision scene
(8) failed to inform defendant of appropriate actions,
(a) for witness requirements, on obtaining and to have evidence accepted into court
(b) for evidence requirements, on obtaining and to have evidence accepted into court.
Also the plaintiff:
(1)failed to account fully and properly to the defendant for monies received and or disbursed for and on behalf on defendant’s account.
Between 5-6-95 and 17-12-2000 REFER DISCOVERY.
The Plaintiff also:
REPEAT THE ABOVE IN RELATION TO: action No. 95/22883 AND APPEAL IN action No.96/2208
REPEAT THE ABOVE IN RELATION TO: action No. 97/2014, AND APPEAL IN action No.97/1507”
On 20 April 2001, these applications came on for hearing before a magistrate in the Adelaide Magistrates Court. The record on the file of what occurred on that occasion is as follows:
“Deft hands HH an amended defence. HH does not recognise that that application has been marked especially (sic) returnable so it is not properly b4 him. The deft is to file the amended defence previously ordered by Mr Myers SM on 9/3/01 w/in ten days of today. Adj to 3/5/01 at 9.45 am. Indicate if on the next occasion the purported amended defence does not conform with the rules of pleadings of the Supreme Court, then the defence will be struck out and judgment will be given in favour of the plf ...”
A further document headed “AMENDED, AMENDED DEFENCE” was filed by the appellant on 30 April 2001 in which the appellant asserted that Mr Hall had not accounted to him for certain monies received on his behalf and claiming that Mr Hall had been negligent in the care and conduct of his affairs. That general pleading was supported by allegations that he “failed to call appropriate witnesses”, “failed to call appropriate plaintiffs”, and failed to present certain matters to the court. On that basis the debt due to Mr Hall was disputed.
On 3 May 2001, the matter once again came before a magistrate in the Adelaide Magistrates Court. The magistrate struck out the existing amended defence as it did not comply with the rules of pleading. The magistrate indicated to the appellant that he had now been advised to seek legal advice and legal assistance for the purpose of preparing a further amended explicit defence to comply with the Supreme Court Rules. The magistrate ordered the defence to be filed by close of business on 16 May 2001. The magistrate indicated that if the next document filed purporting to be a defence did not comply with the Supreme Court Rules it would be struck out and there would be judgment in favour of the plaintiff. The matter was then adjourned to 18 May 2001.
On 18 May 2001, the appellant filed a further document headed “FURTHER AMENDED EXPLICIT DEFENCE”. That document canvasses a vast range of matters, but essentially regurgitates matters raised on previous occasions, such as the lack of any personal representative appointed to represent the estate of Mr Hall, complaints about the accounts rendered to him and a lack of accounting to him for monies received on his behalf and negligence by Mr Hall in the conduct of his litigation by reason of such matters as the failure to call witnesses or submit certain evidence to the court.
This document still did not comply with the Rules as to pleadings, as a result of which the magistrate made an order that the defence be struck out as non-complying with the Rules of Court. He then entered judgment in favour of the plaintiff in the amount claimed.
The appellant filed a notice of appeal against this order on 6 June 2001. I eventually heard argument with respect to it on 17 August 2001.
On the hearing of the appeal, Mr van Dissel prepared written submissions with respect to his opposition to the appeal. Those submissions had not earlier been served on the appellant. After hearing argument in the matter I therefore reserved my decision but indicated to the appellant that I would allow him 14 days in which to make a written response to the respondent’s submissions if he so wished. The appellant then filed a document headed “submission in response” on 3 September 2001. Those submissions do not, however, specifically address the matters contained in the respondent’s outline of argument but essentially reiterate the appellant’s argument that in the absence of a proper accounting and copies of Mr Hall’s notes and records he could not do any better with his defence than he had to date.
Although I reserved judgment with respect to the appeal on 17 August 2001, the appellant filed a further application in this Court on 13 September 2001. That application sought general directions and for leave to amend the pleadings. That application was initially set down for hearing before a master of this Court. The master referred the matter for hearing before me and I heard argument as to that matter on 23 October 2001. The affidavit in support of this application once again asserted that Mr van Dissel could not represent Mr Hall as no person had been granted probate or issued with letters of administration. The magistrate had therefore erred in not making the necessary inquiry to ascertain whether any person could lawfully conduct the proceedings on Mr Hall’s behalf.
I had considerable difficulty in resolving with the appellant the status of this application. At the conclusion of submissions it was still unclear as to whether the appellant was endeavouring to amend his pleadings, as he claimed, or trying to amend his notice of appeal. The appellant, however, indicated that he was concerned about this issue being before the court and considered that he needed to amend his pleadings to include that matter. I did not make any order on the application at that time but having further considered the matter, I propose to treat the matter as a further ground of appeal on which the appellant seeks to impugn the order of the magistrate.
The issue in this case is, however, one of procedure. In order to determine whether the magistrate was correct in striking out the appellant’s defence for failure to comply with the rules as to pleadings, it is useful to consider the function of pleadings. They are succinctly set out in Lunn on Civil Procedure as follows (at p 8506):
“There are four functions which are:
(1)To define what are the matters in dispute: Thorp v Holdworth (1876) 3 Ch D 637 at 639; Banque Commerciale SA v Akhil Holdings Ltd (1990) 92 ALR 53. It is on the basis of the issues defined by the pleadings that relevance is assessed for the purposes of discovery of documents, interrogatories, admissibility of evidence and the like.
(2)To show the parties what facts they will have to prove at the trial. If justice is to be done a party should not be taken by surprise at the trial about what he should be in a position to prove: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712. It also avoids delay and expense at the trial in saving a party from having to prove what his opponent is prepared to admit.
(3)They enable the nature of the trial to be determined. It is only on the basis of the pleadings that a party can raise a point of law, seek the determination of a preliminary issue or possibly apply for summary judgment.
(4)They provide a record of the matters which have been before the court for determination in the action. If in subsequent proceedings pleas of res judicata or issue estoppel are raised, the court must look to the pleadings in the previous action to determine what was properly before the court for determination in that action: Hoystead v Commissioner of Taxation [1926] AC 155; Blair v Curran (1939) 62 CLR 464; Khan v Goleccha International Ltd [1980] 2 All ER 259. See generally Williams v Australian Telecommunications Commission (1988) 52 SASR 215; 148 LSJS 168.”
In accordance with those functions, SCR 46A.02 requires pleadings:
“(a)be as brief as the nature of the case permits;
(b)plead only the material facts relied upon and not the evidence or arguments by which they are to be proved;
(c)be divided into discrete numbered paragraphs so that admissions and cross references may be made readily by referring to the paragraph numbers;
(d)bear the proper action heading and an endorsement of by whom and for whom they are filed;
(e)bear (a) certificate signed by a legal practitioner except where the party has no solicitor on the record.”
SCR 46A.05 (2) provides that:
“(2)The Defence must plead, but plead only:
(a) what parts, if any, of the Statement of Claim are admitted;
(b) the material facts relied upon to constitute any ground of defence on which the defendant bears an evidentiary or a legal onus of proof;
(c) such further material facts as are necessary to give other parties fair notice of the defendant’s case which they will have to meet;
(d) any defences in law; and
(e) any statutory provisions to be relied upon by the defendant.”
It is clear from the form of pleadings to which I have referred that the appellant has so far failed to comply with the rules, despite being given a number of opportunities to put his documents in order. The appellant has also not disputed that he engaged Mr Hall to carry out professional services on his behalf. It is not however clear from the documents filed by the appellant to date whether the appellant has taken any steps against Mr Hall or his estate seeking a taxation of his costs, although it would be open to him to do so.
The significant issue which the appellant wishes to litigate would appear to be a claim in negligence against Mr Hall as to the way in which his litigation was conducted. However, even if I were to overlook the obvious defects in the form of the pleading filed by the appellant, the defence filed by the appellant lacks sufficient clarity or detail to permit a court to determine the parameters of the purported claim in negligence. It cannot therefore be permitted to remain. That leaves the issue of Mr van Dissel acting on behalf of the estate. Mr van Dissel has appeared before this court on the basis of having instructions to act in that capacity. He has also filed an affidavit in these proceedings deposing to Mr Hall’s death and his appointment as executor of the estate. If Mr van Dissel has not told the truth about these matters that would be an extremely serious matter which could lead to disciplinary proceedings against him. It does not of itself, however, constitute a defence to the claim against the appellant for the debt due to Mr Hall. In my opinion, the magistrate was correct in striking out the defence. The appeal is therefore dismissed. It is in those circumstances unnecessary to rule on the issue of non-compliance with SCR 97.03 as to the form of the notice of appeal.
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