Gwilliam v Fedec [No 2] - [2019] WADC 80

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   GWILLIAM -v- FEDEC [No 2] [2019] WADC 80
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   4 JUNE 2019
DELIVERED          :   17 JUNE 2019
FILE NO/S:   CIV ALB 6 of 2018
BETWEEN:   DAVID EDWARD GWILLIAM
Plaintiff

AND

LOXLEY KERRI FEDEC
NEW IMAGE ENTERPRISES PTY LTD as Trustee for THE R & L FEDEC FAMILY TRUST
Defendants

Catchwords:

Practice and procedure - Application to strike out statement of claim - Separate application for summary judgment - Turns on its own facts

Legislation:

Nil

Result:

Application for judgment adjourned sine die - various paragraphs of the statement of claim struck out

Representation:

Counsel:

Plaintiff	:	In person
Defendants	:	Ms G Cronin

Solicitors:

Plaintiff	:	Not applicable
Defendants	:	Latro Lawyers

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

Nil

DEPUTY REGISTRAR HEWITT:

In this matter two chamber summonses are before me for decision.
The first chamber summons is that of the defendant seeking to strike out the plaintiff's statement of claim.
The second is the plaintiff's application for a summary judgment.
Of those applications the summary judgment application has been adjourned for the reason that there are certain matters which require consideration as to the adequacy of the statement of claim and it is not appropriate to grant a judgment in an action where a properly articulated cause of action is not contained within the pleadings.
As to the other matter the course of pleadings in this case has had a tortuous history. The plaintiff has filed a number of statements of claim but it is the most recent of these namely that of the 1 April 2019 which requires my consideration. On a previous occasion I struck out an earlier statement of claim and made a number of remarks as to the requirements which must be met in order for a statement of claim to be characterised as adequate. In making those remarks I made due allowance for the fact that the plaintiff is a litigant in person and does not have the advantage of a legal education and does not fully understand the niceties of the process in which he is engaged.
I am sure that the plaintiff has used his best endeavours to produce a statement of claim in a satisfactory form bearing in mind the remarks I made on a previous occasion. Notwithstanding that, the plaintiff seems to have confused the process of identifying the facts which he alleges entitle him to relief in the action and the actual evidence which establishes those facts to the satisfaction of the court. As a consequence the plaintiff has made a number of references to an affidavit comprising some 300 pages which he has filed in the proceedings identifying certain paragraphs as containing the particulars upon which he relies to support particular allegations. That of course is a completely unacceptable way to plead a cause of action. A judge hearing this case may or may not believe him but the propositions upon which the plaintiff relies and not the actual evidence which is ultimately intended to be produced are what is required. To have the sworn testimony of the plaintiff contained in an affidavit and the various exhibits which will ultimately comprise evidence in the case forming part of the pleadings is in my view a completely inappropriate way to approach a pleading. These are profound problems and they contaminate a very substantial portion of the plaintiff's statement of claim. Additionally the plaintiff has raised a number of claims which exceed the ambit of his claims set out in the indorsement of claim. Those claims are poorly articulated and in my view are not sufficient to identify a cause of action let alone an entitlement to a judgment on that cause of action. In particular I refer to vague references to perjury, criminal behaviour, extortion, defamation, and so forth. None of those are properly pleaded and all of them are beyond the limits which are imposed by the extent of the indorsement of claim.
Notwithstanding the criticisms that I have levelled at the pleading, despite earlier misgivings, I do think that there is, potentially at least, a cause of action capable of being pursued by the plaintiff if he can get his statement of claim in order. The court has been indulgent to the plaintiff so far and when the matter was last before me I indicated that I was giving him a final opportunity to put his house in order. He has not done so but in my view has produced materials that make it clear that some sort of contractual arrangement may have existed between himself and the defendants which he alleges was breached as a consequence of which he suffered loss and harm.
Many of the paragraphs in the statement of claim are objectionable and I propose to identify each and explain the nature of the objection.
In par 2 the plaintiff has gone into detail regarding who the shareholders, beneficiaries and directors of the second defendant are. Whilst the details of the directorship of the company may be relevant, details of the shareholders of the company and beneficiaries of the trust are not. Additionally reference is made to information contained in paragraphs within affidavits sworn on 27 July 2018, 7 March 2019 and 14 March 2019. Such references are objectionable. Whilst it might be legitimate to plead the names of the directors of the second defendant none of this other information is relevant. All of it is introduced in an objectionable way and as a consequence I intend to strike out the whole of par 3.
Paragraph 4 introduces a cause of action seeking to establish that in an affidavit filed in the course of these proceedings false information was given comprising perjury. Whether or not the information is correct and whether or not the deponent of the affidavit committed perjury are matters for the judge to consider at trial. They do not form any proper part of a pleading in the proceedings at this stage.
Paragraph 5 again has references to material contained in affidavits. On this occasion that sworn 14 March 2019. Again this is offensive and the whole of par 5 will be struck out.
Paragraph 6 sets out some details of the contract alleged to have exist between the plaintiff and the defendant but contains a reference to certain particulars contained in the affidavit sworn 14 March 2019. That portion of the paragraph will be struck out.
Similar considerations apply to par 7 and the particulars to that paragraph likewise offend and will likewise be struck out.
Again in par 8 there is a similar infringement in regard to the particulars and that likewise will be struck out.
Again in par 9 there are particulars which are included by reference to the affidavit of 14 March 2019. That portion of the paragraph will likewise be struck out.
Paragraph 10 again contains references to the affidavit. Those references are fundamental to whatever the proposition being advanced by par 10, and quite frankly I am not quite sure what that proposition might be but whatever the proposition is it is being introduced in an inappropriate way and the whole of par 10 will be struck out.
Paragraph 11 again contains particulars by reference to the affidavits. On this occasion those of 14 March 2019 and 7 March 2019. Those particulars will be struck out.
Likewise in par 12 there is a similar reference and again the particulars to that paragraph will also be struck out.
Paragraph 13 sets out an arrangement called a licence agreement concerning certain properties made between the parties and one Kingsley Faulkner. In this case in my view the paragraph is incomprehensible without reference to the particulars and in this case the whole of the paragraph will be struck out.
In par 14 there is again reference to particulars contained in the affidavit. They have no proper place as part of the pleading and will be struck out.
In par 15 there is a proposition that the contract such as it might have been encompasses the plaintiff's 50% share of the hay and silage crop particulars of which are said to have been provided in various paragraphs of the affidavits sworn 14 March 2019 and 7 March 2019. Since those particulars are objectionable and without them the paragraph makes no sense at all. The whole of the paragraph will be struck out.
Similar propositions concern par 16 of the statement of claim. Again without the particulars which must be struck out the paragraph is meaningless and as a consequence the whole of par 16 will be struck out.
Paragraph 17 alleges as follows:
The contract, the contractual exchange/execution between the plaintiff and the defendants and the events that transpired while the contract was being adhered to was from 5 April 2014 until 15 February 2018.
Again there are particulars provided by reference to the relevant affidavit in this case that sworn 14 March 2019. I have considerable difficulty understanding what is intended to be meant by the paragraph and without reference to the particulars in my view it is meaningless. As a consequence par 17 will be struck out.
Paragraph 18 alleges a breach of contract. All of the details are contained in the affidavits which are referred to. These are critical matters and since they have not been introduced properly the whole of par 18 will be struck out.
Next follow a number of points which are collectively described as major points of conflict. Each of them rely for their detail on material contained in the affidavits and without those details the paragraphs are meaningless. As a consequence pars 19 to 24 inclusive will be struck out.
There next follow a group of paragraphs which are headed Basis for lodging claim. Allegedly the plaintiff is suggesting that the first defendant instigated altercations with the plaintiff leading the first and second defendants to breach their contact with the plaintiff with various consequences. All of the allegations rely on material contained in the affidavits of the 14 March 2019 and 7 March 2019. Without those particulars the allegations are meaningless and I strongly suspect the allegations are meaningless even with the particulars but that is not a matter of consequence at the moment.
The next group of paragraphs are for a cause of action which is numbered #2. The allegation being that there was a breach of contract and reference is made to a vast number of paragraphs in the relevant affidavits starting in respect of the affidavits sworn 7 March 2019 at par 13 and finishing at par 216. The introduction of these details in the manner which is attempted is completely inappropriate and the paragraphs will be struck out.
The next matter is headed Cause of action #3. In essence par 26 suggests that the plaintiff made several attempts to negotiate a resolution subsequent to the altercation on 15 February 2018 the particulars of which are set out in his certification affidavit filed 5 July 2018. Even were proper particulars to be provided which obviously they have not there is no cause of action disclosed in the paragraph and likewise at #4 the proposition that the first and second defendants would not reasonably negotiate with the plaintiff are supported by reference to the affidavit of the 7 March 2019, disclose no cause of action and shall be struck out.
The next cause of action is #5 which contains a proposition that the first and second defendants used threat, intimidation, coercion, and extortion to dissuade the plaintiff's negotiation attempts. Again that should not form any part of the pleading and is in any event in my view outside the cause of action being pursued by the plaintiff. The whole of par 26 will be struck out.
Paragraph 27 alleges that the first and second defendants have bullied, intimidated, threatened, and maliciously manipulated the plaintiff with dishonest claims since 15 February by engaging a lawyer and funding a legal campaign, threatening him with trespass charges, violence restraining orders, and extortion, and removing the plaintiff from the first defendant's will and taking possession of property allegedly the plaintiff's being his share of the dorpa sheep flock and other entitled incomes and assets. There are also further allegations of misappropriation of property, slander, withholding possession of the plaintiff's personal belongings, interference with the plaintiff's contractual capacity to assume control of a lease offer in regard to a property described as the Bolganup Licence Agreement, and breach of several laws including the Fair Trading Act, the Residential Tenancies Act, the Corporations Act, the Criminal Code, the Family Law Act, and the Defamation Act, particulars of these allegations are apparently contained somewhere in the affidavits sworn 14 March 2019 and 7 March 2019. The problems with this paragraph are numerous and in a number of instances they are not matters which even belong in this court such as the family law matter, the fact that a testator may choose to change a will is hardly something in which this court is going to intervene, nor, I would have thought any court, in the lifetime of the testator. Also superimposed on the various problems I have described in this case the reader is simply invited to refer to the affidavits and hunt through and see if something can be found which might be relevant to the allegations made. Again this is a completely unacceptable way to plead and the paragraph will be struck out.
The next matter is Cause of action #6 alleging that the defendants have conducted themselves dishonestly and fraudulently resulting in injury to the plaintiff. The entire particulars are set out in the large number of paragraphs referred to the relevant affidavits of 7 March 2019 and 14 March 2019. Again these paragraphs are unacceptable and will be struck out.
The next Cause of action #7 suffers from the same problems to the extent that there are particulars that are contained in the affidavits and likewise the cause of action #8, #9, #10, #11, #12, #13, #14, #15, #16 and #17. All these paragraphs will be struck out. Objection was made also to the manner in which the claims which are pursued by the plaintiff had been set out in par 28 and following. It is obvious that a great many of the prayers for relief sought by the plaintiff in these paragraphs is unobtainable but the primary concern that I have is that the factual basis of the plaintiff's claim should be clearly articulated. If the plaintiff wants to claim some pie in the sky remedy the court can sort that out at a later stage and I do not think it is appropriate at this level to go sifting through the prayer for relief to cull those portions which are clearly beyond the jurisdiction of the court or out of reach for various reasons. It seems to me that what the plaintiff may be entitled to, if in fact he is entitled to anything, is damages for breach of contract if there was in fact a contract as is alleged.
On completing this review process it seems to me that the number of paragraphs which are defective within this statement of claim are so great that it would be a far better process if the plaintiff were to just simply abandon the pleading as it presently stands and make a further attempt to articulate his claim in the satisfactory manner. That he has not done so, so far, is glaringly obvious. The situation needs to be remedied. An acceptable pleading has to be produced by the plaintiff. The causes of action which he pursues must be within the confines of the indorsement of claim. Accordingly I direct the plaintiff, if he wishes to continue to pursue this action, to file a minute of proposed amended statement of claim for further consideration.
The orders which I therefore propose are:
1.That the paragraphs identified within the reasons for decision be struck out;
2.That the plaintiff file a minute of proposed amended statement of claim within one calendar month of receiving this decision;
3.That upon the filing of the proposed amended statement of claim the matter be listed for further directions.
4.That the plaintiff pay the defendants' costs of this application in any event.
If any party wishes to dissent from orders in the terms proposed I require them to notify me of that objection within 14 days of the date that the decision is made available and the matter will then be listed for further consideration when the objection can be heard.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
17 JUNE 2019