Hardcastle v Richardson
[2000] QDC 256
•8 September 2000
DISTRICT COURT OF QUEENSLAND
CITATION: Hardcastle v. Richardson [2000] QDC 256 PARTIES: KATIE MARGARET HARDCASTLE Plaintiff
And
STEPHEN K. RICHARDSON DefendantFILE NO/S: D7 of 2000 DIVISION: PROCEEDING: ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 8 September 2000 DELIVERED AT: Brisbane HEARING DATE: 1st September 2000 JUDGE: Judge Forde ORDER: 1. Order that the judgment entered by default on 12 July 2000 be set aside.
2. It is further ordered that the defendant do pay the plaintiff's costs of and incidental to this application to be assessed.
3. Liberty to apply.
CATCHWORDS: Uniform Civil Procedures Rules rr 149, 150, 160.
Darke v. Eltherington (1963) Qd.R. 375;
Rowes Properties Limited v. John Laing Construction Ltd (1983) QB 398;
Dawkins v. Penrhyn [1879] 4 App.Cas. 51;
Aboyne Pty Ltd v. Dixon Homes Pty Ltd (1980) Qd.R. 142;.
National Mutual Life Association of Australasia Limited v. Oasis Developments Pty Ltd (1983) 2 QdR 441;
Daly v. Silley (1960) VR 353.
Grimm v. General Credits (1978) Qd.R. 449;;
Alliance Acceptance Co. Ltd v. Makas (1976) 26 FLR 451;
Hughes v. Justins (1894) 1 QB 667;
McClymont v. Lister Boyce Q.C. D.C.J. District Court, Brisbane No. 1131/89, 2 October 1992
Anderson v. Brisbane City Council District Court, Kimmins D.C.J. 3288/92, 19 November 1993COUNSEL: Mr J. W. Lee for the Plaintiff
Ms R. M. Treston for the DefendantSOLICITORS: Goodfellow & Scott for the Plaintiff
Quinlan Miller & Treston for the Defendant
Introduction
The defendant, Stephen K. Richardson, applies for the following orders:
"1.That the judgment entered against the defendant on 12 July 2000 be set aside.
2.That within fourteen (14) days the plaintiff file an Amended Statement of Claim that complies with provisions 149(1), 155, 157 and 158 of the Uniform Civil Procedure Rules 1999.
3.That the defendant file a Notice of Intention to Defend and Defence to the Statement of Claim within twenty eight (28) days of the date of service of the Amended Statement of Claim."
Judgment was entered in this matter on 12 July 2000 in the absence of a Notice of Intention to Defend and Defence being filed. Counsel for the defendant asserts that the pleading was defective and further, that the defendant has a good defence on the merits. The plaintiff, Katie Margaret Hardcastle, was injured in an accident on 14 April 1988. She was born on 9 November 1976, and was 11 years of age at the time of the accident.
In or about the month of July 1996, the defendant took instructions from the plaintiff to settle her action for $8,000 "all inclusive". The present action is against the defendant for settling for an inadequate sum.
Efficacy of the Pleading
Relevantly, the Statement of Claim pleads the following:
"1. At all material times:-
(a)The defendant was a solicitor trading as STEPHEN K RICHARDSON.
(b)The Defendant acted as a solicitor for the Plaintiff.
2.It was a term of the Defendant's retainer that he exercise reasonable care and skill, alternatively he owed the Plaintiff such a duty in negligence.
3.On the 14th April, 1988 the Plaintiff was injured in a motor vehicle accident. She took the advice of the Defendant who advised that she had good prospects of success in a claim for damages for negligence.
4.Accordingly she instructed the Defendant to commence proceedings against, inter alia, the driver of the motor vehicle which caused the accident.
5.On a date to be particularised after discovery and/or interrogatories she was advised by the Defendant to settle the claim for the sum of EIGHT THOUSAND DOLLARS ($8,000.00) "all inclusive".
6.The Plaintiff's claim was worth much more than the sum of $8,000.00 but as the Defendant failed to advise her of this fact she accepted the Defendant's advice to settle for the sum of $8,000.00 "all inclusive".
7.In the circumstances the Plaintiff has suffered loss and damage.
8.The Plaintiff's loss and damage were caused by the breach of contract and negligence of the Defendant in failing to advise her of the real value of her claim."
The pleading proceeded to give details of the loss and damage. What is not in the pleading are the dates in relation to the retainer or the date of the breach of contract and/or negligence of the defendant in failing to advise the plaintiff of the real value of her claim.
This matter was originally argued on 1 September 2000, but in the course of judgment it became clear that the parties wishes to provide further submissions on both the allegation of the defective pleading and the merits of the defence. Written submissions have been provided in that regard.
Counsel for the defendant submitted that there is a requirement to plead facts. References made to "Australian Civil Procedure" 4th Edition page 178 include:
"The requirement to plead facts means that the pleading must specify all the facts necessary to constitute in the Plaintiff a good cause of action … in all cases, the pleading must allege what must be a valid cause of action or defence. It is insufficient if it simply alleges facts which may in certain circumstances amount to a cause of action or defence."
And further at page 179:
"The Court will not infer material allegations which should be included, but which are left out."
It is suggested that the failure therefore to plead the date on which the cause of action arose is a failure to plead a material fact.
The following passage at page 502 of the same publication states:
"For a default judgment to be regular it must strictly comply with the rules and be for the relief to which the Plaintiff is entitled on the pleadings. The record must show the Plaintiff to have a right to judgment, and the judgment entered must follow the relief claimed. If these requirements are not met the judgment is irregular and it will be set aside. Apart from this, the Court record must show that all necessary interlocutory steps have been followed in obtaining the judgment.
Almost any failure to comply with the rules render the judgment irregular. A judgment signed too soon or for too much is irregular …
When the Defendant seeks to set aside an irregular judgment the only onus is to point to the irregularity. Of course, the Court has a discretion and it may allow an irregular judgment to stand by making any order which is necessary to validate what has been done. The discretion to validate an irregular default judgment is only exercised in the rarest of circumstances."
If the judgment is irregularly entered, then the defendant is entitled to set aside the judgment as of right regardless of a defence on the merits: Hughes v. Justins (1894) 1 QB 667; Alliance Acceptance Co. Ltd v. Makas (1976) 26 FLR 451; Daly v. Silley (1960) VR 353.
It becomes a question as to whether the Uniform Rules requires the dates to be provided before a cause of action is established for the purposes of a default judgment. The relevant rule is as follows:
"r149 Statement in Pleadings
149 (1) Each pleading must -
(a) be as brief as the nature of the case permits; and
(b)contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and
(c)state specifically any matter that if not stated specifically may take another party by surprise; and
(d)subject to rule 156, state specifically any relief the party claims; and
(e)if a claim or defence under an Act is relied on - identify the specific provision under the Act.
(2) In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point."
The annotation to rule 150 which discusses certain matters to be specifically pleaded states:
"It is not entirely clear what the requirement that the listed matters "must be specifically pleaded" means. One view is that there must be an allegation in terms of, say, "breach of contract." However, the requirement to plead the material facts to constitute a cause of action for breach of contract would, in any event, have required a pleading to allege in proper form the parties to a contract, the fact (including consideration) of the contract, the relevant term of the contract, that the term was breached, and where there is a claim for damages, the loss suffered as a result of the breach. It can be seen, therefore, that it is difficult to know precisely what is intended by the requirement of specific pleading of a breach of contract in r 150(1)(a)."
That rule provides:
"150 (1) Without limiting rule 149, the following matters must be specifically pleaded -
(a) breach of contract or trust;"
In my view the present pleading contains sufficient material facts to found a cause of action. A party may request or apply to the court for further and better particulars (r.160).
Affidavit of merits
On the original application, the defendant swore 2 affidavits in relation to this matter. He swore the issue. For that reason, I was not satisfied on the facts that the settlement was a reasonable one in the circumstances: Grimm v. General Credits (1978) Qd.R. 449 at 459.A further affidavit has been sworn by the defendant which provides copies of relevant diary notes, a report from a psychologist Mr Ira Smith and school reports. As the plaintiff was a passenger in the motor vehicle, and given the nature of the abrasion to her chest caused by a seat belt, it could not be said that liability was an issue. Therefore, it becomes a question of whether the settlement was reasonable in the circumstances. The abrasion which was minor as it was only referred to in the hospital report (Exhibit "SKR2").
When the plaintiff was first seen by Mr Smith, he reached the conclusion that
"the post-traumatic reactions described by Mrs Hardcastle as being observed in Katie are a normal expectation and can be expected to gradually withdraw."
The plaintiff was of average intelligence with memory processes being at the 52nd percentile and 69th percentile respectively. Her main complaint is that at the time of the appointment with Mr Smith she had become "very emotional, moody and hard to get along with". She also was terrified when in the car and in the vicinity of the accident site. That interview took place on 26 July 1988. Subsequently, the plaintiff was seen in December 1995. She was 19 years of age at that time. Mr Smith concluded that any post-traumatic affect being experienced by the plaintiff was apparently specific and did not cause any generalised problems. She had obtained employment and was happy in that position as a junior office administration assistant. She stated that she had continuing effects as follows:
"1) She said she won't drive a car and does not have a licence. She doubts if she will ever get a licence.
2) She said that when she is a passenger in a car, she sometimes has a recollection of the accident, particularly when near the site of the accident, but she has never had any flashbacks. She has been left with a situational sensitivity when in the vicinity of the accident, but otherwise is "quite OK".
3) She said whenever she goes past the scene of the accident, she feels tense and will hold on to the side of the door. She gets tense in situations, eg, when brakes of car are applied suddenly, or if she thinks they are going too fast she finds herself pressing the floor."
The plaintiff continued in Grade 12 and obtained an OP of about 21. The school reports show that in 1987 in the year prior to the accident, the plaintiff had a general progress level of 2. In 1988 which was Year 7, her general level was 3. Mathematics seemed to be a problem. In a letter from the school of 17 November 1988, the following remarks appear:
"Prior to the family's involvement in a serious car accident, I found Katie to be a happy, relaxed, out-going child. Lessons were handled with interest and her concentration span was satisfactory. Katie was reliable and enthusiastic.
Immediately upon her return to school after the accident, Katie found it extremely difficult to concentrate and relax. In fact for the first week or so she would stand to do her lessons and would wander out of the classroom.
Gradually she has settled back into her school routine but still finds it difficult to concentrate and apply herself to her school work. Her results illustrate this point.
Katie is extremely tense and finds it difficult to relax. Any change in plans concerning her mother picking them up from school, or not arriving on time is worrying to Katie.
Katie has been through a very traumatic experience. It has affected her emotionally, and scholastically. Katie is still suffering anxiety and fear from the accident and as well has vivid memories of the horrific event."
It was her obvious that her levels suffered in the second semester. In the following year, Year 8, it seems that her levels were consistent with someone with her intellectual capacity and there is no mention made of any on-going problems with the accident.
One must remember that the settlement occurred in 1996. Initially, the defendant suggested that the plaintiff ought to seek costs over and above the $8,000. However, he deposes to the fact that the plaintiff was eager to settle and so the "all up" figure of $8,000 was agreed upon. In any event, it is suggested by the defendant that the costs would have been on the Magistrates Court scale. No indication is given as to the net amount which the plaintiff received.
The defendant has the onus when attempting to set aside a judgment in default of an appearance to show by affidavit a defence on the merits that there is a "prima facie" or "substantial defence": National Mutual Life Association of Australasia Limited v. Oasis Developments Pty Ltd (1983) 2 Qd.R. 441.
The defendant points to the plaint in the matter which had a claim for $22,000. It was settled by counsel but I note it was dated 27 June 1990. Some 6 years elapsed between the filing of the pleading and the date of the actual settlement.
The settlement figure is a low one. It becomes a question of whether there has been "substantial grounds" shown for a defence or whether there are "prospects of success in defending the matter". It is of some assistance to look at the quantum decisions at the relevant time to determine this question: McClymont v. Lister Boyce Q.C. D.C.J. District Court, Brisbane No. 1131/89, 2 October 1992; Anderson v. Brisbane City Council District Court, Kimmins D.C.J. 3288/92, 19 November 1993.
Having regard to those cases, although the settlement sum is low, there appears to be a "prima facie" defence to the allegation of a breach of duty by the defendant. This is a marginal case. It may become a question as to whether the plaintiff's "keenness" to settle was governed by the advice that she received. The action should be heard in the Magistrates Court.
Application to set aside
There has not been an unusual length of delay between the date of the judgment being 12 July 2000 and the application to set aside which was filed on 21 August 2000. The explanation given for the defendant's failure to appear was that at about the same time he was served with another Claim and Statement of Claim unrelated to the claim by the plaintiff which also made a claim for damages against him. He believed that he had forwarded both claims to his professional indemnity insurer so that a defence could be prepared. It became apparent after the judgment was entered that he had not in fact forwarded the Claim and Statement of Claim to his insurer, notwithstanding that it was his intention to do so. I am satisfied that the defendant had given a satisfactory explanation for his failure to appear: Aboyne Pty Ltd v. Dixon Homes Pty Ltd (1980) QdR 142.
Limitations of Actions Act
This point was not raised in any affidavit by the defendant as to whether the plaintiff's action is out of time. In Dawkins v. Penrhyn [1879] 4 App.Cas. 51 at 58 Lord Cairns said:
"With regard also to the Statute of Limitations as to personal actions, the cause of action may remain even although six years have passed. It cannot be predicated that the Defendant will appeal to the Statute of Limitations for his protection; many people, or some people at all events, do not do so; therefore you must wait to hear from the Defendant whether he desires to avail himself of the defence of the Statute of Limitations or not. But with regard to real property it is a question of title. The Plaintiff has to state his title, the title upon which he means to rely, and the Statute of Limitations with regard to real property says that when the time has expired within which an entry or claim must be made to real property, the title shall be extinguished … Therefore, if upon the face of the bill the Plaintiff states that the period allowed by the Statute has expired, he states in law that his title is extinguished, unless indeed he can bring himself within some of the exceptions under which the Statute allows his title to continue. It is therefore clearly a case in which a demurrer where the facts appear upon the bill is applicable as a mode of defence …."
I accept the submission that the cause of action is barred when the limitation period has expired, but that the pleading should not be struck out as disclosing no reasonable cause of action on that basis: Rowes Properties Limited v. John Laing Construction Ltd (1983) QB 398; Darke v. Eltherington (1963) QdR 375 at 379 - 380 per Hanger J.
Orders
1. Order that the judgment entered by default on 12 July 2000 be set aside.
2. It is further ordered that the defendant do pay the plaintiff's costs of and incidental to this application to be assessed.
3. Liberty to apply.
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