Jenkins v Martin

[2003] QSC 400

SUPREME COURT OF QUEENSLAND

CITATION:

Jenkins & Anor v Martin & Anor  [2003] QSC 400

PARTIES:

ROBERT ALEXANDER JENKINS and BERICE HOPE JENKINS
(plaintiffs)
v
WILLIAM JOHN MARTIN
(first defendant)
BARWICKS (A Firm) (by Counterclaim)
(second defendant)

AND

BARWICKS (a firm)
(plaintiff)
v
ROBERT ALEXANDER JENKINS and BERICE HOPE JENKINS
(defendants)

FILE NO/S:

SC No 2728 of 2000 and SC No 3941 of 1997

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2003

JUDGE:

McMurdo J

ORDER:

1.   Each of the statements of claim filed 8 July 2003 and 30 September 2003 be struck out;

2.   The plaintiffs are to pay to the defendants their costs of their applications filed respectively on 15 and 19 August 2003;

3.   The plaintiffs are to file no further statement of claim except after at least 21 days from the provision of a draft of that pleading to the defendants and without the consent of both defendants or the leave of the court.  

CATCHWORDS:

PRACTICE – APPLICATION – STRIKING OUT - where application that seventh statement of claim filed in these proceedings be struck out – where further application plaintiffs’ not be given leave to amend in terms of an eighth filed statement of claim and that the proceedings be dismissed – where defendants contend each pleading suffers from substantial defects – where defendants further contend in light of history of proceedings plaintiffs should be given no further opportunity to deliver proper pleading – whether seventh statement of claim should be struck out – whether plaintiffs should be given leave to amend statement of claim in terms of eighth statement of claim – whether proceedings should be dismissed

Uniform Civil Procedure Rules 1999 (Qld), r 376, r 376(4)

Giannarelli v Wraith (1987-1988) 165 CLR 543, cited
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, cited

COUNSEL:

B Cusack (sol) for the plaintiffs
J McKenna SC for the first defendant

J Bell QC, with J Faulkner, for the second defendant

SOLICITORS:

Cusack Galvin & James for the plaintiffs
Carter Newell Lawyers for the first defendant
Clayton Utz for the second defendant

1. McMURDO J: In this litigation Mr and Mrs Jenkins claim damages against their former barrister and solicitors, arising out of litigation which they ultimately compromised to their dissatisfaction. Their solicitors, Barwicks, brought proceedings No 3941/97 against them for unpaid legal fees and expenses. They brought proceedings No 2728/00 against their former senior counsel as first defendant and Barwicks as second defendant, claiming damages on several bases. The proceedings have been consolidated on terms that Mr and Mrs Jenkins are the plaintiffs. They have made several attempts to plead their case. Their most recent pleading prior to the filing of these applications was their seventh statement of claim, which was filed on 8 July 2003. Each of the defendants filed an application to strike it out and to have the Jenkins’ proceedings dismissed. Between the filing and the hearing of those applications, Mr and Mrs Jenkins filed yet a further amended statement of claim on 30 September 2003, which I shall call the eighth statement of claim. No leave has been given to file that pleading, although it would appear to plead causes of action which were current at the date of the commencement of the more recent of the proceedings which were consolidated but which are now outside any relevant period of limitation. Accordingly the eighth statement of claim, at least in those respects, requires leave pursuant to r 376 (4).

1. In essence, each of the defendants says that the seventh pleading should be struck out and leave should not be given to amend in terms of the eighth pleading, because in each case the pleading suffers from substantial defects, involving non-compliance with the rules of pleading and the allegation of rights of action which, it is submitted, are bound to fail.  It is further argued that, having regard to the history of these cases, the plaintiffs should be given no further opportunity to deliver, if possible, a proper pleading.  This is by no means the first attack upon their statement of claim in these proceedings, but it is the first occasion upon which either defendant has sought to have the proceedings dismissed.

The Jenkins’ Case in Summary

1. Mr and Mrs Jenkins were involved in a joint venture with General Credits Limited involving some land at Airlie Beach.  By 1985 they were involved in a substantial dispute with their joint venturer, before that dispute was compromised by an agreement in September of that year.  One benefit of this agreement was that they were no longer exposed to any personal liability to one or more of the General Credits companies which had financed the venture.

1. The deed of compromise provided for the joint venture vehicle, a company called Reef International Pty Ltd (“Reef”) to transfer a parcel of land (referred to in the present proceedings as “the 10.8 acres”) to a company controlled by a Mr Porter.  They had made some claim of their own to that land, but they agreed to an all up compromise which contained this term on the basis of what they say they were told of Mr Porter’s greater claim to it.

1. They say that subsequently they learnt that they had been misled as to the merits of Mr Porter’s entitlement such that their agreement to let him have the 10.8 acres was procured by the fraud of General Credits.  As a result they became involved in litigation with General Credits as well as funding a defence by Reef to Mr Porter’s claim to the 10.8 acres.  Reef’s defence was unsuccessful and part of the loss of which they presently complain is the cost of those proceedings.  Their litigation with General Credits was in proceedings issued in this court as No 1596 of 1991.  The trial of those proceedings commenced on 4 April 1994 before they were settled on 18 April 1994.  Under the terms of that settlement, again, they had nothing to pay to General Credits.  But they claim damages for their costs of those proceedings, as well as for advice which resulted in them not settling that matter more favourably.  They now wish to further complain that the defendants should have advised them to seek an adjournment of the trial.

1. At one stage in the current litigation, they pleaded that the case they settled in 1994 was a good case which was made a weak case by its negligent conduct by their lawyers.[1]  By now, however, their case against each defendant is that their case against General Credits was unmeritorious.  In particular they say that it suffered from the flaw that rescission the 1985 settlement for the alleged fraud in relation to the 10.8 acres would have resulted in their being placed in a position of no compromise with General Credits, rather than the position they would have enjoyed with all the benefits of the 1985 compromise but also with the transfer to them of the 10.8 acres.

   [1]See their defence set off and counterclaim in 3941 of 1997 delivered on 23 June 1997

Deficiencies in the State of Claim

1. It is unnecessary to comprehensively discuss the many complaints made by the defendants concerning the seventh or eighth statement of claim, for a reference to some matters is sufficient to show that each pleading should be struck out.

1. The plaintiff’s case against the first defendant is, for the most part, a complaint of poor advice.  The first defendant was first asked to advise in April 1988.  The case against him seems to be that he provided the wrong advice throughout the period from then until the April 1994 settlement.  Paragraph 11 pleads that he gave oral advice in conference in April 1988, and his written advice of May 1988 is pleaded in paragraph 12.  Paragraph 13 alleges that “subsequently the first defendant gave further oral and written advice to the plaintiffs including” advice to certain effects there set out.  Without recourse to the purported particulars of paragraph 13, the defendant would not know what were the alleged occasions of the giving of this advice and, in particular, whether advice to a certain effect was given on or about a certain date, or in writing or alternatively orally. 

1. The problem then is that the particulars, which occupy some 15 pages of this pleading, seem no more than a list of any correspondence or event in which the first defendant was doing anything for the plaintiffs within this six year period.  The particulars include not only documents written by the first defendant, but documents written to him.  They also include documents such as “witness summaries” which from their description do not seem to be documents in which counsel would communicate some advice.  A remarkable particular in which advice is said to have been given is “the contents of the first defendant’s fee notes and the fee notes of the other counsel who assisted the first defendant”, as well as the fee notes of his instructing solicitors.  I have not seen these documents.  Perhaps they refer to the fact of the giving of counsel’s advice.  But they would hardly inform the first defendant of the case he has to meet.  Then there is a particular in which advice is said to have been given by counsel by “the opening by (him) at the GCI trial on 5 April 1994 which is contained in the transcript of those proceedings”. 

1. The examples I have mentioned are sufficient to indicate that no proper consideration has been given to formulating and thereby pleading the case against the first defendant.  In any complaint of negligent legal advice it is surely necessary to identify the occasions on which the relevant advice was given and to properly plead the substance of the advice on each particular occasion.  In addition, the failure to do so infects the rest of the pleading because it makes it impossible to discern what was allegedly done in reliance upon certain advice and what were the alleged consequences for the plaintiffs.

1. The other problem was such a pleading of bad advice is that it makes it difficult to discern whether there is any advice for which the first defendant can be sued in negligence according to Giannarelli v Wraith (1987-1988) 165 CLR 543. For the first defendant, it is submitted that whatever is the plaintiffs’ case, it must fail on this ground. That may be so, but the problem with the present pleading is that it is not so clearly so that the entire proceeding would be struck out upon that ground. The imprecision of this pleading requires it to be struck out but it is another question as to whether the plaintiffs should be given another opportunity to properly plead their case.

1. No doubt with Giannarelli in mind, there is an alternative case which the plaintiffs have attempted to plead by paragraph 24, which is that they contracted with the first defendant.  The contract is said to be “partly oral and partly to be implied”.  It was made orally at a meeting in April 1988 by an alleged conversation in which it was agreed that the first defendant would “give instructions to solicitors on behalf of the plaintiffs” and “the first defendant would have authority to conduct the matter as he thought fit”.  Just what was the barrister’s authority to give instructions to his own instructing solicitors is not made clear by the pleading.  In any case, the plaintiffs plead no consideration for their alleged contract.  That is a significant defect in any contract pleading but particularly so in the present context.  The contract case is thereby inadequately pleaded.

1. In paragraph 28 there is a further attempt to plead a case of bad advice, this time as a breach of contract or, alternatively, in breach of an alleged duty of care.  Again the pleading is in many respects impermissible.  It alleges that counsel gave what the client would infer to be advice: i.e. that his advice is “to be inferred from” his conduct, including his “continuing to act as counsel … in the conduct of the proceedings and in such capacity doing the acts and things that counsel in the position of the first defendant could be reasonably expected to do and attend to, including preparing amendments to pleadings drafting particulars and advising on and responding to interlocutory applications by the other parties”.

1. Then there are the problems with the case as to the causation of loss by the alleged breaches of duty.  Part of the alleged loss is that the plaintiffs continued with their case through to 1994 passing up opportunities to settle earlier and much more favourably.  The loss of an opportunity to settle on those occasions could not be attributable to later conduct.  Yet this pleading alleges that all of the various types of loss were caused by each and every breach of which a complaint is made.

1. For the first defendant it is submitted that the case pleaded against him is bad also because it is bound to fail as brought outside any relevant period of limitation. The lost opportunities to settle were opportunities which came and went more than six years before the commencement of the proceedings against him. The legal expenses incurred by the plaintiffs were incurred more than six years before commencement. A claim for damages for personal injuries from the stress of this litigation has a limitation period of three years and at present it would appear that the claim is out of time. It is only in the clearest case that proceedings will be summarily dismissed as inevitably statute barred,[2] and the merit of a limitation defence usually is better assessed when that defence is pleaded and the plaintiff has had an opportunity to plead in reply. In the present case however, the claims against the first defendant would appear to be statute barred at least in so far as they were pleaded in the seventh statement of claim. Now the eighth statement of claim makes a complaint of the advice given during the conduct of the trial in 1994. It alleges that the present plaintiffs should have been advised to seek an adjournment of the trial. The purpose of the adjournment, according to this pleading, would not have been to better prepare their case with a view to litigating to a judgment. Instead it is said that the plaintiffs would then have had an opportunity to agitate another claim against General Credits which was worth $350,000 but which was precluded by the settlement they then made. The pleading does not set out what the first defendant should then have told the trial judge as the purpose for the adjournment and how the adjournment could have been properly argued. Nor does the pleading properly set out the facts, matters and circumstances by which the plaintiffs had that entitlement. There may be a case in this which can be properly pleaded and for which there is a tenable claim notwithstanding Giannarelli.  If there is it is not yet pleaded within  this eighth statement of claim.

   [2]Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

1. I turn to some of the matters which make the pleading deficient against the second defendant.  One of them is that although the second defendant was retained only from 25 September 1991, it is said that they are responsible for all of the loss which is claimed, including that from a lost settlement opportunity in August 1991.  In addition, much of that which is pleaded against the solicitors is a complaint that they failed to properly prepare their clients’ case.  To some extent those allegations might be relevant to the solicitors’ claim for the balance of their fees, but there are also remnants of what used to be the case against the solicitors, which was that they badly prepared an otherwise good case.  As I have mentioned, most of the present pleading is now to the effect that the case was always a bad one.  The recent amendments now complain that the solicitors caused their clients to continue with unmeritorious litigation.  In paragraph 35 (p) they allege that the solicitors “wrongly continued to advise the plaintiffs to proceed with the litigation” but the first particular of that allegation is that “the advice is to be inferred from the plaintiffs’ continuing to conduct the litigation on the plaintiffs’ behalf”.  Then there is sub paragraph (q) which alleges that the solicitors “wrongly continued to accept instructions on behalf of the plaintiffs”.  In these respects at least there are sufficient defects in the pleading against the solicitors to warrant it being struck out.  The solicitors are entitled to know more precisely their alleged defaults, and to know what losses are pleaded for each of the occasions of negligence which are the subject of a complaint.

1. It remains to consider whether the proceedings against each of the defendants should now be dismissed.  The bases for the defendants’ application are that the proceedings are either so hopelessly devoid of prospects that they should be summarily dismissed or, alternatively, that the plaintiffs have failed to duly prosecute them and that having regard to the time which has past since many of the events complained of (up to 15 years) the proceedings should now be dismissed.  Each of those submissions has considerable force, but at present I am not prepared to dismiss the proceedings.  The plaintiffs’ prospects of pleading a tenable case do not appear promising from the efforts on their behalf thus far.  But there are some matters pleaded which taken alone, and properly pleaded and particularised, could conceivably provide some arguable case.  A further consideration in respect of the second defendant is that the dismissal of these proceedings for want of prosecution would not put paid to the litigation between them and the plaintiffs.  The counterclaim for unpaid fees would remain, together with any  issues as to the quality of their services, including their advice.

1. The defendants should not be burdened with the prospect of some further and ill considered pleading which when filed requires them to promptly make application for its disallowance.  Instead, the plaintiffs should be ordered to provide to the defendants any proposed further amended statement of claim within no less than 21 days before filing it and they should be further ordered not to file it without first obtaining leave, or the consent of all defendants to do so.  It is to be hoped that those advising the plaintiffs will properly consider whether there is a case which can be pleaded, and which the plaintiffs intend to prosecute to a judgment, before delivering any such further draft.  If such a pleading is not promptly delivered, then the defendants could make a further application for dismissal, fortified by the fact that the plaintiffs have had what might be considered their last opportunity.

1. Each of the statements of claim respectively filed on 8 July 2003 and 30 September 2003 is struck out.  The plaintiffs are ordered to pay to each of the defendants their costs of their applications filed respectively on 15 and 19 August 2003.  It is further ordered that the plaintiffs file no further statement of claim except after at least 21 days from the provision of a draft of that pleading to the defendants and without first obtaining the consent of both defendants or the leave of the court.