Khalifeh v R.S.P.C.A. and 15 Ors
[2000] NSWSC 912
•13 September 2000
CITATION: Khalifeh and Anor v R.S.P.C.A. AND 15 Ors [2000] NSWSC 912 revised - 21/09/2000 FILE NUMBER(S): SC 13197/94 HEARING DATE(S): 5 September 2000 JUDGMENT DATE: 13 September 2000 PARTIES :
Christian KHALIFEH - ( First Plaintiff/Resondents (in person)
Norelle Khalifeh (Second Plaintiff)
R.S.P.C.A. and 15 Ors - Defendants/Respondents.JUDGMENT OF: Simpson J at 1
LOWER COURT
JURISDICTION :Supreme Court (Master) LOWER COURT
FILE NUMBER(S) :LOWER COURT
JUDICIAL OFFICER :Master Harrison
COUNSEL : R Lovas - Second Plaintiff/Respondent
C Branson QC with A G Todd - Defendants/AppellantsSOLICITORS: Angelo D'Angelo - Second Plaintiff/Respondent
Ebsworth & Ebsworth (Defendants/AppellantsLEGISLATION CITED: Police Offences Act 1901
Supreme Court Act 1986 (Vic)
NSW Supreme Court Act 1970CASES CITED: Braeside Bearings Pty Limited v H J Brignell & Associates (Boronia) [1996] 1 VR 17
Ratnam v Cumarasamy [1964] 3 AllER 933
Stollznow v Calvert [1980] 2 NSWLR 749
Chapmans Limited v Davey [1998] NSWSC 148DECISION: Appeal dismissed with costs.
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONSIMPSON J
13 September 2000
13197/1994
Christian KHALIFEH and ANOR v R.S.P.C.A. and 15 OTHERSJudgment
HER HONOUR :
1 This is an appeal from a decision of Master Harrison given on 31 March 2000. Before the Master was a notice of motion filed on behalf of the defendants to the substantive proceedings, the appellants in the current proceedings. The relief sought in the notice of motion was dismissal or stay of the substantive proceedings (in which the present respondents are the plaintiffs). It will be convenient to continue to refer to the appellants as the defendants, and the respondents as the plaintiffs. The defendants invoke the powers conferred by SCR Part 13 rule 5 and Part 33 rule 6(2). Pursuant to Part 33 rule 6(2) the court may stay or dismiss proceedings where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or fails to prosecute the proceedings with due despatch. Pursuant to Part 13 rule 5 the court may dismiss or stay proceedings, either in general, or in relation to any claim for relief in the proceedings, where: (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the court.
2 In the notice of motion the appellants relied on each of the three heads under which relief under Part 13 rule 5 may be granted, but during the course of the appeal I was told that no reliance had been or would be placed on any contention that the substantive proceedings disclosed no reasonable cause of action. What was put before the Master in support of the claim under this rule was that the proceedings were frivolous or vexatious or alternatively an abuse of the process of the court.
3 The substantive proceedings were commenced by summons on or about 16 December 1994. There followed a somewhat turbulent procedural history. On 30 January 1995 Dowd J ordered that the summons be struck out, but he did this in circumstances that permitted the plaintiffs to file a statement of claim that reflected the causes of action they sought to plead. It seems that the reason for the orders was that a summons was considered an inappropriate originating process, having regard to the claims the plaintiffs sought to advance.
4 In mid February 1995 the plaintiffs filed a statement of claim. It named sixteen defendants. The first is the Royal Society for the Prevention of Cruelty to Animals (NSW) (to which I shall refer as “the RSPCA”). The statement of claim identified the second to seventh, and sixteenth defendants as employees of the RSPCA; the second, third, fourth, sixth and seventh defendants as persons holding the office of Special Constable under the Police Offences Act 1901; and the eighth to fifteenth defendants as “Directors or Board Members” of the RSPCA. On its face the statement of claim was prepared and filed by the plaintiffs acting without the benefit of legal advice or representation. It appears that the proceedings initiated firstly by the summons, and then by the statement of claim, arose out of a dispute between the plaintiffs on the one hand, and the RSPCA (and its employees, directors and agents of the other) over certain horses the property of the plaintiffs. A number of criminal charges were brought against the plaintiffs which they successfully defended. It is unnecessary to attempt precisely to discern the legal bases for the causes of action contained in the original statement of claim. It is sufficient to say that it appears that the plaintiffs made claims against the defendants jointly, or against individual defendants, for malicious prosecution (a number of counts), negligence, possibly conversion, assault, trespass to property, and defamation.
5 On 29 May 1995 Master Greenwood struck out the paragraphs that pleaded the claims in defamation, and granted leave to the plaintiffs to file a fresh statement of claim pleading those causes of action separately. This was because he considered that claims in defamation had no place in a statement of claim pleading the plaintiffs’ other causes of action. He refused other applications including applications to strike out the paragraphs alleging malicious prosecution. He allowed twenty-eight days for filing and serving a fresh statement of claim pursuant to the leave granted. That time expired on 26 June 1995.
6 On 10 November 1995 the plaintiffs filed an amended statement of claim. This was about twenty-two weeks outside the time allowed.
7 On 9 July 1997, on the application of the defendants, Master Malpass ordered that the amended statement of claim be struck out and granted leave to file and serve a further amended statement of claim on or before 22 August 1997. The plaintiffs filed a further amended statement of claim, purportedly pursuant to this order, on or about 6 November 1997. This was about eleven weeks outside the time allowed by Master Malpass. Although no extension of time was obtained by or on behalf of the plaintiffs, the document was accepted in the registry.
8 The history recounted in paragraphs 3 to 7 above is drawn principally from a chronology put before me in these proceedings on behalf of the defendants, and unchallenged by the plaintiffs.
9 Further insight as to the history of the matter is to be gained from the affidavit of Ms Zoey Mikus, the solicitor handling the matter on behalf of the defendants. Ms Mikus deposed that, since 9 July 1997 when Master Malpass struck out the amended statement of claim, four further versions of the document had been “bought(sic) into being, the last one on 2 August 1999”. It emerged during the hearing of the appeal that, apart from the further amended statement of claim filed on 6 November 1997, none of these documents had been filed, but had been forwarded to the solicitors for the defendants, with or without covering letters, for the defendants to consider whether they would consent to their filing. Ms Mikus observed that some of the documents at least were essentially repetitious of earlier documents or “remodelled” versions of the same.
10 A bundle of documents constituting exhibits to Ms Mikus’s affidavit was also before Master Harrison, substantially representing, it seems, the progress of the matter from January 1995 until September 1999, and rather extensive correspondence between the parties.
11 Ms Mikus also deposed that the tenth defendant, Mr John Foran, had suffered serious injuries in August 1994 causing brain damage and quadriplegia. She deposed that the defendants had incurred costs of $50,000 to the date of the affidavit.
Master Harrison’s judgment
12 Master Harrison noted the rules invoked by the defendant and the legal principles and authorities relevant to the exercise of the discretions conferred by those rules. There is no challenge to the Master’s statement of the applicable law.
13 Master Harrison then set out a short factual history of the proceedings. There is no contention that she overlooked or misunderstood any relevant chronological fact.
14 She then noted the submission made on behalf of the defendants to the effect that “the plaintiffs have had a contumelious disregard for the rules”, that they had been prejudiced by the delay, in particular by reason of the injury to Mr Foran and the costs already expended.
15 She rejected the contention that the plaintiffs had been guilty of inordinate or contumelious delay and observed that there had also been delay on the defendants’ behalf, particularly in their responses to the plaintiffs’ requests for consent to the filing of amendments of the statement of claim. She noted that no evidence had been adduced to identify the importance of the evidence Mr Foran would have given, uninjured, or alternative sources of the same evidence. This was plainly relevant to the consideration of any prejudice to the defendants flowing from the alleged delays on the part of the plaintiffs, in the context of the application for stay or dismissal for want of prosecution.
16 The Master then said:
“The defendants submitted that the statement of claim offends almost all the known principles of pleading. Counsel for the defendants was asked to point to some. None were elicited. I have carefully examined the statement of claim, and am unable to agree with the defendants’ view.”
17 She referred to a submission put on behalf of the defendants concerning the effect of Master Malpass’s order that the amended statement of claim be struck out. This submission (repeated in this court) was that, Master Malpass having made that order, and the plaintiffs having failed to file an amended statement of claim within the time allowed, there were no proceedings on foot.
18 Master Harrison held that the actions for malicious prosecution remained on foot, saying that it was debatable whether they were struck out by Master Malpass. This was because the only paragraphs in the original statement of claim struck out by Master Greenwood were those which pleaded a cause of action in defamation, and it was at least arguable that the remaining paragraphs in the original (February 1995) statement of claim, not having been struck out by Master Greenwood, remained extant after the amended statement of claim (November 1995) had been struck out by Master Malpass.
19 Finally, Master Harrison, relying on SCR Part 1 rule 12, extended the time allowed by Master Malpass to the plaintiffs to file the further amended statement of claim, in such a way as to validate the filing of the document on 6 November 1997. Accordingly, she dismissed the notice of motion and ordered the defendants to pay the plaintiffs’ costs.
The appeal
20 Thirteen grounds of appeal were pleaded. However, not all of these were supported by oral argument. It is convenient to refer to the written and oral submissions made on behalf of the defendants.
21 It has not always been easy to delineate the arguments advanced in support of the separate claims that the proceedings are an abuse of process, or are frivolous or vexatious, and the claims for stay or dismissal by reason of want of prosecution. While there are some factual matters common to both claims, they raise quite different considerations.
22 One point made, with some vigour, and more than once, was that the Master failed to take account of the fact, or accept the argument, that there was no valid proceeding before the court. The factual basis of this argument depended upon an analysis of the effect of the orders of Master Malpass. He, it will be remembered, had ordered that the amended statement of claim (filed on 10 November 1995) be struck out, and allowed the plaintiffs until 22 August 1997 to file a further amended statement of claim. The defendants’ argument was that, no further amended statement of claim having been filed within that time, the document so entitled, and filed on 6 November 1997, and notwithstanding its acceptance by the registry, could not constitute a valid originating process, and that, therefore, there was no valid proceeding.
23 Although Master Harrison noted this submission (in para 17) she does not appear to have ruled upon it. It having been raised again in the appeal, it is appropriate to consider the consequences of its acceptance, having regard to the two rules of this court upon which the defendants base their claim for relief. Part 13 rule 5 permits the court to order “that the proceedings be stayed or dismissed …”. Part 33 rule 6 permits the court to “stay or dismiss the proceedings”. Both depend upon the existence of proceedings. Neither rule confers a power to remove documents from the court file.
24 If the defendants’ initial contention, that the effect of Master Malpass’s order, and the failure of the plaintiffs to take advantage of the time -limited leave to re-plead, is correct, then there are no proceedings to stay or dismiss. When this was put to senior counsel for the defendants, he answered that there remains a court file, which purports to constitute “proceedings”, and that the powers conferred on the court by the two rules extend to striking out purported proceedings.
25 I do not think the defendants can have it both ways. Either there are no proceedings, and the documents on the court file purportedly constituting proceedings are a nullity, in which case there is nothing to stay or dismiss; or the proceedings are validly (if irregularly) constituted, in which case it was not an error for the Master to fail to have regard to the absence of any valid proceedings. If the defendants wish to maintain the argument, their present application is misconceived. This view is consistent with a decision of the Victorian Court of Appeal, to which I was referred by senior counsel for the defendants, in which Tadgell JA, with whom Phillips and Callaway JJA agreed, accepted as correct a contention that:
“..a proceeding is to be understood to mean not the subject of a justiciable dispute but the means or the vehicle by which the subject matter of a dispute is brought before the court for adjudication.” ( Braeside Bearings Pty Limited v H J Brignell & Associates (Boronia) [1996] 1 VR 17).
I would also accept that contention for the purpose of the present case, although it is to be observed that the decision of the Victorian Court of Appeal was made in the context of legislation (the Supreme Court Act 1986 (Vic)) which, unlike the NSW Supreme Court Act 1970 , contained a definition of “proceeding” (although, it must further be acknowledged, the definition was not highly illuminating, defining “proceeding” as “any matter in the Court other than a criminal proceeding”. I am, accordingly, satisfied that no error has been shown in this respect.
26 It was next submitted on behalf of the defendants that Master Harrison took into account extraneous considerations, these being identified as the absence of consent by or on behalf of the defendants to the plaintiffs’ various proposed amendments, and to delay on the part of the defendants. I take this argument to have been directed to the relief sought under Part 33 rule 6.
27 In paragraph 8 of her judgment Master Harrison referred to the absence of consent to amendment in the factual and procedural history, and again when considering the defendants’ argument that the plaintiffs had been guilty of contumelious delay. In this context I do not accept that it was an extraneous consideration.
28 A further specific criticism make of the Master’s judgment related to her observation that it was debatable whether the actions for malicious prosecution were struck out by Master Malpass. It seems that what the Master was here considering was the possible technical consequence of the striking out of a subsequent document, and the effect of that striking out on what remained in any document that preceded it, and had not itself been struck out. Counsel for the second plaintiff, in response to this argument, acknowledged that there was room for argument about what would survive after the subsequent document had been struck out, but pointed out, correctly, that, although the Master made the observation, it does not feature as a factor in her decision to refuse the relief sought. Certainly, the Master did not have a concluded view that the malicious prosecution counts remained current or active, and therefore did not take that fact into account against the defendants.
29 The essence of the Master’s reasoning is to be found in a single sentence in paragraph 18, in which she decided that the case should proceed on its merits. She then took the necessary steps to formalise what had been irregularly done. No error has been demonstrated in this respect.
30 It was argued that, in reaching the conclusion that the case should proceed on its merits, the Master failed to consider the absence of any explanation on the part of the plaintiffs for the original delay, or legal authority to the effect that there is no unqualified right to an extension of time. For the latter proposition, which scarcely needs authority, the defendants relied upon the Privy Council decision in Ratnam v Cumarasamy [1964] 3 AllER 933.
31 It is true that there is no specific reference in the judgment to the absence of explanation, or to the absence of a right to amend but, in paragraph 8, to which I have already referred, it seems to me that the Master was setting delays on the part of the plaintiffs against delays on the part of the defendants and concluding that neither party was more nor less blameworthy than the other.
32 These were essentially the matters that were argued in support of the application to stay or dismiss the proceedings for want of prosecution. It is unnecessary to re-state the well known legal authorities on this issue. Master Harrison referred to Stollznow v Calvert [1980] 2 NSWLR 749; senior counsel for the defendant referred also to Chapmans Limited v Davey [1998] NSWSC 148, unreported, per Bryson J, 27 April 1998. That, like the present, was a case in which an appeal was taken from a discretionary order of a Master who had dismissed proceedings for want of prosecution. Bryson J refused to interfere in the exercise of discretion, having found no error in the approach taken by the Master.
33 Likewise, I see no error in the approach taken by Master Harrison in her consideration of the powers conferred by Part 33 rule 6.
34 In relation to the relief sought under Part 13 rule 5, the defendant relied, not only on the matters set out above, but also very substantially on one other aspect of the history. This was in support of the contention that the proceedings amount to an abuse of process, or are vexatious or oppressive. It is necessary to establish at least one of these in order to enliven the discretion conferred by the rule. The additional circumstance relied on in this respect is the correspondence directed by the first plaintiff to the solicitors for the defendants, providing proposed amended statements of claim. Not all of these documents were before the Master, or before me. As the argument was put, it was that the plaintiffs are constantly changing the ground on which they wish to litigate and that their conduct converts what would otherwise be legitimate proceedings into an abuse of process or into proceedings that are frivolous or vexatious. I see considerable difficulty for the defendants in this contention, and, indeed, senior counsel acknowledged that he could point to no authority to support a conclusion that conduct of this sort would transform otherwise legitimate proceedings into proceedings that are frivolous and vexatious or an abuse of the process of the court.
35 There is nothing to suggest that the proceedings, as evidenced by the statement of claim filed on 6 November 1997, are frivolous or vexatious, and senior counsel conceded that the defendants would be content to go to trial on a claim pleaded as in that document. What the defendants contend is frivolous or vexatious is the conduct of the plaintiffs in seeking to amend the proceedings already filed. Similarly, what they contend to be an abuse of process is the stream of correspondence directed by the plaintiffs to their solicitors. The answer to this argument is to be found in the interpretation of the rule itself. The rule is directed to the nature of the proceedings. The proceedings are those pleaded in the 1997 statement of claim. It is necessary here to distinguish between proceedings - that is, the means or the vehicle by which a dispute is brought to court - and collateral conduct of the parties. What the plaintiffs do out of court does not constitute proceedings. The rule does not provide for the stay of proceedings because collateral conduct of a party is frivolous or vexatious, and I do not think it extends to constituting collateral conduct as an abuse of the process of the court. Nor does it envisage that otherwise properly constituted proceedings become an abuse of process, or frivolous or vexatious, because of collateral conduct. There may be other remedies available to the defendants if the plaintiffs’ conduct become oppressive, or amounts to harassment, but, on an ordinary reading of the rule, I do not think its language extends to the kind of conduct of which complaint is here made.
36 No error has been demonstrated in the approach taken by the Master. The appeal is dismissed with costs.**********
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