McGavin v McGavin
[2024] WASC 408
•5 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MCGAVIN -v- MCGAVIN [2024] WASC 408
CORAM: LUNDBERG J
HEARD: 5 NOVEMBER 2024
DELIVERED : 5 NOVEMBER 2024
FILE NO/S: CIV 1515 of 2024
BETWEEN: CRAIG MCGAVIN
Plaintiff
AND
JAMES MCGAVIN
Defendant
Catchwords:
Practice and procedure - Pleadings - Defendant's application to strike-out indorsement and statement of claim - Plaintiff self-represented - Approach to be adopted where party is unrepresented - Pleading drafted in vague and general terms - Pleading contains serious allegations against defendant in his capacity as the executor of estates - Whether indorsement and pleading should be struck out - Whether action should be dismissed with judgment for the defendant - Possible for the Court to identify viable causes of action such that indorsement and pleading should be struck out but not in the interests of justice that the action should be dismissed - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 6 r 1(1) and O 20 r 19(1)
Result:
Defendant granted leave to bring application out of time
Indorsement to writ of summons struck out in its entirety
Amended statement of claim struck out in its entirety
Plaintiff given leave to re-file and replead
Indemnity costs ordered
Category: B
Representation:
Counsel:
| Plaintiff | : | In Person |
| Defendant | : | T O Coyle |
Solicitors:
| Plaintiff | : | In Person |
| Defendant | : | Rowe Bristol Lawyers |
Case(s) referred to in decision(s):
Albrecht v Australian Taxation Office [2015] WASC 246
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Glendinning v Cuzens [2009] WASCA 21
Ogbonna v Qantas Airways Ltd [No 2] [2020] WASC 359
Tobin v Dodd & Ors [2004] WASCA 288
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Zaghloul v Bayly [2021] WASCA 125
Table of Contents
A. Introduction
B. What is the nature of these proceedings?
C. What are the issues arising on this application?
D. What are the relevant principles which the Court should apply?
E. How should the Court determine the defendant's application?
The indorsement to the writ of summons
The amended statement of claim
Should the indorsement and pleading be struck out?
Should the action be dismissed?
F. What orders should be made in light of the above?
LUNDBERG J:
A. Introduction
These reasons concern the defendant's pleading summons (being the amended chamber summons dated 20 September 2024), seeking to strike out the indorsement of the plaintiff's writ and the amended statement of claim. The defendant contends that neither the indorsement nor the amended statement of claim disclose any reasonable cause of action, contrary to O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA) (RSC). The defendant further contends the amended statement of claim may prejudice, embarrass or delay the fair trial of the action, contrary to O 20 r 19(1)(c) RSC.
The action was filed on 8 May 2024. The plaintiff is self-represented. Accordingly, both the writ and the statement of claim[1] have not been drafted with the precision one would customarily expect in this Court had a legal practitioner been engaged.
[1] Filed on 2 August 2024 and later amended on 23 August 2024.
The defendant thus moves for orders today to strike-out the indorsement and the pleading. The following reasons explain why I considered it appropriate to grant the defendant's application, and made orders this morning to strike-out the indorsement and the amended pleading.
B. What is the nature of these proceedings?
The action raises a variety of claims against the defendant in, it would seem, his capacity as the executor of two estates. The estates are those of the late Elizabeth Ramage McGavin and the late Alexander Garrick McGavin, the plaintiff's parents. The plaintiff, who asserts he is a beneficiary of both estates, is, quite plainly, deeply aggrieved by the conduct of the defendant. Whether that grievance is justified is a matter on which the Court cannot comment in the context of a pleading summons, as I have explained to the plaintiff during the course of today's hearing.
The amended statement of claim is not lengthy, and is desperately short on material facts. It is unnecessary to set out the entirety of the pleading to properly demonstrate the issues which have led to the agitation of this application by the defendant. Some examples are sufficient:
1 The Defendant did without having the authority intermeddled with the Estate by accessing the Deceased Bank Accounts and withdrawing funds.
2 The Defendant did fail in his fiduciary duty by not obtaining the Grant of Probate and gave a False document tendered be a true copy of the Will which he gave to the Plaintiff.
3 The Defendant did make a False document and tendered it to the Plaintiff that he had Enduring Power of Attorney.
…
15 The Defendant did try and deceive the Plaintiff by creating and dispersing the Estates assets by creating Phoenix Companies and naming fictious Corporations as the Directors.
16 The Defendant created Fake Accounting with the Perth Gold Mint by fraudulently providing an account that did not exist in the Deceased Estate held in trust.
17 The Defendant created Fake Accounting by not listing the account name and number when he passed the account into the Supreme Court by not listing the Statement of Assets and Liabilities full inventory of the Estates liabilities and Assets.
18 The Defendant did not provide any accounting records to the plaintiff when they were requested to be produced.
…
20 A total failure to keep detailed accounts of the Estates financial position by the Executor has resulted in a monetary loss to the Plaintiff.
I should emphasise that the matters set out in the pleading are nothing more than allegations, which remain to be proved by the plaintiff. I emphasise this point given the serious allegations which have been drawn up by the plaintiff.
C. What are the issues arising on this application?
The first issue to address is whether the defendant should be granted an extension of time to bring the application to strike out the indorsement. The application was filed on 23 August 2024, but ought to have been filed by 29 May 2024, given the indorsement was filed on 8 May 2024. The delay is short and, given what I am about to say about the pleading itself, it is appropriate the extension be granted.
I must next consider whether the indorsement and/or the amended statement of claim disclose a reasonable cause of action, as is required by O 20 r 19(1)(a) RSC and the rules of pleading, and whether the pleading is not embarrassing in the legal, pleading sense in which that term is used in O 20 r 19(1)(c) RSC. If I am not so satisfied, the next issue to address is whether to permit the plaintiff an opportunity to replead the claim or whether, as the defendant submits, the action should be dismissed.
Before addressing these matters, it is appropriate to say something briefly about this Court's approach to matters such as this where one of the parties is self-represented, as well as the general principles this Court applies when asked to strike-out a pleading.
D. What are the relevant principles which the Court should apply?
It has been said that self-represented litigants will inevitably possess an imperfect knowledge of the complexities that are inherent in the pleading process. In light of this, in dealing with the pleadings of self-represented litigants, the Court must exercise a certain level of discretion to ensure that justice is served both equitably and effectively. In doing this the Court must respect an individual's right to resort to the justice system in person, whilst also ensuring not to penalise an opposing party for seeking representation.[2]
[2] Tobin v Dodd & Ors [2004] WASCA 288 [16] - [18] (E M Heenan J, Murray J agreeing), [69] - [70] (Le Miere J); Albrecht v Australian Taxation Office [2015] WASC 246 [22] - [23] (Pritchard J); Ogbonna v Qantas Airways Ltd [No 2] [2020] WASC 359 [6] - [7] (Le Miere J); and Zaghloul v Bayly [2021] WASCA 125 [81] - [82] (Murphy, Mitchell and Vaughan JJA).
The following observations of Le Miere J in Tobin v Dodd & Ors bear repetition:[3]
The court should approach applications for the peremptory termination of the litigation of litigants in person with a view to ensure that in a possibly ill-expressed and unstructured statement of claim there is no viable cause of action which, with appropriate amendment and a little assistance from the Court, could be put into proper form: Wentworth v Rogers (No 5) (1985) 6 NSWLR 534 at 536, 543. The Court will approach matters involving litigants in person with a degree of flexibility, bearing in mind that the rules of pleading are a means to an end, not an end in themselves.
[3] Tobin v Dodd & Ors [70] (Le Miere J).
The defendant, quite properly, accepts the force of these observations[4] but nonetheless contends the indorsement and the pleading ought be struck out. The plaintiff has filed responsive submissions which incorporate a range of legal propositions as to pleading principles, the obligations of counsel, the duties of executors, the legal causes of action which may be brought against beneficiaries and executors, and extracts from various authorities.[5]
[4] Defendant's submissions (DS) dated 20 September 2024 [4] - [5].
[5] Plaintiff's submissions (PS) dated 4 October 2024.
As to the principles informing strike-out applications, they are well-settled. It is sufficient to refer in general terms to the observations of Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4].[6] As her Honour there explained, strike-out applications, in a modern context, must be assessed in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and r 4B RSC are often promoted by a clear and precise statement of the issues for decision.
[6] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60(d)] - [60(j)], approved by the Court of Appeal in English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [56] (Murphy, Mitchell and Vaughan JJA) and in DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [226] (Quinlan CJ, Beech and Vaughan JJA).
Provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment.
Moreover, the mere fact that a case appears weak is not of itself sufficient to strike-out the action. As a general rule, a party is entitled as of right to have his or her case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found. This point was emphasised by E M Heenan J in Tobin v Dodd & Ors, to which I have already referred in the context of pleadings prepared by self-represented litigants.[7]
[7] Tobin v Dodd & Ors [17] - [18] (E M Heenan J, Murray J agreeing),
It is fundamental that, on a strike-out application, not only must all the facts alleged in the pleading be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable.
Pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general.
Irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues.
The need for a proper pleading cannot be ignored. The pleading must fulfil its basic functions. It remains important for a pleading to inform the opposing party of the case it must meet at trial and it will not do so unless it includes every material fact which, if not pleaded, might take an opposing party by surprise.
E. How should the Court determine the defendant's application?
I have reviewed the plaintiff's indorsement and his amended pleading, with a view to ascertaining whether there is a viable cause of action contained therein. On their face, both documents are difficult to comprehend and suffer from a dearth of material facts which might assist in an understanding of the precise grievances which are sought to be litigated.
I will say something first about the indorsement.
The indorsement to the writ of summons
In very general terms, the indorsement refers to a failure on the part of the plaintiff to provide to the defendant, as a beneficiary of the estate, a full inventory of costs, belongings and chattels. Several classes of assets are identified, including gold holdings, jewellery, paintings, and bank accounts. The plaintiff's claim as described in the indorsement is for 'compensation and punitive damages'.
The indorsement alleges an apparent attempt to defraud the plaintiff, on the part of the defendant, by 'uttering and filing fraudulent documents and copies of the will'.
Further, the indorsement alleges the administrator of the estate disbursed the estate 'between himself and the other benefactors before being granted probate'. This was done, it is alleged, through the creation of phoenix companies and by transferring monies and property to the administrator's private family trust held in the name of a fictious company not registered with the Australian Transaction Reports and Analysis Centre, which is the body known as AUSTRAC.[8] Precisely how this matters is not explained.
[8] Established under the Financial Transaction Reports Act 1988 (Cth) and continued through the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
A failure to discharge the fiduciary duty is then alleged, and provisions of the Administration Act 1903 (WA) (Administration Act) are identified.[9] Section 43 is mentioned by the plaintiff, which is headed 'Inventory and accounts'. It states:
[9] Administration Act 1903 (WA), s 43 and s 44.
(1)Every person to whom probate or administration is granted shall be under a duty to —
(a)collect and get in the real and personal estate of the deceased and administer it according to law;
(b)file an inventory of the estate of the deceased, and pass his accounts relating thereto within such time, and from time to time, and in such manner as may be prescribed by the rules or as the Court may order;
(c)when required to do so by the Court, deliver up the grant of probate or administration to the Court.
(2)The order of the Court allowing any account shall be prima facie evidence of the correctness of the same, and shall, after the expiration of 3 years from the date of such order, operate as a release to the person filing the same, except so far as it is shown by some person interested therein that a wilful or fraudulent error, omission, or entry has been made in such account.
Section 45 is also mentioned, which is headed 'Court may settle all questions arising in administration'. The section provides as follows:
(1)The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.
(2)Such order shall bind all persons whether sui juris or not.
(3)No final order for distribution shall be made except upon notice to all the parties interested, or as the Court may direct.
The manner in which these provisions is sought to be deployed by the plaintiff is not further developed in the indorsement. Self-evidently, a claim for damages, based on allegations of breach of fiduciary duty, is not the province of proceedings brought in the jurisdiction established by s 45 of the Administration Act. Such claims must be brought as an action in the contentious jurisdiction of the Court, as the plaintiff has done by commencing proceedings by writ.[10]
[10] RSC, O 4 r 1(a).
Given the absence of sufficient detail, the indorsement does not, rather importantly, permit the Court to determine whether any applicable limitation period has expired. This deficiency is highly relevant to the question whether the indorsement is adequate, in terms of O 6 r 1(1) RSC.
Finally, it should be noted the defendant has entered an appearance to the writ of summons, and the present application is not brought pursuant to O 6 r 1(2) RSC to set aside the writ. Rather, the application is one to strike-out the indorsement pursuant to O 20 r 19(1) RSC.
I turn next to the amended statement of claim.
The amended statement of claim
As can be seen from the full terms which are attached to these reasons, a number of generalised, and very serious, allegations have been set out by the plaintiff, not all of which bear a relationship to the indorsement. The pleading does not delineate with any precision between the two estates I have mentioned above, or between the two deceased persons, so it is not always possible to understand to which estate the allegations pertain, or indeed whether that matters.
I can discern that several of the allegations relate to the alleged failure to provide an inventory to the plaintiff. I refer to [5] to [9] and [17] of the amended statement of claim, which variously complain as to the failure to itemize jewellery, gold holdings, a power boat, an antique piano, and other assets, as well as including a complaint relating to the statement of assets and liabilities provided to this Court in the probate proceedings.
The pleading refers to particular conduct on the part of the defendant, again in very general terms, and is confusing. The plaintiff complains of:
(a)intermeddling with the estate by accessing bank accounts and withdrawing funds;
(b)a failure to obtain a grant of probate;
(c)tendering a false will and a false power of attorney;
(d)an attempt to deceive Landgate by pretending to be a 'donor';
(e)a failure to obtain the signatures of beneficiaries when applying to transfer certain property under an application for survivorship;
(f)a failure to show all dealings with land;
(g)creating fake bank documents;
(h)failure to freeze bank accounts while probate was being considered;
(i)transferring cash to his own bank account from the estate;
(j)attempting to deceive the plaintiff by creating phoenix companies and disbursing assets to them and others (with the inclusion of the concept of 'attempting' being confusing in this regard);
(k)engaging in 'Fake Accounting' with the Perth Gold Mint (with no detail as to the role of the Perth Gold Mint provided); and
(l)failing to keep detailed accounts for the estates.
Although not expressed as such, the pleading then appears to identify four or five general claims against the defendant (separated from the conduct which I have outlined above by additional lines in the pleading), for which compensation, equitable damages and punitive damages are sought. The claims, which appear to overlap, are:
(a)a breach of fiduciary duty by not administering the estate in a lawful manner;
(b)a breach of trust by 'greed and fraudulent omissions and creation of Fake Documents and Fake Accounting';
(c)a failure to keep correct records and 'intermixing' the assets of the estates with the defendant's own personal accounts and his companies' assets (said to violate the wishes of the deceased); and
(d)a failure to seek legal advice as to the defendant's responsibilities as executor and a failure to seek directions from the Court, meaning the defendant is 'therefore liable for losses incurred [by] the Estate'.
Finally, it is pleaded that the plaintiff's claims are based on the defendant's 'failure to administer the estate and account for funds that have been transferred from the Estate to the Defendant', and the plaintiff alleges that the defendant 'breached his Fiduciary duty to the Estate and beneficiaries, and that they constitute a breach of his duties to properly administer the estate and are also a Breach of Trust'.[11]
Should the indorsement and pleading be struck out?
[11] The amended statement of claim also refers to several authorities and statutes which I need not outline in these reasons.
The indorsement and the amended pleading contain serious allegations against the defendant. As a matter of procedural fairness in conducting this litigation, and to enable him to prepare a defence to the action, the defendant is entitled to receive an intelligible explanation of the claims which are advanced by the plaintiff and the material facts upon they are based. This has not been done.
A significantly more detailed pleading of the allegations is required in this regard. The defendant cannot hope to understand a pleading which asserts broad based conduct, not anchored to dates or events, and which employ definitions such as 'fake accounting', 'phoenix companies', ‘fake bank documents’, and 'false documents'. Those types of phrases are not terms of art, and are no substitute for facts and specifics.
I am in general agreement with the points advanced in the table attached to the defendant's submissions, which identify the vices of each paragraph of the amended pleading, such as whether it involves a deficient claim for relief (as that point was explained by counsel for the defendant this morning), does not disclose a reasonable cause of action, or is simply vague or unclear. Fundamentally, the pleading strings together a series of conclusions, not material facts.
I should clarify that, although there are viable causes of action which can be discerned within the pleadings in their present form (such as a breach of fiduciary duty and breaches of other duties which the law imposes on executors), the manner in which they have been pleaded is not sufficient to demonstrate, on the pleadings, a reasonable cause of action. To meet this description, the pleading must set out the necessary material facts which constitute the claim, and that has not been done. Further, the basis, or bases, on which the asserted duties is, or are, said to arise requires explication.
The defendant has therefore demonstrated, in my view, a proper basis for this Court to strike-out the indorsement and the amended pleading, having regard to O 6 r 1(1), and to both O 20 r 19(1)(a) and O 20 r 19(1)(c) RSC.
Should the action be dismissed?
The defendant's application initially sought more than this, though. That is, the defendant pressed in the application for the action to be dismissed. At the hearing this morning, counsel for the defendant did not maintain this position.
That concession, if it be a concession, was properly made. It would be premature to dismiss this action and not in the interests of justice.[12] I say this because I am satisfied the indorsement and the amended pleading are not seeking to agitate claims which might be described as 'nonsense', 'nonsensical', 'fundamentally misguided' or 'gobbledygook'. The pleaded claims ought not be given those appellations and certainly not at this early stage of the action.
[12] Glendinning v Cuzens [2009] WASCA 21 [33]; and see Gething M, Joseph R and Tomasi B, Civil Procedure : Western Australia (vol 1), [6.1.5].
On the assumption the plaintiff was, or is, a beneficiary to the estates of either of the deceased persons who have been identified, he would have standing to bring a claim in this Court for relief, including as to damages or for an accounting. Such a claim might be founded on conduct which constitutes a breach of duty on the part of an executor of the estates, an administrator of the estates, or a person who has intermeddled with the estates in some manner causing loss. All of this would be subject to the claim not being barred by an applicable limitation period or any limitation period applying by analogy.
This is not intended to be a fulsome statement of the law, or of the possibilities open to a beneficiary to seek legal redress. Several other matters would need to be considered, including as to the proper parties to be joined to the action and the capacity in which they are joined. However, it is important to note that, although the indorsement and the pleading are hopelessly general in nature, and do not provide sufficient material facts from which the action could safely continue in an efficient manner from this point, the pleadings do identify causes of action which are known to law.
Where the earlier mentioned appellations are apt (such as where nonsensical claims are mounted), this Court might well, depending on the particular circumstances of the case and where it is consistent with the goal and objects stated in O 1 r 4A RSC and O 1 r 4B RSC, dismiss the action on the first return of a pleading summons and enter judgment for the party being vexed by such spurious claims.
F. What orders should be made in light of the above?
Before I turn to the orders which should be made, I will record in these reasons the observations I made to the plaintiff at the hearing today:
I wish to say something to the plaintiff, which may be apparent already from what I have said this morning, but given the plaintiff is unrepresented, should not be left in doubt.
It is apparent to the Court that you have a grievance which arises from the manner in which you say the defendant has administered the estates of your late parents. You are entitled to bring such a grievance to this Court, provided it is intended to agitate a cause of action or causes of action which are known to law, and seeks appropriate remedies. There are substantive and procedural requirements which must be observed in this regard. They are well known to lawyers, but can be something of a mystery to non-lawyers. They are important, though, and exist to ensure the interests of all parties to the proceeding are protected, that serious allegations are properly explained and particularised, and that the limited resources of the Court are not inefficiently used, remembering that there are many members of the public who wish to use the Court system to seek remedies.
As I have sought to explain this morning, while I recognise you are seeking remedies for causes of action which I can identify, the way in which you have done this does not accord with the requirements I have mentioned. There is far greater precision and detail required in order for a claim which alleges such serious matters to go forward in this Court. I am not prepared to allow the claim to proceed on these pleadings, and I will strike them out.
But I am not dismissing the action. I will give you an opportunity to re-plead the documents, and I would strongly recommend you seek legal advice before doing so. A legal practitioner will be able to assist you to understand whether you have any viable causes of action and, if so, how they should be pleaded.
I emphasise, as I have said more than once today, I am not expressing any view at this stage as to the merits of your claims. That could only be done once the Court has heard all of the evidence, including the evidence of the relevant witnesses. The Court is only concerned today with the adequacy of the pleadings. In this regard, I have formed a view they are not adequate.
The appropriate disposition in the present case is to strike-out both the indorsement and the amended statement of claim, with leave to the plaintiff to re-plead both. The plaintiff should be given sufficient time to do so. Having heard from the parties in this regard I consider a period through until the end of January 2025 should be sufficient. For the oral reasons I gave at the hearing, an indemnity costs order is appropriate.
For these reasons, I made the following orders at the conclusion of the hearing:
1.The defendant shall have leave to bring the application to strike out the indorsement of the writ of summons.
2.Pursuant to O 20 r 19(1) RSC, the indorsement to the writ of summons dated 8 May 2024 be struck out, with leave to re-file an amended writ of summons.
3.Pursuant to O 20 r 19(1) RSC, the amended statement of claim dated 23 August 2024 be struck out, with leave to re-plead.
4.The plaintiff is to file and serve an amended writ of summons and a further amended statement of claim by no later than 4.00pm on Friday, 31 January 2025.
5.The plaintiff pay the costs incurred by the defendant in the application, except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to these exceptions defendant is completely indemnified by the plaintiff for his costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
5 NOVEMBER 2024
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