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
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…
Continue reading McGavin v McGavin
Sign in free to access the full text
- AGLC
- McGavin v McGavin [2024] WASC 408
- Case
- [2024] WASC 408
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the indorsement and amended statement of claim were sufficient to warrant a strike-out and dismissal of the action, or if the pleadings should be struck out but not dismissed in the interests of justice. The court had to determine whether the pleadings were so deficient that they failed to disclose a viable cause of action, and if the action should be dismissed with judgment for the defendant.
The court found that the indorsement and amended statement of claim were vague and contained serious allegations against the defendant in his capacity as the executor of the estates, but they did not provide sufficient detail to enable the court to determine whether any applicable limitation period had expired. The court concluded that while the pleadings were inadequate, it was possible to identify viable causes of action. Therefore, the indorsement and pleadings were struck out, but the action was not dismissed in the interests of justice. The plaintiff was granted leave to re-file and replead.
The court ordered that the defendant was granted leave to bring the application out of time, the indorsement to the writ of summons was struck out in its entirety, the amended statement of claim was struck out in its entirety, the plaintiff was given leave to re-file and replead, and indemnity costs were ordered.
Orders
Orders of the court
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
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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. 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.