McLaughlin v Burrows

[2020] NSWSC 917

Supreme Court

New South Wales

Medium Neutral Citation:

McLaughlin v Burrows [2020] NSWSC 917

Hearing dates:

15 July 2020

Date of orders:

15 July 2020

Decision date:

15 July 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See paragraph 14

Catchwords:

CIVIL PROCEDURE – default judgment – default in filing defence – difficulty in answering pleadings

CIVIL PROCEDURE – summary disposal – dismissal of proceedings - pleadings – striking out – whether claim is statute barred – whether plaintiff’s disability suspended limitation period – adjournment for plaintiff to obtain expert evidence

Legislation Cited:

Limitation Act 1969 (NSW)

Category:

Procedural and other rulings

Parties:

Scot George McLaughlin (Plaintiff)
David Wilfrid Burrows t/as Kells The Lawyers (Defendant)

Representation:

Counsel:
Scot McLaughlin (Self Represented)
J. Raftery (Defendant)

Solicitors:

File Number(s):

2020/79589

Judgment

1. In this matter I have before me two applications. The first is an application by the plaintiff Mr McLaughlin who is self-represented seeking default judgment on his claim for damages for professional negligence against the defendants who are solicitors who represented him in litigation some years ago. The second application is the defendants' application for either summary judgment or to strike out the statement of claim.

2. The basis of the application for summary judgment is that on the face of things and looking at the various possible causes of action that Mr McLaughlin may wish to ventilate, he is out of the time fixed for bringing proceedings against the solicitors under section 14 of the Limitation Act 1969 (NSW).

3. Mr McLaughlin's response is that he invokes the provisions of section 52 of the Limitation Act and says that he has been under a legal disability and therefore submits that the time for bringing the proceedings has been suspended. He says that he suffers from the condition of epilepsy and that that condition has afflicted him for the best part of the last twenty years. It went undiagnosed for most of that time and that he first got wind of the diagnosis, I think on the material I have read, in 2014. More recently since he has seen Dr McGrath in 2018 it has become apparent to him that he has got that condition, previously misdiagnosed as I have said, and he wishes to put before the Court evidence that that condition was such that he was unable to attend to his legal affairs and, as I have said invokes the section. That seems to be the real issue between the parties at this stage.

(For discussion about chronology, see transcript of evidence.)

4. Mr McLaughlin has interrupted this short judgment to correct my understanding of some of the dates. He says in fact that he had the first symptoms that might be related to epilepsy in 2007 when he blacked out at work. He saw Dr McGrath at that time but I infer no clear diagnosis was made. He then saw a neurologist in 2016 in Victoria when the issue was raised again but the diagnosis was still unclear. He re-consulted Dr McGrath in 2017.

5. Amongst the papers that have been put before me in anticipation of the case proceeding today is a report from Dr McGrath of 31 May 2018 which is page 95 of Mr McLaughlin's bundle. Now as I understand it even at that stage Dr McGrath was still investigating Mr McLaughlin's symptoms, to use his words, of “an epileptiform myoclonus”. So it has been an ongoing investigation--

(PLAINTIFF: I must have missed the last report that came in February 2000 - February this year, sorry, 2020, where it is clearly there where he states that my nocturnal myoclonus which is the jerking of my body is epileptic form.

HIS HONOUR: All right.

PLAINTIFF: And Dr Robert McGrath said to me in 2017 it would take some time to figure it out.

HIS HONOUR: Right. Thank you for that information but can I say, Mr McLaughlin, unless I make a mistake don't interrupt me again because I am just trying to give some reasons why I am going to make some orders, okay?

PLAINTIFF: Sorry.

HIS HONOUR: That is all right. Thank you.)

6. In any event it is clear that in the absence of expert evidence which Mr McLaughlin has not put together yet, the issue about section 52 which as I have said, and I will say again, is the main issue, cannot proceed.

7. Now Mr Raftery of counsel who appears for the defendants has very fairly and properly, in my view, given the considerations that this is the first time in the list, and Mr McLaughlin is self-represented, not opposed Mr McLaughlin's application for an adjournment. Given his disadvantage in being self-represented, I am prepared to accede to his application to give him the opportunity to put forward the evidence he needs to put forward if he wishes to make good the case which is implicit only in some of the material he has already filed.

8. I have pointed out as well that his application for default judgment is, with respect, misconceived and I have asked him to consider whether he wishes to press on with that. He has explained to me, and I understand from what he has said, that he was frustrated by several factors but mainly by the consideration that the defendants' lawyers had not filed a defence despite the fact he had served the statement of claim. He formed the view, to use ordinary language, that they were “mucking him around”. I have tried to explain to him, again with respect, that his statement of claim, despite him having had a couple of goes at it, is not a model of the pleader's art - why would it be - and that gives the defendants real difficulty in answering the statement of claim by way of defence given its relative informality.

9. However the issues are clear notwithstanding all of that and it seems to me that the question of the operation of the Limitation Act has been clearly raised not only on the material filed by the parties, Mr McLaughlin and the defendants, but also by Mr Raftery's admirable written submissions.

10. I am of the view that the way to proceed is to adjourn the matter, to order that the limitation issue may be determined as a separate question, which may amount to the same thing as the summary judgment application, and to make some directions for the collation of evidence in relation to that matter.

11. I will say for the benefit of Mr McLaughlin that the state of the law in relation to a limitation defence is that the defendant carries the legal onus of persuading the Court on the balance of probabilities that the proceedings are statute barred. That effectively means that when the matter comes on for hearing the defendants will have to go first to put their evidence forward and that Mr McLaughlin will then on the same day have the opportunity to put forward his case as to why the bar does not run in these circumstances.

12. I also discussed with Mr McLaughlin, as the transcript will show, that even if there is no legal bar as such because, he does establish a disability it may be that the defendant will wish to argue that the proceedings should be stayed in any event because of the effluxion of time because that factor means that they cannot have a fair trial. If that issue is to be raised by the defendants it should be raised sooner rather than later so that the matter is made abundantly clear.

13. For the reasons I have given, I will adjourn both motions for directions before the Common Law Case Management Registrar.

14. My orders are:

1. On the application of the plaintiff, not opposed by the defendants, adjourn both motions for directions before Common Law Case Management Registrar on 17 August 2020 at 9:00 a.m. with a view to checking readiness to proceed.

2. Direct the defendants to indicate whether they wish to argue that the proceedings should be stayed regardless of the operation of the LimitationAct 1969 (NSW) by 10 August 2020. The defendants are to file any additional evidence upon which they would rely by that date.

3. The plaintiff is to file and serve a further affidavit and any expert evidence on which he wishes to rely in relation to s 52 of the Limitation Act by Friday 14 August 2020.

4. The defendants are to appoint any medical examination of the plaintiff they require and notify him of the details within 7 days of the service of the plaintiff’s expert evidence on them.

5. Order that the question of whether the proceedings are statute barred or otherwise liable to be stayed is to be decided in advance of all other questions in the cause.

6. All questions of the costs of today are reserved.

7. Liberty to apply with notice to Campbell J’s Associate in respect to Order 3.

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Decision last updated: 20 July 2020