McLean v Power

[2013] NSWSC 193

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	John Calderwood McLEAN v Andrew POWER & Anor [2013] NSWSC 193
Hearing dates:	21 June 2012
Decision date:	15 March 2013
Jurisdiction:	Common Law
Before:	Hidden J
Decision:	Proceedings dismissed
Catchwords:	SUMMARY DISMISSAL - proceedings against solicitors arising from conduct of personal injury claim in the District Court - abuse of process - collateral attack on District Court judgment - claims against solicitors manifestly groundless
Cases Cited:	- McLean v Star City Pty Ltd [2008] NSWDC 143 - McLean v Star City Pty Ltd [2011] HCASL 45 - Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 - Cleary v Jeans [2006] NSWCA 9, 65 NSWLR 355 - D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 - General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 - Cox v Journeaux [No. 2] (1935) 52 CLR 713
Category:	Principal judgment
Parties:	John Calderwood McLean (plaintiff) Andrew Power (1st defendant) The Partners of Wotton & Kearney (2nd defendant)
Representation:	Counsel: In person (plaintiff) J McLeod (1st defendant) RPV Carey (2nd defendant) Solicitors: Michael Harris, Harris & Harris Solicitors (1st defendant) David Kearney, Wotton & Kearney (2nd defendant)
File Number(s):	2012/37957

Judgment

1. The plaintiff, John Calderwood McLean, has instituted proceedings in this court arising from an incident on 16 June 2003 when he fell on an escalator at the Star City Casino (as it was then known). He has done so without legal representation. The Casino is now known simply as "The Star" and is administered by The Star Pty Limited. The first defendant, Andrew Power, is employed by that company as its General Counsel. The second defendant is named as a firm of solicitors, Wotton & Kearney. Before me are motions by both defendants seeking the summary dismissal of the proceedings. To understand the proceedings it is necessary to sketch the background to them.

The District Court proceedings

1. Mr McLean brought proceedings in the District Court against Star City Pty Ltd, the predecessor of the present company, to which I shall refer as "Star City", seeking damages for personal injury said to have been suffered as a result of his fall. In those proceedings he was legally represented. The matter was heard by Sidis DCJ over a period in April and May 2008, and her Honour gave judgment on 13 August of that year. Mr Power had been engaged as an in-house solicitor by Star City in October 2007 but, as will be seen, he played no part in the conduct of the District Court proceedings. Star City was represented by Wotton & Kearney, engaged by Star City's insurers, the solicitor on the record being Mr David Kearney.

1. Judge Sidis rejected Mr McLean's claim and found a verdict for Star City: McLean v Star City Pty Ltd [2008] NSWDC 143. Put shortly, it was Mr McLean's case that he fell as a result of the escalator malfunctioning. His evidence was that as he was travelling up the escalator, the handrail stopped moving but the steps did not. As a result, he lost his balance and fell backwards. Her Honour found, on the whole of the evidence, that a gentleman ahead of him on the escalator had collapsed because of a medical condition, causing those behind him, including Mr McLean, to fall. She accepted that pressure placed on the handrail by that gentleman caused a momentary interruption to its operation, but found that that did not contribute to Mr McLean's fall.

1. Mr McLean's claim, put briefly, was that his fall was the result of a malfunction caused by the failure of Star City to maintain the escalator adequately. Her Honour found that that claim was not made out, and concluded that the fall was not the result of any negligence on the part of Star City. I might add that, in any event, she also rejected his claim that the fall had caused him serious injury, finding that he had suffered only minor injuries which did not reach the 15% threshold for compensation for non-economic loss.

1. Importantly for present purposes, there was in evidence a DVD which was a compilation from tapes recorded by security cameras directed at the escalator at the time of the incident. At the trial Mr McLean alleged that the composite footage had been "edited and fixed", so as to show an incident other than that in which he was involved. As will be seen, he maintains that allegation. The circumstances in which the DVD was produced were thoroughly examined in the evidence, and Mr McLean was cross-examined by reference to it. He acknowledged that he could be seen in the DVD, but only at a point after the incident. However, her Honour accepted that the DVD did relate to the relevant incident, noting that he could be seen on the escalator in "the crush of persons banked up" behind the gentleman who had collapsed: [27] of her judgment.

1. Her Honour expressed concern about the use of a compilation of security camera footage rather than the production of the original footage. She also noted a complaint by Mr McLean that Star City had failed to produce on subpoena a report of the incident on the day itself by Mr McLean and his wife, who had been with him, to a Star City employee. She observed that these "deficiencies in the documentation and recording of evidence by the defendant were of concern": [26]. However, given her finding that Mr McLean could be seen on the DVD at the relevant time, she expressed herself to be "satisfied that the missing material would not assist the plaintiff and that the editing of the taped material did not cause him prejudice": also at [27]. She found that the DVD "was of little assistance in determining if the handrail stopped running as claimed by the plaintiff": [29].

1. In February 2010, Mr McLean sought leave to appeal out of time against her Honour's decision. The application was founded upon assertions that the DVD footage was "forged" and that Star City had withheld evidence. The latter complaint appears to have been a reference to the report of the incident which Mr McLean and his wife were said to have made on the day. On 6 May 2010, the application was refused by Tobias JA, with whom Macfarlan JJA agreed. Tobias JA noted that both complaints had been dealt with in her Honour's judgment. His Honour added that, given her findings as to the cause of Mr McLean's fall, the controversy about the DVD made no difference to the outcome: [7] of the judgment. His Honour also noted her findings concerning such injuries as were attributable to the fall: [19] ff. His Honour described Mr McLean's prospects of succeeding in an appeal as "remote": [32].

1. An application for special leave to appeal to the High Court was also refused: McLean v Star City Pty Ltd [2011] HCASL 45. In brief reasons delivered on 6 April 2011, French CJ and Crennan J saw "no reason to doubt the correctness" of the conclusion of the Court of Appeal, and found that an appeal to the High Court "would have no prospects of success." Mr McLean had made the applications to the Court of Appeal and to the High Court without legal representation.

1. Mr McLean also complained to the Legal Services Commissioner concerning the conduct of Mr Power and Mr Kearney, alleging that both were complicit in the tender of forged CCTV footage in the District Court. The complaint was dismissed, Mr McLean being informed by the Commissioner in a letter of 11 February 2010 that there was "no evidence whatsoever of any wrongdoing on the part of" either solicitor.

The proceedings in this court

1. Undeterred by this course of events, Mr McLean has brought the present proceedings. By an amended statement of claim filed on 2 March 2012, he claims damages for personal injury arising from the fall. Under the heading "PLEADINGS AND PARTICULARS", he recounts his claim that his fall was the result of the handrail stopping "because of negligence and bad maintenance." As to Mr Power, he alleges that his "method was to knowingly present to a court proceeding a forged DVD footage ... showing a different incident to the one I was involved in, claiming this forged DVD was the original DVD of the incident ... ." He adds that "Wooton & Kearney ... had knowledge of a forged DVD." He alleges further that Mr Power "withheld evidence which was vital to my case, name of the Asian lady my chief witness, also an incident report made by my wife and myself on the day of the incident." I shall explain the reference to the Asian lady later.

1. Both Mr Power and Wooton & Kearney have filed motions seeking the summary dismissal of Mr McLean's claim under UCPR r 13.4(1) or, alternatively, an order that the amended statement of claim be struck out under r 14.28(1). As I am satisfied that the claim should be summarily dismissed, it is not necessary to consider that alternative. Of course, insofar as the statement of claim seeks damages for personal injury against these two defendants it is misconceived. However, that of itself would not justify summary dismissal if it appeared that there was a viable cause of action against both or either of them. In that event, in recognition of Mr McLean's disadvantage as an unrepresented litigant, he might be given an opportunity to replead his case: Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534, per Kirby P at 536 -7. However, no purpose would be served by that course because I am satisfied that there is no arguable case against either defendant.

1. In response to the motions, Mr McLean relied on his affidavit of 4 June 2012, which contains a copy of the judgment of Judge Sidis and a variety of other material concerning the case, as well as a handwritten letter to the Chief Judge of the District Court of 28 November 2010 which contains the allegations to be found in the amended statement of claim. At the hearing of the motions he addressed me orally, again repeating these allegations and criticising the findings of Judge Sidis.

1. At no stage did he express any basis for his claim that Mr Power had withheld evidence. As to the central plank of his case, that the DVD was a deliberate deception which did not depict the incident in which he was involved, he said no more than that there were details of the incident which did not appear in it. That may well be so, and it is consistent with her Honour's criticism of the use of a compilation from the original footage. The fact remains that her Honour found that the DVD did depict the incident in question, and rejected his claim to the contrary.

1. Both Mr McLeod, counsel for Mr Power, and Mr Carey, counsel for Wootton & Kearney, submitted that the statement of claim was an abuse of process, amounting to a collateral attack upon her Honour's judgment. Mr Carey referred to Cleary v Jeans [2006] NSWCA 9, 65 NSWLR 355, the facts of which need not be examined. Bryson JA was in dissent but, relevantly for present purposes, his Honour examined the law of abuse of process in this context. His Honour referred (at 363 - 4) to the judgment of Morritt VC in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, in which English decisions on the issue were reviewed, and cited with approval the following passage from the judgment at [38]:

"[38] In my view these cases establish the following propositions. (a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court....(c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute."

1. Plainly enough, the statement of claim is a collateral attack upon the District Court judgment. Under the guise of allegations about the propriety of the conduct of the defendants, it seeks to relitigate Mr McLean's personal injury claim. More particularly, it seeks a re-examination of her Honour's finding that the DVD was genuine, and that the editing of the footage and the unavailability of the incident report had not prejudiced his case. To adopt the words of Morritt VC, it would be manifestly unfair to the defendants that the same issues should be relitigated, and to permit that relitigation would bring the administration of justice into disrepute.

1. This is sufficient to dispose of the proceedings, but it is appropriate to refer briefly to the particular allegations made against each defendant. Clearly, in the light of her Honour's finding and the absence of any further evidence bearing on the matter, the claim that they were knowingly involved in the production of a false DVD is baseless.

1. Against Mr Power it is also alleged that he withheld the incident report made by Mr McLean and his wife on the day of the incident and the name of an Asian lady who might have been a witness favourable to Mr McLean's case. As to the incident report, there is some doubt whether there ever was such a document. In cross-examination at the trial, Mr McLean said that an employee of Star City had taken particulars from him on the day. However, he could not recall whether, apart from giving their name and address, he and his wife had provided their version of events at that time. Mr McLean's reference to the Asian lady relates to a woman of Asian appearance who was on the escalator at the time of the incident and who also fell, suffering injury. However, it is apparent from the trial transcript that Star City produced medical records concerning others who were injured, including two women with Asian names.

1. Be all that as it may, it is clear that Mr Power had nothing to do with the preparation or conduct of Star City's case in the District Court. He was an in-house lawyer with Star City at the time of the District Court hearing, and was kept informed of developments as the case proceeded, but he did not provide any instructions in the matter. Nor did he attend court or play any part in the presentation of Star City's case. That was in the hands of Wootton & Kearney. So much is apparent from his detailed affidavit, which Mr McLean did not address and which I accept unreservedly.

1. The affidavit does reveal that Mr Power had dealings with Mr McLean concerning his complaints about the matter from around November 2009, more than a year after her Honour gave judgment. No purpose would be served by recounting the detail of those dealings. He also recounts in the affidavit his review of the Star City file with a view to refuting Mr McLean's allegations, but it is not necessary to refer to that material either.

1. What is significant is that he did not commence employment with Star City until October 2007, although he had spent 6 months there in 2005 on secondment from the firm by which he was employed at that time. The District Court proceedings were commenced in August 2005. It was in accordance with the practice of Star City's insurers that external solicitors were instructed to defend those proceedings. As I have said, Mr McLean articulated no basis for his allegations against Mr Power, and it is clear that they are founded on nothing more than the fact that he was employed by Star City as an in-house lawyer at the time of the hearing in the District Court and the period leading up to it. These allegations also are baseless.

1. I should record that, for Wootton & Kearney, Mr Carey also relied on the immunity from suit based on D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, but it is not necessary to deal with that issue.

1. These proceedings are "manifestly groundless", to adopt one of the expressions of the test for summary disposal referred to by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. The power of summary dismissal is not confined to cases in which there is no factual dispute: cf Cox v Journeaux [No. 2] (1935) 52 CLR 713, and I am satisfied that it should be exercised here. I have no doubt that Mr McLean strongly believes that his cause is just and that the legal system has failed him. However, he must accept that his claim has not been, and cannot be, established.

1. The proceedings against both defendants are dismissed. Both defendants seek the costs of the proceedings, including these motions. On the face of it they are entitled to such an order, but it is appropriate that Mr McLean be given an opportunity to be heard on that matter.

4 April 2013

1. Pursuant to my direction at the time I handed down these reasons, Mr McLean has provided me in writing with his arguments on the question of costs. It is a dignified submission, in which he does not abandon his belief in the justice of his cause but conveys his acceptance of my ruling. He explains that his wife of many years is in poor health, and that he is of limited means and is unable to meet an order for costs. While I have not found it necessary to hear the defendants on this issue, I have no reason not to accept what he says.

1. Regrettably, however, I cannot refrain from making a costs order against him simply on the basis of his personal situation. The defendants are entitled to an order for their costs. It may be that they could never be recovered and that no purpose would be served in pursuing them. That, however, is not a matter upon which I could, or should, comment.

1. Mr McLean is to pay the defendants' costs of the proceedings in this court, including these motions.

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Amendments

04 April 2013 - Addendum to Judgment dated 4 April 2013 at [24] - [26]: detailing an order for costs and HH's reasons.

Amended paragraphs: 24 ff

Decision last updated: 04 April 2013