Melville v Gibbs

Case [2012] WASCA 207

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MELVILLE -v- GIBBS [2012] WASCA 207

CORAM:   NEWNES JA

MURPHY JA

HEARD:   14 AUGUST 2012

DELIVERED          :   14 AUGUST 2012

PUBLISHED           :  19 OCTOBER 2012

FILE NO/S:   CACV 8 of 2012

BETWEEN:   CLIVE STEWART MELVILLE

Appellant

AND

ROBIN BRUCE GIBBS AS EXECUTOR OF THE WILL OF PAULINE DELYS MELVILLE
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :KENNETH MARTIN J

Citation  :MELVILLE -v- ROBIN BRUCE GIBBS as Executor of the will of PAULINE DELYS MELVILLE [2011] WASC 357

File No  :CIV 3122 of 2009

Catchwords:

Practice and procedure - Appeal against dismissal of application to strike out parts of statement of claim - Approach to be taken where pleading is alleged to be irrelevant or disclose no arguable cause of action or defence - Appellant failed to establish substantial prejudice if pleading not struck out - No error by primary judge

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Dr P R MacMillan

Respondent:     Ms W F Gillan

Solicitors:

Appellant:     David Rawlinson

Respondent:     Forward Law Legal Services

Case(s) referred to in judgment(s):

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060

Carantinos v Magafas [2008] NSWCA 304

Dering v Earl of Winchelsea [1775 ‑ 1802] All ER Rep 140; (1787) 29 ER 1184

H Stanke & Sons Pty Ltd v O'Meara [2007] SASC 246; (2007) 98 SASR 450

Kation Pty Ltd v Lamru Pty Ltd [2009] NSWCA 145; (2009) 257 ALR 336

Melville v Gibbs [2011] WASC 357

The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40

Wilson v Metaxas [1989] WAR 285

  1. JUDGMENT OF THE COURT:   This is an appeal against a decision of Kenneth Martin J dismissing the appellant's application to strike out certain paragraphs of the respondent's (first defendant's) substituted defence and counterclaim:  Melville v Gibbs [2011] WASC 357.

  2. As the appeal is against an interlocutory decision, the appellant requires leave to appeal:  Supreme Court Act 1935 (WA), s 60(1)(f). On 20 February 2012, Pullin JA ordered that the application for leave to appeal be heard with the appeal.

  3. On 14 August 2012, we refused leave to appeal and dismissed the appeal.  We said we would provide reasons for our decision.  These are the reasons.

Background

  1. The proceedings concern a dispute between the appellant and other members of his family regarding the appellant's entitlement to certain property at Cowaramup, in the south‑west of the State.  The properties concerned had been operated as a farm by the parents of the appellant and his siblings.  The properties in issue are described in the action as Lot 3, the 'Home Block' and Location 4088 (together 'the Cowaramup properties').

  2. Following the death of…

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Melville v Gibbs [2012] WASCA 207
Case
[2012] WASCA 207
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Melville, sought leave to appeal against the dismissal of his application to strike out certain parts of the respondent's defence and counterclaim. The appeal was heard by the Supreme Court of Western Australia and was ultimately dismissed. The dispute between the parties revolves around the ownership of certain properties at Cowaramup, which were previously operated as a farm by the appellant's parents. Following the deaths of the appellant's parents, the appellant initiated legal proceedings against the respondent, who is the executor of the will of the appellant's mother, and against his uncle and aunt and siblings. The appellant claims an absolute entitlement to certain portions of the Cowaramup properties, alleging that his parents made oral representations to him regarding his entitlement to portions of the land, which he relied upon to his detriment.

The court was required to decide whether the appellant's application to strike out certain paragraphs of the respondent's defence and counterclaim should have been allowed. The court considered the test for striking out a pleading, which requires a high degree of certainty that the pleaded cause of action or defence would fail if permitted to go to trial. The court also considered the burden that lies upon a party who seeks to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. The court found that there was nothing to suggest that if the matters pleaded in pars 19A to 48 of the defence remained in the pleading there would be substantial injustice to the appellant. The court was not persuaded that the primary judge was wrong or that his decision was attended with sufficient doubt to justify a grant of leave. The court also noted that attacks on pleadings are often time-consuming and costly distractions which ultimately serve no useful purpose in the proper resolution of the litigation.

In conclusion, the court dismissed the appeal and refused leave to appeal. The court found that the appellant had not established that substantial injustice would result if the decision remained unreversed. The court also found that the primary judge was not wrong in his decision to dismiss the appellant's application to strike out certain parts of the respondent's defence and counterclaim. The court's decision was based on the high threshold required for striking out a pleading and the burden that lies upon a party who seeks to do so. The court's decision is in line with established legal principles and ensures that the litigation process is not unnecessarily disrupted by attacks on pleadings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an appeal against a decision of Kenneth Martin J dismissing the appellant's application to strike out certain paragraphs of the respondent's (first defendant's) substituted defence and counterclaim: Melville v Gibbs [2011] WASC 357. As the appeal is against an interlocutory decision, the appellant requires leave to appeal: Supreme Court Act 1935 (WA), s 60(1)(f). On 20 February 2012, Pullin JA ordered that the application for leave to appeal be heard with the appeal. On 14 August 2012, we refused leave to appeal and dismissed the appeal. We said we would provide reasons for our decision. These are the reasons. The proceedings concern a dispute between the appellant and other members of his family regarding the appellant's entitlement to certain property at Cowaramup, in the south‑west of the State. The properties concerned had been operated as a farm by the parents of the appellant and his siblings. The properties in issue are described in the action as Lot 3, the 'Home Block' and Location 4088 (together 'the Cowaramup properties'). Following the death of the appellant's father on 30 June 1992, the appellant's mother (Mrs Melville) became the sole registered proprietor of the Cowaramup properties. Mrs Melville died on 23 January 2009. A week earlier she had made her will in which (relevantly) she left the Cowaramup properties in equal shares to the appellant, his sister Ena, his three brothers Ronald, Brendon and Roger, and his uncle Neil and aunt Faye. The respondent is executor of Mrs Melville's will. On 17 December 2009, the appellant commenced an action against the respondent, as executor of the will, and against his uncle and aunt and each of his siblings. On 7 April 2010, the action was admitted to the CMC List, to be managed by the primary judge. In the action, the appellant claims, in effect, an absolute entitlement to certain portions of the Cowaramup properties. The appellant says that in the period 1994 to 2006, seven oral representations were made to him by his father or mother, or both, in relation to his entitlement to portions of the land and he had acted to his detriment in reliance upon those representations. The first three alleged representations related to Location 4088 and, put broadly, were to the effect that if the appellant built or established improvements on Location 4088 he would be entitled to the land on which that was done. The appellant said that, in the period 1984 to 1986, upon the basis of the representations he expended the sum of $31,200 and 2,000 hours of labour in the construction of various buildings and other improvements on a portion of Location 4088 comprising approximately 12 acres (described in the statement of claim as 'the 1984 fenced area'). The appellant alleges that the fourth and fifth representations occurred in 1990 and early 1991 respectively. He says by the fourth representation he was told by his parents that he would receive an area comprising the 1984 fenced area plus a share in the remaining farming lands as his inheritance. By the fifth representation, he says he was told that he would receive as his inheritance what is described in the statement of claim as 'the Promised Lot', being the south western portion of Location 4088 less the portion occupied by his uncle Neil. The appellant says that in reliance upon those representations he carried out a number of improvements to those portions of the Cowaramup properties, expending the sum of $126,850 and in excess of 2,750 hours of work.

Ratio Decidendi

Legal Principle Established

The ultimate question on an application for leave to appeal against an interlocutory decision is whether, in the circumstances, it is in the interests of justice to grant leave: The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40, 56, 57, 74. Generally, however, a party seeking leave to appeal will have to establish that the decision appealed from is wrong or attended with sufficient doubt to justify a grant of leave, and that a substantial injustice would result if the decision remained unreversed: Wilson v Metaxas [1989] WAR 285, 294. It is well‑established that an appellate court will be slow to interfere with a discretionary decision on a matter of practice and procedure: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177. As the plurality pointed out in that case, unless particular caution is exercised in such circumstances the result could be that whenever a litigant has a deep pocket or is of a particularly litigious nature, the case will be subject to interminable delay and ever mounting costs as all exercises of discretion in interlocutory applications are taken on appeal (177). Where a party seeks to appeal against a refusal to strike out a pleading, or part of a pleading, the question whether a substantial injustice will result if the decision remains unreversed requires close scrutiny. While it is highly desirable that pleadings are precisely formulated and strictly limited to matters that are reasonably arguable, experience has shown that too often attacks on pleadings are time‑consuming and costly distractions which ultimately serve no useful purpose in the proper resolution of the litigation. Where the complaint is that an allegation in a pleading is irrelevant or discloses no arguable cause of action or defence, the time and costs involved in resolving that question not infrequently turn out to be no less, and sometimes even more, than the time and costs that would be involved in the trial of the pleaded issue. That is quite apart from the disruption to the orderly disposition of the litigation which such pleading disputes inevitably cause. In the present case there is nothing to suggest that if the matters pleaded in pars 19A to 48 of the defence remain in the pleading there would be substantial injustice to the appellant. Taking into account the scope of the other pleaded issues, it is not apparent from the pleadings that those matters would substantially increase the duration or cost of the action. There is no affidavit evidence to suggest that they would and the appellant does not assert any other form of prejudice. On the hearing of the appeal, counsel for the appellant accepted that the issues arising under pars 19A to 48 would occupy a relatively small part of what is likely to be a lengthy trial. In any event, we are not persuaded that the primary judge was wrong or that his decision is attended with sufficient doubt to justify a grant of leave. In that connection, it is necessary to bear in mind the burden which lies upon a party who seeks to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. The test to be applied has been expressed in various ways but it is clear that a pleading will be struck out only in the 'clearest of cases', where the court is satisfied there is a 'high degree of certainty' that the pleaded cause of action or defence would fail if permitted to go to trial: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57].