| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MULLER -v- BRADFORD [2003] WADC 236 CORAM : WILLIAMS DCJ HEARD : 3 OCTOBER 2003 DELIVERED : 5 NOVEMBER 2003 FILE NO/S : CIV 2058 of 2001 BETWEEN : DARREN PAUL MULLER Plaintiff
AND
KEITH JOHN BRADFORD
Defendant
Catchwords: Practice - Western Australia - Practice under the Rules of the Supreme Court - Application to strike out statement of claim and have the action dismissed
Legislation: Nil
Result: Statement of claim struck out and action dismissed
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Representation:
Counsel:
Plaintiff : In Person
Defendant : Mr G Bourhill
Solicitors:
Plaintiff : Not applicable
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Dart v Norwich Union Life Australia Limited [2002] FCA 168
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Case(s) also cited:
Allen v Clark (1863) 7 LT 781
Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229
Appo v Barker (1981) 50 FLR 298
Ashton v Wainwright [1936] 1 All ER 805
Bailey v Bullock [1950 2 All ER 1167
Baker v Bowketts Cakes Ltd [1966] 1 WLR 861
Batten v Wedgwood Coal & Iron Co (1886) 31 Ch D 346
Boardman v Phipps [1967] 2 AC 46
Bryant v Goodrich (1966) 110 SJ 108
Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307
Cook v S [1967] 1 WLR 457
Day v Mead [1987] 2 NZLR 443
De Sousa v Minister for Immigration, Local Government & Ethnic Affairs (1993) 41 FCR 544
Digital Equipment Corporation v Darkcrest Ltd [1984] Ch 512
Farrington v Rowe McBride & Partners [1985] 1 NZLR 83
Fletcher & Son v Jubb, Booth & Helliwell [1920] 1 KB 275
Frankland v Cole (1832) 2 C & J 590
Godefroy v Jay (1831) 7 Bing 413; 131 ER 159
Harrington v Binns (1863) 3 F & F 942
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Hatch v Lewis (1861) 2 F & F 467
Hayes v James & Charles Dodd (a Firm) [1990] 2 All ER 815
Heywood v Wellers (a Firm) [1976] QB 446
Hill v Finney (1865) 4 F & F 616; 176 ER 716
Holden & Co v Crown Prosecution Service [1990] 2 QB 261
Jakeman v Jakeman [1964] P 420
John Fox v Bannister, King and Rigbeys [1988] QB 925
Johnson v Perez (1988) 166 CLR 351
Kitchen v Royal Air Force Association [1958] 1 WLR 563
Livingston v Rawyards Coal Co (1880) 5 App Cas 25
McNamara v Martin Mears & Co (1983) 127 SJ 69
McPherson v Kevin J Prunty & Associates [1983] 1 VR 573
Mount v Barker Austin [1998] PNLF 493
Murray v Baneman, Brydone, Folster & Co [1970] NZLR 1034
Myers v Elman [1940] AC 282
Nelson v Nelson [1997] 1 WLR 233
Orchard v South Eastern Electricity Board [1987] QB 565
Orchard v South Eastern Electricity Board [1987] QB 565
Pilkington v Wood [1953] Ch 770
Redman v Instant Nominees Pty Ltd [1987] WAR 277
Rondel v Worsley [1969] 1 AC 191
Scott v Echegaray [1991] A Torts Reports 69
Sinclair-Jones v Kay [1989] 1 WLR 114
Treloar v Henderson [1968] NZLR 1085
Van Laun, In re; Ex parte Chatterton [1907] 2 KB 23
Vulic v Bilinsky [1983] 2 NSWLR 472
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1 WILLIAMS DCJ: This is an application on the part of the defendant for orders that the re-amended statement of claim filed 24 July 2003 be struck out in its entirety and the action be dismissed.
2 The plaintiff appears in person. 3 The action was commenced on 9 August 2001 when a writ was issued with a statement of claim annexed. On 18 September 2001 that statement of claim was struck out. On 2 October 2001 a second statement of claim was filed. On 12 November 2001 the defendant served a request for further and better particulars. On 20 November 2001 the plaintiff filed answers to those further and better particulars. 4 On 27 March 2002 there was a pre-trial conference. On 24 May 2002 there was a listing conference. That was adjourned to 5 July 2002 when there was a second listing conference. At that time trial dates were allocated for December 2002. On 3 October 2002 the trial dates were vacated. 5 On 18 February 2003 the plaintiff was given leave to bring in a further statement of claim. That statement of claim was filed on 4 April 2003. On 22 April 2003 the matter came before his Honour Judge O'Sullivan who advised the plaintiff that the statement of claim was still not appropriate, to which the plaintiff responded by saying that he could not do better. 6 On 24 July 2003 the plaintiff filed a further amended statement of claim. 7 Although there has been only one application to strike out the statement of claim, the plaintiff has made four attempts to have his statement of claim comply with the Rules. 8 As I understand the action, the plaintiff saw the defendant who is a solicitor in early 2000. The defendant gave consideration as to whether an action could be brought by the plaintiff against the manufacturer of a backpack which the plaintiff says caused his injury. Whilst the solicitors were considering the matter the limitation period expired. 9 The defendant says that neither claim is available. 10 In my view the re-amended statement of claim fails to disclose a cause of action, in that it does not identify:
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1. What instructions were given by the plaintiff to the defendant which would constitute a retainer. 2. What facts the plaintiff contends would have been relied upon to support the cause of action against any party for damages which the plaintiff alleges he had suffered by reason of personal injury. 3. Who such action should have been pursued against. 4. On what basis the action would have succeeded and in particular, on what basis it would have been proven that the alleged injuries were caused by another party's negligence. 5. How the conduct of the defendant has caused any loss to the plaintiff. 11 Furthermore, in my view the re-amended statement of claim contains a number of assertions and references to statements which are alleged evidence but no reference to the facts relating to that evidence. In particular there are a number of references to matters which the defendant allegedly told the plaintiff. 12 Additionally the particulars of negligence appearing on p 4 of the re-amended statement of claim do not demonstrate any basis on which the plaintiff could succeed in his claim for negligence against the defendant in that none of them can be shown to have resulted in the plaintiff suffering a loss. 13 Before me the plaintiff, who was a perfect gentleman, accepted that factually that was the position. He appeared resigned to the fact that he is not going to be able to get his action off the ground. It would appear that all approaches that he has made for legal assistance over the last few years have been denied to him. 14 Courts 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 viable cause of action which, with appropriate amendment and with a little assistance from the court, could be put in proper form: Wentworth v Rogers (No 5)(1986) 6 NSWLR 534 at 536, 543. However if a litigant in person persists in prosecuting successively objectionable pleadings and continues to use the processes of the Court without apparent prospect of achieving an unobjectionable pleading in disregard of the judicial assistance that has been given, his or her action may be dismissed as
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giving rise to an unfair and oppressive use of the processes of the Court: Dart v Norwich Union Life Australia Limited [2002] FCA 168 at [46], [47]. 15 In its current format the re-amended statement of claim does not sufficiently particularise the allegations which the defendant would be required to meet such as to allow the defendant to be properly prepared for trial. 16 Given the opportunities which the plaintiff has been given to rectify his pleading, the assistance that has been provided to him by the Court, and his continued inability to produce a pleading which adequately complies with the Rules, in my view the re-amended statement of claim dated 24 July 2003 should be struck out in its entirety and the action dismissed. |