Norman v Wall (No. 3)

[2020] NSWSC 998

Supreme Court

New South Wales

Medium Neutral Citation:

Norman v Wall (No. 3) [2020] NSWSC 998

Hearing dates:

27 July 2020

Date of orders:

27 July 2020

Decision date:

27 July 2020

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) I set aside the order made this morning dismissing the proceedings.

(2) I set aside the orders made this morning regarding costs.

(3) I note that the order I made this morning regarding the further amended statement of claim served yesterday evening is subject to consideration pursuant to UCPR 14.28 after hearing from the parties.

Catchwords:

CIVIL PROCEDURE — court administration — court powers — Court to set aside order dismissing proceedings — Court to set aside orders made this morning regarding costs

Legislation Cited:

Civil Liability Act 2002 (NSW)

Legal Profession Uniform Law (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

Gillian Linda Norman (First Plaintiff)
Ron Berry (Second Plaintiff)
Wrothwell Wall (Defendant)

Representation:

Counsel:
J Raftery (Defendant)
Solicitors:
G Norman (Self-Represented)
R Berry (Self-Represented)
Gilchrist Connell Lawyers (Defendant)

File Number(s):

2019/196798

Publication restriction:

Nil

REVISED EX-TEMPORE Judgment

1. This morning I determined an application by the plaintiffs seeking leave to file and rely upon a further draft amended statement of claim dated 25 July 2020 that was provided to the defendant's solicitor and my chambers at 5:49pm yesterday.

2. I refused leave to rely upon that document which was provided two months after the expiration of the order requiring its provision, partly because of that delay and partly because it is sought to expand the pleadings past matters that had either already been dismissed by consent or were beyond the confined leave addressed with the plaintiffs on 21 February 2020 when the matter was last before me.

3. The plaintiffs' case has proceeded to now with no legal assistance. It was noted by Ms Norman this morning that she felt a difficulty in understanding how best to plead their case, and attempted to comply with the Court's requirements in that regard. The proceedings have been on foot for over a year and this is the fourth attempt. The document still does not comply with the directions given to confine it, and does not technically comply with the Uniform Civil Practice Rules 2005 (NSW) (“UCPR”) in respect of pleadings.

4. I now appreciate and understand that the expansion of the pleading by the plaintiffs may well have been based on a mistaken belief by the plaintiffs as to what the amended pleading needed to include, for example, a mistaken belief that the pleading needed to name Mr Adrian Brennock as a defendant to be able to pursue the plaintiffs' stated case in negligence, breach of fiduciary duty or breach of trust against the solicitor Mr Wall, because Mr Brennock was Mr Wall's client who was partly the author of these problems.

5. No notice of motion was filed by the defendant seeking the proceedings be dismissed. The defendant took the position, entirely appropriately, that it should contest the plaintiffs' application to amend the statement of claim in the form that was served and, once I had determined that matter, the defendant pressed the Court for the Court of its own motion to dismiss the proceedings, because it was now a year since the proceedings were commenced. The defendant is a solicitor, and this is a long time to have a matter like this hanging over his head, with no clarity of pleadings yet reached.

6. This morning I took the view I should dismiss the proceedings. I gave reasons for doing so but upon reflection I should not have done that, particularly given the plaintiffs' unrepresented state, until I provided an opportunity for the plaintiffs to be heard as to whether they wished to proceed on the pleadings in the proposed draft amended statement of claim that did identify the confined professional negligence action against Mr Wall and, if they did, whether they were prepared to put to one side the distraction of the alleged High Court point and the addition of Mr Brennock to the case, and the reference to "other third parties" that is littered through the document.

7. Ms Norman, the first plaintiff, for her part, stated that she was prepared to proceed on that basis and would like the Court to consider whether that was a matter that could still be pursued.

8. Mr Berry, the second plaintiff, was not available to be heard on that issue as he had left the virtual courtroom during the progress of the judgment I delivered this morning.

9. I need to emphasise that the factual basis, that is the material facts that would underpin a case in negligence, breach of fiduciary duty or breach of trust on the part of Mr Wall had been included in each iteration of the statements of claim from the very beginning, although differently worded in some of them and often including other distracting material.

10. I note that in the initiating statement of claim filed on paragraphs 11, 12 and 13, 84, 105 to 108, 111, 112, 113 and 114 delineated the bases of the plaintiffs' case again Mr Wall. That case included the factual allegation that sums had been paid to him, to hold on trust in his trust account, that they were pursuant to perhaps representations of others, that there was a delay in Mr Wall providing any receipt for the sums given to him, there was a refusal to return the sums or to account for the sums, and there were assertions of, consequently, a misuse of that money and a failure to use the funds for any authorised use in those circumstances.

11. The second statement of claim which was confined to a case against Mr Wall only, the case against the other defendants having been dismissed by consent, sought relief in the form of a “failure of fiduciary duty” but also raised various other claims in equity. It sought orders regarding a type of direction, (or perhaps declaration), about what had happened, and whether there was negligence or a breach of solicitor's duties set as out in s 129 of the Legal Profession Uniform Law (NSW), and whether there had been negligence, as well as other distracting issues regarding “third parties”. That statement of claim pleaded in paragraphs 6, 7, 8, 20, 21, 22 and 23 the basic material facts supporting the plaintiffs’ asserted case against Mr Wall.

12. In the third iteration of the statement of claim which is titled “Second Amended Statement of Claim amended pursuant to Registrar Jones' order 18 November 2019”, a more confined form of relief was sought. Pursuant to the Civil Liability Act 2002 (NSW), the plaintiffs requested “Compensation for financial loss, expenses incurred in remedying the negligence, and legal costs”. In that iteration of the statement of claim, the material facts were set out in paragraphs 1, 2 and 3, an effort to plead the defendant's duty of care was set out in paragraphs 7, 8, 9 and 10, an attempt to plead a Civil Liability Act basis for the negligence claim was set out in paragraphs 17 to 26, and paragraphs 32, 34, 35 and 36 set out the harm suffered, although without the type of precision and eloquence that may well have been able to be delivered to the pleading by a person who was legally qualified.

13. It seems to me that the bases of the claim against Mr Wall has remained effectively the same during those three iterations.

14. The current iteration of the statement of claim has a similar identifiable factual matrix pleaded which I will return to in more detail once I have heard further from the parties. I note that in February 2020 when the matter was before me, the arguments made by the defendant were that the statement of claim in its then current form did not disclose a cause of action, was bad in form and would cause prejudice and delays because it does not sufficiently clearly articulate the case against the defendant to allow it to be met. The defendant also takes objection to various matters of form such as separate matters needing to be pleaded in separate paragraphs, the facts included needed to be confined to material ones, and complaining that some of it was unintelligible and ambiguous, did not allow an understanding of the case made by the plaintiffs, and that the breach of duty of care was not specifically pleaded.

15. I formed the view that I should hear from the parties as to whether and to what extent the Court can and should proceed with striking out those parts of the current iteration of the proposed statement of claim that are reflective of the problem referred to in r 14.28 of the UCPR, and I will do so now. But before I do so, I make the following formal orders:

1. I set aside the order made this morning dismissing the proceedings.

2. I set aside the orders made this morning regarding costs.

3. I note that the order I made this morning regarding the further amended statement of claim served yesterday evening is subject to consideration pursuant to UCPR 14.28 after hearing from the parties.

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Decision last updated: 03 August 2020