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Norman v Wall (No 5)

Norman v Wall (No 5)

Case [2020] NSWSC 1062 14 August 2020

Jurisdiction

Limitation Periods

Form and Content of Statement of Claim

Dictates of Justice

Representation by Unqualified Persons

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Norman v Wall (No. 5) [2020] NSWSC 1062
Hearing dates: 27 July 2020
Date of orders: 14 August 2020
Decision date: 14 August 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The plaintiffs have leave to file a further amended statement of claim limited to a case in professional negligence, breach of fiduciary duty and breach of trust against Wrothwell Wall, that FASOC to be filed and served by 5:00pm on 28 August 2020.
(2) If no FASOC is filed and served by the time specified in order 1, the proceedings are dismissed with the plaintiffs to pay the defendant’s costs of the proceedings.
(3) If not dismissed, the matter is listed before Lonergan J on Thursday 1 September 2020 at 9:30am with a view to setting a timetable for the further conduct of the proceedings and/or for the hearing of any application by the defendant.
(4) I reserve the question of costs should the FASOC be filed in time.

Catchwords:
CIVIL PROCEDURE — commencement of proceedings — statement of claim — form and content — application of r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) — no formal application made by the plaintiffs — just, quick and cheap resolution of the real issues in dispute — various iterations of a statement of claim provided to the Court — material pleaded in statement of claim which is not relevant — dictates of justice — leave granted to file and serve a further amended statement of claim
CIVIL PROCEDURE — parties — representation — by unqualified persons — plaintiffs previously referred to the Pro Bono Scheme — assistance not provided

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Dickens v State of New South Wales [2018] NSWCA 222
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Norman v Wall [2020] NSWSC 129
Norman v Wall (No. 2) [2020] NSWSC 997
Normal v Wall (No. 3) [2020] NSWSC 998

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

Judgment

These proceedings were commenced in the Equity Division in June 2019. The dispute arises out of assertions by Ms Norman and Mr Berry that a scheme some years ago, advertised by a combination of individuals involving the purchase of a property and a kind of cooperative ownership of that property fell apart and losses were incurred.
In that context, both Ms Norman and Mr Berry say that they deposited into the trust account of the defendant solicitor, Mr Wall, $120,000 and $80,000 respectively. They say that the money was never returned to them, never accounted for despite requests and that Mr Wall as a result, breached his fiduciary and other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Norman v Wall (No 5)

Details

AGLC: Norman v Wall (No 5) [2020] NSWSC 1062
Case: [2020] NSWSC 1062
Decision Date: 14 August 2020

CaseChat Overview and Summary

The plaintiffs, Norman, commenced proceedings against the defendants, Wall, in the Supreme Court of New South Wales. The nature of the dispute involved multiple iterations of the statement of claim, with the plaintiffs submitting various versions that contained irrelevant material. The plaintiffs were also unrepresented, having previously been referred to the Pro Bono Scheme for legal assistance but without any help being provided. The defendants sought an order for the plaintiffs to file and serve an amended statement of claim that omitted the irrelevant material and complied with the rules of court. The court was required to decide whether leave should be granted for the plaintiffs to file and serve a further amended statement of claim and whether the plaintiffs should be permitted to continue unrepresented.

The court considered the provisions of r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) and the principles of the just, quick and cheap resolution of the real issues in dispute. The court noted that the plaintiffs had not made a formal application for leave to amend their statement of claim but had instead submitted various versions to the Court. The court considered that the dictates of justice required the plaintiffs to be permitted to file and serve a further amended statement of claim that omitted the irrelevant material and complied with the rules of court. The court also considered the plaintiffs' unrepresented status and their previous referral to the Pro Bono Scheme. The court concluded that the plaintiffs should be permitted to continue unrepresented, given the nature of the proceedings and the relatively straightforward legal issues involved.

Accordingly, the court granted leave for the plaintiffs to file and serve a further amended statement of claim that omitted the irrelevant material and complied with the rules of court. The court also permitted the plaintiffs to continue unrepresented. The court emphasised the importance of complying with the rules of court and the need for parties to focus on the relevant issues in dispute. The court further noted that the plaintiffs' unrepresented status did not prevent them from conducting their own proceedings, provided that they complied with the rules and acted in a manner consistent with the dictates of justice. This case serves as a reminder to parties of the importance of complying with the rules of court and the need to focus on the relevant issues in dispute. It also highlights the court's willingness to permit parties to conduct their own proceedings, provided that they act in a manner consistent with the dictates of justice.

Orders