Nyoni v Patterson
[2011] WASCA 215
•7 OCTOBER 2011
NYONI -v- PATTERSON [2011] WASCA 215
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 215 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:89/2011 | 22 SEPTEMBER 2011 | |
| Coram: | NEWNES JA MURPHY JA | 7/10/11 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | EMSON NYONI MURRAY PATTERSON ROBERT BATEMAN |
Catchwords: | Practice and procedure Statement of claim struck out with leave to replead Minute of substituted statement of claim filed Leave to amend refused and action dismissed Appeal against original decision to strike out statement of claim No substantial injustice if decision not reversed No error in striking out statement of claim |
Legislation: | Rules of the Supreme Court 1971 (WA), O 20 r 19 |
Case References: | Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NYONI -v- PATTERSON [2011] WASCA 215 CORAM : NEWNES JA
- MURPHY JA
- Appellant
AND
MURRAY PATTERSON
First Respondent
ROBERT BATEMAN
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File No : CIV 2610 of 2010
Catchwords:
Practice and procedure - Statement of claim struck out with leave to replead - Minute of substituted statement of claim filed - Leave to amend refused and action dismissed - Appeal against original decision to strike out statement of claim - No substantial injustice if decision not reversed - No error in striking out statement of claim
(Page 2)
Legislation:
Rules of the Supreme Court 1971 (WA), O 20 r 19
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : Mr A J Sefton
Second Respondent : Mr A J Sefton
Solicitors:
Appellant : In person
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285
(Page 3)
1 JUDGMENT OF THE COURT: The appellant seeks to appeal against a decision of Master Sanderson striking out the appellant's statement of claim. The appeal notice was filed out of time and the appellant has applied for an extension of time to file and serve it. As the decision of the master was an interlocutory decision, the appellant also requires leave to appeal: Supreme Court Act 1935 (WA), s 60(1)(f).
Background
2 The appellant is a pharmacist who, since 2003, has operated a pharmacy in Kellerberrin, a country town located in the wheatbelt of Western Australia.
3 On 11 October 2010, the appellant, acting in person, commenced proceedings by originating summons against the respondents. The first respondent was sued in relation to his alleged conduct as a senior officer of the Department of Health and the second respondent was sued in relation to his alleged conduct as an investigator appointed under the Pharmacy Act 1964 (WA) (repealed by the Health Practitioner Regulation National Law (WA) Act 2010 (WA), as at 18 October 2010). The claim related to inspections the respondents are alleged to have carried out at the appellant's pharmacy between 2007 and 2010. The appellant claimed damages in respect of some nine alleged causes of action.
4 It is evident that the proceedings should have been brought by way of a writ of summons rather than an originating summons, but nothing turns on that. It appears that (quite properly) the proceedings were treated as though commenced by writ, with the consequence that, at a status conference on 2 December 2010, the appellant was ordered to file and serve a statement of claim.
5 A statement of claim, prepared by the appellant, was filed on 21 January 2011. The next status conference was held on 10 February 2011. It appears that at the status conference the appellant accepted that the statement of claim was defective and indicated that he would file an amended or substituted statement of claim by 10 March 2011. The status conference was adjourned to 10 March 2011.
6 No amended or substituted statement of claim had been filed by the time of the status conference on 10 March 2011. On that occasion, the appellant was represented by a solicitor. The appellant was given leave to file and serve any amended or substituted statement of claim by 31 March 2011.
(Page 4)
7 It seems that shortly afterwards the appellant terminated the solicitor's retainer and resumed acting in person.
8 When the matter came on again at a status conference on 14 April 2011, the appellant had not filed an amended or substituted statement of claim. On that occasion, an order was made that any amended or substituted statement of claim be filed by 28 April 2011. A fresh statement of claim was filed by the appellant on 29 April 2011.
9 On 31 May 2011, the respondents' solicitors applied to strike out the statement of claim under O 20 r 19 of the Rules of the Supreme Court 1971 (WA), on the ground that it did not disclose an arguable cause of action or alternatively that it was embarrassing. At the same time, the respondents' solicitors filed and served detailed particulars of their objections to the statement of claim.
10 The respondents' application came on before the master on 21 June 2011. The master found that the proposed statement of claim did not plead any material facts capable of giving rise to the causes of action on which the appellant relied and ordered that it be struck out. He further ordered that the appellant have leave to file a minute of proposed substituted statement of claim on or before 19 July 2011. The respondents' application was adjourned to 26 July 2011.
11 The appellant filed a minute of proposed substituted statement of claim on 19 July 2011. At the hearing on 26 July 2011, the master found that the proposed statement of claim still did not plead any material facts which could give rise to the causes of action alleged. He ordered that it be struck out and the action be dismissed. He ordered the appellant to pay the respondents' costs of the action. (We take it that by ordering that the minute be struck out, the master meant that he refused leave to file a substituted statement of claim in that form.)
12 On 8 August 2011, the appellant filed an appeal notice seeking leave to appeal against the master's decision of 21 June 2011 to strike out the statement of claim. The appeal notice was out of time. As the decision was an interlocutory decision, any appeal notice was required to be filed and served within 14 days of the decision: Supreme Court (Court of Appeal) Rules 2005 (WA), r 26(1). Accordingly, on 8 August 2011, the appellant applied for an extension of time in which to file and serve the appeal notice.
(Page 5)
13 The appellant also filed, on 8 August 2011, an appeal against the master's decision of 26 July 2011 to strike out the action. That appeal, CACV 88 of 2011, was within time.
Disposition of the applications
14 The principles which apply to an appeal against an interlocutory decision are well-settled. Generally the appellant must show that the original decision was wrong, or at least attended by sufficient doubt to warrant the grant of leave, and that substantial injustice would be done if the decision was not reversed: Wilson v Metaxas [1989] WAR 285, 294. Those principles are not, however, inviolable and leave may be granted whenever the interests of justice require it: The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 [56] - [57]; Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192 [14].
15 We would refuse to grant an extension of time and would dismiss the appeal. There are two reasons for that.
16 In the first place, we do not consider that substantial injustice would be done if the decision was not reversed. While the statement of claim was struck out, the appellant was given leave to replead. He availed himself of that opportunity by filing, on 19 July 2011, a minute of proposed statement of claim in substitution for the pleading struck out by the master. As we have mentioned, the appellant was refused leave to amend in terms of the minute and the action was dismissed. Whether the master was correct in finding that the 19 July 2011 minute was also inadequate, and in dismissing the action, are issues that must await the outcome of the other appeal. But in the circumstances, there would be no substantial injustice to the appellant if the master's decision to strike out the statement of claim on 21 June 2011 was not reversed.
17 In any event, we consider that the master was clearly correct in striking out the statement of claim. It is well-accepted that where pleadings are prepared by litigants in person, strict compliance with the rules of court may be unattainable and generally some leniency should be exercised. To do otherwise would often be to deprive a litigant of access to justice. But the allowances that can be made are limited as a matter of fairness to the other party. They cannot be allowed to reach the point where they become an instrument of injustice. In particular, a pleading must continue sufficiently to serve the purpose of giving adequate notice to the other party of the case they have to meet.
(Page 6)
18 In this case, the statement of claim not only failed in a number of respects to comply with the requirements of the rules of court in relation to pleadings, it also fell a long way short of what was required to give the respondents reasonable notice of the case against them. It is unnecessary to canvass the pleading in any detail.
19 In the statement of claim, the appellant claimed damages quantified (without explanation) at $10 million under nine heads of damage including defamation, negligence, 'breach of privacy', malicious prosecution, 'emotional pain and suffering' and 'misuse of the authority in a public office'. It is evident that those claims arise out of inspections and other steps allegedly taken by the respondents in relation to the appellant's conduct of his pharmacy in the period 2007 to 2010. The obvious difficulty with the pleading, however, is that it is cast in the most general terms and is replete with nebulous allegations of misconduct of a very serious nature, interspersed with irrelevant comments and assertions. The inevitable result is that it is far from clear how the facts pleaded are said to give rise to the alleged causes of action - so far as those causes of action are known to law.
20 Making all due allowances for the fact that the appellant did not have legal representation, the statement of claim could not have been allowed to stand in that form and the master correctly struck it out.
21 There are three other matters which we should mention for completeness.
22 First, the appellant has complained in his grounds of appeal that the master ordered that a minute of substituted statement of claim be filed, rather than an amended statement of claim. In requiring the appellant to file a minute, the master plainly had in mind O 20 r 19(5) of the Rules of the Supreme Court 1971 (WA), which provides that in the absence of special circumstances any application to amend a pleading consequent upon an order striking out any part of the pleading shall be accompanied by a minute of the proposed amendment. It is apparent from the transcript of the hearing before the master that he ordered that a minute of proposed substituted statement of claim be filed, rather than a minute of amended statement of claim, simply so the appellant would be spared the crossing out and underlining required in an amended pleading and the new pleading would be less confusing.
(Page 7)
23 Secondly, the appellant contends that the master failed to give reasons, or adequate reasons, for his decision to strike out the statement of claim. We do not accept that contention.
24 The purpose of reasons is to disclose the basis for the decision, as otherwise the losing party cannot know whether there has been a mistake of law or of fact: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27] - [28]. But reasons need not be lengthy and elaborate. What is necessary in any particular case will depend upon the nature of the case: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443. Moreover, as the Full Court pointed out in Mount Lawley, inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice [29].
25 In this case, the master's reasons were made sufficiently clear. It is apparent from the transcript that the master explained to the appellant that the statement of claim did not comply with the rules; that it did not plead the material facts in a way which made it clear to the respondents on what legal basis the claim was made against them. It was not incumbent upon the master to suggest how the pleading might be put in order. In any event, no basis for intervention is capable of arising from any alleged deficiency in the master's reasons. The pleading was plainly inadequate and could not be allowed to stand.
26 Thirdly, the appellant alleges actual or apprehended bias on the part of the master. It is sufficient to say that nothing in the material before this court, including the submissions in the appellant's case and the affidavit he has filed in support of this application, disclose anything that might reasonably be capable of making good an allegation of bias.
Conclusion
27 The application for an extension of time and the appeal should be dismissed.
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