Pedler & Anor v The Attorney-General for the State of New South Wales

[1991] HCATrans 287

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S86 of 1988

B e t w e e n -

ROGER KEVIN FEDLER and STELLA

HILDAGARD FEDLER (Deceased)

Applicant

and

THE ATTORNEY-GENERAL FOR THE

STATE OF NEW SOUTH WALES

Respondent

Application to amend writ of

summons and statement of claim

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 OCTOBER 1991, AT 10.05 AM

Copyright in the High Court of Australia

Pedler 1 10/10/91

MR R.K. FEDLER:  Your Honour, I appear on my own behalf.

MR L. KATZ: If Your Honour pleases, I appear for the

Attorney-General. (instructed by the Crown

Solicitor for New South Wales)

HER HONOUR:	Yes, Mr Katz.
MR KATZ:	I have handed to Mr Fedler this morning a copy of a booklet of materials and, with his consent, if I
could hand it to Your Honour, I think it may assist in understanding the matter. It contains a chronology at the outset and all of the documents
which have been filed and correspondence which has
passed between the parties.

HER HONOUR:  Thank you. Do you have any objection to that?

MR PEDLER:	I have no objection, Your Honour.
HER HONOUR:	I take it you wish me to read this at this

stage, do you?

MR KATZ:  Your Honour, I appear on a summons filed by

Mr Pedler and so I do not consider myself having

carriage of the matter unless there is some way I

can assist immediately.

HER HONOUR: Thank you. Well, Mr Pedler, what do - - -?

MR PEDLER:  Your Honour, there is one problem that the

Attorney-General raises regarding the death of my mother. So, I have brought along a photocopy of a

register of death and also the will which makes me

the sole beneficiary.

HER HONOUR:	Has there been a grant of probate?
MR FEDLER:	No, there has not been a grant of probate.

Nothing has been taken, as far as my solicitor is concerned, towards probate. There seems to be no

rush in it, mainly, because I am the only

beneficiary within it. That seems to be the

opinion - - -

HER HONOUR:	The importance is not whether you are the beneficiary, Mr Pedler.	The importance is whether
you are an executor.

MR PEDLER: Well, the will does make me both beneficiary and

executor of the will.

HER HONOUR:	Yes.
MR FEDLER:	I would like to tender both up to the Court for the Court's perusal.
Fedler	10/10/91

HER HONOUR:  Thank you. Have you seen these documents?

MR KATZ:  Yes, I have, thank you, Your Honour.

HER HONOUR:  Yes, I will return those to you, Mr Pedler. As

I said, the problem is it is the executor who may

bring proceedings and the executor normally

establishes that he is the executor by a grant of

probate.

MR PEDLER:	Yes, Your Honour.
HER HONOUR:	Is there an intention to get a grant of

probate?

MR PEDLER: Basically, there was no intention, Your Honour.

My solicitor advised me that as I am the only person involved, as all other parties mentioned in

the will are now deceased also, and everything was

left to me - the only thing that my mother did, in fact, leave to me were the clothes which have gone into a charity and the remainder was the joint

ownership of the property in contention, and being

a joint ownership it automatically flowed straight

to me. Then, of course, there is a chose in action

which, I believe, my learned friend is more

interested in, and it is my submission that the

chose in action would also flow directly to me

which is her rights to deductions for water rates

as a pensioner as set out by statute which is part

of the matter which will be going before the Court.

I believe that that is the only basic problem

that the Crown Solicitor for the Attorney-General

has in this matter because they have sent me a

letter stating that they have no objections to the

amendment to the originating summons as I have left

a draft copy which Your Honour probably has before

you. There are only minor modifications such as

the word "deceased" appearing after my mother and

also in the cover sheet and throughout the document

reference to one other statute besides the

Metropolitan Water, Sewerage and Drainage Act,

there has since come into operation the Water

Supply Authorities Act. Other than that, there is virtually no difference between the old and the

new.

HER HONOUR:  Thank you, yes. Mr Katz, what do you say about

all of this? I have the State Crown Solicitor's

letter of 8 October before me.

MR KATZ:  Perhaps it would be convenient if I were to take

Your Honour through the documents which appear in the book that I have handed up.

HER HONOUR:  Yes.

Pedler 3 10/10/91

MR KATZ:  Your Honour will see that the very first document

is the writ of summons which was issued in the

matter, and Your Honour sees that at line 30 on the

first page begins:

The plaintiffs' claim is -

and then follows a series of numbered paragraphs

which end at line 21 on page 3. That writ of

summons was served on the defendant and provoked a

letter from the Crown Solicitor which Your Honour

will find behind tab 2. It is a letter of 18 July

1988 signed by - - -

HER HONOUR: Well, I do not know that I do.

MR KATZ:  Your Honour, tab 2 consists, first of all, of an

entry of appearance by the defendant, then a notice

of entry of appearance, then a letter - - -

HER HONOUR:	Yes, thank you.
MR KATZ:	Your Honour will see that the letter, in the third

sentence, says:

In accordance with Order 21 rule l(l)(b) you

should deliver a statement of claim within

twenty one days after appearance -

so the position was being taken by the Crown

Solicitor that the writ of summons did not have

endorsed on it a statement of claim in accordance

with the rules.

HER HONOUR:  It looks very much as though it has got it

endorsed on it and all that is missing is the words

"statement of claim", does it not?

MR KATZ: Well, Your Honour, may I come back to that aspect

of the matter? The position was that that was a

matter which was raised at the outset by the

defendant's solicitor immediately after service of
the writ of summons.	Then nothing happened for

about a year, and if Your Honour goes to tab 3

Your Honour will see a letter, again, from the

Crown Solicitor's Office, complaining of the

absence of a statement of claim. That provoked a

reply by Mr Pedler which is tab 4. And there the matter rested for almost two further years. Then in May of this year there was served on the

defendant the document which is behind tab 5, a

notice of intention to proceed. It was necessary
for the plaintiff to serve such a notice by reason

of the fact that he had not taken any step in the

proceedings for the two-year period.

Pedler 10/10/91

Next, followed behind tab 6, the defendant's notice of intention to proceed. And there is a

second document behind tab 6, a letter of 4 July

1991.      May I inquire whether Your Honour has that

letter?

HER HONOUR:	Yes, I do.
MR KATZ:	Yes, and Your Honour will see that in a courteous

way the Crown Solicitor was seeking to raise with

the plaintiff various deficiencies which were seen
to exist in the writ of summons which had been

issued. Your Honour sees in the second paragraph

some reference to:

The thirteen numbered paragraphs endorsed on

the Writ do not, in my view, amount to a

Statement of Claim, but rather appear to be an

attempt to comply with the provisions of

Order 2 Rule 1, namely an endorsement of "a

concise statement of the nature of the claim

made and of the relief or remedy required in

the action."

And then there is reference to a proposed summons

on the part of the defendant seeking to have the

proceedings dismissed. In the result, that summons

was not proceeded with as will become apparent from

a later letter. There is reference also at the

bottom of page 1 and the top of page 2 to a failure

to plead necessary material facts. There is

reference to, among others, the absence of any

allegation of a fact which would justify complaints

about the validity of legislation authorizing the
imposition of rates. And then there was
discussion, as well, about a failure to serve the

required notices under section 78B of the Judiciary

Act.

That letter then provoked the response from

Mr Pedler which is in tab 7, a letter of some 3

writ of summons which Mr Pedler supplied at that	pages, and also behind tab 7 is a draft amended	time. Behind tab 8 is the summons on which the
parties are before you today and Your Honour will
see the various orders which are sought in the
summons. The first is that:

Leave to proceed -

be -

granted to the parties.

Your Honour, Order 60 rule 12 of the High

Court Rules deals with delays in taking steps in

proceedings and Order 60 rule 12(1) says:

Pedler 10/10/91

In a proceeding in which a step has not been

taken for one year, the party who desires to

proceed shall give one month's notice to every

other party of his intention to proceed.

Subrule (2):

When six years have elapsed from the time when

the last step in a proceeding was taken, a

fresh step shall not be taken without an order

of the Court or a Justice, which may be made

either ex parte or upon notice.

Your Honour, it would appear that in the

circumstances of this case, there is no necessity

for Your Honour to make an order giving leave to

proceed in the matter because there has not been a

delay of the sort which requires leave but if

Your Honour were of the view that it were

appropriate or necessary to give leave further to

proceed, then the defendant would consent to the

making of such an order.

The second order which is sought in the

summons is an order that leave be granted to amend

the writ of summons which originally issued in

certain respects. The respects are set out in

order 2, and the defendant consents to the

amendments being made to the original writ of

summons as set out in the order which is sought.

HER HONOUR: Well, is that correct? You are treating 2 and

3 as quite separate and distinct?

MR KATZ:  Yes, I am trying to deal with them all

individually. As to 3: 3 is the matter which has

just been raised by Mr Fedler and, as I understand

the position, order 18 of the High Court Rules

deals with the question of "Change of Parties by

Death Etc" and rule 2 subrule (1) relevantly

provides:

Where -

by reason of ..... death ..... occurring after the

commencement of a proceeding and causing a

change or transmission of interest ..... it
becomes necessary or desirable that a person

not already a party should be made a

party ..... in another capacity, an order that

the proceeding be carried on between the
continuing parties ..... may be obtained ex

parte ..... on application to the Court or a
Justice upon proof of -

(c) the change or transmission of interest -

Fedler 6 10/10/91

In so far as Mr Fedler seeks an order which will

allow him to sue not only in a personal capacity

but also in a representative capacity, the

defendant consents to the making of such an order.

HER HONOUR:	Could you say that again?
MR KATZ:	In so far as Mr Pedler seeks an order that he be

permitted to sue not only in his personal capacity
but also in his capacity as personal representative
of his mother's estate, the defendant consents to

the making of such an order.

HER HONOUR:  Thank you. So you accept the sufficiency of

the will and the death certificate as proof?

MR KATZ:  Your Honour, my instructions are simply to consent

to the making of such an order. I have no

instructions as to whether or not the documents are

sufficient - - -

HER HONOUR:  Yes. Well, I am just wondering. I mean, I

suppose they must be. The probate is really merely

the authentication of the will, is it not?

MR KATZ:  Yes, Your Honour. As I understand the effect of

the documents that have been supplied by Mr Fedler,

he is presently the personal representative of his

deceased mother's estate, whether probate has been

granted or not.

HER HONOUR:	Yes.
MR KATZ:	The fourth order which is sought is opposed by the

defendant, and if I may I will - - -

HER HONOUR:  Yes. Well, you need not speak to that.

MR KATZ:  I will come back to that if I may. The fifth

order which is sought is an order which was sought

at a time when there was no application by the

defendant before the Court, whether frivolous or

otherwise; whether to delay the proceedings or

otherwise. As the matter is now before you for

directions - - -

HER HONOUR: Is it?

MR KATZ: Well, as I apprehend the effect of the filing of

the summons by the plaintiff, Your Honour's powers

under Order 31 of the Rules would be enlivened and

Your Honour would then have the power to give such

directions with respect to the proceedings as

Your Honour thought proper. My submission is that

rather than making the order which is sought as

order No 4, that Your Honour would direct that the

Fedler 7 10/10/91

plaintiff deliver a statement of claim in this

matter to the defendant within -

HER HONOUR: It is clearly defective. Mr Fedler, it is

clearly defective as a statement of claim. But if

it is not a statement of claim endorsed on the

writ, what do you think it is?

MR KATZ:  Your Honour, I prefer not to answer the question

directly what I think it is but what it may have

been intended to be is compliance with the

requirement in order to - - -

HER HONOUR: All the correspondence says it is not. All the

correspondence says it is a statement of claim

endorsed on the writ.

MR KATZ: Well, if the position is that it does amount to a

statement of claim, perhaps, Your Honour

might - - -

HER HONOUR:  The ball is then in your court. If it does

amount to a statement of claim, the ball is in your

court.

MR KATZ:  Yes. Perhaps Your Honour might direct that the

endorsement on the writ of summons stand as a statement of claim in the matter and then the

defendant will be enabled to take such steps as it

thinks appropriate in response to that endorsement

which is now conclusively seen to be a statement of

claim.

HER HONOUR:  Yes.

MR KATZ: Well, Your Honour, that would suffice for the

purpose as well as would an order specifically

directing the plaintiff to deliver a statement of

claim.

Your Honour, that is all really to be said

about the documents apart from drawing

Your Honour's attention to the very last document in tab 9 which is the most recent correspondence

from the Crown Solicitor's Office to Mr Fedler

explaining why a decision had been taken not to

proceed with the proposed summons by the defendant
pointing out various defects perceived in the 13

numbered paragraphs and inviting further exchange

of views. If Your Honour pleases.

HER HONOUR:  Mr Pedler, I am prepared to treat what appears

on the writ as a statement of claim.

MR FEDLER:	Yes, Your Honour.
Pedler	10/10/91

HER HONOUR:  But it is defective as such. Now, all that

will happen in that event, that I treat it as a

statement of claim, is that the Crown Solicitor

will be here again in the foreseeable future asking

for it to be struck out or paragraphs of it to be struck out. Now, I take it you are determined to represent yourself in this matter?

MR PEDLER:  Yes, Your Honour.

HER HONOUR: Well now, the risk you run then if you do not

do something with the document is that you will be

out of court by reason that you did not state the

case properly, rather than by reason that you have

no merit in the case. I mean, you may have no

merit either, I do not know about that, but is that

a risk you wish to run?

MR PEDLER: Well, my understanding is when the statement was

made out that it covered all the aspects.

HER HONOUR: Well, I can tell you, Mr Pedler, it is

defective. It is not my business to tell you in

what respect it is defective but it is defective, I

mean, in that it simply does not disclose - for

example, it does not disclose any basis on which

you can require the Attorney-General to reimburse

moneys received by the Water Board, for example.

There is nothing in the statement of claim which

links the defendant with the Water Board.

MR PEDLER:  It was my understanding, Your Honour, that this

would be brought out at the hearing.

HER HONOUR: Well, no, no, it cannot be brought out at the

hearing, Mr Pedler. In a matter like this, it has to be done properly. You invoke the Constitution.

That brings you to this Court. If you do not

invoke the Constitution, you do not get to this Court. There are all sorts of issues about the matters once one gets past the section 90 point,

the highest Court in the land and things have got	for example. But this is a formal Court, this is
to be done properly. You elect not to be
represented; that is your right, but it does not alter the fact it has to be done properly and these things are not brought out at the hearing, they are not fixed up at the hearing. When this Court sits
in matters such as this it sits as a Court of seven in Canberra. People are brought from all around
the country or may come from all around the country, and the matters proceed. They do not get
tidied up at that stage. They get tidied up on the
papers right at the beginning and that is all there
is to it. This Court cannot be delayed in the
conduct of its business in the expectation that maybe we could fix things up at the hearing.

Pedler	10/10/91
MR FEDLER:	I did not mean for it to be fixed up,

Your Honour. What I was referring to was the

Attorney-General appearing for the Water Board.

HER HONOUR:  Well, he is not. You have not even sued the

Water Board. It is not a question of the

Attorney-General appearing for the Water Board.

You have not sued the Water Board.

MR FEDLER: Well, the problem, Your Honour, which lays there

is that I am claiming - - -

HER HONOUR:  I do not want to know what the problem is. I

am not interested in the problem. It is your problem to get a case in order if you want it

determined by this Court on its merits. That is

all.	Now, what your problem is with the Water
Board is neither here nor there.	If there was a
question of law -

MR FEDLER: That is what I am referring to, Your Honour, as

to - - -

HER HONOUR:	Yes, well that is your - - -
MR FEDLER:	- - - whether the Water Board existed before

this case which is the question of law.

HER HONOUR: Well, Mr Fedler, that is a matter for you to

expose and elucidate in your pleadings.	It is not
a - - -

MR FEDLER:  I understand I did that, Your Honour.

HER HONOUR:  Well, certainly not. You certainly do not

elucidate any basis in that regard. But there are

other problems. I am prepared to grant you the first three orders that you require or that you

seek.	I am prepared to order that it be treated as
a statement of claim.	Now, that takes you nowhere

unless you attend to the matters - when I say it

"takes you nowhere", it keeps you in Court, but

unless you thereafter attend to the matters that

are raised in the Crown Solicitor's letter, all

that is going to happen is that we all come back

here some little time down the track and argue

about formalities instead of about the substance of

the case.	Now, if you want to do that, it is a
matter for you.	It will cost you a lot of money

and it will be a waste of time and effort but I

cannot stop you.

MR FEDLER:  No, Your Honour. I thought that behind No 7 I

had, in fact, given the Attorney-General my

understanding of what the questions were basically

about - - -

Fedler 10 10/10/91

HER HONOUR:  I do not care what you tell the

Attorney-General. That is a matter between you and

the Attorney-General. Letters like this are

entirely between you and the Attorney-General.

This Court - if this matter is ever to be dealt

with on its merits, it is going to be dealt with

not on the basis of what is in letters between the

you and the Attorney-General but on the basis of

what is in the Court record. The fact that I have

this folder here does not make it part of the Court

record. The Court record is the documents filed in

the Registry.

MR PEDLER:	Yes, Your Honour.
HER HONOUR:	Now, if you wish to leave matters as they are,

at the moment you will be confined to precisely

what is in your summons or what is endorsed on the

summons and what I am prepared to accept is a

statement of claim. You will not be able to travel

outside that at all. If there are great gaps in

your case, then they are great gaps and the

consequences will be either that the matter is

dealt with by reference to the formalities or that,

if it ever gets to the substance, the holes are

left as holes. Now, do you want that to happen?

MR PEDLER:  Your Honour, this is a matter where about

80 per cent deals with the law and about

20 per cent with facts.

HER HONOUR:  Yes, but you still have to write it in your

statement of claim.

MR PEDLER:  Yes, Your Honour. I took it that any statements

of law were not to be allowed to be admitted into

the statement of claim beyond the basis on what the

argument is relied on. So, I can see that I would

have to extend it a lot further.

HER HONOUR:  Yes.

MR FEDLER:  I thought I was restricted by the rules of the

Court by not allowing matters of law to be included

therein and the normal - - -

HER HONOUR:  There are rules and practices but you will have

to make the whole of your case clearer. I am not

here to give you advice and it would be wholly

inappropriate, but a number of matters have been

raised by the Crown Solicitor. You have attempted

to deal with them, I take it, by letter.

MR FEDLER: Yes, Your Honour. I, in fact, sent a letter

telling the Attorney-General how it could be

defended if they so wished to defend it.

Fedler	11	10/10/91
HER HONOUR:	Yes.	It is not a question of how it could be

defended. That is not the question. It is the

record of the Court by reference to which decisions

of this Court will be made.

MR FEDLER: Yes, Your Honour. In that event, Your Honour, I

would like leave to amend the statement of claim

even further to bring it up to the requirements of

the Attorney-General.

HER HONOUR:  Thank you. You have no objection to that?

MR KATZ:	No, Your Honour.
HER HONOUR:	In that case, what I shall do is this, although

I think it is not necessary:	I will grant leave to
the parties to proceed with the matter.	I will

grant leave to the plaintiff to amend the writ of

summons and the statement of claim, the material

endorsed on the writ of summons being treated as a

statement of claim for the purposes of the rules,

in the manner sought in the application and in such

other manner as the plaintiff may be advised within

21 days from the date hereof.

I will further grant leave to the plaintiff to

continue this action in his capacity as an

individual and in his capacity as legal personal

representative of Stella Hildagard Fedler

(deceased), the second-named plaintiff in the

action.

Now that, I think, solves your problems.

MR FEDLER: Yes, Your Honour.

HER HONOUR:	Do you need an order as to pleading?
MR KATZ:	No, I do not believe so, Your Honour.

HER HONOUR: No. Well, I will just indicate that I would

expect that the defendant would either plead or

take some other formal step in the action, as he

may be advised, within the time limited by the

rules for pleading.

MR KATZ:  Yes, Your Honour.

HER HONOUR: Costs in the action, I imagine?

MR KATZ:  Yes, Your Honour, that would be my submission.

HER HONOUR:  Yes. Do you object to that?

MR FEDLER:  I have no objection, Your Honour.

Pedler 12 10/10/91

HER HONOUR:	Yes. Well, I will order that costs be costs in the action. Is there anything further?
MR KATZ:	No, thank you, Your Honour.
HER HONOUR:	In that case there will be orders accordingly.

AT 10.37 AM THE MATTER WAS ADJOURNED SINE DIE

Pedler 13 10/10/91