Peter Del Borrello v Friedman & Lurie (A Firm)

[2013] HCASL 86

PETER DEL BORRELLO

v

FRIEDMAN & LURIE (A FIRM)

[2013] HCASL 86
P9/2013

1. In 1998, the applicant brought proceedings in the Supreme Court of Western Australia against the respondent, a firm of solicitors, which had acted for him in a civil matter.  The Supreme Court summarily dismissed the proceedings in May 1999.  However, on 6 November 2001, the Full Court of the Supreme Court of Western Australia (as it then was) allowed the applicant's appeal in part and gave leave for him to replead his case against the respondent. The applicant filed an amended statement of claim on 3 December 2001.  The action did not proceed in any significant way for many years, but as at the beginning of 2012, both parties had filed pleadings.  On 3 July 2012, the applicant filed a re-amended statement of claim.

2. On 30 July 2012, the Supreme Court (Pritchard J) struck out the re‑amended statement of claim, and ordered that the amended statement of claim of 3 December 2001 stand in the action.  Her Honour considered that the re‑amended statement of claim was repetitious, contained many paragraphs of evidence or commentary rather than material facts, and made scandalous allegations.  It had the potential to prejudice or delay a fair trial.   Her Honour also struck out an affidavit filed by the applicant, holding that it too made scandalous allegations.

3. On 20 December 2012, the Court of Appeal of the Supreme Court of Western Australia (Pullin and Murphy JJA) refused the applicant leave to appeal and dismissed his appeal.  Their Honours held that Pritchard J's decision was plainly correct and that the proposed appeal had no prospects of success.  Their Honours also struck out two affidavits filed by the applicant in December 2012 as they contained scandalous and irrelevant material and were of no assistance in the appeal.

4. The applicant now seeks an extension of time in which to file his application for special leave to appeal to this Court.  The application concerns a matter of practice and procedure and the unexceptional application of settled principles.  An appeal to this Court would enjoy no prospects of success.  The extension should not be granted.

5. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
5 June 2013 P.A. Keane