Richards v Grant
[2006] VSC 387
•26 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 8287 of 2006
| BARRY RICHARDS | Plaintiff |
| v | |
| JOHN MACKINNON GRANT & ALLENDALE PRIVATE HOSPITAL PTY LTD (IN LIQ) | Defendants |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 29 September 2006 | |
DATE OF JUDGMENT: | 26 October 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 387 | |
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APPEARANCES: | Counsel | Solicitors | |
| The Plaintiff appeared in person | |||
| For the First Defendant | Mr F Saccardo S.C. | John W Ball & Sons | |
| For the Second Defendant | Mr D Grant | Logie-Smith Lanyon | |
HER HONOUR:
Barry Richards injured his right knee more than 40 years ago. Some 12 years later, the first defendant, Mr John Grant, operated on that knee at the Allendale Private Hospital, which was at that time owned and operated by the second defendant. This is the latest in a series of proceedings brought by Mr Richards, all of which have their origins in the operation and hospital stay of July 1975.
The doctor and the hospital deny that Mr Richards is entitled to bring this proceeding and say that it should be dismissed.
In order to better understand this proceeding and the parties’ arguments, it is desirable to consider in more detail the relevant events of the last 31 years.
Previous proceedings relating to the events of 1975
In May 1978, Mr Richards’ then solicitors, Ellison Hewison & Whitehead, issued a writ in this court in proceeding 2793 of 1978 (“the original proceeding”). In the original proceeding, Mr Richards claimed that he had suffered numerous injuries as a result of the actions of the doctor and the hospital, including (but certainly not limited to) venous thrombosis in the right leg, pulmonary embolism, pain and suffering. Mr Richards’ case was framed in negligence or breach of contract.
The original proceeding did not come on for trial until February 1988, almost 10 years after it had been issued. It seems that at least part of that delay was due to a serious car accident in which Mr Richards was involved in late 1982 and his involvement in subsequent litigation. The car accident not only caused Mr Richards physical and mental injuries, but also resulted in Mr Richards bringing a personal injury claim in the County Court, which ultimately went on appeal to the Full Court of this court and then to the High Court[1].
[1] Some years later, Mr Richards commenced proceeding 5216 of 1996 in this court against his lawyers, Mr C Francis QC and Mr A McMonnies, for professional negligence in their handling of his car accident claim; he also took that professional negligence case on appeal to the Court of Appeal.
Another reason for the 10 year delay in the original proceeding seems to be that Mr Richards’ solicitors were finding it very difficult to find medical support for his case. That is to say, the doctors engaged by Mr Richards’ own solicitors did not believe that the injuries were as serious as Mr Richards believed them to be.
The trial of the original proceeding commenced on 2 February 1988 in front of Ormiston J and a jury. Mr Richards was represented by very experienced barristers and solicitors: Mr Ross Gillies QC and Mr Hazelwood Ball, who were instructed by Mr John Snowden of Phillips Fox & Masel. That firm had become Mr Richards’ solicitors in mid-1979. Some days into the trial, apparently as a result of comments made in court, settlement discussions occurred between the parties’ respective counsel. It is not clear precisely when agreement was reached, but formal terms of settlement were executed by Mr Richards on 12 April 1988. Under those terms of settlement, the doctor and the hospital agreed to pay Mr Richards $60,000 plus costs, as well as indemnifying him in respect of certain social security payments, in return for which they received a comprehensive release from any further claims.
Mr Richards is unhappy with the terms of settlement. He says that at the time of settlement, he believed his injuries were worth about $1,500,000 in damages. He now believes that his original damages claim was worth about $13,000,000.
In September 1994, he sought to issue proceeding 8538 of 1994 (“the 1994 proceeding”) against the barristers and solicitor who represented him in the original proceeding. As the Acting Prothonotary was concerned that the 1994 proceeding might be an abuse of process, it was referred to a judge pursuant to r 27.06. In October 1994, Byrne J directed the Prothonotary’s office to accept the originating motion and summons for filing, and the documents were filed shortly thereafter.
In the 1994 proceeding, Mr Richards sought an order under s. 23A5(1A) of the Limitation of Actions Act 1958, extending the period of time within which he could bring an action against his former barristers and solicitor for professional negligence in relation to the settlement of the original proceeding.
In December 1994, Beach J dismissed Mr Richards’ application for an extension of time under s23A. There is no transcript or reasons for decision on the 1994 court file. However, in reasons for decision which he gave in 2001[2], Beach J said he had dismissed the originating motion in the 1994 proceeding because it was misconceived: “the plaintiff’s claim was not a claim which included damages in respect of personal injuries, it was a claim for damages against his former barristers and solicitors for what he alleged was their breach of duty as his legal advisers”.
[2][2001] VSC 176 at [4].
In December 2000, Mr Richards commenced proceeding 8096 of 2000 (“the 2000 proceeding”) against his former barristers and solicitor. On 22 May 2001, Beach J held that the 2000 proceeding should be dismissed for two reasons: it was caught by the principle of issue estoppel and was also an abuse of process. He also ordered that Mr Richards was not to institute any further proceeding in the court against his former barristers or solicitor, relating in any way to the original proceeding, without first obtaining the leave of a judge to do so[3].
[3][2001] VSC 176 at [9].
Thereafter Mr Richards made several attempts to obtain leave to sue his former barristers and solicitor. On 26 August 2002, Balmford J refused his application for leave to file an originating motion against his former barristers and solicitor. On 4 October 2002, Ormiston and Batt JJA dismissed Mr Richards application for leave to appeal Balmford J’s decision. A few months later, in early December 2002, Mr Richards filed a fresh application for leave to file an originating motion against his former barristers and solicitor. On 10 December 2002, Beach J dismissed that application. Mr Richards’ subsequent application for leave to appeal that decision was dismissed by Ormiston and Callaway JJA on 14 February 2003.
A common theme throughout the papers filed by Mr Richards in both the 1994 and 2000 proceedings was his assertion that his lawyers “forced the settlement upon him” during the 1988 trial of the original proceeding. There is no suggestion in the papers filed in the 1994 or 2000 proceedings that the doctor or hospital did anything wrong in 1988 in relation to the terms of settlement (as opposed to their original actions back in 1975). This is of some significance when one comes to consider any possible cause of action against the current defendants, namely the doctor and the hospital.
In January 2003, Mr Richards commenced proceeding 4296 of 2003 (“the 2003 proceeding”) against the doctor and the hospital. In his originating motion, he sought an order under s. 23A5(1A) of Limitation of Actions Act 1958 extending the period of time within which an action could be brought against the doctor and hospital in respect of the events of July 1975.
On 21 March 2003, Harper J dismissed the application. On 9 May 2003, Batt JA and Warren AJA dismissed Mr Richards’ application for leave to appeal against the decision of Harper J. On 10 December 2004, the High Court dismissed Mr Richards’ application for special leave to appeal from the Court of Appeal’s decision.
This proceeding
In early 2006, Mr Richards attempted to file an originating motion, affidavit and summons against the doctor and the hospital. The Prothonotary was concerned that the proceeding might be an abuse of process, having regard to the 2003 proceeding. Accordingly, the application was referred to the judge in the Practice Court pursuant to r. 27.06.
The originating motion which Mr Richards sought to file at that time sought an extension of time within which to bring a proceeding seeking to:
(1) Set aside the terms of settlement; and
(2) Recover damages in respect of injuries which he says were not known to him at the time of entry into the terms of settlement and which were not covered by the release. That is to say, Mr Richards wanted to commence a fresh damages claim against the doctor and the hospital.
Mr Richards first appeared before me in the Practice Court on 20 March 2006. As there were deficiencies in his supporting material, I adjourned the matter off to enable him to gather more evidence.
Mr Richards next appeared before me on 11 July 2006. I informed him that, having regard to the very wide terms of the release and the result of the 2003 proceeding, it would be an abuse of process for him to issue a fresh proceeding in respect of injuries said to have arisen from the events of 1975. Accordingly, I was not prepared to direct the Prothonotary to issue the proposed originating motion.
However, it seemed that no court had considered a challenge to the validity and enforceability of the terms of settlement. Having regard to the very low threshold requirements of r27, I said I would be prepared to direct the Prothonotary to allow him to issue a proceeding relating to that matter only.
I informed Mr Richards on that occasion that before he issued such a proceeding he would need to prepare a proposed statement of claim which set out precisely what the doctor and hospital did in 1988, which he says should entitle him to have the terms of settlement set aside. I also informed him that he would need to gather evidence of wrongdoing by the doctor and the hospital in relation to the entry into of the terms of settlement.
I was not aware on either occasion of the existence of the 1994 and 2000 proceedings or the many applications and appeals made in them. Had Mr Richards told me that he had spent so many years claiming that he signed the terms of settlement only because he was forced to do so by his former lawyers, I would have been concerned at the apparent change of course. In particular, it is unlikely that I would have directed the Prothonotary to issue this proceeding unless or until Mr Richards provided further details of precisely what actions of the doctor and hospital he alleged had caused him to enter into the terms of settlement.
The present application
At the time of commencing this proceeding on 23 August 2006, Mr Richards also filed a summons and two supporting affidavits[4]. By the summons, Mr Richards seeks the same relief as that sought in the originating motion, namely:
“The plaintiff seeks leave of the court, to file documents out of time for the order from the court to make void a contract (i.e. release) signed by the plaintiff in February 1988 concerning the defendants J Grant and Allendale Private Hospital P/L, heard in the Supreme Court Melbourne before His Honour Justice Ormiston No 2793, and order retrial of the case for the reasons as stated to an extent in the plaintiffs affidavits dated the 9/3/06 – 18/8/06.”
[4]The first was sworn on 9/3/06 but filed on 5/9/06 and has 128 exhibits; the second, sworn on 18/8/06, has a further 7 exhibits.
On 8 September 2006, Mr Richards filed a document headed “amended statement of claim”. Despite repeatedly informing Mr Richards that he was not allowed to bring an action in respect of the events of 1975, the vast majority of that document addresses the events of 1975 and seeks damages against the doctor and the hospital. Similarly, much of Mr Richards’ time before me has been spent trawling through the minutiae of his treatment in 1975, notwithstanding my constant reminders to focus on what happened in 1988. The terms of settlement are mentioned in the claim in the following context:
“59 … the contract (i.e. release) should be set aside and a retrial ordered because there was serious fraudulent misrepresentation of the facts relating to the contract by the people involved in supplying the medical information for the court and barrister to be able to decide a proper settlement for the plaintiff’s injuries and financial loss.
60 The immediate and long term effect of those injuries were not stated accurately to anyone so they have brought this action on themselves that the plaintiff did not get natural justice or a proper outcome for his injuries and losses.
61 There is no prejudice to either of the defendants in getting a fair or an accurate trial, which would have been the case in February 1988 if the defendants and their servants or agents had supplied accurate information in the medical reports.
62 … the release was worded with an attitude that the solicitors representing the defendants were aware of what lay ahead for the plaintiff, not only with the injuries, illnesses and medical conditions named in the statement of claim, but separate injuries that no one stated to Mr Gillies QC and he has stated to the plaintiff relatively recently that he would not have done what he did if he had known the extent of the injuries, the medical conditions and illnesses that the plaintiff sustained at the hands of the defendants, both the immediate effect and the long term effect on the plaintiff, the release can’t be said to cover the defendants for the facts that there is a high probability of the plaintiff losing his leg or legs or dropping dead in the near future.
… The release is so broad to the extent that compared to what the plaintiff has gone through in the past and in the future that it is a nonsensical and ridiculous document. The high probability what laid ahead for the plaintiff could not have been said to be stated in any of the medical reports supplied for the trial, yet the plaintiff maintains that it was known. The plaintiff realised it, but certainly not to the extent that has gone on.”
The summons came on before me in the Practice Court on 20 September 2006. I heard submissions from counsel for the doctor and the hospital. Mr Richards wanted more time to consider their submissions and to put in further material, so I adjourned the matter off part-heard until 29 September. Mr Richards subsequently filed a further affidavit[5] and written submissions. I heard further oral submissions on 29 September.
[5]Sworn 27/9/06.
The matter was initially approached on the assumption that it was an application for an extension of time, and questions of prejudice and delay were addressed, as well as discussion of the merits of Mr Richards’ claim. In the course of discussion, it became apparent that the application and proceeding were both misconceived, in that there is no statutory limitation period applicable for an action to set aside or rescind a contract on equitable principles, therefore no requirement to bring the application made by this originating motion. Of course, questions of laches and delay would become relevant, were such a proceeding to be commenced.
It follows that the originating motion and summons should both be dismissed on that basis alone.
However, as so much time was spent arguing about the merits of Mr Richards’ case against the doctor and hospital, I will make some observations about that matter. I make these observations in an attempt to assist Mr Richards to understand why I believe that his proposed claim against the doctor and hospital is misconceived. They also explain why I do not think it would be appropriate to allow the originating motion or statement of claim to be amended and to continue as a substantive claim, instead of simply dismissing the proceeding.
The terms of settlement were negotiated between the lawyers; Mr Richards played no direct part in them. He does not point to any representation or other conduct on the part of the doctor or the hospital or their lawyers which caused or induced him to enter into the terms of settlement, or might somehow give rise to a claim to have the terms of settlement set aside. On the contrary, his real complaint seems to be that his lawyers forced him to accept a settlement with which he was unhappy. But even if it could be established that his lawyers had forced him in that way, that would not entitle him to set aside the terms of settlement as between himself, the doctor and hospital. There would have to be some wrongdoing by the doctor or hospital, of a type that is recognised by the courts, before the terms of settlement could be set aside. Even making allowance for the fact that Mr Richards is not represented by a lawyer, he has not identified any conduct which might entitle him to rescission of the terms of settlement.
I pressed Mr Richards for further explanation as to the matters pleaded in his statement of claim. He said that the only “fraudulent misrepresentation” which he relies upon relates to what was in the various medical reports exchanged in the original proceeding. Mr Richards believes that all of the doctors, including those retained by his own lawyers, deliberately and falsely reported that his injuries were less serious than he knows them to be, in order to “protect their own”. He also believes that because his former solicitors acted for other doctors and hospitals, they were party to some sort of conspiracy to protect the medical profession. There is simply no evidence before me to support any such conspiracy. The other problem which Mr Richards faces with such an argument is this: on his own case, he did not rely on the truth of any of the medical reports in deciding to settle the original proceeding. He says that he believed throughout the original proceeding that the doctors reports were all wrong. True it is that he says that since 1988, he has come to realise just how wrong they were, but it seems clear that he never accepted them or acted in reliance on their truth at the time.
I do not doubt that Mr Richards sincerely believes that his injuries are worse than any of the doctors say, that the doctors have all conspired against him, that the neglect by the doctor and the hospital are “the worst case in history”[6], and that his damages claim is now worth $13,000,000. But the fact that his beliefs are sincere does not mean that they are grounded in reality or supported by evidence.
[6]Affidavit of Barry Richards sworn 9/3/06 at [142].
I have carefully looked at all of the folders of evidence and legal cases filed by Mr Richards in this proceeding. I have also had regard to what Mr Richards has said orally on each of the 4 occasions on which he has been before me, to see whether there is anything further that he might plead or put into evidence in support of his case. The fundamental evidentiary problem which Mr Richards faces is this: there is simply no evidence of any wrongdoing by either the doctor or the hospital in relation to the 1988 terms of settlement.
Among the material filed by Mr Richards in this proceeding are a number of psychiatric reports, including two from Dr Stella Kwong. In her report of 23 June 2003, she said she believed that Mr Richards was suffering from “a delusional disorder which is kept in good remission by taking medication.” However, in a more recent report dated 4 May 2006, she noted that Mr Richards was on Zoloft for his depression but “is not accepting any treatment for his delusional psychosis.” It may be that his psychiatric state has contributed to the strength of his beliefs about the wrongs which he perceives have been done to him.
As an aside, I note that there is evidence that Mr Richards may not always have found an offer of $60,000 unacceptable. For example, one of his own affidavits in this proceeding says that Mr Richards suggested to his solicitor in the late 1970s that he would accept a settlement of $25,000, as long as he got the money quickly to enable him to purchase and develop some units[7]. Elsewhere, he has deposed that he thought about “forgetting the medical side of the case and just suing for business losses” when his solicitor told him that he could not get medical support for his case[8].
[7]Affidavit of Barry Richards sworn 9/3/06 at [128].
[8]Affidavit of Barry Richards sworn 9/3/06 at [136].
Leave to proceed against the hospital
The second defendant sold the Allendale Private Hospital around late 1996 and went into liquidation on 16 December 2002. The liquidator has deposed that the company is without funds and would not be in a position to defend any proceeding brought against it. There seems to be no insurance policy which would cover a claim by Mr Richards. The liquidator also deposes to the fact that at the time of the 2003 proceeding, and since then, he has not been able to locate any person who knows anything about Mr Richards’ case or any documents relating to his original treatment. In the normal course of the winding up, all matters necessary to finalise the liquidation are near completion and the liquidator understands that the Australian Securities and Investments Commission will deregister the company within 3 months thereafter.
Section 471B of the Corporations Act 2001 prevents a person from beginning or continuing a proceeding against a company which is being wound up, except with the leave of the court. Whilst it is not possible to state in an exhaustive manner all the circumstances in which leave to proceed may be appropriate, they include factors such as the amount and seriousness of the claim and the stage to which the proceedings, if already commenced, may have progressed.
When the issue of the hospital’s liquidation was raised, I allowed Mr Richards to make an oral application before me for leave to commence or continue a proceeding against the hospital, rather than requiring him to make a written application to a master.
Having regard to the apparent weakness of Mr Richards’ proposed claim against the hospital, the period of time which has elapsed since 1988, the fact that the proposed proceeding has not commenced, and the various matters in paragraph 36 of these reasons, I will refuse Mr Richards’ application.
Vexatious litigant
Counsel for the doctor and the hospital urged me to also make an order in terms similar to that made by Beach J on 22 May 2001, namely preventing Mr Richards from commencing any further proceeding against the doctor and the hospital without leave of the court. It was submitted that I could and should make such an order in the exercise of the courts’ inherent powers to prevent misuse of its process. It is not clear on what basis Beach J made that order, and I note that his order was not criticised by either Court of Appeal in the 2000 proceeding.
In Commonwealth Trading Bank of Australia v Inglis[9] the High Court held that a court has no inherent jurisdiction to restrain a person from commencing new proceedings without leave of the court. However, a court has inherent jurisdiction to restrain a person from making an unwarranted and vexatious application without the leave of the court in an action which is pending in the court. Accordingly, I am not persuaded that I have any inherent power to make the order sought by the doctor and hospital.
[9](1974) 131 CLR 311.
There is a specific statutory procedure governing vexatious litigants, which is set out in s21 of the Supreme Court Act 1986. It permits the court to declare a person to be a vexatious litigant, on an application brought by the Attorney-General. It sets out specific matters to which a court must have regard in considering such an application. I am not aware of any such application having been made in respect of Mr Richards.
It is a matter for the Attorney-General to consider whether, in the light of the numerous unsuccessful proceedings commenced by Mr Richards[10], he wishes to make an application to have Mr Richards declared a vexatious litigant.
[10]In addition to the various proceedings already mentioned in these reasons, I am aware of three further unsuccessful proceedings in which Mr Richards sought unsuccessfully to sue the State of Victoria and a dozen or more policemen for alleged police brutality and harassment over the past 2 or 3 decades. They are mentioned in Richards v State of Victoria & others [2001] VSC 52 and Richards v State of Victoria & others [2003] VSC 368. It seems that Mr Richards has also sued a Mr John Perry for not giving him proper advice; I have no further details in relation to that matter.
Orders
There will be orders to the following effect:
1. The originating motion and summons be dismissed.
2. The plaintiff’s application for leave to commence a proceeding against the second defendant to set aside the terms of settlement dated 12 April 1988 is refused.
I will hear from the parties in relation to the precise form of orders and as to costs.
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