Sawyer v Alison and Associates (Legal) Pty Limited (ACN 118 861 251) - [2020] WADC 1

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   SAWYER -v- ALISON & ASSOCIATES (LEGAL) PTY LIMITED (ACN 118 861 251) [2020] WADC 1
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   12 DECEMBER 2019
DELIVERED          :   7 JANUARY 2020
FILE NO/S:   CIV 2547 of 2018
BETWEEN:   MONIQUE REBECCA JANE SAWYER
Plaintiff
AND
ALISON & ASSOCIATES (LEGAL) PTY LIMITED (ACN 118 861 251)
First Defendant
ROBERT SEAN KEANE in his capacity as administrator of the estate of ALISON JANICE ALDRICH
Second Defendant

Catchwords:

Practice and proceedure - Whether indorsement of claim adequate

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Paragraphs 1, 2, 3, 5 and 6 on the indorsement are struck out

Representation:

Counsel:

Plaintiff	:	Mr J R Shepherd
First Defendant	:	Mr S F Popperwell
Second Defendant	:	Mr S F Popperwell

Solicitors:

Plaintiff	:	Blackwall Legal Llp
First Defendant	:	Popperwell & Co
Second Defendant	:	Popperwell & Co

Case(s) referred to in decision(s):

ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Morgan v Banning (1999) 20 WAR 474

DEPUTY REGISTRAR HEWITT:

In this matter the defendant has applied to strike out the indorsement of claim which application the plaintiff opposes. The basis of the application is that the indorsement does not satisfy the requirements of the Rules of theSupreme Court 1971 (WA).
Order 6 r 1 of the Rules of the Supreme Court is in the following terms:
1.Nature of claim etc. to be indorsed on writ
(1)Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.
(2)In case of non‑compliance with subrule (1) the defendant may apply before appearance to set aside or amend the writ or for particulars.
The writ of summons was filed on 10 May 2018 and has been amended to correct the names of the parties but otherwise in a manner which is irrelevant to my determination.
An amended writ was filed on 28 March 2019 and a memorandum of conditional appearance was filed on behalf of the second defendant on 12 July 2019 and on behalf of the first defendant on 25 July 2019.
On 10 September 2019 a statement of claim was filed and the application with which I am presently concerned was filed on 13 September 2019, a time which had been agreed in consent orders. The orders sought by that application were to strikeout par 1, par 2, par 3, par 5 and par 6 of the indorsement, the effect of which would be to leave the writ alive solely insofar as particularised in par 4 are concerned.
Additionally, the summons sought that various paragraphs of the statement of claim which relied on the paragraphs of the indorsement under attack should likewise be struck out.
The indorsement of claim, the subject of the attack, is notable for, it's almost complete lack of a factual matrix and is in the following terms:
INDORSEMENT OF CLAIM
The plaintiff's claim is for loss and damage suffered by the plaintiff arising from legal advice provided to the plaintiff. Specifically:
1.breach of fiduciary duty;
2.breach of contract;
3.negligence;
4.failure to take steps to ensure that the plaintiff had capacity to:
a.provide instructions; and
b.enter into certain consent orders,
5.breach of schedule 2 of the Competition and Consumer Act 2010 (Cth); and
6.breach of the Fair Trading Act 2010 (WA).
AND THE PLAINTIFF CLAIMS:
1.Damages;
2.Interest; and
3.Costs.
In an affidavit sworn by Mr Patrick Timothy Spillane an employee of the plaintiff's solicitors, Mr Spillane stated in par 3 and par 4 as follows:
Initial Instructions
3.In late June 2018, Blackwall was instructed by the Plaintiff to commence these proceedings. I was instructed that these proceedings related to acts and omissions of the Defendants over the period December 2011 to December 2013.
4.In order to best preserve the Plaintiff's position, we filed a writ to preserve her cause of action, which we did not serve, whilst we further identified the issues and events which had given rise to her cause of action.
It can be seen from the quoted portion that the writ was filed to procure protection against the expiry of a limitation period and it was left deliberately vague to accommodate whatever cause of action the plaintiff's solicitors might choose to pursue.
The question for determination is whether in so doing the plaintiff's solicitors made the indorsement so vague that it is liable to be struck out save for par 4 which is not under attack.
The basic requirement of an indorsement of claim has received the attention of the Court of Appeal in ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235. The principal judgment was delivered by Justice McLure with which Wheeler J concurred. The relevant paragraphs within the decision which I reproduce below are [7] – [11]:
7This application raises for consideration the information which must be included in an indorsement to satisfy the requirements of O 6 r 1 and O 20 r 19 of the SCR. The minimum requirement has to be assessed in the context of the functions of an indorsement of claim in a writ. It has three functions two of which are related. Firstly, it marks out the perimeter within which a plaintiff may frame the statement of claim. Pursuant to O 20 r 2(2) of the SCR:
A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, the facts giving rise to a cause of action so mentioned.
8If a statement of claim or a proposed amendment exceeds the indorsement, the statement of claim should be struck out or the amendment refused unless the indorsement is amended: Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 238.
9Secondly, an indorsement in a writ has important limitation ramifications. The Limitation Act 1935 is concerned with the date of issue of the writ. Provided a writ is not a nullity, amendments can be made to a defective indorsement on the writ if the terms of the writ are wide enough to encompass the proposed amendments as they particularise, clarify or expand a cause of action already instituted: Morgan v Banning (1999) 20 WAR 474; O 21 r 5(5) SCR. An open ended or otherwise defective indorsement may be relied on to the advantage of a plaintiff who seeks to amend its writ and then its statement of claim after the expiry of the limitation provided.
10Thirdly, an indorsement also provides notice to the defendant of the nature of the plaintiff's claim and the relief sought in the action. However, it is not intended to be in the nature of a pleading but only a summary of the nature of the claim: Renowden v McMullin (1970) 123 CLR 584 at 595.
11The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend upon a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole.
In the present case, I consider that I can appropriately conclude, that the plaintiff's solicitors deliberately framed the indorsement of claim in as vague and open ended way as they could manage in order to give them ample leeway to plead whatever cause of action they considered might be available to the plaintiff arising from whatever further instructions they might receive. This is not a case of misadventure but this is a case, in my opinion, of a deliberately adopted tactic.
The question as I mentioned before, is whether the tactic will be successful in its objectives, or whether the court will consider that the indorsement of claim is fundamentally inadequate and should be struck out.
When one has regard to the statement of claim, to which I have earlier referred, it becomes clear that the plaintiff engaged the defendants to represent her in Family Court proceedings between herself and a former partner in which she sought a share in the property allegedly accumulated by the partners in the course of their relationship.
The Family Court proceedings were completed by a settlement in about December 2012 and, it remains a matter of conjecture whether or not it is plaintiff's intention to pursue any other breach following that date. Certainly, in the argument which I heard in the course of this matter, it was suggested that there may well be other matters which the plaintiff might be inclined to pursue such as failing to take steps in the Family Court to have the settlement set aside or annulled.
In the case of Morgan v Banning (1999) 20 WAR 474 her Honour Justice Wheeler said:
If the defective indorsement appearing on the writ when issued, is not of a type which is capable of encompassing amendments sought to be made after the expiry of the limitation period, so that the amendments truly 'add' an additional and time-barred cause of action (rather than particularising, clarifying, or expanding one already instituted) then, whether leave to amend is granted or not, the new action remains time‑barred. Whatever the rules of court may provide, an action which is in fact instituted out of time is able to be defeated by reliance upon the Limitation Act, which the court has no power to override, whether by a procedural rule or 'relation back' or otherwise.
In Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 the court declared:
So, consistently with Morgan v Banning, ABB v Hetherington stands for the proposition that if an application to amend does not add a new cause of action in the sense described in the cases, no limitation issue arises, and the general power conferred by O 21 r 5(1) can be exercised. On the other hand, if the amendment does add a new cause of action after the time specified for the commencement of that action in a limitation provision, no doctrine of relation back or rule of court can preclude the defendant relying upon a limitation defence, which should ordinarily be determined at trial.
After considering the cases referred to, and the materials before me, my conclusion is that the effort by the plaintiff's solicitors to make the indorsement of claim as broad and unspecific as possible has led to the fact that the indorsement is inadequate in par 1, par 2, par 3, par 5 and par 6, lacking as it does any useful factual basis upon which one conclude what cause of action is pursued for what mistake, oversight or error alleged to have been committed by the defendants.
Accordingly, it is my view that the offending paragraphs should be struck out.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DH
Court Officer
6 JANUARY 2020