Seidler v Carroll and O'Dea (No 2) - [2013] NSWSC 1172

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Seidler v Carroll & O'Dea (No 2) [2013] NSWSC 1172
Hearing dates: 23 August 2013
Decision date: 23 August 2013
Before: McCallum J
Decision:
Proceedings dismissed for want of due despatch

Catchwords: PROCEDURE - plaintiff failing to comply with orders for service of proposed amended pleading - where original pleading embarrassing and liable to be struck out - exercise of discretion to dismiss proceedings for want of due despatch
Legislation Cited: Uniform Civil Procedure Rules, r 12.7
Cases Cited: Seidler v Carroll & O'Dea [2013] NSWSC 338
Category: Interlocutory applications
Parties: Kathryn Seidler (plaintiff)
Carroll & O'Dea (defendant)
Representation: Counsel:
Plaintiff in person
M Windsor SC (1st-15th defendants)
C Purdy (proposed 16th defendant)
Solicitors:

File Number(s): 2011/372531
Publication restriction: None

JUDGMENT

HER HONOUR: These proceedings were commenced by Miss Kathryn Seidler against the law firm, Carroll & O'Dea, by statement of claim filed on 21 November 2011. The proceedings have an unhappy history, part of which is recorded in my earlier judgment in the proceedings refusing leave to the plaintiff to amend that pleading: see Seidler v Carroll & O'Dea [2013] NSWSC 338.

PLAINTIFF: Your Honour

HER HONOUR: Please, Miss Seidler, I am giving a judgment, please don't interrupt me.

PLAINTIFF: Sorry, your Honour, there is one thing, we haven't heard a motion about the current statement of claim. If I am forced to proceed on that then we have to have a motion on that, though.

HER HONOUR: I have determined that I am going to dismiss the proceedings for want of due despatch. Please take a seat and please don't interrupt my judgment again.

(Last sentence of judgment read at request of her Honour)

PLAINTIFF: Sorry, your Honour, there is one thing, though, that is

HER HONOUR: Miss Seidler, please, I am giving a judgment. If you interrupt me again I am going to ask my Tipstaff to contact the Sheriff's Office to have you removed from the court because you are disrupting the process of the court, do you understand? Please don't interrupt again.

PLAINTIFF: One question?

These reasons should be considered in the context of the history set out in that judgment. Since that time, the plaintiff has twice failed to comply with orders to serve a proposed amended pleading.

Those orders were made in the following context. First, the plaintiff herself had acknowledged deficiencies in the existing statement of claim and, further, had articulated her desire to amend it. Secondly, I had in the course of my lengthy case management of these proceedings considered the terms of the pleading and formed the view that it is liable to be struck out as embarrassing.

I reviewed the pleading yesterday in preparation for the hearing today and remain of that view. It suffers from many of the vices of the proposed amended pleading the subject of my earlier judgment. It wholly fails to identify the facts, matters and circumstances on the strength of which various contentions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 1172
Decision Date: 23 August 2013

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Seidler v Carroll and O'Dea (No 2) involved a dispute between the plaintiff, Mr Seidler, and the defendants, Carroll and O'Dea, over issues related to professional services and alleged breaches of contract. The plaintiff sought to amend his pleadings to address what he described as procedural errors and to clarify the legal grounds of his claims. The defendants contested the plaintiff's attempts to amend his pleadings, arguing that the plaintiff had failed to comply with procedural requirements and had not acted with due diligence in pursuing his claims.

The central legal issue before the court was whether the plaintiff's failure to comply with the orders for service of his proposed amended pleading justified the exercise of the court's discretion to dismiss the proceedings for want of due despatch. The court also considered whether the original pleadings were embarrassing and whether they were likely to be struck out. The defendants argued that the plaintiff's repeated attempts to amend his pleadings, without adhering to the court's procedural directives, demonstrated a lack of diligence and warranted the dismissal of the proceedings.

The court found that the plaintiff's failure to comply with the orders for service and his repeated attempts to amend his pleadings without justification demonstrated a lack of due despatch. The court noted that the original pleadings were indeed embarrassing and liable to be struck out, as they were vague and did not clearly articulate the claims against the defendants. The court concluded that the plaintiff's conduct warranted the exercise of the court's discretion to dismiss the proceedings for want of due despatch. The plaintiff's failure to comply with the court's procedural orders and his repeated attempts to amend his pleadings without proper justification led the court to determine that the proceedings should be dismissed.

The final orders of the court were that the plaintiff's claims be dismissed for want of due despatch, with no order as to costs. The court emphasised the importance of parties adhering to procedural requirements and acting with due diligence in pursuing their claims. The dismissal of the proceedings highlighted the consequences of failing to comply with the court's orders and the importance of diligent conduct in legal proceedings.

Orders