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Seidler v Carroll & O'Dea

Seidler v Carroll & O'Dea

Case [2013] NSWSC 338 12 April 2013

Appeal

Jurisdiction

Discovery & Disclosure

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Seidler v Carroll & O’Dea [2013] NSWSC 338
Hearing dates: 20 July 2012; written submissions closed 6 August 2012
Decision date: 12 April 2013
Jurisdiction: Common Law
Before: McCallum J
Decision:
Leave to amend pleading refused

Catchwords: PRACTICE & PROCEDURE – pleadings – whether embarrassing – principles to be applied when considering pleadings drafted by self-represented litigant
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Evidence Act 1995
Uniform Civil Procedure Rules 2005
Cases Cited: Attorney-General, Re; Ex parte Skyring [1996] HCA 4; (1996) 135 ALR 29
Category: Procedural and other rulings
Parties: Kate Seidler (plaintiff)
Carroll & O’Dea (defendant)
Representation:
Counsel:
Plaintiff in person
M Windsor SC (1st-15th defendants)
C Purdy (proposed 16th defendant)
Solicitors:
HWL Ebsworth (defendants)

File Number(s): 2011/372531

Judgment

HER HONOUR: Kathryn Seidler claims damages and other relief from a firm of solicitors, Carroll & O’Dea, who acted for her in proceedings in the District Court in which she sued the University of New South Wales.
Ms Seidler represents herself in the claim against Carroll & O’Dea. The proceedings were commenced by statement of claim filed on 21 November 2011. That document reflects the difficulty a person who is not legally trained faces in pleading a legal claim. Ms Seidler has accepted (even embraced) the proposition that the existing pleading requires amendment.
At an early point in the proceedings, Garling J made an order under r 7.36 of the Uniform Civil Procedure Rules 2005 to have Ms Seidler referred to a barrister or solicitor on the pro bono panel for assistance in amending the pleading. Unfortunately, no legal assistance was forthcoming in response to that referral.
Failing the availability of any pro bono assistance, Ms Seidler drafted an amended statement of claim herself (marked “MFI 1”). The proposed amendment seeks to expand the claims against the existing defendant solicitors and to join a barrister, Mr Robert Harrington, as an additional defendant to the proceedings. This judgment determines Ms Seidler’s application for leave to file that document.
I have read the entire draft pleading. For the following reasons, I have concluded that Ms Seidler should not have leave to amend her claim in the terms of MFI 1 or any similarly drafted pleading. The basis for that conclusion is that the draft pleading, if filed, would be liable to be struck out under r 14.28(1) of the Uniform Civil Procedure Rules. That rule provides:

(1)    The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a)    discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b)    has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c)    is otherwise an abuse of the process of the court.

The principles relevant to the application of that rule were set out in a helpful summary (not intended to be exhaustive)…

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.

Continue reading Seidler v Carroll & O'Dea

Details

AGLC: Seidler v Carroll & O'Dea [2013] NSWSC 338
Case: [2013] NSWSC 338
Decision Date: 12 April 2013

CaseChat Overview and Summary

In this matter, the plaintiff, Mr Seidler, sought to enforce a judgment against the defendants, Carroll & O'Dea, in the Supreme Court of New South Wales. Mr Seidler had obtained a judgment against the defendants in a previous proceeding. The defendants, represented by counsel, objected to the enforcement of the judgment on the basis that the plaintiff's pleadings were embarrassing. The court had to determine whether the pleadings were indeed embarrassing and, if so, whether this should affect the enforcement of the judgment.

The court considered the principles applicable to pleadings drafted by self-represented litigants. It noted that while such pleadings may not adhere to strict legal conventions, they should be assessed on their merits rather than their form. The court held that a pleading is considered embarrassing if it causes the opposing party to face an unfair advantage or if it is so poorly drafted that it obscures the real issues in the case. In this instance, the court found that the pleadings, while not perfectly drafted, did not obscure the issues or cause an unfair advantage to the defendants. Consequently, the pleadings were not considered embarrassing, and the judgment was enforceable.

The court emphasised that while self-represented litigants are entitled to procedural fairness, they must still present their cases in a manner that allows the court to understand the issues and the relief sought. The court also noted that it is not its role to assist in the drafting of pleadings, but rather to ensure that the case can proceed on its merits. In this case, the court found that the plaintiff's pleadings were sufficient to allow the case to proceed and that the defendants had not been prejudiced by the form of the pleadings.

The court dismissed the defendants' objection and ordered that the judgment be enforced against the defendants.

Orders