Sims v Auguste
[2009] WASC 127
•14 MAY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SIMS -v- AUGUSTE [2009] WASC 127
CORAM: LE MIERE J
HEARD: 26 FEBRUARY 2009
DELIVERED : 14 MAY 2009
FILE NO/S: CIV 2067 of 2006
BETWEEN: DOUGLAS ARTHUR SIMS
Plaintiff
AND
ARTHUR AUGUSTE
Defendant
Catchwords:
Practice and procedure - Amendment of statement of claim - Whether the plaintiff should be granted leave to amend his statement of claim - Turns on own facts
Legislation:
Limitation Act 1935 (WA), s 35(1)(b)
Result:
Leave granted to the plaintiff to amend his statement of claim except for certain paragraphs objected to
Category: B
Representation:
Counsel:
Plaintiff: Mr M S Macdonald
Defendant: Mr S F Popperwell
Solicitors:
Plaintiff: Macdonald Rudder
Defendant: Pynt & Partners
Case(s) referred to in judgment(s):
Hill v Luton Corporation [1951] 2 KB 387
Morgan v Banning (1999) 20 WAR 474
Pontin v Wood [1962] 1 QB 594; [1962] 2 WLR 258
Weldon v Neal (1887) 19 QBD 394
LE MIERE J: The plaintiff applied for leave to amend his statement of claim in accordance with a minute of substituted statement of claim dated 23 February 2009. The defendant objected to two paragraphs of the proposed statement of claim but otherwise does not object to leave being granted. On 28 April 2009 I ordered that the plaintiff have leave to amend his statement of claim save and except for [17] - [20]. These are my reasons for making that order.
Nature of the action
In 1999 Eastland Technology Australia Pty Ltd (Eastland) commenced actions in this court against Dr Whisson concerning intellectual property rights. The plaintiff and Dr Whisson were, or had been, directors of Eastland. In September 2000 Dr Whisson complained to the police that someone had burglared his residence and stolen a large number of documents. In November 2001 the plaintiff was charged with the theft of documents from the residence of Dr Whisson and with receiving stolen documents knowing them to be stolen.
The defendant is a legal practitioner. The plaintiff retained the defendant to advise him in relation to, and defend him against, the charges. The plaintiff alleges that the defendant breached his retainer by failing to exercise reasonable care and skill in the performance of his professional engagement and to comply with the reasonable instructions from the plaintiff. The plaintiff alleges that by reason of the practitioner's breaches of the retainer the trial, or other disposition of the charges, was delayed until 30 July 2004 when the Director of Public Prosecutions issued a nolle prosequi to the indictment resulting from the charges.
The plaintiff alleges in [16] of the proposed statement of claim that by reason of the defendant's breaches of his retainer the plaintiff has suffered the following injury and damage:
1.Damages suffered to the plaintiff's business interests particulars of which will be provided prior to trial;
2.Legal fees paid to the Practitioner;
3.Psychological injury, full particulars of which will be provided upon receipt of the psychiatric report on the plaintiff.
In the proposed statement of claim the plaintiff also wishes to plead at [17] that the defendant assaulted the plaintiff. The proposed pleading is:
On 6 June 2003 in St Georges Terrace Perth near 45 St Georges Terrace, the Practitioner assaulted the plaintiff
Particulars
The Practitioner pushed the plaintiff's chest with his chest and otherwise acted in a threatening manner toward the plaintiff, namely he shouted at the plaintiff in angry tones.
The plaintiff alleges in the proposed statement of claim that by reason of the said assault the plaintiff has suffered injury which is particularised to be psychological injury.
The defendant objects to the proposed pleading in [16] that the plaintiff has suffered psychological injury on the grounds that it is apparent from the proposed pleading that the plaintiff has no expert medical evidence that he has suffered psychological injury. The defendant objects to the plea of assault on the grounds that it is statute barred.
The plea of psychological injury in paragraph 16(3)
The defendant submits that this plea should be struck out because it implies an absence of any expert medical evidence that the plaintiff has suffered a personal injury. It is submitted that whether a person has suffered psychological injury is a matter for an expert and in the absence of an expert assessment there can be no credible material to support the plea and the plea should be disallowed.
The defendant refers to LexisNexis, Civil Procedure Western Australia (at 26 February 2006) [20.0.7] where the learned authors state:
Counsel who proffers a pleading owes a duty to the court to be satisfied that there is some credible material to support the matter pleaded: Hall Chadwick Corp Finance (WA) Pty Ltd v Axiom Properties Ltd [2002] WASC 179 at [22], [27].
Counsel for the plaintiff acknowledges that he is not in receipt of any expert evidence to support the plea that the plaintiff has suffered a psychological injury. However, it does not necessarily follow that there is no credible material to support the plea. The credible material need not necessarily be evidence that will be admissible at trial. The plaintiff's instructions to his counsel, statements of other potential witnesses and correspondence, or other documents or a combination of them, might constitute credible material to support the plea. Counsel for the plaintiff maintains that he is in receipt of credible material to support the plea. I will not refuse leave to file a statement of claim containing [16](3) of the minute for that reason.
The assault allegation
The assault is alleged to have occurred on 6 June 2003. An action for assault cannot be commenced if four years have elapsed since the cause of action accrued: Limitation Act 1935 (WA) s 38(1)(b). The plaintiff agrees that any action for the alleged assault on 6 June 2003 became statute barred on 6 June 2007.
Under the rule in Weldon v Neal (1887) 19 QBD 394 a plaintiff is not allowed to amend a writ or pleading to introduce a claim that has become barred by the running of the limitation period, because it would prejudice the rights of the other party. The question then is whether the plaintiff commenced an action for assault before 6 June 2007.
History of the action
The plaintiff commenced the action by writ of summons issued 4 October 2006. The writ was indorsed with a statement of claim in the following terms:
1.Unprofessional conduct in the preparation of the Plaintiff's defence.
2.Breach of client's engagement.
3.Inability to understand the complexity and inter‑relationship between the criminal action against the plaintiff and Civil Actions in the Supreme and Federal Courts involving companies of which the plaintiff is a director.
4.Failure to pass crucial documents to Senior Counsel engaged in my defence.
5.Refusal to co‑operate in pursuing clients interest in bringing fellow members of his profession to account before the Courts citing his concerns as to the damaging affect it would bring to his profession should he do so notwithstanding evidence of the involvement of those parties.
6.Dishonesty in relation to an important meeting with the DPP in relation to the criminal charge.
7.Overcharging for work not conducted properly or at all.
8.Allowing the criminal action to proceed beyond the norm by failing to challenge the continued adjournments sought by the prosecution.
PARTICULARS OF DAMAGE
9.Pain stress and suffering caused to myself and family as a consequence of his failure represent me in an honest and professional manner as would normally be expected of a person in his profession.
10.Additional accosts incurred by me and others as a consequence of his failure to understand the complexity and inter‑relationship between the criminal action and civil cases.
AND THE PLAINTIFF CLAIMS
11.That he is entitled to a return of monies paid to the defendant amounting to $32,500.
12.Additional costs incurred by the plaintiff and others as a consequence of the defendants failure to understand the inter‑relationship between the criminal action and civil cases.
13.Damages of not less than two million dollars for the stress, pain and suffering for failing to act in the best interest of the plaintiff and contributing to commercial losses in excess of that amount.
14.Costs, and
15.Interest
On 11 December 2006 the statement of claim indorsed on the writ was struck out. The plaintiff was ordered to file and serve an amended statement of claim by 31 January 2007. On 28 December 2006 the plaintiff filed a statement of claim. On 6 March 2007 that statement of claim was struck out and it was ordered that the plaintiff file and serve a minute of proposed amended statement of claim by 20 April 2007. Thereafter the plaintiff filed a number of minutes of proposed amended statement of claim that were objected to by the defendant and the parties conferred in relation to those matters. The plaintiff now seeks leave to amend his statement of claim in accordance with the minute of substituted statement of claim of 23 February 2009.
The Argument
The plaintiff agrees that the statement of claim indorsed on the writ did not plead the proposed cause of action for assault or the facts constituting that cause of action. The statement of claim indorsed on the writ did not make any reference to the alleged assault or the facts alleged to constitute the assault. The proposed plea of assault is beyond the scope of the writ indorsed with the original statement of claim.
The plaintiff says that the statement of claim filed by him on 29 December 2006 sufficiently pleads the assault. That is denied by the defendant. I will return to that issue later in these reasons.
The plaintiff submits that the effect of the order of 11 December 2006 that the plaintiff file and serve an amended statement of claim together with the filing of the statement of claim on 29 December 2006 pursuant to the order is that the statement of claim indorsed on the writ, and thereby the writ, was amended.
The defendant submits that the statement of claim indorsed on the writ was defective but that did not render the writ a nullity. A defective writ can be cured by a proper statement of claim: Hill v Luton Corporation [1951] 2 KB 387 and Pontin v Wood [1962] 1 QB 594; [1962] 2 WLR 258. But, the defendant submits, the action of filing a proper statement of claim merely cures the defects in the writ. The writ remains the touchstone for determining the cause of action.
The defendant submits that while the statement of claim indorsed on the writ was defective, it was still a good indorsement and the writ still marks out the plaintiff's cause, or causes, of action. To expand on those causes of action requires amendment to the writ and the plaintiff is out of time to raise the assault claim that was not encompassed in the facts indorsed on the writ.
As I have said, the statement of claim indorsed on the writ was struck out on 11 December 2006. That did not render the writ a nullity. For the purposes of the Limitation Act, the issue of the writ commenced any and all actions that were covered by the statement of claim indorsed on the writ, notwithstanding that it was defective. If the statement of claim filed on 29 December 2006 had been a proper statement of claim, and was still in force as a statement of claim, then any cause of action encompassed by that statement of claim, or the facts pleaded in it, was commenced for the purposes of the Limitation Act. However, the defendant submits that the statement of claim was not a proper statement of claim, it has been struck out, is no longer in force, it is a nullity and is not relevant in determining whether the plaintiff commenced an action for assault before 6 June 2007.
An amendment once made takes effect from the date of the document amended, rather than from the date of the amendment. The plaintiff submits that the effect of the order of 11 December 2006 and the filing and service of the statement of claim of 29 December 2006 was to amend the statement of claim indorsed on the writ and thereby the writ. The writ, as amended, although defective, was not a nullity and its terms are wide enough to encompass the amendments now sought to be made because the amended statement of claim sufficiently pleaded the assault now proposed to be pleaded in greater detail.
Neither counsel were able to refer me to any authorities dealing with the issue that arises in this case. In the end, it is not necessary for me to determine this issue. That is because I consider that the statement of claim of 29 December 2006 did not contain a sufficient statement of the proposed action for assault. Nevertheless, as the matter was argued I will state my conclusion.
Amendment was effective
The Limitation Act is concerned with the writ and not with good or bad indorsements or statements of claim. If the writ when issued, although defective, is not a nullity and its terms are wide enough to encompass amendments sought to be made to clarify or particularise or 'cure' it, then no question of limitation arises. Such an action is within time and subsequent steps (even those directed to defects in the original indorsement) are merely steps taken in a validly instituted action with respect to which it is not necessary to consider limitation questions: Morgan v Banning (1999) 20 WAR 474, 483 (Wheeler J).
If the indorsement is amended then the amendment takes effect from the date of the original writ. If the amended indorsement is wide enough to encompass a pleading sought to be made in a subsequent statement of claim then no question of limitation arises. That result should not be altered by the indorsement on the writ subsequently being struck out. To do so might occasion injustice to a plaintiff. For example, the plaintiff might amend the indorsement to plead a cause of action within the limitation period. If the indorsement was subsequently struck out after the limitation period had expired then the plaintiff would be unable to maintain the cause of action notwithstanding that he had within the limitation period successfully amended his writ to plead the cause of action.
In this case, the writ was indorsed with a statement of claim rather than an indorsement. That should not alter the result. It would be a triumph of form over substance if a plaintiff was able to maintain an action where he had successfully amended an indorsement which was subsequently struck out but not able to maintain the action where he had successfully amended a statement of claim indorsed on the writ where that statement of claim was subsequently struck out.
I turn now to consider whether the statement of claim of 29 December 2006 contained a sufficient statement of the proposed action for assault.
29 December 2006 statement of claim
I will set out in full the 29 December 2006 statement of claim:
Claim for Damages for Negligence against Barrister and Solicitor
1.The plaintiff is an inventor and company director of listed and unlisted public and private companies and resides at 4 Alness Street, Applecross WA 6153.
2.The defendant is a barrister and solicitor practicing inter alia in criminal law and at all material times carried on his practice at Atlas Building, 8 The Esplanade, Perth, Western Australia 6000.
3.On or about 5 December 2001 the defendant was engaged by the plaintiff to represent him in relation to criminal charges (more specifically referred to below) brought by the Commissioner for Police against the plaintiff.
PARTICULARS:
(i)The plaintiff was wrongfully charged by the Police on or about 27 November 2001 with burglary and stealing and receiving property knowing it to have been stolen;
(ii)The charges came about as a result of false statements by persons who stood to gain commercially as a consequence of the charges and criminal prosecution.
4.In December 2001 the plaintiff signed a Retainer Agreement prepared by the defendant which set forth the obligations of the defendant.
5.Pursuant to the engagement the defendant arranged with Mr M McCusker QC to advise, and also argue the matter when it came to trial.
6.In the premises, it was a term of the Retainer Agreement, and in addition or alternatively it was a duty of the defendant to exercise all care, skill, diligence and competence as a barrister and solicitor in preparation of the defence and to take all reasonable and proper care in that regard.
7.The defendant was dismissed by the plaintiff in late June 2003 following a meeting on 6 June 2003 at the chambers of Mr M McCusker QC attended by the defendant, Mr P Jooste QC, Mr J Picton‑Warlow barrister and solicitor and the plaintiff.
8.On 3 July 2003 the defendant filed a notice in District Court that he no longer represented the plaintiff.
9.At all material times the defendant relied upon the expertise and experience of the defendant to represent him in a competent and professional manner, and to attend to all reasonable requests of the plaintiff in determining the circumstances surrounding the alleged burglary that brought about the wrongful charges.
10.The defendant was guilty of breaches of the said Retainer Agreement and of the terms, conditions and warranties thereof, and he was guilty of negligence in failing to exercise all care skill diligence and competence in the performance of his services:
PARTICULARS
(a)During the time the defendant was engaged as aforesaid the defendant, despite direction by the plaintiff:
(i)Failed to liaise with the solicitor and counsel representing Eastland Technology Australia Ltd (ETA) (a company of which the plaintiff was and is a director), in regard to relevant matters the subject of a legal actions in the Supreme Court of Western Australia (the civil actions) concerning Dr Whisson of Perth (and others), the complainant in the criminal charges against the plaintiff;
(ii)Failed to forward plaintiff's documents and affidavits to Mr McCusker QC which were relevant to the plaintiff's defence; (these documents and affidavits will be produced on discovery);
(iii)Failed to read and qualify himself with the contents of relevant documents in regard to the relationship between the civil actions and the criminal prosecution and admitted such failure to the plaintiff and Mr McCusker QC, at a meeting held at the chambers of Mr M McCusker QC on 6 June 2003 and in the presence of Mr P Jooste QC and Mr Picton‑Warlow, barrister and solicitor; this was confirmed in a confrontation between the plaintiff and defendant, instigated by the latter, that took place in St George's Terrace following the adjournment of that meeting when the defendant insisted on the documents being returned to him so that he could read them;
(iv)Failed to retrieve a witnessed statement dated 18 July 2001, or a copy thereof, signed by Mr R N McHutchison, a witness for the plaintiff, that was handed to Detective Alvey at the Wembley Police station on 23 July 2001 by Mr M McCusker QC, in the presence of Mr J Picton‑Warlow, barrister and solicitor, and the plaintiff; (this statement was not handed by the Commissioner of Police to the Department of Public Prosecutions (DPP) as part of the evidence in the criminal prosecution);
(v)Failed to obtain from the DPP or Commissioner of Police copies of the forensic reports compiled by the Police at the scene of the alleged burglary which reports exposed vital contradictions in the prosecution case.
(b)Also during the time the defendant was engaged as aforesaid, the defendant in relation to a meeting held on 19 February 2003 with Mr T Hills‑Wright, Mr S Vandongen of the DPP, the plaintiff, the defendant and Mr C F Sharland (ETA Company Secretary) to examine photographic slides and a computer disc that formed part of the evidence in the criminal prosecution, failed in his duties in the following respects:
(i)When first asked, advised that he could not recall the meeting, and
(ii)When then confronted by the plaintiff regarding the fee charged for the meeting, recalled the meeting, but could not recall the events of that meeting;
despite having written to the DPP on 15 April 2003 in relation to the specific events at that meeting. (A copy of the letter will be produced under discovery).
(c)Also during the time the defendant was engaged as aforesaid, the defendant failed in his duties in the following respects:
(i)He failed to have regard to evidence proffered by the plaintiff that one of his colleagues had engaged in unethical and criminal behaviour in aiding and abetting the false charges of burglary and receiving against the plaintiff, and rejected any such suggestion without proper consideration and
(ii)Without proper consideration cited the aforegoing as a reason to discontinue representing the plaintiff.
(d)Also during the time the defendant was engaged as aforesaid, the defendant failed in his duties in the following respects:
(i)He failed to require the prosecution promptly to proceed with the charges to committal or withdraw them, and
(ii)For a period of about twenty months acquiesced in the prosecution's requirement that the plaintiff continue to appear personally at hearings in the District Court in Perth on a regular basis, occasioning the plaintiff to return from business overseas on two occasions.
11.In consequence of the matters aforesaid the plaintiff suffered loss and damage.
PARTICULARS
Full particulars of the plaintiff's loss and damages will be supplied after discovery;
AND THE PLAINTIFF CLAIMS
12.Against the defendant:
(a)Damages
(b)Interest on such damages at such rate and for such period as the Court shall think just.
The court should not be over zealous in finding that a proposed cause of action does not fall within an indorsement, including an indorsed statement of claim. In Morgan v Banning Wheeler J said in the course of discussing whether a cause of action arose out of the same facts as stated in the indorsement for the purposes of O 21 r 5(5):
It may be that 'cause of action' in the latter part of O 21 r 5(5) is to be understood as requiring the court to read the indorsement generously and to discern from it (if it be possible) what is the 'cause of action', in the sense of underlying facts entitling the plaintiff to relief, which the plaintiff seeks to raise (487).
On the other hand, a principal purpose of the Limitation Act is 'to enable a defendant to know with finality what fact or facts are said to give rise to the action against him': Morgan v Banning (Wheeler J) 485. That purpose would be frustrated if an indorsement was read so generously that it was held to encompass a cause of action, in the sense of the facts giving rise to the right to relief, when it would not alert a reasonable person in the position of the defendant to the facts which are to be alleged against him so that he may investigate the matter, approach witnesses and obtain evidence before the recollection of potential witnesses and relevant records have disappeared.
The plaintiff submits that (a)(iii) of the particulars to [10] of the 29 December 2006 statement of claim is a sufficient statement of the proposed action for assault. That particular refers to a confrontation between the plaintiff and the defendant, instigated by the defendant, that took place in St Georges Tce. The plaintiff says that 'confront' means, relevantly, to face, especially in hostility or defiance.
I find that (a)(iii) of the particulars to [10] of the 29 December 2006 statement of claim does not contain a sufficient statement of the proposed action for assault.
The word 'confrontation', like any word, takes its meaning from its context. The words relied upon by the plaintiff are found in subparagraph (a)(iii) of the particulars to [10]. Those are particulars of the defendant's breaches of the retainer agreement and of his negligence in failing to exercise all care, skill, diligence and competence in the performance of his services. Particular (a) is that during the time the defendant was engaged he failed to do certain things despite direction by the plaintiff. Those omissions are then set out in the subparagraphs, including subparagraph (iii). The omission stated in subparagraph (iii) is the defendant's failure to read and qualify himself with the contents of relevant documents in regard to the relationship between the civil actions and the criminal prosecution. The subparagraph goes on to say that the defendant admitted that failure at a meeting on 6 June 2003 at the chambers of Mr McCusker QC. The subparagraph goes on to say that that failure or admission was confirmed in a confrontation between the plaintiff and the defendant, instigated by the defendant, in St Georges Tce following the adjournment of the meeting when the defendant insisted on the documents being returned to him so that he could read them.
Subparagraph (iii) does not state that there was any physical contact between the plaintiff and the defendant, any threat by the defendant or any apprehension by the plaintiff of contact. The word 'confrontation' appears in the phrase 'this was confirmed in a confrontation between the plaintiff and defendant'. What was confirmed was the defendant's failure to read and qualify himself with the contents of relevant documents. In its context 'confrontation' in subparagraph (iii) does not connote an assault, or facts arguably capable of amounting to an assault.
Conclusion
The plaintiff will have leave to amend his statement of claim in accordance with the minute of substituted statement of claim dated 23 February 2009 save and except for [17] - [20].
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