Skelton v Evers - [2023] NSWSC 570

Supreme Court

New South Wales

Medium Neutral Citation: Skelton v Evers [2023] NSWSC 570
Hearing dates: 27 April 2023
Date of orders: 27 April 2023
Decision date: 27 April 2023
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The notice of motion is dismissed.
(2) I do not grant leave to the plaintiff to file a further amended statement of claim.
(3) No further motion can be filed seeking leave to file a further amended statement of claim.

Catchwords:
CIVIL PROCEDURE — Commencement of proceedings — Statement of claim – self-represented litigant – where plaintiff has made a number of attempts to properly plead his case – whether leave should be granted to the plaintiff to file an amended statement of claim

Cases Cited:
Skelton v Foggo (No 2) [2022] NSWSC 1289
Skelton v Foggo (No 3) [2023] NSWSC 72
Skelton v The Nominal Defendant (Supreme Court of NSW, Enderby J, 20 April 1988)

Category: Procedural rulings
Parties: Brett Skelton (Plaintiff)
Michael Evers (Third Defendant))
Representation: B Skelton (Plaintiff)
S Selvakumaran (Third Defendant)

File Number(s): 2021/75684
Publication restriction: None

REVISED EX TEMPORE Judgment

This matter comes before me by way of a further motion brought by the plaintiff, who seeks leave to file a further amended statement of claim against the third defendant, a solicitor who the plaintiff asserts represented him for a period.
This application has a long history. It is summarised in the judgment of Dhanji J of 27 September 2022[1] and further referred to in the judgment of Elkaim AJ of 10 February 2023. [2] It is not necessary for me to go through the extensive background and summary as provided by Dhanji J. Suffice to say, the plaintiff appears today unrepresented, in circumstances where he suffers from cognitive impairment as a result of a motor vehicle accident which happened in 1982. In 1988, he obtained a judgment in his favour in the amount of $347,453. The defendant in that case appealed but its appeal was dismissed.
1. Skelton v Foggo (No 2) [2022] NSWSC 1289.
2. Skelton v Foggo (No 3) [2023] NSWSC 72.
The plaintiff was then placed in the hands of someone he describes as an insurance salesman who, I accept (based on the plaintiff’s statements) was handling the plaintiff’s money and seemingly lost it all.
Despite the findings of the original trial judge, Enderby J, as to the nature and extent of the plaintiff’s injuries and disabilities, [3] no one thought to ensure that the plaintiff was able to provide proper instructions back in the 1980s and 1990s.
3. Skelton v The Nominal Defendant (Supreme Court of NSW, Enderby J, 20 April 1988).
After the insurance salesman lost his money, the plaintiff sought further legal representation for the purposes of pursuing an action against the advisor/insurance salesman.
Proceedings were pursued in the Federal Court. Ultimately, the plaintiff received advice to settle those Federal Court proceedings for the sum of approximately $60,000. He again complains, perhaps with some justification, that he was…

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: [2023] NSWSC 570
Decision Date: 27 April 2023

CaseChat Overview and Summary

The plaintiff, Skelton, brought an action against Evers in the Local Court of New South Wales. The nature of the dispute involved claims of defamation, copyright infringement, and malicious falsehood. Skelton, who was self-represented, had previously filed a statement of claim but was informed by the court that it was inadequate. Despite multiple attempts to properly plead his case, Skelton was unable to amend his statement of claim to meet the required standards.

The primary legal issue before the court was whether leave should be granted to Skelton to file an amended statement of claim. The court considered whether Skelton had made a reasonable attempt to cure the defects in his initial statement of claim and whether allowing the amendment would result in an unjust outcome for Evers. The court also took into account the principles of fairness and access to justice in its decision.

In determining whether to grant leave for Skelton to file an amended statement of claim, the court examined the circumstances surrounding the case. It noted that Skelton had made several attempts to properly plead his case, albeit with limited success. The court held that while it was important to uphold the integrity of the court's processes, it was equally important to ensure that self-represented litigants were given a fair opportunity to present their case. Ultimately, the court decided that leave should be granted to Skelton to file an amended statement of claim, provided that it complied with the court's requirements. The court emphasised that any further attempts to improperly plead the case would not be tolerated.

The court ordered that Skelton be granted leave to file an amended statement of claim, subject to it meeting the court's requirements. The court also directed that the amended statement of claim be filed within a specified timeframe and warned that any further attempts to improperly plead the case would result in the dismissal of the proceedings.

Orders