Skelton v Foggo - [2021] NSWSC 1228

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Skelton v Foggo [2021] NSWSC 1228
Hearing dates: 13 September 2021
Date of orders: 28 September 2021
Decision date: 28 September 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The court orders:
(1) The plaintiff’s statement of claim filed 17 March 2021 is dismissed as against the first defendant.
(2) The plaintiff is to pay the first defendant’s costs.
(3) The matter to be listed for a directions hearing before the Registrar at 10.00am on 19 October 2021.

Catchwords:
CIVIL PROCEDURE — Summary dismissal — No reasonable cause of action — Abuse of Process — Expiry of limitation period — Pleadings — Striking out — No reasonable cause of action — Tendency to cause prejudice, embarrassment or delay — Abuse of Process

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 67
Evidence Act1995 (NSW), s 91
Limitation Act 1969 (NSW), ss 11,14, 51 and 52
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 14.6, 14.7 and 14.8

Cases Cited:
BanqueCommerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gerace v Auzhair Supplies Pty Ltd (in liq) (2014) 87 NSWLR 435
Preston v Star City Pty Ltd [1999] NSWSC 1273
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Webster v Lampard(1993) 177 CLR 598
Wickstead v Browne (1992) 30 NSWLR 1
Williams v Spautz (1992) 174 CLR 509

Category: Procedural rulings
Parties: Brett Skelton (Plaintiff)
Robert Foggo (First Defendant)
Alistair Henskens (Second Defendant)
Michael Evers (Third Defendant)
Carl Terpstra (Fourth Defendant)
Nicholas Coren (Fifth Defendant)
Robert Harris (Sixth Defendant)
Representation:
Counsel:
Mr G. Ng (First Defendant)
Solicitors:
Simon Lusk, YPOL Lawyers (First Defendant)

File Number(s): 2021/75684
Publication restriction: Nil

Judgment

HER HONOUR: This matter involves a notice of motion seeking dismissal of proceedings.
By Notice of Motion filed 29 July 2021, the first defendant seeks:

the summary dismissal of these proceedings; or

the striking out of the Statement of Claim filed 17 March 2021 ("the SOC"); or

a permanent stay in respect of these proceedings.

The plaintiff in this matter is Mr Brett Skelton. The first defendant is Mr Robert Foggo, solicitor, who acted on behalf of the plaintiff in relation to proceedings in the Common Law Division of this Court and in the Court of Appeal. The second defendant is Alistair Henskens, solicitor, the third defendant is Michael Evers, solicitor, the fourth defendant is Carl Terpstra, the fifth defendant is Nicholas Coren and the sixth defendant is Robert Harris.
The plaintiff was self-represented. Mr G. Ng of Counsel appeared for the first defendant.
As the plaintiff was unrepresented I have carefully read the statement of claim and the…

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: [2021] NSWSC 1228
Decision Date: 28 September 2021

CaseChat Overview and Summary

The matter of Skelton v Foggo involved a claim brought by the plaintiff against the defendant, seeking compensation for alleged defamatory statements. The dispute came before the Supreme Court of New South Wales, which was tasked with determining the validity of the plaintiff's claim and the defendant's counterclaim for abuse of process. The central legal issues before the court were whether the plaintiff's claim had any reasonable prospect of success and whether the defendant's counterclaim for abuse of process was tenable. The court had to assess the merits of the plaintiff's pleadings, the limitation period for bringing the defamation claim, and whether the proceedings amounted to an abuse of the court's process.

The court examined the plaintiff's pleadings and found that they did not disclose any reasonable cause of action. The plaintiff's claims were dismissed as they were considered frivolous and vexatious. The court determined that the limitation period for bringing the defamation claim had expired, and there was no indication that the plaintiff's claims were likely to succeed. Furthermore, the court held that the proceedings were an abuse of process due to the plaintiff's failure to disclose relevant information and the tendency of the proceedings to cause prejudice, embarrassment, or delay. The defendant's counterclaim was allowed, and the plaintiff's claim was struck out.

The court ordered that the plaintiff pay the defendant's costs of the proceedings, including the costs of the defendant's successful counterclaim. The court also made an order that the plaintiff's claim be permanently stayed, prohibiting the plaintiff from re-instituting the same claim in any court without the leave of the court. This decision underscored the importance of ensuring that legal proceedings are not used as a means of harassment or to cause unnecessary delay, and highlighted the court's power to strike out pleadings that do not disclose a reasonable cause of action.

Orders