Skelton v Foggo (No 3) - [2023] NSWSC 72

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Skelton v Foggo (No 3) [2023] NSWSC 72
Hearing dates: 10 February 2023
Date of orders: 10 February 2023
Decision date: 10 February 2023
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
(1) The notice of motion dated 9 January 2023 is dismissed.
(2) If the applicant wishes to file a fresh statement of claim he is to file and serve a notice of motion on or before 5 April 2023.
(3) The notice of motion must seek leave to file an amended statement of claim and be accompanied by a proposed version of this document.
(4) The plaintiff is to pay the third defendant’s costs of the motion dated 9 January 2023.
(5) The proceedings are stood over for further directions before the Common Law Registrar at 9am on 14 April 2023.

Catchwords:
CIVIL PROCEDURE – application to file fresh statement of claim – fresh document not understandable – leave to amend

Cases Cited:
Skelton v Foggo [2021] NSWSC 1228
Skelton v Foggo (No 2) [2022] NSWSC 1289
Skelton v The Nominal Defendant, (Supreme Court (NSW), Enderby J, 20 April 1988, unrep)

Category: Procedural rulings
Parties: Mr B.Skelton (Plaintiff)
Mr M. Evers (Third Defendant)
Representation:
Mr B.Skelton (Plaintiff self-represented)
Solicitors:
Mr S. Selvakumaran (Third Defendant)

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

JUDGMENT

The notice of motion for me today is dated 9 January 2023. It seeks the following orders, adopting the wording in the motion:

Evers deception of The Court + S.C. exposed.

Evers to pay the relief claimed.

Mr Michael Evers is the third defendant because in the proceedings as originally filed there were six defendants of which Mr Evers was the third.
The proceedings against the first defendant (Robert Foggo) were dismissed by Harrison AsJ on 28 September 2021 (Skelton v Foggo [2021] NSWSC 1228).
On 27 September 2022 Dhanji J struck out the statement of claim (filed on 17 March 2021) as against the third defendant (Skelton v Foggo (No 2) [2022] NSWSC 1289).
Dhanji J’s reasons provide a comprehensive and very useful history of the proceedings. The allegations against the respondent seem to be that the applicant consulted the respondent about bringing a case against a financial adviser when he had lacked the mental capacity to instruct the adviser. The respondent consulted senior counsel who concluded that there was insufficient evidence of a lack of mental capacity. The applicant’s complaint is that, in giving instructions to the senior counsel, the respondent “lied” both in his description of the plaintiff’s mental capacity and in a failure to provide senior counsel with all of the relevant documentation.
I think it important to set out the whole of the orders made by Dhanji J:

“(1) Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff’s statement of claim filed on 17 March 2021 is struck out as against the third defendant.
(2) The notice of motion filed by the third…

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 72
Decision Date: 10 February 2023

CaseChat Overview and Summary

The case of Skelton v Foggo (No 3) involved an application by the plaintiff, Skelton, to file a fresh statement of claim in lieu of an earlier document that had been dismissed for being incomprehensible. The case was heard in the Supreme Court of Victoria. The defendant, Foggo, opposed the application, arguing that the new statement of claim was also unclear and should not be permitted. The central legal issue was whether the court should grant leave to the plaintiff to file a new statement of claim that, according to the defendant, was no clearer than the first.

The court considered the principle that while it is generally in the interest of justice to allow parties to have their claims heard on the merits, this must be balanced against the need for proceedings to be conducted efficiently and fairly. The court examined the new statement of claim in detail and concluded that it was not substantially more understandable than the original. The judge found that the plaintiff had not demonstrated a sufficient basis for allowing the fresh document to proceed, given the lack of clarity and the potential for further delay and expense. Consequently, the application to file the fresh statement of claim was dismissed.

In light of the court's decision, the application to file a new statement of claim was refused. The plaintiff was not granted leave to amend the pleadings to include a clearer document, as the court found that the new statement of claim did not sufficiently address the issues of clarity and comprehensibility. The orders of the court effectively maintained the status quo, leaving the plaintiff without a means to proceed with the action in its current form.

Orders