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

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

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

2. Evers to pay the relief claimed.

2. 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.

3. The proceedings against the first defendant (Robert Foggo) were dismissed by Harrison AsJ on 28 September 2021 (Skelton v Foggo [2021] NSWSC 1228).

4. 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).

5. 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.

6. 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 defendant on 22 March 2022 is otherwise dismissed.

(3)    If the plaintiff seeks to amend the statement of claim, the plaintiff is to file and serve a notice of motion on or before 8 November 2022 accompanied by the proposed version of his pleading and any affidavit that may be appropriate in support of his notice of motion.

(4)    Leave is granted for any such motion to be returnable before the Court on 22 November 2022.

(5)    The plaintiff is to pay the third defendant’s costs on the motion on the ordinary basis.

(6)    The proceedings are stood over for further directions before the Common Law Registrar at 9am on 22 November 2022.”

7. A statement of claim dated 26 October 2022 and the notice of motion of 9 January 2023 seem to be the applicant’s attempted compliance with the above orders. There is also an affidavit of the applicant, although neither sworn nor affirmed, filed on 29 November 2022.

8. The new statement of claim is perhaps even more difficult to understand than the pleading that was considered by Dhanji J. The “Pleadings and Particulars” are limited to the following:

“1 Mr Evers perversion of course of justice

2 Mr Ever’s conflict of interest.”

9. There is more detail in the description of the “Type of Claim” but certainly not enough to be described as a description of a cause of action against the respondent.

10. The affidavit makes some specific allegations against the respondent and ends with this emphasis:

“N.B. the above-mentioned evidence (suppressed) does project + account for today + tomorrow.”

11. The applicant also provided me with the 1988 judgment of Enderby J concerning the motor vehicle accident which began the “legal story” leading to the present time (Skelton v The Nominal Defendant, (Supreme Court (NSW), Enderby J, 20 April 1988, unrep). He also provided me with a counsel’s advice, dated 2 September 2005, and a number of medical reports. In addition, there is a very comprehensive “Brief to Counsel / Legal Aid” which is undated, but post-dates the above advice from counsel.

12. Dhanji J said this, at [45], about the statement of claim he was considering:

“The statement of claim in this matter fails to state the plaintiff’s case with sufficient clarity so as to enable the third defendant to meet it. Indeed, as discussed above, it is not possible to understand the statement of claim without regard to the evidence and submissions of the plaintiff. As such, the statement of claim fails to disclose a reasonable cause of action.”

13. The applicant confirmed today that the current notice of motion is intended to comply with Order 3 made by Dhanji J. It does not, for the following reasons:

1. The orders it seeks are not the orders contemplated by his Honour.

2. The notice of motion was not filed and served before 8 November 2022. It is about two months late.

3. Most importantly, the new statement of claim comes nowhere near being a compliant pleading. It falls within the same criticism as the statement of claim that was before his Honour.

14. The applicant did his best to explain to me the difficulties that he has and his lack of ability to draft a proper pleading. I explained to him that it was necessary for him to do so and that he should, if possible, obtain assistance.

15. I also expressed my concern about his mental capacity to undertake the task and to generally run the proceedings. I have nevertheless decided that he should have another chance to construct an acceptable statement of claim.

16. The respondent did not oppose such an order but requested that any timetable I imposed should not extend over a lengthy period.

17. I make the following orders:

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.

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Amendments

10 February 2023 - coversheet - corrected parties

Decision last updated: 10 February 2023