SMITH & ANOR -v- McCUSKER QC [2002] WASC 267

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 267
Case No:	CIV:1230/1995	Heard:	3 OCTOBER 2002
Coram:	MASTER SANDERSON	Delivered:	15/11/02
No of pages:	12	Judgment Part:	1 of 1
Result:	Leave refused Plaintiff permitted to bring in fresh minute
Category:	B
PDF Version

Parties:	JAMES GARNETT SMITH ELIZABETH ANNE SMITH MALCOLM JAMES McCUSKER QC
Catchwords:	Practice and procedure Application for leave to amend statement of claim Turns on own facts
Legislation:	Nil
Case References:	Pegrum v Fatharly (1996) 14 WAR 92 Smith v McCusker QC [2000] WASCA 320 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SMITH & ANOR -v- McCUSKER QC [2002] WASC 267 CORAM : MASTER SANDERSON HEARD : 3 OCTOBER 2002 DELIVERED : 15 NOVEMBER 2002 FILE NO/S : CIV 1230 of 1995 BETWEEN : JAMES GARNETT SMITH

ELIZABETH ANNE SMITH

Plaintiffs

AND

MALCOLM JAMES McCUSKER QC

Defendant

Catchwords:

Practice and procedure - Application for leave to amend statement of claim - Turns on own facts

Legislation:

Nil

Result:

Leave refused

Plaintiff permitted to bring in fresh minute

(Page 2)

Category: B

Representation:

Counsel:

Plaintiffs : In person (Mrs E A Smith)

Defendant : Mr M J Buss QC & Mr S S Sandhu

Solicitors:

Plaintiffs : In person

Defendant : Pullinger Readhead Stewart

Case(s) referred to in judgment(s):

Pegrum v Fatharly (1996) 14 WAR 92
Smith v McCusker QC [2000] WASCA 320

Case(s) also cited:

Nil

(Page 3)

1 MASTER SANDERSON: This matter has something of a history. The writ was issued on 13 March 1995 but was not served until 30 January 1996. The original statement of claim was filed and served on 22 February 1996. That pleading was struck out by Acting Master Chapman, who gave the plaintiffs leave to serve a substituted statement of claim.

2 After some delay and a number of further interlocutory applications, a minute of proposed statement of claim was filed on 31 January 1997. On 15 April 1997 the plaintiffs filed a notice of motion for leave to file a proposed amended writ and proposed substituted statement of claim. On 5 September 1997 I refused leave to amend in terms of the minute, struck out the plaintiffs' claim and entered judgment for the defendants (at that stage there were two defendants). From this decision the plaintiffs appealed. On 30 October 2000 the Full Court delivered reasons allowing the appeal in part: see Smith v McCusker QC [2000] WASCA 320. I will return to this decision below but will first recount the further history of the matter.

3 Subsequent to the publication of the Full Court's reasons, a matter arose which required further consideration by the Court. I need say nothing about this matter as it is not relevant to the present application. The Full Court's further reasons were published on 6 April 2001. As at that date there was no statement of claim properly on foot, it being up to…

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.

Continue reading Smith v McCusker QC

Details

AGLC: Smith v McCusker QC [2002] WASC 267
Case: [2002] WASC 267
Decision Date

CaseChat Overview and Summary

The case of Smith v McCusker QC involved a dispute between the plaintiffs, James Garnett Smith and Elizabeth Anne Smith, and the defendant, Malcolm James McCusker QC. The plaintiffs sought to amend their statement of claim to assert causes of action for negligence and delay against the defendant, who was their former solicitor. The Full Court had previously allowed an appeal in part, permitting the plaintiffs to prosecute a cause of action for negligence. This appeal was limited to specific allegations of negligence in the defendant's handling of the plaintiffs' case against the Rural and Industrial Bank. The Supreme Court of Western Australia was tasked with deciding whether the plaintiffs should be granted leave to amend their statement of claim to reflect the Full Court's decision.

The key legal issue before the Court was whether the plaintiffs should be permitted to file a further amended statement of claim that adhered to the Full Court's determination. Specifically, the Court needed to assess if the proposed minute of the amended statement of claim was satisfactory and whether it appropriately reflected the Full Court's findings regarding the plaintiffs' permissible causes of action. The Court also had to consider the implications of refusing leave to amend, particularly whether striking out the plaintiffs' claim would be appropriate.

In its reasoning, the Court noted the extensive history of the case, including previous attempts by the plaintiffs to amend their statement of claim. The Court emphasised the necessity of having a statement of claim that could proceed to trial while acknowledging the plaintiffs' genuine efforts to comply with the Full Court's decision. The Court highlighted that the plaintiffs' proposed minute, while flawed, contained elements that could be salvaged and refined to meet legal standards. The Court allowed certain paragraphs to stand, particularly those that provided a narrative background and pleaded the defendant's retainer and duties. However, it directed the plaintiffs to simplify their allegations of breach of duty and to clearly articulate the loss suffered as a result of the alleged negligence and delay. The Court permitted the plaintiffs to bring in a further minute of the amended statement of claim, with specific instructions on its content, while cautioning the plaintiffs about the difficulties in proving their claims for loss.

The outcome of the case was that the plaintiffs were granted leave to file a further minute of the amended statement of claim, subject to the Court's directions. The Court emphasised the need for the plaintiffs to focus on the essential elements of their claims and to consider the practicalities and evidence required to support their allegations of loss. The precise form of orders and the allocation of costs were to be determined in subsequent proceedings.

Orders