Smith v McCusker QC - [2001] WASC 217

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SMITH & ANOR -v- McCUSKER QC [2001] WASC 217

CORAM: MASTER BREDMEYER

HEARD: 30 JULY 2001

DELIVERED : 17 AUGUST 2001

FILE NO/S: CIV 1230 of 1995

BETWEEN: JAMES GARNETT SMITH
ELIZABETH ANNE SMITH
Plaintiffs
AND
MALCOLM JAMES McCUSKER QC
Defendant

Catchwords:

Pleading - Statement of claim - Pleading defects

Legislation:

Nil

Result:

Leave granted to file and serve a fresh minute of statement of claim

Category: B

Representation:

Counsel:

Plaintiffs: In person (Mrs E A Smith)
Defendant: Mr S S Sandhu

Solicitors:

Plaintiffs: In person
Defendant: Pullinger Readhead Stewart

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

Smith & Anor v McCusker QC & Another [2000] WASCA 320

Case(s) also cited:

Nil

MASTER BREDMEYER: This is an application by Mrs Smith for leave to replead a statement of claim in the form of a minute of proposed substituted statement of claim dated 15 June 2001.
By way of background, Mr and Mrs Smith initially sued Mr McCusker QC and another. The Smiths' application to file an amended writ and a substituted statement of claim was dismissed by Master Sanderson in September 1997. He refused leave for them to file a substituted pleading. On appeal to the Full Court the Full Court allowed the appeal in part against Mr McCusker only. The decision is Smith & Anor v McCusker QC & Another [2000] WASCA 320. In the course of those reasons the Full Court formulated 16 questions which they went on to answer in the judgment. Order 3 of the extracted orders was that the appeal be allowed (against Mr McCusker) "to the extent indicated by the answers to the questions formulated for the purposes of the appeal both of which are set out in the schedule to this order". The schedule consists of the 16 questions and answers in the reasons.
The defendant opposes the plaintiffs' pleading in the minute and I propose to consider those objections.
Paragraph 13 is objected to as not stating when the plaintiffs' solicitor, Mr Gilmour, wrote to the defendant seeking his opinion. I consider the plea is clear enough that the letter was written on 28 August 1986.
Paragraph 18 of the minute states:
"18. On the 28 August Mr Gilmour wrote a letter to the Defendant seeking to secure his retainer as Senior Counsel in the action against the bank and seeking his opinion on the matter."
This is said to be embarrassing because of the phrase "to secure his retainer as Senior Counsel". It is not as clear as it might have been, but nevertheless, I consider the letter, which I have not seen, will speak for itself and the defendant will not be embarrassed by it.
Paragraph 19 probably needs a few words to be added as follows:
"On the 28 August 1989 Mr Gilmour provided to the Defendant the Court documents ... ."
Paragraph 20 provides:
"20. The Defendant agreed and undertook to advise and act for the plaintiffs and…

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 [2001] WASC 217
Case: [2001] WASC 217
Decision Date

CaseChat Overview and Summary

The case of Smith v McCusker QC before the Supreme Court of Western Australia involved a request by the plaintiffs, James Garnett Smith and Elizabeth Anne Smith, to amend their statement of claim. The plaintiffs sought to substitute their existing statement of claim with a new minute of a proposed substituted statement of claim, dated 15 June 2001. The defendant, Malcolm James McCusker QC, opposed the application, raising objections to various paragraphs of the proposed new pleading. The legal issues before the court included whether the plaintiffs' proposed new pleading sufficiently complied with the directions given by the Full Court in the earlier appeal and whether the proposed pleading contained sufficient particulars to justify the claims made against the defendant.

The court meticulously examined each of the objections raised by the defendant. Master Bredmeyer addressed each point, offering detailed reasons for allowing or disallowing specific parts of the proposed pleading. For instance, the court found that while some paragraphs needed clarification or additional details, others could stand as they were. The court also determined that certain paragraphs were repetitive and could be consolidated or omitted to avoid redundancy. The court ruled that some of the objections, such as those concerning the timing of certain actions or the clarity of specific phrases, were valid and required amendments. Conversely, the court found that other objections, such as those related to the lateness of the opinion provided, were within the scope of the Full Court's previous directions and thus permissible.

In summary, the court granted leave for the plaintiffs to file and serve a fresh minute of the statement of claim, subject to the plaintiffs making the necessary amendments to address the court's observations. The final order would be determined after further submissions from the parties on the terms of the order.

Orders