Thorpe v Newell Lock (a firm)

[2004] VSC 53

IN THE SUPREME COURT OF VICTORIA (Revised)

AT MELBOURNE

PRACTICE COURT

No. 5033 of 2003

PETER ROYCE THORPE & ors	Plaintiff
v
NEWELL LOCK	Defendant

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JUDGE:	MANDIE J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2004
DATE OF JUDGMENT:	25 February 2004
MEDIUM NEUTRAL CITATION:	[2004] VSC 53

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Practice and Procedure – Appeal from Master – Application to strike out statement of claim – whether pleading would prejudice, embarrass and delay the fair trial of the proceeding

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P.D. Elliott Q.C. with Mr . Lapirow	Davies Moloney
For the Defendant	Mr J.D. Elliott	Phillips Fox

HIS HONOUR:

1. The defendant applied by summons dated 2 February 2004 for orders that the proceeding be dismissed in accordance with Rule 23.01, or that the further amended statement of claim in this proceeding dated 1 December 2003 be struck out in accordance with Rule 23.02 of the Rules.

1. Master Wheeler on 18 February 2004 made orders granting leave to the plaintiffs to amend their particulars in paragraphs 9 and 21 of the pleading in a way specified in the order and to remove the word "not" in paragraph 23(c), but otherwise dismissed the defendant's summons.  The Master went on to give directions as to interlocutory steps and mediation.

1. The defendant appealed by notice of appeal dated 19 February 2004.

1. The defendant has made a detailed attack on the further amended statement of claim of the plaintiffs dated 1 December 2003, and the response by the plaintiffs has been perhaps rather general, simply saying that the pleading in the circumstances sufficiently made out the causes of action sought to be relied on.

1. In substance I accept the defendant's submissions with the exception of a submission relating to paragraph 23.

1. It seemed to me that paragraph 23 was a reference to financial years, so to the extent that the defendant's submissions were based upon a proposition that paragraph 23 referred to calendar years, I do not accept that submission, but otherwise in general I do accept them.

1. It seems to me that this pleading amounts to an abuse of process and, in particular, because I think that it will prejudice, embarrass and delay the fair trial of this proceeding.  Having said that I accept in general the submissions made by the defendant, I do not propose to then go into detail in relation to every aspect of the defects that were pointed out, but I will mention some of them.

1. It seems to me that the pleading gets off to a bad start by pleading in paragraph 13 the conduct of the defendant which is to be relied on in terms which cover a period of about five years.  It is pleaded that the relevant conduct included the preparation of the balance sheets from 1993 to 1998, the preparation of profit and loss statements for that period, the carrying out of other accountancy work over that period and the provision of advice and information to the first and second plaintiffs over a period from 1993 until 1998, but "at meetings or telephone conferences which occurred approximately every two weeks" during that period.

1. This approach to the pleading inevitably has led to confusion because it is not possible to identify with any clarity what conduct it is that caused what reliance and what loss.  It is calculated to make the defendant's defence of this proceeding difficult, if not impossible.  It is not clear what conduct is being attacked.  In particular, the attempt to rely on advice which was given every two weeks over a period of five years, and then in some way to say that that caused loss which primarily appears to have occurred as a result of events in 1996, is simply calculated to confuse both the parties and the court.

1. Paragraph 14 creates further difficulties of the same kind.  When we get to paragraph 18 and following paragraphs conduct is pleaded, and then after that, rather than before, the alleged breaches of the agreement by the defendant are pleaded in paragraph 21 which serve to confuse the matter further.  The material allegations are completely open-ended and the particulars are as well.  To make matters worse, on page 14 there is a reference to errors which were contained in the balance sheet as of 30 June 1997, which errors are said to be indicative of the extent of the breach of agreement and negligence of the defendant from 1992, which I understand should be 1995.

1. What follows in sub-paragraphs (i) to (xxi) in the particulars would appear to be irrelevant to the conduct of the defendant prior to 30 June 1997, and to the extent that it is said that the errors are indicative, it surely cannot be part of the cause of action but can only at best be matters of cross-examination.

1. Insofar as it is intended to be part of the cause of action, I do not understand the pleading at all.  So these paragraphs (i) to (xxi) either should not be there or, it should be properly explained by the pleading what their materiality to the causes of action relied on is.

1. When one finally gets to the plea of loss and damage in paragraphs 31 and 32, it appears that "by reason of the matters aforesaid" the plaintiffs have suffered loss and damage.  One is justly entitled to ask, precisely what matters?

1. In my opinion this pleading, with the greatest of respect to whoever drew it, is hopeless and should be struck out.

1. I will allow the appeal.

1. I will set aside the whole of the orders of the Master made on 18 February 2004. 

1. I will order that the further amended statement of claim dated 1 December 2003 be struck out.

1. I will grant the plaintiffs leave to file and deliver an amended statement of claim within 28 days.

1. I would say in parenthesis that it might well be their last chance.

1. I will order the plaintiffs to pay the costs of this appeal and the cost of the application before the Master, including any reserved costs.