Tobin v Dodd
[2005] WASC 168
TOBIN -v- DODD & ORS [2005] WASC 168
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 168 | |
| Case No: | CIV:2592/2001 | 19 JULY 2005 | |
| Coram: | MASTER SANDERSON | 2/08/05 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted to amend provided minute further amended | ||
| B | |||
| PDF Version |
| Parties: | GRAEME WILLIAM TOBIN BRUCE STEVENSON DODD ROBERT JAMES AINSLIE IAN MICHAEL LISHMAN BRAHMANANDA DHARMANANDA |
Catchwords: | Practice and procedure Application for leave to amend statement of claim Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 59 r 9 |
Case References: | Tobin v Dodd & Ors [2004] WASCA 288 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
BRUCE STEVENSON DODD
First Defendant
ROBERT JAMES AINSLIE
Second Defendant
IAN MICHAEL LISHMAN
Third Defendant
BRAHMANANDA DHARMANANDA
Fourth Defendant
Catchwords:
Practice and procedure - Application for leave to amend statement of claim - Turns on own facts
Legislation:
Rules of the Supreme Court1971 (WA), O 59 r 9
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Result:
Leave granted to amend provided minute further amended
Category: B
Representation:
Counsel:
Plaintiff : In person
First Defendant : Mr A T Macknay
Second Defendant : Mr A T Macknay
Third Defendant : Mr A T Macknay
Fourth Defendant : Mr A T Macknay
Solicitors:
Plaintiff : In person
First Defendant : McCallum Donovan Sweeney
Second Defendant : McCallum Donovan Sweeney
Third Defendant : McCallum Donovan Sweeney
Fourth Defendant : McCallum Donovan Sweeney
Case(s) referred to in judgment(s):
Tobin v Dodd & Ors [2004] WASCA 288
Case(s) also cited:
Nil
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1 MASTER SANDERSON: This is the plaintiff's application for leave to amend his statement of claim in terms of a reamended minute of statement of claim filed 20 April 2005 ("the minute"). This action has been bedevilled by pleading difficulties. In Tobin v Dodd & Ors [2004] WASCA 288, the Full Court determined that the plaintiff had, up to that point, been able to demonstrate that he had arguable causes of action against the defendants. The Court ordered that the plaintiff should have a further opportunity to plead out these causes of action. Subsequent to the Full Court's decision, a further statement of claim was lodged. The defendants objected to the form of the pleading and the matter came on for hearing on 6 April 2005. I refused leave to amend. At that hearing, counsel for the defendants suggested that a discussion about the pleading in compliance with O 59 r 9 of the Rules of the Supreme Court1971 (WA) would be appropriate. That discussion took place and there now appears to be some misunderstanding as to what, if anything, was agreed at the meeting.
2 The plaintiff seems to be under the impression that the defendants' solicitors agreed that the minute should stand as the statement of claim. Counsel for the defendants said there was no such agreement. He filed a schedule of objections to the plaintiff's minute and opposed a grant of leave to amend in terms of the minute. After listening to the plaintiff and counsel for the defendants, it is, in my view, clear that, while discussions took place between the plaintiff and the defendants' solicitors and while to an extent agreement was reached, there was certainly no agreement that the minute should stand as the statement of claim. The meeting may have been useful in reducing the differences between the parties, but it achieved nothing more than that. Accordingly, the question now is whether or not amendment in terms of the minute ought be allowed.
3 The defendants' first objection is to the inclusion of the phrase "partners in the legal firm Mallesons Stephen Jaques" in the title to the proceedings. The inclusion of this phrase is rather curious. When the writ was issued on 15 October 2001, this phrase was included, the first to fourth defendants were listed as parties to the proceedings and in addition a company, Mallesons Stephen Jaques Pty Ltd, was named as the fifth defendant. On 29 April 2002 Acting Master Chapman dismissed the action against the fifth defendant. The difficulties occasioned by the plaintiff suing some, but not all, of the partners of the firm was discussed by both EM Heenan J (at [49] to [51]) and Le Miere J (at [61] and [62] in the decision of the Full Court in Tobin (supra). Neither of their Honours thought the failure to join members of the partnership other than the present named defendants was fatal the plaintiff's claim. No mention is
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- made in the decision of the way in which the action is presently titled. Both of their Honours accept that not all members of the partnership are joined as defendants to the proceedings.
4 In my view, the best course is to leave the heading as it stands. While it may be confusing, it is clear that only the named defendants are parties to the action and not all persons who were members of the partnership at the relevant time are brought in. The plaintiff will have to live with the consequences of that fact. It will not adversely affect the named defendants. The title to the action should remain as it is.
5 Page 2 of the minute contains what might best be described as an explanation of the plaintiff's position and a submission as to why the minute ought be allowed to stand. The statement has no place in a pleading and the page ought simply be omitted.
6 Paragraph 1 of the minute sets out the plaintiff's details. The paragraph refers to the fact that the plaintiff is the father of Donna Michelle Tobin ("Donna"). It goes on to say that (presumably) the plaintiff is invested "with the power of attorney to act in this matter and subsequent actions in relation to this matter". The defendants complain that the reference to "this matter" suggests that the plaintiff is conducting the action as an agent for his daughter. As I understand it, that is not the way that the action is brought. The action is, and must be, maintained by the plaintiff in his own right. The phrase to which I have referred ought not be permitted to remain in the minute.
7 Complaint is also made about the inclusion of the phrase "subsequent actions" in par 1. The defendants say the phrase is meaningless. That is the case. It adds nothing to a pleading.
8 Paragraph 1 can then stand, provided that the words "with the power of attorney to act in this matter and subsequent actions in relation to this matter" are omitted.
9 In par 7, it is pleaded that "MSJ" handled certain proceedings "unprofessionally and unconscionably". The defendants say that the reference to "unprofessionally" may be an attempt to allege negligence, but it is not a term which is interchangeable with the term "negligence" and should not be used. They also complain that the reference to "unconscionably" suggests a claim in equity and there are no material facts pleaded to support that plea. In my view, on a strict interpretation of pleading practice, both objections should be upheld. What par 7 appears to plead is a claim in negligence. It would make matters much clearer if
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- the phrase "unprofessionally and unconscionably" was omitted and the word "negligently" was inserted. Having said that, the defendants clearly understand the case they have to meet. It is set out in pars 7.1 through to 7.8. That being so, in my view, the plea in par 7 and the use of the words complained of should be permitted.
10 The defendants complain that, in par 7.3 of the minute, there is reference to "MSJ" advising "the plaintiff and his daughter". They say that the reference to the plaintiff's daughter is of no relevance. That may be so, but there is no great mischief in the reference to the plaintiff's daughter being included. Paragraph 7.3 can stand.
11 Complaint is made as to par 7.4. It is said that it is irrelevant. Undoubtedly, that is the case. But the inclusion of the paragraph will work no mischief and it ought be allowed to stand. Paragraph 7.5 refers to certain advice given by American lawyers to the effect that, because of the time prescribed by the Statute of Limitations in California, certain proceedings could not be issued. Complaint is made that the advice of the American lawyers is irrelevant and that the wording of the clause is vague. On a strict view of the pleading practice, both of those complaints may well be correct. But what is intended is tolerably clear and insofar as irrelevant material is contained in the plea, it will not distract the parties at trial. Paragraph 7.5 ought be allowed to stand.
12 Paragraph 7.6 pleads that "by running us out of time" the plaintiff and his daughter lost the opportunity to take certain action which it is said would have resulted in (presumably) the plaintiff being paid certain sums for the breach of a franchise agreement. The defendants complain that any reference to the plaintiff's daughter is irrelevant. They further complain that this paragraph is really in the nature of a prayer for relief, rather than a material fact in the negligence action. Both complaints are properly made. This is an action by the plaintiff, not by his daughter. Reference to what his daughter might or might not be able to claim against the defendants is irrelevant. It is also the case that what par 7.6 appears to do is set out certain relief which the plaintiff may be able to claim. That relief appears not to be picked up in the prayers for relief which appear as pars 10 through to 14. In my view, par 7.6 ought be struck out. If the plaintiff wishes to amend his prayer for relief, he should be at liberty to do so. I would make the point, however, that such an amendment is probably not required.
13 In par 7.7, the plaintiff effectively pleads evidence. As I understand the paragraph, the plaintiff is pleading that "MSJ" held themselves out as
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- having expertise in American law when they did not in fact do so. How they held themselves out is a matter of evidence and is not a matter that should be pleaded. However, the inclusion of evidence in par 7.7 is of no great mischief and the paragraph can stand.
14 As to par 8, the defendants complain again of the use of the words "unprofessional" and "unconscionable". It is the same objection that was raised in relation to par 7. For the same reasons, the paragraph can stand.
15 In par 8.3, there is reference to stress allegedly suffered by the plaintiff and his daughter. The reference to the plaintiff's daughter is irrelevant and the reference ought be omitted. The same complaint is made with respect to pars 8.7 and 8.7(c). In both cases, the point is well made and in both cases the reference to the plaintiff's daughter ought be omitted.
16 As I have mentioned above, pars 10 through to 14 are in effect prayers for relief. The defendants object to all of these paragraphs, save for par 11. There can be no doubt about pars 13 and 14. Neither claims any relief and nothing contained in those paragraphs is relevant to the matters pleaded. They ought be omitted.
17 It is very difficult to know what to make of par 10. It may be a claim for $5500 for fees paid to "MSJ". What can be said about the paragraph is that it does not plead any facts which further support or are at odds with the claim articulated by the plaintiff elsewhere in the pleading. For that reason, par 10 is innocuous and ought be allowed to stand.
18 Paragraph 12 is more problematical. It appears to raise a claim against the defendants for breach of fiduciary duty. It is difficult to see how elsewhere in the pleading there are material facts set out which could lead to a finding that there had been a breach of such duty - albeit that such a duty undoubtedly exists. On balance, given that par 12 is by way of prayer for relief and therefore is of limited consequence in the overall resolution of the claim, I am satisfied that it ought be allowed to stand.
19 With some amendment, then, I am prepared to give leave to the plaintiff to amend in terms of the minute. But before leaving this matter, I should make some general, broad comments.
20 In his judgment in the Full Court, EM Heenan J (at [13] - [15]), pointed to the difficulties faced by a litigant in person. In reaching the conclusion I have, I have been mindful of his Honour's comments. In no way could it be said that the minute is a comprehensively pleaded
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- statement of claim. But, as the Full Court found, it does contain sufficient facts to give rise to the potential for the plaintiff to succeed in his action. He ought not be thwarted by the technical requirements of pleading. His Honour's comments have played a large part in my allowing the pleading in its present form, as amended in conformity with these reasons, to stand.
21 I will hear the parties as to the precise form of orders and as to costs.
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