Warne v Nolan
[2000] QSC 407
•9/11/2000
SUPREME COURT OF QUEENSLAND
CITATION: Warne v Nolan & Ors [2000] QSC 407 PARTIES: MARIA KATHLEEN WARNE
(plaintiff)
v
PATRICK NOLAN AND CYNTHIA MARGARET
NOLAN
(first defendants)
PATRICK NOLAN AND CYNTHIA MARGARET
NOLAN AS TRUSTEES OF THE P S NOLAN FAMILY
TRUST
(second defendant)
P S AND C M NOLAN & CO (A FIRM)
(third defendant)
NOLAN & CO (A FIRM)
(fourth defendant)FILE NO: No 9333 of 2000 DIVISION: Trial PROCEEDING: Application to strike out action or, in the alternative,
Statement of Claim and directions hearingORIGINATING COURT: Supreme Court DELIVERED ON: 9 November 2000 DELIVERED AT: Brisbane HEARING DATE: 7 November 2000 JUDGE: Muir J
ORDER:
1.
That those parts of paragraph 7 of the Statement of Claim which quote clauses 1, 7, 8, 9, 10, 13 and 14 of the alleged settlement agreement be struck out.
2.
That paragraph 8(a) of the Statement of Claim be struck out.
3.
That the plaintiff have liberty to deliver an amended Statement of Claim in such form as she may be advised on or before 5pm on Monday, 13 November 2000.
4.
That the defendants deliver a defence and counterclaim, if any, on or before 5pm on Wednesday, 15 November 2000.
5.
That unless the parties, by their legal advisers, agree in writing to the contrary, each party give disclosure in accordance with the Uniform Civil Procedure Rules on or before 5pm on Wednesday, 15 November 2000.
6.
That the action be tried in the week commencing 27 November 2000.
7.
That the evidence in chief of any witnesses to be called on the trial of the action be given in the form of statements in writing signed (and verified in the witness box by any such witness) and that any such statements to be relied on by either party be served on the solicitors for the other party no later than 5pm on Friday, 24 November 2000.
8.
That no party be at liberty to adduce any further evidence in chief without leave of the Court.
9.
The costs of and incidental to the application heard in this matter on 7 November 2000 be reserved.
10. The parties have liberty to apply.
CATCHWORDS:
PRACTICE – ACTION – STRIKING OUT – STATEMENT OF CLAIM – STRIKING OUT – ABUSE OF PROCESS – plaintiff commenced new proceedings alleging breach of settlement agreement – defendants brought application to strike out new action, or alternatively, statement of claim – statement of claim and covering letter forwarded to trial judge of original action, part heard – whether matters pleaded support a genuine cause of action – whether failure to specify amount of damages claimed can be remedied by particularisation – whether allegations of a prejudicial nature improperly placed before trial judge – whether conduct constitutes an abuse of process.
Uniform Civil Procedure Rules, r 155, r 171 Butler v Crowley & Greenhalgh Solicitors (unreported, 11
November 1999, SC Qld 9292/96)
Gange v Sullivan (1966) CLR 418
Legal Practice Board v Said (unreported, 12 January 1994
SCWA 2656/1991)
Williams v Spautz (1992) 174 CLR 509.COUNSEL: R A Perry for the plaintiff
E J P F Lennon QC for the first, second, third, and fourth
defendantsSOLICITORS: McCullough Robertson Lawyers for the plaintiff
Gadens Lawyers for the first, second, third, and fourth
defendants
The plaintiff commenced these proceedings by claim filed on 26 October 2000 seeking specific performance of an agreement dated 29 June 2000 for damages in addition to or in lieu of specific performance.
The Statement of Claim filed with the writ alleged that an agreement was entered into between the plaintiff and the first, second, third and fourth defendants on or about 29 June 2000, in compromise of some of the plaintiff’s claims in action 2394 of 1997 (“the original action”).
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“8. In breach of the Settlement Agreement:
(a)
on 25 September 2000, Mr Patrick Nolan of the First Defendant sought to tender the amount of $20,000 to Mrs Warne purportedly in full and final satisfaction of the Settlement Agreement without paying the balance of the monies owing pursuant to clause 3 and 4 of the Settlement Agreement.
Particulars
Letter dated 25 September 2000 from Mr Nolan to Mrs Warne which states:
‘Dear Mrs Warne
Please find enclosed cheque of the amount of $20,000 representing funds required for settlement of the agreement dated 29 June 2000.
The acceptance of this cheque represents full and final settlement.
Yours faithfully
P S Nolan’
(b) a substantial portion of the crops referred to in the Settlement Agreement on the Property were not sold by 30 August 2000 in breach of clause 3 of the Settlement Agreement;
(c) no monies have been paid to Mrs Warne for the proceeds of the sale of the crops which have been sold in breach of clause 4 of the Settlement Agreement.”
Mr Nolan and his wife are the first defendants in both actions. The other defendants are firms in which the Nolans have an interest or the Nolans in their capacity as trustees.
Paragraph 7 of the Statement of Claim purports to quote most of the terms of the settlement agreement. According to paragraph 7, the agreement has 15 clauses in all. Clauses 2, 11 and 12 are not quoted and against those clause numbers in each case appears the information “(relating to matter currently before the Court)”.
It is useful to set out those clauses of the settlement agreement which are of relevance –
“3. ’The Nolans’ (which means and includes their associated partnerships and corporate entities) will sell the crops harvested from the Property so far this year as expeditiously as reasonable and in any event by no later than 30 August 2000. 4. The Nolans will account to Mrs Warne for the proceeds of the sale of the crops referred to in paragraph 3 hereof within 30 days of their receipt, but in any case, by no later than 30 September 2000.
5. The Nolans agree to provide to Mrs Warne access to all accounts relating to the harvest and sale of the crops within 7 days of the date of receipt such a written request from Mrs Warne.
6. Should there be any dispute with respect to the accounting between the parties, the parties agree to appoint an independent accountant to act as an expert to determine the dispute. Should there be no agreement as to the identity of the independent accountant then the parties agree to an accountant being nominated by the President of the Institute of Chartered Accountants to act as an expert to determine the issue.”
In the prayer for relief the plaintiff claims specific performance of the settlement agreement and damages for its breach in the alternative.
The defendants brought an application in the inherent jurisdiction of the court and under r 171 of the Uniform Civil Procedure Rules to strike out the new action or, in the alternative, the Statement of Claim.
The original action is part heard before me. There have been three weeks of evidence and the trial is to resume on 20 November. Two weeks have been allocated to the further hearing.
It is submitted by Mr Lennon QC, who appears for the defendants, that the matters pleaded in paragraph 8 of the Statement of Claim are:
(a) unnecessary because they are not material allegations in support of the cause of action;
(b) they are scandalous because they are unnecessary and reflect upon the moral character of Mr Nolan.
It is submitted that, in breach of the requirements of r 155 of the Uniform Civil Procedure Rules, the Statement of Claim does not specify the nature and amount of the damages claimed.
It is further submitted that the conduct of the new action constitutes an abuse of process in light of the above matters and having regard to the conduct of the plaintiff’s solicitors in forwarding a copy of the claim, Statement of Claim and covering letter to me. That conduct is alleged to have been engaged in with a view to placing before me material which is prejudicial to the defendants in the original action.
The Statement of Claim is not a particularly successful document. It pleads irrelevant terms of the settlement agreement whilst failing to properly particularise the plaintiff’s damages claim. Those criticisms though are relatively minor in the scheme of things. The defendants, however, also view the setting out of the terms of the settlement agreement in a sinister light. As for the failure to particularise the damages claim, the substance of the plaintiff’s claim is clear enough and any deficiencies in that regard can be cured by further particularisation.
Mr Perry, who appeared for the plaintiff, sought to defend paragraph 8(a). He argued that the letter of 25 September 2000 should be viewed as a repudiation of the settlement agreement and, in that sense, the sending of the letter constituted a breach. It was further argued that the allegation was relevant to the plaintiff’s claim for specific performance. There is plainly no substance in either of these contentions. Paragraph 8(a) alleges a breach of the settlement agreement, not repudiatory conduct. The correspondence before me makes it plain that before the action was commenced, the plaintiff did not accept any alleged repudiation but insisted on due performance of the settlement agreement, thus affirming the contract.[1]
[1]On 4 October 2000, the plaintiff’s solicitors wrote to the defendants’ solicitors accusing the defendants of “… a rather amateurish attempt to tender the cheque for $20,000 in full settlement of any further moneys owing by your clients to our client under the terms of the settlement … ”. They insisted on performance by the defendants of their contractual obligations.
On 9 October, the defendants’ solicitors wrote denying any intention on the part of the their clients to assert that the payment of $20,000 would be in full settlement of all contractual obligations and acknowledging that the obligation to account to the plaintiff for the proceeds of sale of the crops contained in cl 3 of the settlement agreement remained. They asserted that the defendants would “continue to act in good faith with respect to the terms of the Settlement Agreement … ”
It is thus impossible to regard paragraph 8(a) as making a sustainable allegation of repudiatory conduct or of breach of contract. It is also impossible to regard it as having any bearing, remote or otherwise, on the plaintiff’s claim for specific performance. If, as Mr Perry rather implausibly submitted, it was to be seen as having some bearing on the exercise of the court’s discretion, one would have expected to see it presented in such a light and not as an allegation of breach of contract. I should make it plain that I do not suggest that, however pleaded, the allegation could be relevant to the plaintiff’s specific performance claim.
In the course of his argument, Mr Lennon relied on a definition of “scandal” in The Principles and Practice of Discovery by Edward Bray at 105 where the learned author said –
“Scandal consists in the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause, to which may be added that any unnecessary (not relevant to the subject) allegation bearing cruelly upon the moral character of an individual is also scandalous.”
That language has rather a Victorian air about it and I would be reluctant to accept it as an accurate statement of contemporary principles. In so concluding, I do not wish to be seen as expressing any criticism of the decision in Legal Practice Board v Said.[2] The question before the judge deciding that case involved no fine analysis of the nature of scandalous conduct; the conduct under consideration being such that it was likely to fit comfortably within any standard text definition.
[2]I discussed the nature of scandalous conduct and the Court’s inherent jurisdiction to restrain abuse of process in Butler v Crowley & Greenhalgh Solicitors.3 I do not find it necessary to repeat what I then said. It is plain that paragraph 8(a) is an unsustainable allegation which ought be struck out. That being the case, subject to my later observations, nothing is to be gained by an exploration of whether there are additional grounds which can be relied on to support the striking out.
Paragraphs 8(b) and (c), as Mr Lennon conceded in the course of argument, raise allegations which are plainly arguable. The plaintiff’s case is quite simply as follows: the settlement agreement provided for, inter alia, payment by the defendants to the plaintiff of the proceeds of the sale of crops grown on Winya Park within 30 days of receipt by the defendants of those proceeds, “but in any case, no later than 30 September 2000”; 30 September has been and gone and payment has not been made. Alternatively, the defendants, in breach of cl 3, failed to sell the crops “ as expeditiously as reasonable” or alternatively “no later than 30 August 2000”. By virtue of those matters, the plaintiff has suffered a loss in not being paid such proceeds. The plaintiff is entitled to litigate these allegations. She has a genuine cause of action and I have no reason to doubt that she genuinely intends to pursue it. Even if she had an ulterior purpose in commencing or proceeding with the new action, as the defendants contend, she would be entitled to proceed with it.4
Mr Lennon’s final point was that the plaintiff’s solicitors’ conduct in delivering to me the claim and Statement of Claim together with correspondence making allegations of impropriety against the defendants should be seen as tainting the conduct of the plaintiff in commencing and prosecuting the proceedings. It was submitted that such conduct reveals that the proceedings were being used for the illegitimate purpose of improperly placing before a trial judge inadmissible material of a plainly prejudicial nature.
I do not accept those submissions. The plaintiff is an elderly woman. The original action has been going for some considerable time. It would be surprising if it was not causing the plaintiff considerable stress. A dispute having arisen about terms of settlement of part of the original litigation, it was a sensible and obvious course for an attempt to be made to resolve that dispute by the time of the determination of the original action. It was also not unreasonable to seek to list the matter for directions before me, having regard to my knowledge of the matters the subject of the original action.
It is apparent from my perusal of the correspondence before me and from my observations generally in the course of the original proceedings that a considerable degree of animosity exists between the solicitors for the parties as well as between the parties. That animosity has led to the aggressive conduct of the original and new proceedings and to a chain of correspondence distinguished more by aggression and abrasiveness than by reasoned argument and restraint. Having regard to this background, it is not surprising that the plaintiff was quick to attribute base motives to the defendants in sending the letter of 25 September 2000. Equally, it is not surprising that the defendants would perceive an improper purpose in the approach made to me by the plaintiff’s solicitors on 26 October 2000.
I confess to having some sympathy with the annoyance expressed by the defendants’ solicitors at the way in which a date was obtained for the hearing of this matter. Having regard to the nature of the allegations being made against the defendants and their potential to bear on credibility issues in the original action, I would have thought it an obvious enough course for the defendants’ solicitors to have been given prior warning of the nature and extent of the communication proposed to be made. Also, prudence should have dictated that the request for listing not be accompanied by a copy of the letter from the plaintiff’s solicitors to the defendants’ solicitors dated 26 October 2000, which contained much argumentative material of a nature singularly unflattering to the defendants. That being said, I am unable to characterise this conduct as an abuse of process.
It is a great pity that a dispute between neighbours has been allowed to get to a state where some five weeks of hearing time and a cavalcade of expert and other witnesses is required to resolve it. As if this were not bad enough, the parties now seem committed to grafting another dispute onto the existing dispute. Plainly, the parties on both sides of the record will be ill-served by their legal advisers unless given considered and dispassionate advice about the wisdom of such a course of action and unless strenuous steps are taken to achieve a settlement.
In case no such resolution proves possible, I make the following orders -
1.
That those parts of paragraph 7 of the Statement of Claim which quote clauses 1, 7, 8, 9, 10, 13 and 14 of the alleged settlement agreement be struck out.
2. That paragraph 8(a) of the Statement of Claim be struck out. 3.
That the plaintiff have liberty to deliver an amended Statement of Claim in such form as she may be advised on or before 5pm on Monday, 13 November 2000.
4.
That the defendants deliver a defence and counterclaim, if any, on or before 5pm on Wednesday, 15 November 2000.
5.
That unless the parties, by their legal advisers, agree in writing to the contrary, each party give disclosure in accordance with the Uniform Civil Procedure Rules on or before 5pm on Wednesday, 15 November 2000.
6. That the action be tried in the week commencing 27 November 2000. 7.
That the evidence in chief of any witnesses to be called on the trial of the action be given in the form of statements in writing signed (and verified in the witness box by any such witness) and that any such statements to be relied on by either party be served on the solicitors for the other party no later than 5pm on Friday, 24 November 2000.
8.
That no party be at liberty to adduce any further evidence in chief without leave of the Court.
9.
The costs of and incidental to the application heard in this matter on 7 November 2000 be reserved.
10. The parties have liberty to apply.
I conclude by once again expressing the hope that the parties and their legal advisers will see the folly of wasting time, money and energy over a dispute which is so obviously capable of settlement through the application of a little commonsense and objectivity.
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