Wende v Horwath (NSW) Pty Limited

[2006] NSWSC 296

CITATION:	Wende & Anor v Horwath (NSW) Pty Limited [2006] NSWSC 296
HEARING DATE(S):	13 April 2006
JUDGMENT DATE :	21 April 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The summons is dismissed; the plaintiffs are to pay the costs of the summons.
CATCHWORDS:	Leave to appeal from decisions on practice and procedure in the Local Court - misconception by litigants in person as to the role of further and better particulars, on the entitlement to bring cross-claims and the amendment of pleadings - correct decisions reached by Magistrate - no entitlement to relief.
PARTIES:	Herbert Wende, Margaret Wende and Mark Lloyd (Plaintiffs) Horwath (NSW) Pty Limited (Defendant)
FILE NUMBER(S):	SC 15877/05
COUNSEL:	In person (Plaintiffs) Mr S F Hughes (Defendant)
SOLICITORS:	In person (Plaintiffs) Heidtman & Co Lawyers (Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	83580/04
LOWER COURT JUDICIAL OFFICER :	Dillon LCM
LOWER COURT DATE OF DECISION:	11/03/2005

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

21 April 2006

15877 of 2005 Herbert Wende & Ors v Horwath (NSW) Pty Limited

JUDGMENT

1 His Honour: These proceedings were commenced by summons filed on 14 December 2005. The purport of the summons is to challenge decisions of the Local Court (Dillon LCM) made on 3 November 2005. The proceedings have been brought out of time. There are numerous appeal grounds.

2 The plaintiffs are litigants in person. They are the defendants in the Local Court proceedings. In those proceedings, they are defending a claim founded on contract in the order of $19,000. The claim has been brought to recover fees allegedly owing for the preparation of two expert witness reports. The plaintiffs had earlier brought a claim in the District Court to recover damages. The reports were obtained for use in those proceedings.

3 In those proceedings, the plaintiffs retained two solicitors. Firstly, Giles Finney had the conduct of the matter on their behalf. He was later replaced by James Lyons. It would seem that the proceedings produced an unhappy result for the plaintiffs.

4 A defence and cross-claim have been filed. The plaintiffs dispute that they have entered into contractual arrangements with the defendant. As I understand their position, it is said that the alleged contract was made with either Mr Finney or Mr Lyons. The cross-claim (which is now to be found in an amended notice of cross-claim) propounds a claim for damages ($60,000). It is pleaded as a breach of contract claim (the contract being said to have been made with Mr Finney). As I understand the position, the damages claimed are the loss suffered as a consequence of the abortive District Court proceedings.

5 The defendant has filed a defence to the cross-claim (the defence is to be found in the amended defence to the amended cross-claim). The original defence contained the words “and may also have had a contract with Giles Finney as to the same” (the words) at the end of paragraph 1 thereof. On 7 October 2005, an amended defence to the amended cross-claim was filed. Amongst the changes made in that amended pleading was the deletion of the words.

6 At this point, I should digress to observe that the proceedings have amassed a significant history. There has already been an arbitration that occupied about four days (between 25 October 2004 and 2 February 2005). What is now on foot in the Local Court is a rehearing applied for by the plaintiffs. The rehearing had been fixed to take place on 15 and 16 March 2006. The hearing dates were vacated on the application of the plaintiffs (so that they could pursue the present proceedings in this court). A further hearing date has been allocated for 24 and 25 July next. If the plaintiffs should be successful in such proceedings, it is inevitable that those hearing dates will also have to be vacated.

7 The plaintiffs filed two notices of motion in the Local Court (on 10 and 20 October 2005 respectively). One sought, inter alia, that the defendant provide a proper response to the request for particulars made in correspondence (including a letter dated 30 September 2005). The other sought leave to file a second cross-claim against Mr Lyons. It also sought, inter alia, a suitable modification to the amended defence to cross-claim so as to include the words.

8 Both notices of motion were dismissed with costs. The Magistrate concluded in effect that such proper particulars as were required to be furnished to the correspondence had in fact been supplied. He came to the view that it was not appropriate in the circumstances of the case to join Mr Lyons.

9 The decisions that are the subject of challenge in these proceedings are of an interlocutory nature. There is no appeal to this court from such decisions as of right. Leave is required for the bringing of an appeal concerning such matters. It is a matter of discretion and the onus of demonstrating an entitlement to leave rests with the plaintiffs.

10 Leave is rarely granted in such matters. The view is taken that largely, matters of practice and procedure are the province of the Local Court. If appeals on these matters were allowed as of right, an unreasonable burden would be imposed upon the resources of this court, other parties and other litigants. Leave is usually granted only in such cases where there is a question of law of importance and/or it is required in the public interest.

11 Leaving aside those considerations, there remains the need to demonstrate error in point of law that justifies the disturbing of the decisions of the Local Court. Again, the burden in demonstrating such an entitlement rests with the plaintiffs. In the present case, there is no error in point of law. In my view, the decisions of the Magistrate were correct.

12 The hearing in this court took place on 13 April 2006. Messrs Lloyd and Wende appeared on behalf of the plaintiffs (with Mr Lloyd being the principal spokesman). Mr Hughes of counsel appeared for the defendant.

13 The plaintiffs sought to rely on a bundle of documents headed “Evidence of the plaintiffs”. The bundle contained material that had not been before the Magistrate. There was dispute as to what had been placed before the Magistrate and those representing the defendant on this occasion had not been involved in the hearing before him. In these difficult circumstances, the course was taken of allowing the plaintiffs to address on material contained in the bundle on the understanding that only that material which was before the Magistrate would be taken into account. There were objections taken also to material in an affidavit sworn by Mr Lloyd (as to matters such as legal submissions and his version of what took place before the Magistrate). Both Mr Lloyd and Mr Hughes provided written submissions, which were supplemented orally.

14 Before proceeding, further, I should make a general comment on the relief that was sought by the plaintiffs. It was founded on misconception. There was misconception as to the role of further and better particulars. There was misconception as to entitlement to bring a cross-claim to the proceedings. There was misconception as to the power of the court in requiring amendment to pleadings.

15 The amended defence to the amended cross-claim is at p46 of the bundle. Largely, it can be described as in substance traversing the allegations made in the amended cross-claim.

16 The relevant correspondence concerns two letters. Particulars sought by the letter dated 20 September 2004 in respect of the original defence. The letter can be found at pp15-16 of the bundle. There was a further letter dated 30 September 2005. It can be found at pp79-78 in the bundle. It deleted certain of the requirements.

17 A response to these requirements was provided by letters dated 14 October 2004 and 31 October 2005 (see pages 89 and 86 of the bundle). It provided certain particulars and correctly took the point that most of the requirements related to matters of evidence.

18 The requirements were not drafted in a form that would be the subject of any court order. I shall briefly describe the tenor of the requirements. They required a detailed and complete account of certain matters, particulars of witnesses and of matters not pleaded in the amended defence. The plaintiffs persisted with the misconception that they were entitled to particulars of the original defence.

19 One series of requirements that excited agitated submission was the following:-

To 2. of Defence to Cross-Claim
a) Please provide particulars of all persons who carried out, as the Plaintiff claims, database analysis of the computer database files supplied in discharging the Plaintiff’s obligation under the contract.
b) Please provide particulars of all Database Systems, Query Systems, Computer Language Systems, including product names and version numbers, that have been used for the claimed database analysis.
c) Please provide particulars of qualification and experience of persons identified under 2.a), with software products identified under 2.b).
d) Please provide particulars of all source files used, of all intermediate files used, of all target files used, of all condition and index files used, of all query expressions used, of all code snippets used in the database analysis claimed by the Plaintiff. Particulars need to include full file names and file structures.
e) Please provide full details of how the result of each step in the claimed computer database file analysis was applied for the production of the Plaintiff’s report.
(Plaintiffs’ bundle, pp79-80)

20 It is illustrative of the misconception had by the plaintiffs. The requirements were being made of paragraph 2 of the amended defence. It was a plea that in substance put in issue an allegation made in the amended cross-claim. Further, they were requiring information that a court does not order a party to furnish.

21 The role of further and better particulars is well-established by authority. A court may order a party to furnish further and better particulars so that the other party may be aware of the nature of the case it can be expected to meet at the trial. They will be ordered so as to furnish particularity of the general allegations contained in a pleading. They will not be ordered where they are unnecessary. The function of particulars in not to inform the other party as to how a case is to be proved in court. Accordingly, the court does not order particulars concerning potential witnesses.

22 In this case, the defendant would have been entitled to refuse to provide any particulars at all. The amended defence in substance put in issue the allegations made by the plaintiffs in their amended cross-claim. These are the allegations that may require particularity.

23 Despite this, the defendant did supply particulars of the agreement referred to in the amended defence. In reality, they were doing no more than giving particulars of the agreement that would have been alleged in the process that propounded their claim against the plaintiffs.

24 Before leaving this subject, it may be of assistance to make an observation concerning the amended cross-claim. It also appears to be founded on misconception. It could be thought that a claim founded on contract with a party other than the cross-defendant would be doomed to failure.

25 Again, the plaintiffs laboured under misconception as to their entitlement to bring a cross-claim. They seem to erroneously hold the view that they could do so as of right. In the circumstances of this case, they could only do so with leave.

26 As I understand the position, the proposed second cross-claim contemplates a claim in professional negligence against Mr Lyons. Whilst no pleading is before this court (and presumably none was before the Magistrate), it could be expected that the proposed claim would raise issues which would not otherwise be litigated in the existing proceedings (issues concerning breach of contract with Mr Lyons and of the duty of care owed by a solicitor to a client). The Magistrate would have been entitled to take the view that it was not in the interests of justice to have those issues determined together with the issues already thrown up by the existing proceedings. He had regard to the delay that any such cross-claim would bring about to the hearing of the existing proceedings and to the prejudice that might cause to the defendant. He took the view that it was in the best interests of the existing parties to have the proceedings disposed of as expeditiously as possible. If the plaintiffs did want to pursue a claim against Mr Lyons, the avenue was available to them to commence separate proceedings.

27 In dealing with these questions, the Magistrate was called upon to exercise a discretionary power. It was a power to be exercised having regard to the relevant circumstances of the case before him and so that the dictates of justice were best served. I am not satisfied that there is any basis for disturbing the decisions that he reached on these matters.

28 The third matter raised in the notice of motion involved another misconception. The court is not empowered to direct a party to amend process. It is the parties that draft process. If that process does not comply with the Rules, it can be struck out in whole or in part.

29 Submissions concerning inconsistency were made to the Magistrate. He correctly rejected those submissions. It might be thought that the deletion of the words could only remove (and not bring about) an inconsistency (if there had been one).

30 Both in written submissions and in oral argument, it has been said on behalf of the plaintiffs that there was a denial of natural justice. The concept of natural justice or procedural fairness is a flexible one. Each case will turn on its own particular facts.

31 As I understand what is said on behalf of the plaintiffs, the complaint is that they were not given a reasonable opportunity to be heard. I have carefully read the transcript of the proceedings. The complaints made are not supported by the transcript. I am not satisfied that there was denial of procedural fairness. I consider that the plaintiffs were given a reasonable opportunity to be heard. If it is being said that there was an insufficiency of disclosure of reasoning process, I do not accept such a contention.

32 Accordingly, I am of the view that the plaintiffs have failed to discharge the onus borne by them in these proceedings.

33 The lack of merit brings an end to any possibility of a grant of leave. Even if a different view were to be taken on that matter, this is not a case in which leave would otherwise be granted. I have already mentioned matters which would lead to a refusal of leave.

34 The proceedings are also brought out of time. This may, at least in part, be due to other misconception on the part of the plaintiffs. It appears that the present proceedings were proceeded by an abortive appeal as of right. It would be futile to grant an extension of time in this case, because the proceedings are unmeritorious.

35 The summons is dismissed. The plaintiffs are to pay the costs of the summons.

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