Westwood v Gulliver

[2024] NSWSC 1323

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Westwood v Gulliver & Ors [2024] NSWSC 1323

Hearing dates:

23 July 2024

Date of orders:

22 October 2024

Decision date:

22 October 2024

Jurisdiction:

Common Law

Before:

Faulkner J

Decision:

(1)      The bundle of 68 emails sent by the plaintiff to the Chambers of Faulkner J between 24 July and 9 October 2024 be adduced into evidence on the defendants’ summary dismissal applications and marked Exhibit 2.

(2)      The bundle of 336 pages of unpaginated documents provided by the plaintiff to the Chambers of Faulkner J on 26 July 2024 be adduced into evidence on the defendants’ summary dismissal applications and marked Exhibit 3.

(3) Pursuant to UCPR 13.4, the proceedings be dismissed.

(4)      The plaintiff pay each defendant’s costs of the proceedings.

Catchwords:

PRACTICE AND PROCEDURE – Summary dismissal – self-represented litigant – no reasonable cause of action.

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 64, 98

Independent Commission Against Corruption Act 1988 (NSW) ss 12, 12A, 13, 20

Legal Profession Act 1987 (NSW) ss 59D, 135, 155

Legal Profession Act 2004 (NSW) s 505, 171D

Limitation Act 1969 (NSW)

Uniform Civil Procedure Rules (NSW) rr 13.4, 14.28

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Agius v State of New South Wales [2001] NSWCA 371

Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWSC 1073

Bass v Permanent Trustee Co Limited [1999] HCA 9; 198 CLR 334

Dickens v State of New South Wales (No.3) [2018] NSWSC 485

General Steels Industries v Commissioner of Railways NSW (1964) 112 CLR 125; [1964] HCA 69

Mills v Central Sydney Area Health Service [2002] NSWSC 728

McGuirk v University of New South Wales [2009] NSWSC 1424

O’Brien v Bank of Western Australia Limited [2013] NSWCA 71

Qasim v PF 473 Pty Ltd [2024] NSWCA 248

Shaw v New South Wales [2012] NSWSC 102

Waterhouse v ICAC [2016] NSWCA 133

Waters v Commonwealth [2012] NSWSC 790

Wentworth v Rogers (No.5) (1986) 6 NSWLR 534

Category:

Principal judgment

Parties:

Nicholas Westwood (Plaintiff)
Samantha Gulliver, Legal Services Commissioner (First Defendant)
Bernie Gross (Second Defendant)
NSW Bar Association (Third Defendant)
The Independent Commission Against Corruption (Fourth Defendant)
GH Healey & Co. (Fifth Defendant)

Representation:

Counsel:
R Withana (First Defendant)
T Bateman (Second Defendant)
P A Maddigan (Third Defendant)
K Bones (Fourth Defendant)

Solicitors:
Office of the Legal Services Commissioner (First Defendant)
Clyde & Co (Second Defendant)
Hicksons Lawyers (Third Defendant)
Crown Solicitors Office (Fourth Defendant)

File Number(s):

2023/00441707

JUDGMENT

1. These proceedings commenced on 22 December 2023 when the plaintiff, Mr Westwood, filed a Statement of Claim in which he names five people or entities as defendants. Mr Westwood is self-represented. Despite a number of amendments, some filed and others not, the Statement of Claim is not in a form which permits the case fairly to be prepared for hearing by the parties, let alone adjudicated by the Court.

2. Each of the active defendants has filed a Notice of Motion by which he or it seeks an order that the proceedings be summarily dismissed as against that defendant or, alternatively, that the Statement of Claim be struck out. There is no question that the Statement of Claim has to be struck out. The real issue is whether it is simply a pleading issue or a deficiency in the underlying cause of action against each defendant. Having regard to the terms of the Statement of Claim, leave to re-plead ought not be granted because this is a clear case for summary dismissal. In those circumstances the entire proceedings are to be dismissed with costs.

Background

3. The following narrative is taken from the evidence adduced by the applicants or Mr Westwood. In the form I have expressed it, none of it is controversial. I set out the narrative for the purpose of explaining the circumstances in which the proceedings were commenced by Mr Westwood. I have, however, decided the application based on the pleading alone.

Previous proceedings and the 1997 settlement

4. On 19 May 1990 there was a fire in the house where Mr Westwood was living from which Mr Westwood suffered injuries. The trauma and the smoke aggravated pre-existing impairments. Mr Westwood was 26 years old at the time and living with a housemate. A contemporaneous article about the fire described Mr Westwood as a golfer with a handicap of four.

5. In 1994 Mr Westwood commenced Supreme Court proceedings against the owner of the house and the letting agent. There is dispute about whether the proceedings were brought by Mr Westwood by his tutor (and mother) Ms Pamela Westwood. The 1994 Statement of Claim stated that they were.

6. A firm named GH Healey & Co acted for Mr Westwood in the proceedings. From the outset until shortly before the hearing, Mr Gross was briefed as senior counsel for Mr Westwood. Junior counsel, Mr Boyd, was also briefed.

7. On 12 May 1997 a conference occurred between Mr Gross, Mr Boyd, an employed solicitor of GH Healey & Co, Mr Westwood and his mother. At the conference advice was given about the advantages and disadvantages of approaching the Protective Commission for the appointment of a protective manager and the timing for such an approach. Mr Westwood has subsequently asserted, and Mr Gross denies, that Mr Westwood was told he had an “unbeatable” case for $2.75 million.

8. At some stage a modest offer to Mr Westwood was rejected (or not accepted).

9. Mr Westwood’s case was set down for a final hearing on 13 June 1997 at Coffs Harbour, which was a date that neither Mr Gross nor Mr Boyd could accommodate. Mr Gross returned his brief in mid-May 1997. Mr Gross did not retain any documents. Mr Coombs was briefed as senior counsel in his stead. A new junior was also briefed.

10. On 13 June 1997 the case started at Coffs Harbour before Newman J and ran for a short period that day. There is a suggestion that Newman J gave a preliminary indication of his Honour’s perspective. There was an adjournment. Mr Westwood says that he attended a conference with Mr Coombs from which his mother was excluded. Mr Coombs told Mr Westwood that the Judge was thinking that Mr Westwood might have lit the fire himself and that he would have to pay costs for the rest of his life if he did not settle. Other things were said. Mr Coombs gave Mr Westwood a personal cheque for $3,000 to encourage (Mr Westwood’s word is “blackmail”) him to accept a settlement. The amount of the cheque was struck by reference to the cost of a new set of golf clubs plus membership.

11. Later that day the case settled without any material payment to Mr Westwood. The lawyers received some of the costs. Mr Westwood has said that Newman J was aware that he was pressured.

Subsequent complaints to the Legal Services Commissioner

12. On 10 August 1998 Mr Westwood’s mother lodged a complaint with the Legal Services Commissioner in which Mr Gross, Mr Coombs and the employed solicitor were named. On 18 February 2000 she lodged a further complaint against GH Healey & Co. The burden of these complaints was that the lawyers were negligent when preparing Mr Westwood’s case and in pressuring Mr Westwood to settle on 13 June 1997. No mention was made of the $3,000 cheque. On 6 June 2001 the then Legal Services Commissioner, Steven Mark, determined the complaints by dismissing them. Mr Mark saw the complaints as allegations that the lawyers had breached their private duties to Mr Westwood which, Ms Westwood claimed, entitled him to compensation. The complaints did not raise any disciplinary matters.

13. On 12 September 2005 Mr Westwood lodged another complaint with the Legal Services Commissioner against Mr Gross, Mr Coombs and “GH Healey”. The burden of his complaint was the same as his mother’s, with an added complaint that Mr Coombs paid Mr Westwood $3,000 to agree to the settlement. On 11 April 2006 Mr Mark dismissed the complaint essentially because it did not raise any disciplinary matters and also because, absent special circumstances, he was not able to accept complaints more than three years after the event. By this time the relevant events had occurred over eight years before.

14. At no time did the Legal Services Commission refer any complaint by Mr Westwood or his mother to the NSW Bar Association.

Complaints to ICAC

15. The Independent Commission Against Corruption has no record of ever receiving a complaint from Ms Westwood.

16. Mr Westwood lodged a complaint on 26 August 2010. The complaint was made against the then Legal Services Commissioner, Mr Mark. The burden of the complaint was that Mr Mark “did not find any negligence” by Mr Westwood’s legal team and would not reopen the case. Mr Mark was said to be either negligent himself or the recipient of “a bribe from legal team to shut me down”. More recently, Mr Westwood may have retreated from the suggestion that Mr Mark took a bribe, although this is not clear. It depends on a distinction between saying that a bribe was taken and saying that a bribe must have been taken.

17. On 27 October 2010 Mr Westwood was informed by ICAC that it would not be investigating his complaint. ICAC repeated its position in subsequent correspondence with Mr Westwood.

Complaints to the NSW Bar Association

18. On 31 May 2017 Mr Westwood commenced correspondence with [email protected]. Emails sent by Mr Westwood in May and August 2017 refer to previous correspondence, but the records of the Bar Association do not reveal any. Mr Westwood’s emails contain a disparate collection of serious allegations about Mr Gross, Mr Coombs, Mr Boyd, Newman J, Mr Marks and the Bar Association itself. It is not possible to distil a coherent complaint from these allegations. The settlement on 13 June 1997 featured prominently in Mr Westwood’s emails but wider matters are also referred to.

19. Mr Westwood sent a series of similar emails to the Bar Association in 2019, which the Bar Association “noted” but did not otherwise respond to.

Other matters

20. Ms Westwood died in 2004.

21. Each of Mr Coombs, Mr Boyd and Mr Healey has died.

22. There appears to be no transcript of any hearing before Newman J on 13 June 1997.

23. Mr Mark retired on 23 August 2013.

24. In his various documents, Mr Westwood also makes complaints against the Law Society, the police, the Attorney-General and the Legal Aid Commission. None of these complaints have been included in the current proceedings but are based on essentially the same premise. Mr Westwood contends that he was wronged in 1997 and his subsequent efforts to obtain justice have been unlawfully stymied.

Current proceedings

25. As set out above, these proceedings commenced on 22 December 2023 when Mr Westwood filed a Statement of Claim. In that document the named defendants were:

1. Steven Mark, Commissioner of the Office of the Legal Services Commission;

2. Mr Bernie Gross;

3. the NSW Bar Association;

4. the Independent Commission Against Corruption; and

5. GH Healey & Co.

26. A Notice of Appearance has been filed for each of the first four defendants.

27. GH Healey & Co has not filed a Notice of Appearance. There is no Affidavit of Service. In one of Mr Westwood’s Written Submissions, there appears to be an extract from an email dated 4 June 2024 from a solicitor at Sparke Helmore in which it is stated that a corporation came into existence on 3 April 2018 called GH Healey & Co Pty Ltd and which now practices as an incorporated legal practice, presumably under the name GH Healey & Co. Nothing is known about the firm in 1997. By an email dated 28 August 2024 Mr Westwood foreshadowed a further amendment to the Statement of Claim by which, should it be filed, GH Healey & Co will be changed to the name of the employed solicitor acting on his case in 1997. That document has not been filed. There is no suggestion that it has been served.

28. The original Statement of Claim was amended by a document filed on 27 February 2024. It was further amended by a document filed on 22 March 2024. At some stage the name of the first defendant was changed to Samantha Gulliver, Acting Commissioner of OLSC. Ms Gulliver has more recently been appointed as the NSW Legal Services Commissioner (she is no longer “Acting”). She seeks an order under s 64(4) of the Civil Procedure Act 2005 that the name of the proceedings be amended to reflect her current position accurately, but in view of my decision on summary dismissal that is not necessary.

29. At the hearing of the current applications, Mr Westwood informed the Court that he now relies upon a signed but unfiled Statement of Claim dated 12 April 2024. Without accepting that Mr Westwood ought have leave to file this latest pleading, the defendants argued their respective applications on the basis of the proposed amendment.

30. The first 15 paragraphs of the latest Statement of Claim are as follows (with original emphasis):

“1.   Plaintiff claims that whilst Insurance Company NZI and owners of the house, Company GRAHAM TRILBY PTYLTD both admitted liability for the fire incident broke out which has been explained in Case

No 600046 of 94, Queen Counsel Bernie Gross agreed to fight in favor of plaintiff for the sum ofAUS$2,750,000.00.

2.   On Friday 13th June,1997 in the NSW Supreme Court, Queen Counsel, Bernie Gross failed to represent plaintiff to fight the agreed amount that he calculated.

3.   Queen Counsel, Bernie Gross failed to send a Protective Commissioner appointed for Plaintiff as required under the NSW Mental Health Act for a person with a

Cognitive impairment

4.   Queen Counsel, Bernie Gross failed to summon witnesses in favor of plaintiff.

5.   Queen Counsel, Bernie Gross sent a replace whom Plaintiff had never met previously to discuss his case, namely Queen Counsel John Coombs who died on 15/7/2007.

6.   Queen Counsel John Coombs did not fight for the sum of AUS2,750,000.00 which Queen Counsel Bernie Gross agreed to fight for plaintiff Were present on Friday 13th June 1997 in New South Wales Supreme Court, Plaintiff, Honorable Justice Newman, Queen Counsel John Coombs and Solicitor G. H. Healey, Bill Cortez.

7.   Plaintiff was not defended by Solicitor G.H. Healey though present in Court at the hearing.

8.   Plaintiff claims that his legal file was inaccessible from his Solicitor G.H Healey so he could not proceed with his case for appeal.

9.   Plaintiff's late mother Pamela Westwood under medical condition of cancer raised complaints to 3 legal authorities Messrs./Ms., Acting Commissioner OLSC, NSW Bar Association and ICAC acknowledging them that plaintiff’s dues of AUS$2,750,000 were not fought in NSW Court on Friday 13/6/1997 and so plaintiff's due of

AUS$2,750,000.00 has not been settled in Court.

10.   Only OSLC took complaints of plaintiff’s mother, Mrs. Pamela Westwood. OSLC took seven years to finalize the complaints which were in favor of Queen Counsel John Coombs, Queen Counsel Bernie Gross and Solicitor

G. H Healey. The latter were paid AUS$80,000 for their fees whilst plaintiff was forced to accept under harassment and threat for a cheque of only AUS$3,000, by Queen Counsel John Coombs.

11.   Queen Counsel John Coombs was paid his day court for the sum of AUS$5000 plus refund of cheque of $AUS$3,000 remitted to Plaintiff. Queen Counsel John

Coombs received AUS$8,000 in full for this hearing day.

12.   Under ICAC ACT 1988 favoritism is corruption, Queen Counsel John Coombs was the only one involved in the case and receiving full payment of AUS$8,000

13.   Since No 11 shows evidence of favoritism, plaintiff claims his human rights dues which have been ignored.

14.   Plaintiff claimed that his dues of AUS$2,750,000 had not been contracted due to negligence of the give respondents mentioned above in RELIEF CLAIMED. They are responsible for his dues each. Had they done

their duties by responding to complaints in the 28 days limit following the hearing, he would have got his dues of AUS$2,750,000.00

15.   Plaintiff claims that there is a BREACH OF DUTY OF CARE which has resulted from professional negligence legal and obviously causing personal injury to him which is concluded as a BREACH OF CONTRACT on part of (5) five living respondents mentioned above in Relief Claimed.”

31. The rest of the Statement of Claim addresses the quantum of Mr Westwood’s loss (paragraphs 16-18), interest (paragraph 24) and limitation (paragraph 25). There are also some allegations made specifically against two non-parties, namely Mr Coombs (paragraphs 19-22) and a named general practitioner (paragraph 23). These allegations have no relevance to the claims against the defendants.

32. The relief claimed against each of the five defendants is an order for payment in the specified sum of $2.7 million plus interest of $5,695,517 for a total of $8,445,517.

33. The entitlements are said to accumulate to a total of $42,235,082.

34. No defences have been filed.

Current applications

35. In February and March 2024 each of the active defendants filed a Notice of Motion in which it or he seeks an order that the proceedings be summarily dismissed under Uniform Civil Procedure Rules r13.4 or, alternatively, that the Statement of Claim be struck out under r 14.28.

36. The defendant’s applications were heard on 23 July 2024. Mr Westwood appeared in person at the hearing.

37. Without objection, each defendant read an Affidavit in support of the application. For the Legal Services Commissioner, the NSW Bar Association and ICAC, the Affidavit essentially explained that a search of the records had been undertaken and annexed any documents relating to a complaint by Mr Westwood or his mother. Some incidental matters were referred to, such as Mr Mark’s retirement.

38. For Mr Gross, the deponent of the Affidavit was Mr Gross. He describes receipt of the brief in 1994, the work he performed and the circumstances in which the brief was returned in May 1997. He also gives some evidence about personal injury practice at the end of the last century, including the sitting of the Court outside Sydney, the office of the Protective Commissioner and the advantages and disadvantages of seeking an appointment, for example before or after judgment is obtained. Mr Gross also explains his lack of papers since returning the brief.

39. Prior to the hearing, Mr Westwood filed two sets of submissions, one entitled “Reply” on 17 May 2024 and the other “Reply for Written Submissions of Five (5) Defendants” on 4 July 2024. These documents contain a mixture of submissions and evidence. No objection was taken to any part of either.

40. At the hearing on 23 July 2024 Mr Westwood made some short oral submissions. At the conclusion of the hearing I directed that Mr Westwood file and serve any further material upon which he relies within seven days. I directed the defendants, if so advised, to put on any submissions responsive to Mr Westwood’s further material within a further seven days.

41. Within the seven-day period allowed by my direction, Mr Westwood sent 10 emails to my Chambers to which were attached 366 pages of primary documents. The documents are an eclectic group of documents or, more often, parts of larger documents which focus on the original court case and the complaints subsequently made to the defendants.

42. After the seven-day period Mr Westwood sent a further 58 emails to my Chambers, some of which attached primary documents.

43. Despite the terms of my direction to Mr Westwood and contrary to requests repeatedly made by my chambers to Mr Westwood, many of these emails were not copied to the other parties. Such behaviour by Mr Westwood was inappropriate: Qasim v PF 473 Pty Ltd [2024] NSWCA 248 at [32] (Gleeson JA). Nonetheless my Associate has supplied the deficiency by onforwarding everything which has been received. None of the defendants has raised an objection to this material being considered on the application. For completion, I have marked these documents as Exhibits on the applications as stated in the orders.

35. I have read all the material provided by Mr Westwood.

36. Apart from Mr Gross, each defendant served a short further submission essentially to say that none of Mr Westwood’s additional material warranted further submissions for the relevant defendant.

37. Mr Gross served a further submission in which he observed that Mr Westwood described his further material as “all the evidence I have to support what I have to say”. Mr Gross submitted that Mr Westwood’s evidence was incapable of proving the matters alleged. On that basis, Mr Gross submitted that the proceedings did not only disclose no cause of action, but were frivolous, vexatious and an abuse of process.

38. The solicitor acting for Mr Gross has also affirmed three additional Affidavits and provided them to the Court:

1. The first is dated 7 August 2024 and performs the function of collating in chronological order a selection of documents produced by Mr Westwood, supplemented by four emails which were provided to the solicitor by Mr Gross.

2. The second Affidavit is dated 21 August 2024 and appears to exhibit a selection of the documents produced to the Court by Mr Westwood.

3. The third Affidavit is dated 3 October 2024 and exhibits Mr Westwood’s medical records as produced by hospitals which were subpoenaed in these proceedings, together with Mr Gross’ summaries of some of those records. The Affidavit also exhibits certain documents produced to the Court by Mr Westwood and gives some commentary on those documents.

48. The direction I gave to the defendants on 23 July 2024 did not extend to service of additional evidence. Whilst some of the first Affidavit referred to in the preceding paragraph closely resembles submissions rather than evidence, and there is no doubt the collation work undertaken by Mr Gross’ solicitor would be of assistance to the Court if it was read, the balance of the first Affidavit and the other two appear to contain new evidence. In fairness to Mr Westwood, I do not think that any of the three Affidavits ought be adduced into evidence on these applications. Other than to identify what they are, I have not read them nor the documents exhibited to them.

Submissions by the parties

Legal Services Commissioner

49. The Legal Services Commissioner submits that the evidence demonstrates that the complaints made by Ms Westwood and Mr Westwood were complaints about the negligence of Mr Gross, Mr Coombs and the employed solicitor and that the Westwoods’ objective in making the complaints was to obtain compensation for perceived loss. They were not complaints about disciplinary matters. Mr Mark investigated the complaints, established as much and dismissed them.

50. Identifying Mr Westwood’s causes of action against the Legal Services Commissioner as negligence and breach of contract, it is submitted that no reasonable cause of action is disclosed or, alternatively, the Statement of Claim is embarrassing. It is submitted that no allegation is made from which it can be found that the Legal Services Commissioner owed Mr Westwood a duty of care, or that there was any contractual relationship between them. Nor are facts alleged from which a breach of duty or causation of loss can be understood.

51. The Legal Services Commissioner’s primary position is that the fatal deficiencies in the case and the pleading are apparent from the Statement of Claim and do not depend upon any contest about the facts.

NSW Bar Association

52. The NSW Bar Association also submits that the causes of action pleaded against it are negligence and breach of contract. In this context, the Bar Association also refers to “personal injury”, which is not a cause of action but rather a type of loss for which compensation may be sought under a cause of action. Whilst the Statement of Claim refers to the Bar Association’s “debt”, this is evidently Mr Westwood’s claim for damages for negligence and breach of contract.

53. By reference to the Statement of Claim, the Bar Association submits that the only allegation made against it is a failure to investigate complaints as a regulatory authority relating to barristers.

54. The Bar Association points out that under the regime for complaints against barristers up until 2004, the Bar Association had no power to investigate complaints against barristers because s 135 of the Legal Profession Act 1987 (NSW) required the Bar Association to refer any such complaint to the Legal Services Commissioner. The position remained the same after 2004 by virtue of s 505 of the Legal Profession Act 2004 (NSW). Any complaint made by Ms Westwood or Mr Westwood would not therefore have imposed on the Bar Association any obligation other than to refer the compliant to the Legal Services Commissioner. There was no duty of care. In any event there was no contract. There is no suggestion that the Bar Association failed to make any referral it was required to make. Nor can it be said that Mr Mark would have dealt with a complaint referred by the Bar Association any differently to the complaints he received directly.

55. The Bar Association submits that the Statement of Claim discloses no reasonable cause of action against it. It further submits that the proceedings are frivolous and vexations for the purpose of r 13.4(1)(a).

56. Like the Legal Services Commissioner, the Bar Association submits that the fatal deficiencies in Mr Westwood’s case are apparent from the Statement of Claim itself without the need to refer to any evidence.

ICAC

57. ICAC submits that the Statement of Claim does not articulate a basis on which it is claimed that it owned Mr Westwood a duty of care, or the nature of any duty of care. It cannot even be argued that ICAC owed Mr Westwood a duty to investigate his allegations because such a duty would be inconsistent with the statutory scheme governing ICAC’s functions. The Independent Commission Against Corruption Act 1988 (NSW) gives ICAC a broad discretion whether to investigate any particular matter.

58. ICAC further submits that the Statement of Claim does not allege breach of duty by ICAC nor causation of loss. The negligence claim is also said to be out of time.

59. Similar submissions are made about Mr Westwood’s claim in contract, including the submission that the Statement of Claim does not allege a contract between Mr Westwood and ICAC.

Mr Gross

60. Mr Gross is in a different position to the other defendants because, up until mid-May 1997, he was retained by GH Healey & Co to represent Mr Westwood in the proceedings against the owner of the house and letting agent.

61. Mr Gross nonetheless submits that the Statement of Claim does not allege anything capable of constituting a breach of a duty of care prior to the brief being returned. Thereafter there was no duty.

62. Mr Gross also submits that there is no allegation of any contract between him and Mr Westwood and therefore the claim based on breach of contract is hopeless. He alternatively submits that any such contract was terminated in May 1997 when he returned his brief and alternative senior counsel retained in his stead.

63. By reason of these matters, Mr Gross submits that the Statement of Claim discloses no reasonable cause of action against him for the purposes of rr 13.4(1)(b) and 14.28(1)(a).

64. As mentioned above, Mr Gross further submits that the totality of the material produced by Mr Westwood and described as “all the evidence I have to support what I have to say” demonstrates that the proceedings are frivolous and vexatious and an abuse of process. For those further reasons, the proceedings ought summarily to be dismissed. The argument is that the case has such ephemeral prospects of success against Mr Gross in terms of breach of duty, causation, the time bar, prejudicial delay and collateral purpose that the exceptional step of dismissal under r 13.4(1) is warranted. To a large extent, these further submissions are based on an analysis of deficiencies in the underlying evidence which Mr Westwood has identified to support his case.

65. Mr Gross also submits that Mr Westwood’s claims against Mr Gross are barred by the Limitation Act 1969 (NSW) and that there is no basis for the applicable limitation periods to be extended.

66. Mr Gross’s final submission is that Mr Westwood brings these proceedings for a collateral purpose, namely to create a public forum in which to ventilate perceived complaints. The submission is based on an interpretation of statements made by Mr Westwood in communications over the last decade, the last of which was in May 2023, in which Mr Westwood has expressed some enthusiasm for engaging with the media.

Mr Westwood

67. All the submissions and other material put forward by Mr Westwood address the underlying circumstances of the settlement of his case in 1997 and his subsequent complaints to the defendants and other authorities. Nothing put forward by Mr Westwood responds to the substantive contentions made by the defendants on these applications. In particular, nothing is said by Mr Westwood about:

1. how it can be said that the Legal Services Commissioner, the Bar Association and ICAC owe him a duty of care;

2. the absence of any contract between him and the Legal Services Commissioner, the Bar Association and ICAC;

3. how Mr Gross owed a duty which survived the brief being returned in May 1997;

4. causation of loss; and

5. limitation.

Legal principles

68. As its primary case, each of the defendants relies upon r 13.4 which provides:

13.4 Frivolous and vexatious proceedings

(1)    If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a)    the proceedings are frivolous or vexatious, or

(b)    no reasonable cause of action is disclosed, or

(c)    the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)    The court may receive evidence on the hearing of an application for an order under subrule (1).

69. All defendants specifically rely on r 13.4(1)(b) because, it is submitted, Mr Westwood’s Statement of Claim discloses no reasonable cause of action against the respective defendant.

70. The power to dismiss proceedings under this rule will only be exercised where the claim is so obviously untenable that it cannot possibly succeed: General Steels Industries v Commissioner of Railways NSW (1964) 112 CLR 125 at 129; [1964] HCA 69 (Barwick CJ). In Agar v Hyde (2000) 201 CLR 552 at 576; [2000] HCA 41 at [57], Gaudron, McHugh, Gummow and Hayne JJ said the proceedings may be dismissed where there is a high degree of certainty about the ultimate outcome of the proceedings if they were allowed to go to trial in the ordinary way.

71. In O’Brien v Bank of Western Australia Limited [2013] NSWCA 71 at [3], Macfarlan JA, with whom Beazley P agreed, identified the following relevant principles:

1. the real issue is whether there is an underlying cause of action, not simply whether one is pleaded;

2. demonstration of the outcome of the litigation is required, not an assessment of the prospects of its success; and

3. the power summarily to terminate proceedings must be exercised with exceptional caution.

72. In considering whether the General Steels test is met, the Court is to have regard to the fact that the plaintiff is self-represented and must satisfy itself that there is no viable course of action of which the plaintiff will be deprived if the case is dismissed: Wentworth v Rogers (No.5) (1986) 6 NSWLR 534 at 536 (Kirby P, with whom Hope and Samuels JJA agreed).

73. The Court may find that a pleading discloses no reasonable cause of action merely by reference to the pleading itself and without regard to any evidence. If so, the Court must assume the truth of all the allegations made in the pleading: Agius v State of New South Wales [2001] NSWCA 371 at [24] (Priestley, Powell and Giles JJA).

74. The Court may alternatively, determine the application having regard to evidence adduced by the parties: r 13.4(2). However, if the Court receives evidence on an application like this it must not make findings of fact based on that evidence unless there is no other evidence which might emerge during the further conduct of the proceedings which could add to or qualify those “facts”: Bass v Permanent Trustee Co Limited [1999] HCA 9; 198 CLR 334 at [50] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

75. Each defendant puts forward an alternative case under r 14.28 which provides:

14.28    Circumstances in which court may strike out pleadings

(1)    The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading--

(a)    discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)    has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)    is otherwise an abuse of the process of the court.

(2)   The court may receive evidence on the hearing of an application for an order under subrule (1).

76. The purpose of r 14.28(1) is to ensure that a document which is brought forward as a pleading efficaciously performs the critical function required of pleadings in civil proceedings. Pleadings define the number, limits and contents of issues which, first, the parties must prepare for hearing and, secondly, the Court must decide. A succinct statement of the relevant principles was set out by Adamson J in Dickens v State of New South Wales (No.3) [2018] NSWSC 485 at [36]-[39] as follows:

“[36]   The importance of pleadings ought not be underestimated. A statement of claim serves a number of functions. It indicates, to the Court and to the defendant or defendants, the basis of the plaintiff’s claim for relief. The statement of claim must set out, in numbered paragraphs, the material facts on which the plaintiff relies (UCPR rr 14.6 and 14.7). Where the rules require that certain matters be particularised (such as allegations of fraud or states of mind), the statement of claim must contain those particulars. It is an aspect of natural justice that the defendant be apprised of the case it has to meet by a properly pleaded statement of claim: Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [25] (French CJ, Gummow, Hayne and Kiefel JJ). Where unparticularised allegations of fraud and intention are made, there can be a tendency for the deficient pleading to amount to an abuse of process. Pleadings must be consistent, except where allegations are expressed to be in the alternative: UCPR 14.18. A pleading must not be “embarrassing” in any of the senses set out by Tamberlin J in Shelton v NRMA Ltd [2004] FCA 1393; 51 ACSR 278 at [18] :

‘Embarrassment’ in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense.

[37]   A defendant is required to file a defence to the statement of claim. Admissions made by the defendant obviate the need for proof of matters admitted. The pleadings identify and confine the disputes between the parties so that the hearing can be conducted efficiently. Questions of relevance (the first requirement for admissibility of evidence) are, generally speaking, determined by reference to the pleadings.

[38]    Where a statement of claim is deficient, in that it does not identify the connection between allegations of fact and causes of action alleged; contains a discursive narrative, the relevance of which can only be the subject of conjecture; and makes generalised allegations which could not sensibly be the subject of a response in the defence, it cannot be allowed to stand, if objection is taken. Although there are occasions where a defendant, for forensic reasons, might not take objection to a deficient pleading and prefer to conduct the proceedings on that basis, a defendant who approaches the Court to enforce its rules regarding a pleading is entitled to have the Court require compliance: Northam v Favelle Favco Holdings Pty Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 7 March 1995) .

[39] The matters to be taken into account in determining which order to make are set out in Part 6 of the Civil Procedure Act 2005 (NSW) , the overriding purpose of which is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: s 56. A properly pleaded statement of claim is, in my view, a prerequisite for the just, quick and cheap resolution of the real issues in the proceedings.”

77. Adamson J refers to a defendant taking an objection to a pleading and, in those circumstances, the defendant’s entitlement to have the Court require compliance. An application by a party, not just a defendant, to have a pleading struck out ought not to be made lightly and certainly not strategically. However, each party to civil proceedings is under a duty to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(3) of the Civil Procedure Act 2005 (NSW). A deficient pleading may hamper the just, quick and cheap resolution of the real issues in the proceedings. Where a party properly perceives such a deficiency, it ought consider whether it is obliged to make an application to have the pleading struck out, obviously having first raised the issue with the other party in an endeavour to have the matter addressed without the intervention of the Court. In this respect, the parties may be in a superior position to the Court to understand the implications for further preparation and hearing of the case if a deficiency in a pleading is allowed to stand.

78. In any event, the Court’s power to strike out a pleading under r 14.28 is not limited to cases where one party objects to the other party’s pleading. Of its own motion the Court may, and in some circumstances ought to, strike out a deficient pleading. By virtue of s 56(2) the Court must seek to give effect to the overriding purpose when exercising (or not exercising) any powers given to it by r 14.28: Shaw v New South Wales [2012] NSWCA 102 at [129] (Barrett JA, with whom Beazley, McColl, Macfarlan JJA and McClellan CJ at CL agreed).

79. As for the content of the Court’s power to strike out, the same test applies to r 14.28(1)(a) as for r 13.4(1)(b) (cf Mills v Central Sydney Area Health Service [2002] NSWSC 728 at [5]-[6]).

80. The defendants also rely upon r 14.28(1)(b), contending that Mr Westwood’s Statement of Claim is embarrassing because it is unintelligible, ambiguous or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim: McGuirk v University of New South Wales [2009] NSWSC 1424 at [21]-[35] (Johnson J).

81. Where a pleading is struck out, in whole or in part, the Court may grant leave to file an amended pleading under s 64 of the Civil Procedure Act and UCPR Part 19. Any such leave ought not be granted if a proposed amendment would be futile in the sense that the amended pleading would itself be liable to be struck out: Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWSC 1073 at [10] (Barrett J).

82. Where it appears that it will not be possible for the plaintiff to amend or plead a reasonable cause of action, the more appropriate course is to dismiss the proceedings rather than strike out the pleading: Waters v Commonwealth [2012] NSWSC 790 at [51]-[55] (Barr AJ).

Determination

Legal Services Commissioner

83. Mr Westwood’s claim against the Legal Services Commissioner is to be understood in the context of the statutory framework within which the Legal Services Commissioner operated at the relevant time. At the time of the Westwoods’ complaints, the functions of the Legal Services Commissioner were outlined in s 59D of the Legal Profession Act 1987 (NSW), relevantly to receive complaints about professional misconduct or unsatisfactory professional conduct of legal practitioners (s 59D(1)(a)), to assist and advise complainants and potential complainants (s 59D(1)(b)), to investigate, or take over the investigation of, a complaint if the Legal Services Commissioner considers it appropriate and to refer complaints to the appropriate Council for investigation or mediation in appropriate cases (s 59D(d)). The terms “professional misconduct” and “unsatisfactory professional conduct” are defined by reference to ethical standards and not private rights. The investigation of complaints by the Legal Services Commissioner was further outlined in Division 5. Section 155 of the Legal Profession Act provided for the decision of the Legal Services Commissioner after investigation of the complaint. Relevantly the Legal Services Commissioner had to institute proceedings in the Administrative Decisions Tribunal if satisfied “there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct” (s 155(2)) or otherwise “reprimand the legal practitioner” if satisfied of a reasonable likelihood that he or she will be found guilty of unsatisfactory professional conduct (but not professional misconduct) or dismiss the complaint (s 155(3)). The Legal Services Commissioner did not himself have statutory powers to order compensation. Compensation orders could be awarded by the Tribunal if the complaint was successful (s 171D).

83. In this context, the allegations in Mr Westwood’s Statement of Claim about the Legal Services Commission are limited. It is alleged that Ms Westwood made a complaint (paragraph 9), which the Legal Services Commissioner “took” and finalised in favour of Mr Gross, Mr Coombs and GH Healey & Co (paragraph 10). In Mr Westwood’s favour, it may be inferred that the alleged complaint related to the conduct of the lawyers referred to in paragraphs 2 to 8. For the purposes of this application, it may be assumed that these factual matters are all true. No other factual matters are alleged about the Legal Services Commissioner.

84. Mr Westwood’s key allegation is that the Legal Services Commissioner breached a duty of care and breached a contract (paragraph 15). These are conclusions of law. It is not possible for those conclusions to arise from the facts referred to in the preceding paragraph of this judgment.

85. Further, there are no anterior allegations that the Legal Services Commissioner owed a duty of care to the Mr Westwood or that he was party to a contract with Mr Westwood. No facts are pleaded which are capable of founding a pleading that a duty of care was owed or that a contract existed between Mr Westwood and the Legal Services Commissioner.

86. In these circumstances, the Statement of Claim does not disclose a reasonable cause of action against the Legal Services Commissioner. I am satisfied that this is not simply a pleading issue but a deficiency in the underlying causes of action, having regard to the functions of the Legal Services Commissioner under the Legal Profession Act 1987. Given the statutory framework, there is no basis to contend that lodging a complaint with, and receipt of the complaint by, the Legal Services Commissioner gave rise to a duty of care owed to, or a contract with, the complainant.

87. Even with the exercise of extreme caution and having regard to Mr Westwood’s position as an unrepresented plaintiff, his claims against the Legal Services Commissioner are so obviously untenable that they cannot possibly succeed. This conclusion follows from the terms of the Statement of Claim and is based on the assumption that all factual matters alleged against the Legal Services Commissioner are true. The appropriate course is to dismiss the proceedings against the Legal Services Commissioner rather than strike out the pleading.

NSW Bar Association.

89. I have set out above the Bar Association’s submissions about its limited statutory role in dealing with complaints against barristers. I accept those submissions.

90. The allegations in the Statement of Claim about the Bar Association are even more limited than the allegations against the Legal Services Commissioner. The only fact expressly pleaded against the Bar Association is that Ms Westwood made a complaint (paragraph 9). Again, in Mr Westwood’s favour, it may be inferred that the alleged complaint related to the conduct of the lawyers referred to in paragraphs 2 to 8. It may also be accepted that two of the lawyers were barristers. It may also be inferred from the word “only” in paragraph 10 that it is pleaded that the Bar Association did not accept or investigate Ms Westwood’s complaint. All these facts may be assumed to be true for the purposes of the application. No other factual matters are pleaded about the Bar Association.

91. Mr Westwood’s pleads that the Bar Association breached a duty of care and breached a contract (paragraph 15). It is not possible for those conclusions to arise from the facts referred to in the preceding paragraph of this judgment.

92. There are no anterior allegations that the Bar Association owed a duty of care to Mr Westwood or that it was party to a contract with Mr Westwood. No facts are pleaded which are capable of founding such allegations.

93. The Statement of Claim discloses no reasonable cause of action against the Bar Association. Again, this is not simply a pleading issue but a deficiency in the underlying causes of action having regard to the Bar Association’s role in disciplinary complaints against barristers at the relevant time.

94. If anything, the contract case is even more deficient against the Bar Association than against the Legal Services Commissioner because the Statement of Claim implies that the Bar Association did not accept Ms Westwood’s complaint.

95. Further, the Bar Association by definition had no role at all in relation to any complaint Mr Westwood had against GH Healey & Co or the employed solicitor.

96. Mr Westwood’s claims against the Bar Association are so obviously untenable that they cannot possibly succeed having regard to the terms of the Statement of Claim. The appropriate course is to dismiss the proceedings against the Bar Association rather than strike out the pleading.

97. The Bar Association makes the further submissions that Mr Westwood’s proceedings are frivolous and vexatious. The only reason given for that submission is that Mr Westwood is seeking to recover from the Bar Association damages and interests for which the Bar Association has no liability. Without more, this is not a basis to find that Mr Westwood’s proceedings against the Bar Association are frivolous and vexatious and I make no such finding.

ICAC

98. The allegations in the Statement of Claim about ICAC are exactly the same as for the Bar Association. Again, they be assumed to be true for the purpose of this application. For the same reasons as set out above for the Bar Association, the Statement of Claim discloses no reasonable cause of action against ICAC.

99. As with the Bar Association, this is not simply a pleading issue but a deficiency in the underlying causes of action against ICAC. ICAC was established by the Independent Commission Against Corruption Act 1988. The functions of ICAC are set out in Part 4 of the statute. Section 12 provides that, in exercising its functions, ICAC shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns. Section 12A provides that, as far as practicable, ICAC is to direct its attention to serious corrupt conduct and systemic corrupt conduct. Without more, this provision contemplates that ICAC will have limited resources which must be allocated by ICAC. One of the principal functions of ICAC is to investigate allegations or complaints that, in ICAC’s opinion, imply corrupt conduct may have occurred: s 13(1)(a)(i). The statute does not impose an obligation on ICAC to investigate any particular complaint. ICAC has a discretion whether to investigate, which discretion is not expressly constrained: Waterhouse v ICAC [2016] NSWCA 133 at [90] (Basten JA). In considering whether or not to conduct an investigation, ICAC may have regard to such matters as it thinks fit: s 20(3). Having regard to the relief claimed by Mr Westwood, a relevant duty of care owed to Mr Westwood would be inconsistent with the statutory framework, as would a finding that, objectively viewed, ICAC intended to form a contract with Mr Westwood.

Mr Gross

100. The allegations in the Statement of Claim about Mr Gross are also limited. Four allegations of fact are made:

1. on 13 June 1997 Mr Gross failed to represent Mr Westwood to fight the agreed amount ($2.75 m) (paragraph 2);

2. Mr Gross failed to send a Protective Commissioner for Mr Westwood (paragraph 3);

3. Mr Gross failed to summon witnesses in favour of Mr Westwood (paragraph 4); and

4. Mr Gross “sent a replace”, Mr Coombs (paragraph 5).

101. It may be inferred from the matters set out in paragraph 2 of the Statement of Claim that it is also alleged that Mr Gross was retained as Mr Westwood’s barrister. The duration of the alleged retainer is tolerably clear because it may be inferred from the pleading that Mr Coombs “replaced” Mr Gross (paragraph 5) and thus Mr Gross’ retainer was terminated at the time of the replacement. According to the pleading, Mr Coombs was present at the final hearing on 13 June 1997 (paragraph 6). Therefore Mr Westwood’s pleaded case is that Mr Gross’s retainer had ceased to exist by 13 June 1997.

102. No other factual matters are pleaded about the Mr Gross.

103. The alleged facts may be assumed to be true for the purposes of the application.

104. Mr Westwood’s pleads that Mr Gross breached a duty of care and breached a contract (paragraph 15). It is not possible for either conclusion to arise from the pleaded facts. As for the anterior matter of the duty, a common law duty of care may be inferred from the fact that Mr Gross was retained as Mr Westwood’s barrister. However, no facts are pleaded from which it can be concluded that a duty of care continued to exist as at 13 June 1997. This follows from the fact that Mr Gross was replaced by Mr Coombs. It follows that for there to have been a breach of duty by Mr Gross, it must have occurred before that date. Self-evidently the matters referred to above at [100] occurred on 13 June 1997.

105. The pleaded failure to send a Protective Commissioner may have occurred before 13 June 1997 but that in itself does not demonstrate a breach of duty by Mr Gross, especially as it is alleged that Mr Westwood was represented by other lawyers on 13 June 1997. In any event, there is no pleaded fact capable of constituting causation of loss from the absence of a Protective Commissioner, even if it is assumed that the relevant breach of duty occurred.

106. As for the claim in contract it is pleaded that Mr Gross dealt directly with Mr Westwood (eg, paragraph 2) but no contract is specifically pleaded. A direct contractual relationship between Mr Gross and Mr Westwood cannot be implied from the Statement of Claim given the nature of the tripartite relationships between clients, solicitors and barristers. In any event, as with the claim in tort, no facts are pleaded from which it can be concluded that a contractual duty was owed as at 13 June 1997, or that there was a breach, or that there was causation of loss.

107. As such, the Statement of Claim discloses no reasonable cause of action against the Mr Gross. Again, this is not simply a pleading issue but a deficiency in the underlying causes of action given that Mr Gross was replaced by Mr Coombs.

108. Mr Westwood’s claims against Mr Gross are so obviously untenable that they cannot possibly succeed. Given the replacement by Mr Coombs, I am satisfied that it will not be possible for a reasonable cause of action to be pleaded against Mr Gross. The appropriate course is to dismiss the proceedings against Mr Gross rather than strike out the pleading.

109. Mr Gross further submits that Mr Westwood’s proceedings are frivolous and vexatious and an abuse of process. In each case Mr Gross relies upon a review of the material put forward by Mr Westwood supplemented by some additional emails and hospital records obtained by Mr Gross. On the limited state of the evidence, it is not appropriate to make the findings of fact necessary to uphold these submissions. Whilst I have accepted into evidence the documents provided by Mr Westwood, it cannot be assumed that no other evidence will emerge during the further conduct of the proceedings if they are allowed to continue. The Court does not therefore have a sufficient factual basis upon which to conclude that Mr Westwood’s proceedings are frivolous or vexatious or an abuse of process as contended by Mr Gross.

Costs

110. Costs ought follow the event.

111. The Legal Services Commissioner and ICAC each sought an order that their costs be paid in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005. No substantive submissions were made in support of such an order and no evidence was adduced by reference to which the Court can determine the amount of the gross sum if otherwise disposed to make the order. In these circumstances no gross sum costs orders will be made.

Orders

1. The bundle of 68 emails sent by the plaintiff to the Chambers of Faulkner J between 24 July and 9 October 2024 be adduced into evidence on the defendants’ summary dismissal applications and marked Exhibit 2.

2. The bundle of 336 pages of unpaginated documents provided by the plaintiff to the Chambers of Faulkner J on 26 July 2024 be adduced into evidence on the defendants’ summary dismissal applications and marked Exhibit 3.

3. Pursuant to UCPR 13.4, the proceedings be dismissed.

4. The plaintiff pay each defendant’s costs of the proceedings.

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Amendments

22 October 2024 - Typographical error on cover sheet corrected.

Decision last updated: 22 October 2024