Wheaton v La Capra - [2011] TASSC 32

[2011] TASSC 32

COURT: SUPREME COURT OF TASMANIA

CITATION: Wheaton v La Capra [2011] TASSC 32

PARTIES:WHEATON, Jon trading as MMS RENOVATIONS (a division of the Firm) MARKETING MANAGEMENT SERVICES (MMS)
v
LA CAPRA, Michael
LA CAPRA, Rosa

FILE NO/S:  184/2011
DELIVERED ON:  4 July 2011
DELIVERED AT:  Hobart
HEARING DATE:  22 June 2011
JUDGMENT OF:  Tennent J

CATCHWORDS:

Appeal and New Trial – Appeal - General principles – Right of appeal – When appeal lies – Error of law – What is – Generally.

Aust Dig Appeal and New Trial [21]

Procedure – Supreme Court procedure – Tasmania – Procedure under Rules of Court – Pleadings – Application to strike out.

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, referred to.
Aust Dig Procedure [272]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  A Selby
Solicitors:
           Appellant:  In person
           Respondent:  Ogilvie Jennings

Judgment Number: [2011] TASSC 32
Number of paragraphs: 30

Serial No 32/2011
File No 184/2011

JON WHEATON Trading as MMS RENOVATIONS (a division of the Firm) MARKETING MANAGEMENT SERVICES (MMS) v MICHAEL LA CAPRA AND ANOTHER

REASONS FOR JUDGMENT TENNENT J

4 July 2011

On 23 February 2011, his Honour Magistrate Webster, made an order refusing the appellant leave to file further amended particulars in the form of a document provided by the appellant to the Magistrates Court on 8 November 2010. As a consequence of that order, he also ordered that judgment be entered for the respondents in respect of the appellant's claim. The learned magistrate dealt with the matter as if it were an application to strike out the particulars, which to all intents and purposes it was. The appellant now appeals that decision and relies on 12 grounds set out in a notice of appeal.

The appellant commenced proceedings against the respondents in the civil division of the Magistrates Court on 5 June 2009. The proceedings thereafter were characterised by a number of complaints about the adequacy of the appellant's pleadings. I was able to identify five sets of particulars, six if a very lengthy document entitled "Response to the Defence" is included, which culminated in that supplied on 8 November 2010. Orders were made at different times striking out particulars filed by the appellant. Up until the particulars of 8 November, the appellant had been given the opportunity more than once to file amended particulars. However, by the time the appellant submitted those particulars, he was required to seek leave to file them. That application was opposed, and an initial hearing was conducted before his Honour on 7 December 2010. At that hearing, counsel for the respondents provided written submissions to the court. The court directed that the appellant provide submissions in reply within one month of that date. He did not do so until 24 January 2011. On that day, the written submissions of the appellant were brought to the attention of the learned magistrate and he heard some brief oral submissions from the parties. He then reserved his decision to consider the submissions he had received.

On 23 February 2011, the learned magistrate delivered written reasons, and dismissed the application for leave to file the fresh particulars. I attach a copy of his Honour's reasons to this decision.

While in each of his 12 grounds of appeal the appellant asserted that the learned magistrate had erred in law, it was not clear precisely what the error relied on in each case was. It became necessary to question the appellant to ascertain precisely what were the errors of law he relied upon. The notice of appeal also contained extracts from the reasons for decision of the learned magistrate, particulars of the appellant's claim and, at times, argument. For these reasons, I have not set out the grounds of appeal in full in this decision.

Ground 1

The appellant submitted that the learned magistrate erred in law in that he failed to take into account the written submissions of the appellant filed on 24 January 2011. This failure, he asserted, was apparent from the fact that the learned magistrate did not specifically refer to those submissions in his decision, although he did mention those of the respondents. No authority was relied upon to support the proposition that such a failure, if it occurred, would amount to an error of law.

There can be no doubt the submissions were brought to the attention of the learned magistrate on the day they were supplied to him. He then reserved his decision. I have had the benefit of reading the submissions to which the appellant refers. They largely contain arguments about the facts in this matter and repeat many of the matters already raised in the particulars.

This asserted error needs to be considered in the light of the background to the matter. The learned magistrate had been dealing with this matter over several months, he had dealt with applications to strike out the appellant's particulars before, and, I am able to infer, was familiar with the arguments about those particulars. There is nothing which would suggest, having regard to the manner in which he dealt with the application generally, that he did not have regard to the appellant's submissions.

In the circumstances, I am not satisfied that the appellant has demonstrated that the learned magistrate failed to have regard to his submissions or that, even if the learned magistrate did fail to have regard to them, that that amounted to an error of law. Given the learned magistrate's familiarity with the matter, even if there was a failure to have regard to the written submissions, and even if that amounted to an error of law, I am not satisfied it was an error which was so fundamental it should result in the decision being set aside. This ground of appeal should fail.

Ground 2

This ground of appeal was ultimately identified by the appellant as an asserted failure by the learned magistrate to have regard to the Supreme Court Rules 2000 ("the Rules"), r237. Rule 237 provides:

"237 Allegation of implied contract or relationship
If a contract or relationship is to be implied from a series of letters, conversations or from a number of circumstances, it is sufficient to allege the contract or relationship as a fact and to refer generally to the letters, conversations or circumstances without setting them out in detail."

This rule was relied on by the appellant in respect of a number of grounds of appeal. He relied on it essentially as a means of excusing his failure to particularise the actual written document which basically constituted his agreement with the respondents, and any detail about actual verbal agreements thereafter. With respect, the appellant in my view, has misunderstood the rule. The rule, as its heading says, relates to situations where there is an allegation that a contract or relationship between parties is to be implied from certain things. This case is not such a case. The appellant maintains that the agreement between the parties upon which he relies is constituted principally by a document signed by Mr La Capra, supplemented by verbal agreements of some description. It is not a situation where the appellant is relying on an agreement which is to be implied from a series of letters, conversations or circumstances.

The rule does not in my view apply to the present case. There can, in those circumstances, be no error if the learned magistrate did not apparently have regard to it. This ground should therefore fail.

Ground 3

The asserted error of law was the same as that dealt with in respect of ground 2, and the appellant conceded this was essentially the same ground. For the reasons already expressed, the ground should fail.

Ground 4

The appellant was pressed to identify what the error of law was that he relied on as having been committed by the learned magistrate by this ground. The appellant conceded that the only error he could identify was that the learned magistrate in his view made the wrong decision. He could not however identify a specific reason as to why, save that he did not agree with it. Having regard to the pleadings to which the learned magistrate was referring, I am not persuaded he made any error. This ground should fail.

Ground 5

This ground (as do grounds 6 and 7 (both first and second)), relates to clause 6 in the appellant's proposed particulars. The learned magistrate's conclusion was that the appellant had failed to particularise the discussions between the parties which amounted to an oral agreement between them. The appellant again relied on r237 to excuse that failure. For the same reasons as previously expressed in relation to the applicability of that rule, this ground must fail.

Ground 6

The learned magistrate pointed out at par[14] of his reasons that the appellant referred to payments in his particulars, but failed to particularise any agreement pursuant to which he was entitled to seek such payments. The appellant again relied on r237 to excuse his failure, and asserted as an error of law the learned magistrate's failure to have regard to that rule. The rule in my view does not apply for the reasons already expressed. There can therefore be no error of law made out. This ground must fail.

Ground 7 (first appearing)

This ground again relied on an asserted failure by the learned magistrate to have regard to r237 to, in effect, excuse a failure to particularise material matters. The learned magistrate expressed the view that the respondents were not given notice of the oral parts of the agreement said to have been made between the parties. This view followed from his finding at par[14] which was the subject of ground 6 in the notice of appeal. The appellant submitted that he had rendered invoices which had been paid in part, and that this formed the agreement entered into between the parties. He did not appreciate that the objection to the particulars identified by the learned magistrate was that there was no particularisation of the agreement pursuant to which the appellant asserted an entitlement to even render those invoices in the manner he did.

For the same reasons I have already expressed, r237, in my view, had no role to play in this case. It follows that there can be no error if the learned magistrate failed to have regard to it. This ground should fail.

Ground 7 (second appearing)

This ground relates to par[16] in the reasons of the learned magistrate. That paragraph was one of four which related to clause 6 in the appellant's proposed particulars. The finding was that the paragraph contained evidence and was not a brief statement of a material fact. The learned magistrate made specific reference to a clause D. There can be little doubt the paragraph contained evidence. Clause D actually referred to an asserted agreement to agree about a matter which the appellant maintained was "an integral extra component of the agreements" between the parties. Even allowing for that characterisation, the clause still, with respect, did not meet the requirements of the Rules. This ground of appeal should fail.

Ground 8

This ground related to par[17] of the learned magistrate's reasons and dealt with clauses 7–10 of the proposed particulars. It dealt with what was described as the lack of particularity as to what work the appellant claimed to have done, and the basis upon which he was entitled to render the accounts he did. The asserted errors of law were identified as being that the learned magistrate failed to have regard to the impact of r237, and that the learned magistrate formed a view contrary to that of the appellant.

I have already dealt with the impact of r237 on this matter generally. The appellant did not identify otherwise just why he said the learned magistrate's view was wrong, other than that it did not accord with his. No error has been demonstrated, and this ground should therefore fail.

Ground 9

This ground related to par[18] of the learned magistrate's reasons in which he dealt with clause 12 of the proposed particulars. His Honour reiterated a failure to particularise the basis of the agreement between the parties, and the terms of that agreement which it was said had been breached. The appellant referred to the statements about invoices rendered and payments made. Again the appellant relied on r237 and asserted as an error of law that the learned magistrate had failed to have regard to it. Again, the rule, in my view, does not apply and there is no error of law shown on the face of the reasons. This ground should also fail.

Ground 10

This ground related to par[19] of the learned magistrate's reasons which dealt with clause 13 of the proposed particulars. The learned magistrate concluded that the paragraph contained no statement of material fact, only evidence, and evidence which did not go to support a material fact. The appellant again relied on r237 and the asserted failure of the learned magistrate to have regard to it. The paragraph in the proposed particulars contained evidence of statements said to have been made by Mr La Capra well after when it was said the agreement between the parties was constituted, and also contained expressions of opinion. It did not contain a brief statement of a material fact or facts. I am not satisfied as to any error. This ground should fail.

Ground 11

This ground relates to par[20] of the learned magistrate's reasons. In that, he concludes having regard to the preceding paragraphs in his reasons, that the paragraphs in the proposed particulars to which he has referred should be struck out. He observes that, without them, the rest of the proposed particulars has no meaning, and then says they should also be struck out. The asserted error of law in relation to this statement is that the learned magistrate should not have struck out the parts of the proposed particulars that he did. As a stand alone ground of appeal, this ground makes little sense since the issue of whether or not the parts should be struck out is dealt with by reference to earlier grounds.

Ground 12

This ground relates to par[21] of the learned magistrate's reasons. In this paragraph, his Honour has regard to the history of the matter and to the principles set out in Rule 4 of the Magistrates Court (Civil Division) Rules 1998, and concludes that the appellant's application should be dismissed. He makes reference to some factual matters which he has taken into account. The only error of law identified was that the learned magistrate made the wrong decision. The appellant also referred to what he said were factual errors. In one part of the paragraph, the learned magistrate referred to the fact that 18 months had passed since the filing of the first claim. The appellant said the period was 17 months. In fact, the period between the date of filing the claim and his Honour's decision was closer to 20 months. Any error in relation to that issue is irrelevant.

The appellant further complained of the reference to the amount of the claim in par(21(d)). There can be no dispute there is an error. It should have been $13,000 and not $30,000. It is clearly a typographical error emanating from misunderstood dictation which has not been checked. With respect, it is not the amount which his Honour, in my view, is emphasising, but the nature of the dispute, namely that it is a commercial one. A further complaint related to par(21(e)). The appellant maintained that he had in fact sought some legal advice from the Legal Aid Commission of Tasmania. That matter is of little relevance. The appellant did not challenge the learned magistrate's comments in par(21(f)).

Again the only asserted error of law was that the learned magistrate made a decision which was contrary to that which the appellant contended for. No error has been made out by this ground and it should fail.

General

The appellant submitted that the deficiencies in the pleadings identified by the learned magistrate could have been cured by simple amendments. He also submitted that the magistrates who had dealt with this matter should have, at a much earlier time, given directions as to the manner in which the pleadings could be rectified. He also referred to remarks by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 - 130 where his Honour said:

"Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners where he says: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity the trial of his case by the appointed tribunal."

Had the order ultimately made by the learned magistrate been made on the first occasion the respondents moved to have particulars struck out, there is little doubt a successful argument might have been mounted for setting aside that order. However, what the learned magistrate ultimately dealt with was a very different set of circumstances. The proceedings which resulted in the proposed particulars in November 2010 had been on foot at that time for some 17 months. The appellant had been before two different magistrates. He had been before the court a number of times, and, on several of those, the issue was the inadequacies of his particulars. The appellant was not unfamiliar with the jurisdiction as the learned magistrate observed. The appellant had been given several opportunities to address the problems associated with his particulars. He had persistently failed to do so.

Further, and in any event, it was not the role of magistrates to give the appellant what would amount to legal advice as to how he should construct his particulars so as not to fall foul of the Rules. If indeed he obtained legal advice, either he did not follow it, or it was inadequate.

I am of the view in all the circumstances that no error has been demonstrated in the manner in which the learned magistrate approached this matter and the orders that he made. The appeal is dismissed.

Title of Court:	Magistrates Court Tasmania (Civil Division)
Citation:	*Wheaton v La Capra* [2011] TASMC
Parties:	John WHEATON (t/as MMS Renovations) v Rosa LA CAPRA & Michael LA CAPRA (t/as Vitalba Pizzeria Restaurant)
File No/s:	H21420/09
Hearing date:	14 January 2011
Decision of:	Magistrate C P Webster
Delivered on:	23 February 2011
Catchwords:	Pleadings - Claim struck out - Failure to comply with Rules re pleading
No. of paragraphs:	24
Representation:
*Counsel:*
Claimant/Applicant:	In Person
Defendant/Respondent:	A Shelby
*Solicitors:*
Claimant/Applicant:	In Person
Defendant/Respondent:	Ogilvie Jennings

Reasons for Decision

1. Introduction

The defendants have made an Application dated 9 November 2010:
"That the action be dismissed or, in the alternative, that the claim be dismissed and that judgment be entered on the defendants' counter-claim."
2. History
The history of proceedings (insofar as it relates to the claim) can be summarised as follows:
(a)5 June 2009 - A claim is lodged to which a defence and counterclaim is filed and subsequently a "response" is filed by the claimant to the defence and counterclaim.
(b)11 November 2009 - Claimant ordered to file within 28 days particulars which comply with Division 17 Supreme Court Rules, and in particular Rule 227.
(c)9 December 2009 - Further and better particulars provided.
(d)20 January 2010 - Application by defendant that action be dismissed or alternatively irrelevant pleadings be struck out.
(e)4 February 2010 - Order that amended claim filed is struck out and claimant ordered to file and serve amended particulars of claim within 14 days.
(f)19 February 2010 - Claimant files further amended particulars of claim.
(g)23 February 2010 - Magistrate orders that amended particulars be struck out.
(h)25 August 2010 - Claimant seeks order that claimant be permitted to file further amended particulars as attached and dated 25 August 2010.
(i)14 October 2010 - Claimant's Application dismissed.
(j)8 November 2010 - Further amended claim submitted with application that the claimant be permitted to file and serve claim.
(k)9 November 2010 - Application by defendant that action be dismissed or alternatively that claim be dismissed and judgement entered for the plaintiff.
(l)18 November 2010 - Further and revised claim filed by claimant, dated 18 November 2010. (In substantially the same terms as earlier amended claim).
For the purpose of this Application the claim of 18 November 2010 will be the claim referred to.

3. The Law

Section 19 of the Magistrates Court (Civil Division) Act 1992 states:
"Subject to any provision made under any other Act, the practice and procedure of the court is to be in accordance with the rules of the court."
Rules 4 and 44 of the Magistrates Court (Civil Division) Rules 1998 state:
"4 Conduct of court proceedings -
Proceedings in the court are to be conducted:
(a) with the least possibly delay; and
(b) in a manner that ensures, as far as is practicable, that the parties are on an equal footing; and
(c) in a manner that saves costs; and
(d) in a manner that is proportionate to -
(i) the amount of any claim; and
(ii) the importance or complexity of the action; and
(iii) the financial positions of the parties."
and
"44 Pleadings -
(1) Subject to these rules and any order of the court, the practice, form and content of pleadings are to comply with the Supreme Court Rules 2000.
(2) Any pleading beyond a reply is not allowed except with the leave of the court.
(3) A natural person who denies personal liability on the ground that the liability was incurred or assumed by or on behalf of another person or a body of persons, corporate or unincorporated, is to plead all material facts or circumstances -
(a) from which the liability of the other person or body of persons may be inferred; and
(b) identifying when, where and how the other person or body of persons incurred or assumed the liability.
(4) A party who alleges that the parties are bound by a quotation is to plead all material facts or circumstances identifying by whom, when, where and how the quotation was made."
Rules 227 and 259 of the Supreme Court Rules 2000 state:
"227 Statements in pleadings -
(1) A pleading is to -
(a) be as brief as the nature of the case allows; and
(b) contain only a statement of all the material facts in summary form on which the party relies but not the evidence by which those facts are to be proved.
(2) Unless the facts to be pleaded are able to be stated concisely and explicitly in one paragraph, a pleading is to be divided into paragraphs numbered consecutively and each separate allegation is to be contained in a separate paragraph.
(3) Every pleading is to be expressed so as to give reasonably explicit notice to any other party of all grounds of action or all defences on which the party pleading intends to rely at the trial.
(4) A pleading need not allege any matter of fact which the law presumes in favour of the party pleading or as to which the burden of proof lies on the other side unless the matter has first been specifically denied."
and
"259 Striking out pleading -
If a pleading does not disclose a reasonable cause of action or answer or shows that the cause of action or defence is frivolous or vexatious, the court or a judge may order -
(a) that the action be stayed or dismissed or the pleading be struck out; and
(b) that judgment be entered accordingly."
In Woodham v Roberts Limited [2010] TASSC 31 Holt AJ, dealing with Rule 227, stated:
"Rule 227 requires that a pleading is to "contain only a statement of all the material facts". The material facts comprise "every allegation of fact which the plaintiff must prove to establish the right to the relief claimed; Pridmore v Magenta Nominees Pty Ltd (supra), at par 24. If a pleading omits any one material fact it is bad and upon application must be struck out; Bruce v Odhams Press Ltd (1936) 1 K B 697 at 713. So far as other breaches of pleading rules are concerned, there is a discretion and the question is whether the defects are of substance or whether, notwithstanding the deficiencies the fundamental function of pleadings has been served; Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691, at 42-828. "The function of pleadings is to state with sufficient clarity the case that must be met"; Banque Commerciale SA (In liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 AT 286."
4. Application of the law
Generally in the claim the claimant mixes evidence with statements of fact; he fails to be as brief as the nature of the case allows; does not restrict himself to material facts; and fails to give explicit notice of the grounds of action in that he omits crucial matters which fail to give the defendants an understanding of the case against them.
The claimant throughout the claim offends Rule 227 of the Supreme Court Rules.
Generally the court agrees with the matters raised by the defendant's counsel in her written submissions but will not repeat these submissions and will confine itself to a consideration of the principal reasons it considers that the claim offends Rule 227.
5. Revised further amended claim dated 18 November 2010
a) Paragraph 4
This paragraph (together with paragraph 6) forms the core of the claim against the defendants. This paragraph fails to identify the written agreement which allegedly binds the defendants and the claimant. It should identify clearly by date (or otherwise) the document(s) that constitute the written agreement so that the defendant is aware as to what the claimant alleges is the written part(s) of the agreement.
In failing to identify the document(s) constituting the written agreement the claimant fails to fully particularise the agreement, including the nature of the work to be undertaken by the claimant; how the claimant's remuneration for such work was to be calculated; and at what time the claimant was to be paid for work done i.e. whether he was to be paid at completion of particular work or at the end of all work.
The particulars set out in paragraph 4 are not as brief as the nature of the case requires and constitutes evidence. This information would not be required in the event that the claimant had identified the document(s) that constituted the written agreement.
b) Paragraph 6
This paragraph alleges that parts of the agreement were verbal but fails to particularise where, when and between whom each discussion constituting each term of the oral part of the agreement took place.
The claimant refers to payments being made at each stage but fails to particularise the agreement as to what sums were to be paid at each stage.
The defendants are therefore not given explicit notice of the oral parts of the agreement.
The paragraph also contains a number of examples of "evidence" such as "the granting of the approvals were subsequently delayed by the HCC" and irrelevant allegations such as Term D which alleges that a further and separate agreement would be entered into in the future when it does not appear to be alleged by the claimant that there was in fact a subsequent agreement.
c) Paragraphs 7, 8, 9 & 10
These paragraphs lack particularity as to what work the claimant says he had undertaken and the dates by which such work had been undertaken and upon what basis he was entitled to submit invoices at these stages to the defendants and why the defendants were obliged to pay such invoices at these stages.
d) Paragraph 12
The claimant has failed to identify how the defendants breached the agreement as the paragraph is dependant on a breach of an agreement which the claimant has failed to particularise in paragraphs 4 and 6 of the claim.
e) Paragraph 13
This paragraph does not contain a statement of a material fact. It contains only evidence which does not even go to establish a material fact.
The above paragraphs should be struck out. Once these paragraphs are struck out what remains by itself has no meaning and fails to disclose any cause of action and the balance of the claim should be struck out.
6. Should the court, having struck out the claim, give the claimant liberty to re-plead or proceed to dismiss the claim and enter judgment against the claimant?
After consideration of the history of the matter referred to earlier and the principles set out in Rule 4 of the Magistrates Court (Civil Division) Rules, the court has reached the conclusion that the claim should be dismissed and judgment should be entered on the claim against the claimant for the following reasons:
(a)This is the claimant's sixth attempt to make a claim that complies with the rules but has failed to comply with the rules on each occasion.
(b)A period of 18 months has expired since the filing of the first claim.
(c)The defendants counterclaim has been delayed and the defendants have incurred considerable costs (although some costs may have been recovered from the claimant) and prejudice in delay.
(d)The dispute is a commercial dispute in that it arises out of the claimant's business and is a claim exceeding $30,000.
(e)The claimant has been advised by the court to seek legal assistance at least in the drafting of a complying claim but refuses to do so.
(f)The claimant is a regular litigant in the Magistrates Court. He has appeared frequently in the civil jurisdiction of the Magistrates Court where he chooses to act for himself. A court should not penalise him for making that choice but it should not give him an advantage that would be denied to other parties if they had chosen to be legally represented, neither should the defendants in this case (or any case) be placed at a disadvantage because the claimant chooses to act for himself.
The claimant's claim will be dismissed and judgment be entered for the defendants against the claimant in respect of the claim.
The defendants can pursue their counterclaim.
I will hear the parties as to directions regarding the counterclaim and as to costs of the defendants' application.