Wood v Sibley Lawyers; Wood v Quinn and Scattini Solicitors
[2023] QSC 177
•4 August 2023 (ex tempore)
SUPREME COURT OF QUEENSLAND
CITATION:
Wood v Sibley Lawyers & Ors; Wood v Quinn and Scattini Solicitors & Ors [2023] QSC 177
PARTIES:
6636 of 2022:
IAN ANDREW WOOD
(plaintiff)
v
SIBLEY LAWYERS AND ORS
(defendants)
6638 of 2022:
IAN ANDREW WOOD
(plaintiff)
v
QUINN AND SCATTINI SOLICITORS AND ORS(defendants)
FILE NO: BS6636 of 2022
BS6638 of 2022
DIVISION:
Trial Division
PROCEEDING:
Interlocutory Application
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
4 August 2023 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
4 August 2023
JUDGE:
Applegarth J
ORDER:
In respect of both matters:
1. Pursuant to rule 171 of the Uniform Civil Procedure Rules 1999, the plaintiff’s statement of claim filed 8 June 2023 be struck out.
2. The plaintiff’s application for leave to amend the claim and the statement of claim is dismissed.
3. No further amended claim or statement of claim is to be filed without leave of the Court.
4. At least seven days before any application for leave to re-plead is filed, the plaintiff is to serve a draft proposed claim and statement of claim with full particulars on the solicitors for the defendants.
5. Any application for leave to re-plead is not to be returnable before 29 September 2023.
6. The plaintiff’s application for summary judgment filed 28 July 2023 is adjourned to a date to be fixed after any application for leave to re-plead is heard and determined.
7. The plaintiff is to pay the defendants’ costs of and incidental to the applications on the standard basis.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS - where the plaintiff applied for leave to amend the claim and statement of claim and for summary judgment - where the defendants applied to strike out the statement of claim - whether the plaintiff should be granted leave to amend the claim and statement of claim - whether the statement of claim should be struck out
COUNSEL: Plaintiff self-represented (in BS6636/22)
L E Gamble for the defendants (in BS6636/22)
Plaintiff self-represented (in BS6638/22)
L E Gamble for the defendants (in BS6638/22)SOLICITORS: Plaintiff self-represented (in BS6636/22)
Sibley Lawyers for the defendants (in BS6636/22)
Plaintiff self-represented (in BS6638/22)Ryan Murdoch O’Regan for the defendants (in BS6638/22)
There are two proceedings before the Court today. In each, there are three applications: one by the relevant defendants to strike out the statement of claim; another by the plaintiff for leave to amend; and the third an application which was recently filed by the plaintiff to be granted summary judgment under rule 292.
In proceeding 6636 of 2022, the plaintiff alleges in his pleading that he spoke to the second defendant on 4 December 2018, and on 12 December 2018, contracted with “the defendant”, I take that to be the first defendant, a firm of solicitors, to defend him on charges regarding wilful damage and obstruct police officers. He says that he paid two separate amounts, totalling $3300 in order to retain them. He says that the defendant, which is in the singular, but I will take it to be either the first defendant or the second defendant, advised him to plead guilty to all charges. He says this was then reviewed by the third defendant, a barrister, who also advised him to plead guilty.
He says he requested certain matters. He says that the defendant did not act in his best interests and is said to have breached numerous sections of the Australian Solicitors Conduct Rules. He then makes these important and serious allegations: that the defendant acted fraudulently in an attempt to coerce him into pleading guilty to crimes he was in fact innocent of, and it is alleged that the defendant did this in order to help the prosecution. He says he eventually represented himself and had the charges withdrawn.
In the proposed amended statement of claim, he claims financial loss of $500,000; damages for professional negligence of $5 million; aggravated damages of $6 million; breach of contract of $1 million; special damages of $3 million, which I take to be a form of economic loss, not general damages; exemplary damages of $5 million; and what is called parasitic damages, whatever that means, of $3.5 million. The proposed amended claim seeks those amounts under those headings.
The amended claim strikes through what had formerly been a claim for “pure mental harm” in the amount of $11 million. That was prompted by the representatives for the defendants pointing out that he had not complied with legislation governing notices of claim for personal injuries. In other respects, the body of the statement of claim in its proposed amended form is the same as the original statement of claim.
A defence was filed. It placed certain matters in issue. It asserted that the plaintiff had not pleaded a cause of action known to the law, had not pleaded damages in accordance with rule 155, and that the pleading as a whole have a tendency to delay or prejudice the fair trial of proceeding and was liable to be struck out. It alleged certain matters in relation to the retainer, said that the plaintiff did not retain or contract the defendants to act for him, says there was an offer in the form of a client services agreement, and says no retainer or contract was ever made. Certain material was sent to them on 14 December by his former solicitors. It pleads that the second defendant provided him with a preliminary comment about the charges. They admit certain deposits, totalling $3300 into a certain solicitor’s account. They deny other allegations. In any event, there are issues concerning the advice that he was given.
The application to strike out the pleading and the application for leave to amend were returnable on 26 July 2023. In advance of that hearing, the defendants filed written submissions, identifying defects in the pleading. The plaintiff advises that he did not read those submissions, and I take it he still has not, despite a week having gone by since Justice Burns adjourned the applications to today.
The other proceeding, number 6638 of 2022, involves a broadly similar pattern of pleading. The statement of claim alleges that on or about 23 January 2019, the plaintiff spoke to and retained the defendant, which I take to be the first defendant, to represent him regarding the charge. In this case, the alleged retainer is a month following the alleged retainer of the defendants in proceeding 6636 of 2022. He pleads that he requested certain footage to be obtained. He says that he was advised to plead guilty on all charges. He says that after reading the brief, it came to his attention that the complainant lied, and he had alibi evidence. He says the defendant did nothing about it, and that the defendant consequently terminated the contract on fraudulent grounds. He mentions other matters in that regard concerning the third defendant. He alleges a failure to act in his best interests and breaches of numerous sections of the Australian Solicitors Conduct Rules. Again, he alleges the defendant, which I will take to mean at least the first defendant, acted fraudulently in an attempt to coerce the plaintiff into pleading guilty to crimes he was in fact innocent of, and this is alleged to have been done in order to help the prosecution. That matter has followed the same procedural course of proceeding 6636 of 2022.
A self-represented litigant is to be accorded some latitude in terms of pleading. However, any litigant, self-represented or otherwise, is obliged to comply with basic rules concerning the pleading of claims including the pleading of serious allegations of fraud. The reason for this is that it does no one any good, particularly a self-represented litigant, for the other party and the Court to be unsure of what the real issues in dispute are. The proper identification of the real issues in dispute aids the orderly conduct of the matter, the giving of disclosure, preparation for trial, and the granting of early trial dates. It avoids the prolongation and adjournment of trials.
The submissions on behalf of the defendants in each matter note a number of matters. I will leave to one side allegations about the retainer or absence of retainer and when the retainer was entered into and what advice or not was given. It is said that the statement of claim does not plead any cause of action known to law. It would seem to be implicit that the statement of claim alleges professional negligence and breach of contract, but that is not clearly pleaded. The pleading of fraudulent conduct raises a question as to whether the plaintiff is claiming a cause of action in fraud.
It is correctly said that breaching Australian Solicitors Conduct Rules in itself does not give rise to a cause of action. In any case, the matter would warrant some clarification as to whether the claims are confined to claims for breach of contract and negligence. One important feature is to identify when loss and damage was suffered, but I will assume that the plaintiff in any draft amended pleading will appropriately identify when he says he first suffered loss and damage. I note in passing that exemplary damages are not available for claims for breach of contract.
The second major point raised by the defendants is that the statement of claim does not plead any loss or damage claimed to have been suffered as a result of the alleged conduct. It identifies, for Mr Wood’s assistance, the relevant rules that require a statement of claim to plead all material facts. Causation and loss and damage are material facts. The rules require a party to plead the nature of the loss suffered and the exact circumstances in which the loss or damage was suffered. The defendants submit and I accept the failure to specifically plead these matters means the defendants are unable to identify when Mr Wood claims to have suffered loss and damage.
A related point, which is the fifth point made in the written submissions, is that the statement of claim fails to plead any material facts to demonstrate causation, and it is submitted that any claim in negligence or breach of contract would be doomed to fail on the issue of causation. That is, even if the plaintiff could plead and prove that he was given the advice which he alleges and that such advice constituted either a breach of contract or a breach of a general duty of care owed by a solicitor to its client, it is not apparent and could not be proven how he suffered loss and damage. In particular, it is not said, nor I think could it have been on the facts that the plaintiff has pleaded, that the defendants were responsible for him being charged. It is the case that the charges were ultimately withdrawn. This is not a case in which he says that he acted on negligent advice by pleading guilty, and that certain consequences followed from pleading guilty.
From the bar table today, Mr Wood has said some things about the economic loss that he suffered and the detriment to his business: I accept the submission that the pleading does not adequately plead the essential element of causation. No economic loss is pleaded in the body of the statement of claim. The material facts concerning the business that he conducted and how he suffered economic loss as a result of any breach of contract or negligence are not pleaded. If he wishes to pursue any such claim, he needs to cure non-compliance with the rules concerning pleading of loss and damage and causation. Allowing the pleading to go forward in the form of the current pleading would have a tendency to delay or prejudice the fair trial of the proceeding.
Mr Wood requested an opportunity to replead and cure matters that the defendants’ submissions identify as defects and which I attempted to convey to him during the argument.
Allegations of fraud are not to be lightly made by any litigant. There are clear rules concerning the need to have evidence to plead fraud. If the claim is one for breach of contract or negligence, then allegations of fraudulent conduct are necessary and have a tendency to prejudice or delay the fair trial of the proceeding. If – and this is meant by no means of encouragement – if the plaintiff wishes to pursue a claim for fraud, then he will need to comply with the rules or pleading and the requirements to plead all of the material facts by which fraud is established. I am not going to allow the matter to go forward and grant leave simply on an assumption that he is going to be able to plead a case of fraud. He should be given an opportunity to consider focusing the proceeding and only plead causes of action that are arguable and do so in a form that complies with the rules.
The same issues emerge in relation to each matter, although they have different parties and time sequences, and so whatever comments I have made in relation proceeding 6636 of 2022 apply equally to proceeding 6638 of 2022.
I conclude that each statement of claim should be struck out. By each statement of claim, I mean the current statement of claim. A proposed amended statement of claim was placed on the file at about the same time as Mr Woods’ application for leave to amend. I will make the draft amended claim and the draft amended statement of claim in proceeding 6636 of 2022 exhibit 1 in that proceeding, and I will make the draft amended claim and the draft amended statement of claim in proceeding 6638 of 2022 exhibit 1 in that proceeding before me today.
HIS HONOUR: In the end result, I make an order striking out the statement of claim, and I decline the application for leave to amend it. The matter, with its history, is such that it is not in the interests of justice in terms of Mr Wood being given a further and possibly final opportunity to plead the best case that he can, in the defendants’ interests, or in any broader interest to allow him to simply amend without leave under the rules. The orderly conduct of this matter requires case management and supervision, including in relation to the adjourned application for summary judgment. I will just mention that it was accepted by Mr Wood that that application needs to be adjourned. He asked for it to be adjourned at the start of the hearing today, and of course, it would make no sense for that application proceed any time soon, where he is seeking plaintiff’s summary judgment under rule 292, where the nature of his claims are not properly identified in terms of causes of action that are summarized in the claim, for example breach of contract or negligence, and there is no proper pleading. I will adjourn that application to a date to be fixed. I will say more about any adjournment date.
As emerged during the hearing, Mr Wood needs time to consider the criticisms in the defendants’ submissions, which unfortunately I think he did not read before the return date today, despite having had them for a week, and the comments and observations I have made. He needs time to better acquaint himself with the rules of pleading and decisions of this Court concerning how to plead a cause of action in contract, a cause of action in negligence, if any, and importantly, to plead causation and to plead loss and damage. He has other matters before other Courts, I understand, in the coming weeks. I am going to grant him the substantial period that he asked for in order to draft the best pleading that he can. If on reflection he realizes that the proposed claim meets some significant, possibly insurmountable, barriers in terms of pleading, then he will consider that. If, on reflection, he decides that his claim is not one for a total of $20 million or so but might be a claim for a few thousand dollars, then that will have implications as to the claim and pleading causation and loss or damage.
The first order I propose to make is that no further amended claim or statement of claim be filed without leave of the Court. The second order I propose to make is that at least seven days before the return date of any application for leave to amend the claim or leave to file a new statement of claim is made, the plaintiff is to serve upon the solicitors of the defendants a draft of any proposed amended statement of claim, and that such draft is to comply with the rules of pleading and to be fully particularized. Next, I propose to direct that the plaintiff’s application for summary judgment be adjourned to a date to be fixed, being a date upon which or after which the plaintiff has obtained leave to amend the claim and has obtained leave to file any statement of claim.
…
I will make a direction that any application by the plaintiff to amend the claim and for leave to file and serve a new statement of claim is not to be made returnable on a date prior to 29 September 2023.
…
There is an application for costs. The defendants have been entirely successful. There is no reason to reserve the costs. That would just visit upon another judge at another date the requirement to review the matters that were before the Court today. This is not the type of case in which it is appropriate to reserve costs. If and when there is a trial, the trial would not illuminate the issues of pleadings I have been dealing with today. I have been concerned with issues of pleadings. They are procedural matters, and any trial judge should not have to revisit the procedural issues that I have heard and determined today. The order for costs in each matter will be that the plaintiff pay the defendants’ costs of and incidental to each of the applications heard today.
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