Young v STYANT-BROWNE [No 2] - [2009] WASC 139

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: YOUNG -v- STYANT-BROWNE [No 2] [2009] WASC 139

CORAM: MASTER SANDERSON

HEARD: 11 MAY 2009

DELIVERED : 11 MAY 2009

PUBLISHED : 21 MAY 2009

FILE NO/S: CIV 1216 of 2007

BETWEEN: WILLIAM LLOYD YOUNG
Plaintiff
AND
NICHOLAS JOHN STYANT-BROWNE
First Defendant
PETER GORDON
Second Defendant
PAUL HENDERSON
Third Defendant
PAUL JULIAN MULVANY
Fourth Defendant
STEPHEN REX PLUNKETT
Fifth Defendant
ANDREW ALEXANDER GRECH
Sixth Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr R A Zilkens
First Defendant              :     Mr S F Popperwell
Second Defendant         :     Mr S F Popperwell
Third Defendant            :     Mr S F Popperwell
Fourth Defendant           :     Mr S F Popperwell
Fifth Defendant              :     Mr S F Popperwell
Sixth Defendant             :     Mr S F Popperwell

Solicitors:

Plaintiff:     Zilkens & Co
First Defendant              :     Pynt & Partners
Second Defendant         :     Pynt & Partners
Third Defendant            :     Pynt & Partners
Fourth Defendant           :     Pynt & Partners
Fifth Defendant              :     Pynt & Partners
Sixth Defendant             :     Pynt & Partners

Case(s) referred to in judgment(s):

Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

MASTER SANDERSON: By application to the case management registrar filed 11 February 2009 the defendants sought the following orders:
1.The amended writ of summons dated 19 January 2009 be set aside, alternatively be struck out pursuant to O 20 r 19(1)(d).
2.Pursuant to O 20 r 2(2), par 7(1) of the statement of claim dated 3 December 2008 be struck out.
3.Pursuant to O 20 r 19(1)(c), all references to Glenda Joy Young (Mrs Young) in pars 4, 5 and 7 of the statement of claim be struck out.
4.Pursuant to O 20 r 19(1)(c), pars 7(2) and 7(3) of the statement of claim be struck out.
5.The plaintiff pay the defendants' costs of this application.
At the conclusion of the hearing I indicated that I would dismiss the application. I advised the parties that I would publish reasons at a later date. These are those reasons.
In March 2007 this action was commenced. When it was commenced there were two plaintiffs - the first plaintiff being the present plaintiff and Glenda Joy Young was the second plaintiff. On 27 August 2008 the second plaintiff's action against the defendants was dismissed. When the writ was issued the endorsement of claim referred to the defendants as a firm of solicitors trading under the name Slater & Gordon. The claim was said to be
for damages as a result of loss and damage suffered due to the defendants' breach of contract, alternatively negligence in failing within the limitation period to issue a writ, alternatively commence third party proceedings in the Supreme Court of Western Australia … against Fiocco Hopkins Rattigan, the solicitors who in breach of their contract with the plaintiffs did not fully or adequately advise, or alternatively negligently advised the plaintiffs in respect of a guarantee executed on 3rd March 1995 in favour of the National Australia Bank to secure the indebtedness of Computerised Holdings Pty Ltd and related instruments.
It is to be noted that in its original form the claim was for loss and damage allegedly suffered for failure to issue a writ against the then plaintiffs' former solicitors. There was no reference in the endorsement to alleged failure to give advice. The plaintiff's solicitors clearly saw this as an omission. On 19 January 2009 they amended the writ by adding an alternative claim. It was said that the defendants were in breach of contract or negligent in 'failing to advise the plaintiff about a possible cause of action or claim for indemnity or contribution'.
At the time of making this amendment to the endorsement the amended writ reflected the fact that Mrs Young had dropped out of the proceedings.
A statement of claim was filed on 3 December 2008. It identifies the defendants as a firm of solicitors. It is said that in April 1999 the plaintiff and his wife, the former second plaintiff, were defendants in two Supreme Court actions. The actions were brought by National Australia Bank Ltd in relation the plaintiff and Mrs Young's alleged liability under a guarantee executed on 3 March 1995 in favour of the National Australia Bank to secure the indebtedness of Computerised Holdings Pty Ltd. It is alleged that the plaintiff and Mrs Young took advice from Fiocco Hopkins Rattigan prior to signing the guarantee. It is further alleged that Fiocco Hopkins Rattigan failed to adequately advise or negligently advised them in respect of the guarantee. These matters are pleaded in the first four paragraphs of the statement of claim.
By par 5 it is alleged that the plaintiff and Mrs Young retained the defendants as their solicitors in April 1999. Paragraph 7 of the statement of claim is in the following terms:
In breach of the retainer and/or duty and negligently, the defendants failed to exercise any due care, skill or diligence in or about the defence of the NAB action.
This rather broad, general claim is then particularised. It is said first that the defendants failed to advise the plaintiff and Mrs Young there was a possible cause of action or claim for indemnity arising from Fiocco Hopkins Rattigan's advice. Second, it is said the defendants were negligent in failing to issue a writ of summons or commence third party proceedings against Fiocco Hopkins Rattigan. Finally, it is said the plaintiff and Mrs Young's claim against Fiocco Hopkins Rattigan has now become statute‑barred.
It must be said that par 7 of the statement of claim is not a proper form of pleading. Paragraph 7 pleads a conclusion, not material facts leading to a conclusion. The material facts are actually found in the first two paragraphs of the particulars to par 7. The third particular is not a particular at all. It should be pleaded as a separate paragraph, after the material facts have been pleaded.
That said, it is quite clear what is being put in this case. It is not a complicated claim and, in my view, there is nothing to be gained in forcing the plaintiff to amend its pleading when the defendants can have no doubt as to the case being put against them. So, in my view, the pleading in its present form can stand. The more fundamental question was whether or not the writ itself ought be set aside.
The defendants' argument was that the amendment to the endorsement added a new cause of action. It was said that the new cause of action did not arise out of the facts originally found in the endorsement of claim.
This issue of whether or not there is sufficient relationship between an original endorsement of claim and an amendment has given rise to a number of decisions. For present purposes it is enough if I refer to what was said by Owen J in Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431:
It is enough if the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same facts as the old cause of action (434).
What was originally put against the defendants was that they had failed to issue proceedings against Fiocco Hopkins Rattigan. Either they had failed to issue a writ or they had failed to join the plaintiffs' former solicitors as third parties to that action. Solicitors simply do not issue a writ of their own volition. They do so on instructions from their client. Those instruction are given after the solicitors offer advice. In my view, it necessarily follows there is sufficient overlap between a claim of a failure to issue proceedings and a claim of inadequate advice. The two are intimately related. That being so, there can be no objection, in my view, to the amendment to the writ.
I accept that it is a question of degree. But I do not accept, as was submitted by counsel for the defendants, that the two claims are mutually exclusive. They arise from the same continuum. It is possible to imagine that there could be negligence on the part of solicitors for failure to issue proceedings without there being negligent advice. If the advice to the clients was to issue proceedings and those proceedings were not issued within the time limit then clearly an action would lie for negligence in failing to issue the proceedings but not in relation to the advice. But even in that situation it would be necessary to plead the advice to issue proceedings was given. The plea of the advice is necessary because it is a plea of a material fact. In this case the amendment should stand.
The further argument was it was apparent from the pleaded time frame that the present claim was statute‑barred.
I do not propose to analyse this submission in any detail. In Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, 533 the majority warned against deciding questions of limitation at any early stage of proceedings. Here, there has not even been a defence lodged. If the defendants plead the limitation point and if they are feeling heroic they can apply for summary judgment. But to decide limitation questions on the basis of a statement of claim when no plea of limitation has been put would be entirely inappropriate.
For these reasons I dismissed the defendants' application. Subject to hearing from the parties the defendants ought pay the plaintiff's costs of the application.