Appeal - Indorsement of claim on writ deficient - Whether the writ should have been set aside

Supreme Court (Court of Appeal) Rules 2005 (WA)

ABB Service Pty Ltd v Hetherington [2001] WASCA 235

Glendinning v Cuzens [2009] WASCA 21

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

House v The King [1936] HCA 40; (1936) 55 CLR 499

1 REASONS OF THE COURT: The respondent has made an application that the appeal be dismissed on the grounds, inter alia, that none of the grounds of appeal has a reasonable prospect of succeeding: see r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules).

2 The order which is the subject of the appeal is an order of Master Sanderson, made on 21 May 2013 pursuant to O 6 r 1(2) of the Rules of the Supreme Court 1971 (WA) (Supreme Court Rules), setting aside the writ of summons.

3 The writ of summons filed on 28 March 2013 in Sims v Jooste CIV 1506 of 2013 contained an indorsement of claim. The indorsement ended with a claim for 'damages and compensation' in an amount of AU$10 million 'resulting from the deliberate misconduct of the [respondent] against the [appellant] which deliberate misconduct prejudiced the [appellant] and assassinated the [appellant's] financial, social and commercial dignity, respect and destroyed the [appellant's] ability to continue his commercialisation of his inventions as a tainted and dishonest Promoter and Public Company Officer'.

4 The indorsement consisted of 30 paragraphs of disparate, generalised allegations. By way of example, there were allegations that the respondent breached his 'professional responsibility as a barrister/lawyer' and 'officer of Suda Ltd' in failing to investigate evidence produced at a meeting at the office of a lawyer; allegations of breach of his responsibility 'as a barrister/lawyer' in 'the act of candour (sic) before Justice Heenan' (without specifying what the lack of candour was); allegations of 'participation in' the lodging of 'a number of false documents to various authorities' (without specifying the falsity, the documents or the authorities); allegations of 'forgery' of signatures (without any particularisation); allegations of breach of unspecified provisions of the Corporations Act 2001 (Cth); allegations of the lodging of 'false and misleading' information to the Legal Practitioners Complaints Committee of Western Australia (without any particularisation); allegations of the 'deceiving' of the 'State Administration Tribunal (sic)'; allegations of the misleading of the Federal Court in a Federal Court case (in a manner not particularised); allegations that the respondent 'threatened', 'intimidated', 'attempted to blackmail' and 'attempted extortion' at a meeting on 5 July 2012 (without giving any particulars); allegations of breach of a 'settlement dated 16 November 2010, matter CIV 3447 of 2009 to which the [respondent] was a party to construe a defence for defamation proceedings brought against his son by the [appellant] in blatant breach of that settlement, and in Bad Faith (sic)'; allegations that the respondent 'breached his professional responsibility as barrister/lawyer in engaging his family to assist him to prejudice the [appellant]'; allegations that the respondent 'breached his professional responsibility as barrister/lawyer and officer in disclosing confidential client information to his family' (without specifying when this occurred or what the information was); allegations that the respondent 'breached his professional responsibility as barrister/lawyer and officer on 16 November 2009 by issuing a document of deceit to the [appellant]' (without identifying the document); and allegations that the respondent displayed a 'dislike' for Germans.

5 The respondent applied to set aside the writ pursuant to O 6 r 1(2) of the Supreme Court Rules.

6 At the hearing before the master, the appellant made submissions which did no more than continue his generalised assertions. The master set aside the writ saying that he could not make 'head nor tail' of the claim. It was implicit in that statement that the master considered that the indorsement disclosed no reasonable cause of action against the respondent, was vexatious and could prejudice, embarrass or delay the fair trial of the action.

7 The appellant's case contains grounds of appeal which read:

Master Sanderson erred in that:

(a) At a hearing on 21st May 2013 he denied the Appellant the opportunity to amend his Statement of Claim in Matter CIV 1506 of 2013, stating that [the] Appellant's Statement of Claim was confusing and dismissed the Action and stated that [the] Appellant take the matter to [the] Court of Appeal.

(b) He denied the Appellant the right to plead his case.

(c) A Court must seek a 'Just' outcome and give appropriate orders to a self[-]represented Litigant to amend an irregularity if such irregularity occurs in submissions or Statement of Claim (sic).

(d) Failed to allow the Appellant to amend his Statement of Claim.

(e) His decision erred in mixed fact and law.

8 The reference to his 'statement of claim' in the appellant's grounds of appeal appears to be a reference to the indorsement of claim on the appellant's writ of summons filed 28 March 2013.

9 The appellant's submissions in the appellant's case did not identify any error by the master or address the grounds of appeal.

10 In determining whether an indorsement on a writ is deficient, it is necessary to bear in mind that it serves three important functions, namely:

(a) it informs the defendant of the nature of the claim and the relief sought;

(b) it enables the court to determine whether a cause of action falls outside a relevant limitation period; and

(c) it sets out the metes and bounds within which the statement of claim must be framed: ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [7] - [10]; Glendinning v Cuzens [2009] WASCA 21 [29].

11 The indorsement in this case, with its disparate collection of insufficiently particularised allegations, was unquestionably deficient. It was not possible to determine the nature of the claims made and how they related to the relief sought. It was not possible in relation to many of the allegations to determine whether the claims fell within a relevant limitation period. It was not possible to determine the metes and bounds within which any statement of claim must be framed.

12 The indorsement was also deficient in another way. Allegations of dishonesty or impropriety may have a serious impact on a litigant. It is well established that such allegations should not be made unless there is a proper factual basis for them, and where such allegations are made, they must be clearly and distinctly alleged. A party should not be obliged to defend any legal proceedings for any period based on generalised allegations of dishonesty or impropriety. It is improper for a party to make generalised allegations of fraud: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [24]. It is true that an indorsement on a writ is not the place for full particularisation, but an allegation of fraud must not be alleged in such generalised terms that it is impossible to ascertain from the indorsement the nature of the allegation.

13 These deficiencies were sufficient to attract the court's discretion to take one of the courses referred to in [31] of Glendinning v Cuzens. The course taken by the master was to set the writ aside pursuant to O 6 r 1(2) of the Supreme Court Rules.

14 Grounds (a) and (d) of the appeal allege that the master erred in the exercise of his discretion by setting aside the writ, rather than allowing the appellant to amend the indorsement on the writ. An order allowing amendment of a defective indorsement is one of the four options open to a court when it is established that an indorsement is defective: see Glendinning v Cuzens [31].

15 Ordinarily, where an indorsement of claim is deficient, the plaintiff should be allowed a reasonable opportunity to put it into proper form, so long as that can be done without irremediable prejudice to the defendant. In the absence of prejudice, there is little purpose likely to be served by setting aside the writ and leaving it to the plaintiff to commence a fresh action. The consequence in most cases is likely to be simply that further time will be lost and more expense incurred without significant countervailing benefit. Such a course would be inconsistent with the stipulation in O 1 r 4B of the Supreme Court Rules, that the practices and procedures of the court are to be applied so as best to ensure the just, efficient and timely determination of litigation at a cost affordable to the parties. Where the relevant limitation period has, or may have, expired after the writ is issued, the consequence that the plaintiff will, or may, be left without a remedy if the writ is set aside, is an important factor to be weighed in the balance in determining where the interests of justice lie: see Glendinning v Cuzens [34] - [35].

16 From those observations, it may be seen that the exercise of the discretion conferred on the court under O 6 r 1(2) of the Supreme Court Rules to set aside the writ, is to be exercised taking into account the interests of justice. This court will not interfere with the exercise of a discretion simply because it might have exercised the discretion differently. Error must be shown: see House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

17 In Glendinning v Cuzens, the deficiencies in the indorsement were not obviously incapable of being cured by appropriate amendments [44]. That is not the situation in this case. The indorsement in this case, and its collection of disparate and unparticularised complaints, makes it impossible to detect what causes of action might support the claim for damages. Although, on the one hand, the appellant submitted to this court that the master should have exercised his discretion by permitting the appellant to amend the indorsement of claim, on the other hand, he said that he stood by the claims made in the indorsement. The appellant, in his oral submissions, said that he wanted 'justice'. He did not seem to appreciate that justice required a disclosure of the legal basis for a claim put in a form that the respondent and court could understand in order to adjudicate fairly between the parties.

18 In the absence of any proposed amendment, and the disclosure that the appellant stood by the indorsement he had drafted, the prospect is that the respondent will be vexed and therefore prejudiced by a regurgitation of the same deficient material. Repeated costs orders will not fully overcome the vexing effect of the need for repeated appearances in the court.

19 If the appellant has genuine causes of action, then it appears that he requires the assistance of a lawyer before they will emerge. There was no suggestion from either party that any limitation period has expired since the issue of the writ.

20 Given the foregoing, grounds of appeal (a) and (d) have no reasonable prospect of succeeding. None of the other grounds has any reasonable prospect of succeeding. They do not allege error. The master did not err in making an order to set aside the writ.

21 That conclusion having been reached, the appeal should be dismissed pursuant to r 43(2)(g)(i) of the Court of Appeal Rules.