Butler v Crowley & Galvin Solicitors [1999] QSC 6

c. a summons by the plaintiff in action 9292 of 1996 seeking a stay of the strike out application pending the outcome of an appeal from the judgment of Chesterman J in action 4227 of 1997. Alternatively an application that -

"the matter be set down for preliminary hearing, in order that the evidence be properly and fully examined and tested before the court.

Further, an order that the defendant's defence be struck out as disclosing no defence of the plaintiff's claims.";

d. a summons by the plaintiff in action 6521 of 1996, identical in terms to the above summons in 9292 of 1996;

e. a summons by the plaintiff in action 3735 of 1997, identical in terms to the above summons in action 9292 of 1996.

The amended statement of claim in action 9292 of 1996

2 The document has 147 paragraphs. Paragraphs 10 to 111 inclusive contain allegations concerning an action in the Magistrates Court commenced by one Vize against the plaintiff in which the defendant acted as the plaintiff's solicitors. Paragraphs 1 to 9 inclusive are largely concerned with a Supreme Court action by the plaintiff against Tomik which had been conducted on the plaintiff's behalf by another firm of solicitors and in respect of which the plaintiff allegedly was seeking advice from the defendant. The allegations in respect of the Tomik matter are resumed in para. 112 and continue until para. 141. Paragraphs 142 to 147 contain allegations of loss and damage.

3 The pleading is deficient in a great many respects. Without purporting to be exhaustive it -

a. contravenes the requirements of O 22 r 1 of the Rules of the Supreme Court by failing to contain a statement, as brief as the nature of case will allow, setting out the material facts on which the plaintiff relies to support his claim;

b. contravenes the requirements of O 22 r 1 by setting out evidence as well as material facts;

c. contravenes the requirements of O 22 r 30 by containing unnecessary and also scandalous material;

d. is unintelligible in parts and also ambiguous and obscure;

e. makes many allegations which do not appear to be linked to any allegations of breach of duty on the part of the defendant or to allegations which show or attempt to show that the matters alleged were causative of or even had bearing upon the loss and damage allegedly suffered by the plaintiff;

f. makes generalised allegations lacking in sufficient particularity to enable the defendant to fully understand the case it has to meet;

g. contains many paragraphs which appear to be irrelevant and fail to disclose or support a reasonable cause of action.

The consequences flowing from the deficiencies in the statement of claim

4 In my view, it would be unjust to permit a trial of the action on the basis of the allegations in the statement of claim. The defendant could not hope to identify with any reasonable precision the case it is called on to meet. It would also be put in the position of having to prepare to meet innumerable allegations which are irrelevant to allegations of breach of duty and loss or damage. Because of the defects in the statement of claim which I have identified, the duration of any trial of the action and, in consequence, its cost, would be unnecessarily increased and the prospects of due determination of relevant issues decreased. The defendant would be prejudiced by being unable to sensibly formulate an offer of settlement under O 26 of the Rules of the Supreme Court. This is clearly a case in which objectionable matter is so closely intertwined with other matter that it is desirable that the whole pleading be struck out: cf Coe v Commonwealth of Australia [1979] HCA 68; (1979) 53 ALJR 403 at 409; Turner v The Bulletin Newspaper Co Pty Ltd [1974] HCA 25; (1974) 131 CLR 69 at 88 and Madden v Kirkegard Ellwood and Partners [1975] Qd R 363.

A review of some of the paragraphs of the statement of claim

5 I now propose to refer to some of the allegations in the statement of claim with a view to illustrating the types of defects which are to be found throughout the pleading. The exercise which I am undertaking does not purport to be exhaustive and, in fact, will deal with a relatively small proportion of the pleading's many defects.

6 Paragraph 11 is a little prolix and contains some irrelevant assertions (such as the allegation of the plaintiff's "firm belief (now known to have been misplaced) that the defendant was, and had been, acting in his best interests"), but is sufficiently plain in meaning and relevant to be generally sustainable. It alleges a retainer and an implied term of that retainer that the defendant would -

". exercise all due care, skill and diligence in and about attending to the plaintiff's legal requirements,

. protect legal and business interests in defending, properly, Ms Vize claims."

7 Paragraph 12 is not content with making allegations in respect of the Tomik and Vize matters, the only matters which are contended on the pleadings to give rise to any loss and damage on the plaintiff's part, but refers to breaches of duty by the defendant "in all matters entrusted to him". That part of the allegation is irrelevant. The paragraph alleges that "particularly in the Tomik and Vize matters" the defendant -

. represented to be undertaking actions which were contrary to what was actually occurring

. permitted abuse of process to occur and continue."

8 The particulars of these allegations contained in the paragraph are "Schedule of events at Magistrates Court Civil Registry, March 1996". The allegations are generalized and are not particularised in a way which would inform the defendant as to the case it has to meet. Probably the pleader had in mind that these would be general allegations which would be "fleshed out" or particularised by the innumerable allegations which follow in the pleadings. However, no such link is provided in the wording of the document and, even if there was such a linking, the allegations in para. 12 would be unnecessary and repetitive.

9 In para. 16 it is alleged that the defendant failed to advise that the plaint and summons in the Vize action were "defective, disclosed no course of action, that the pleadings were deficient, scandalous and lacking in particularity". The sole particulars provided are a reference to a plaint and summons in a District Court matter and to a Magistrates Court pleading. The alleged defects, deficiencies and scandalous material are not identified. Nor is it alleged that the alleged failure to advise was a breach of duty or that it caused the Vize matter to be dealt with in a way it would not otherwise have been dealt with so as to occasion loss and damage to the plaintiff.

10 These paragraphs commence with an allegation that the defendant failed "at all times, but particularly on five specific occasions" to have the Vize proceedings terminated on the basis of "deficient pleadings" and to obtain judgment against Vize on the plaintiff's counterclaim. The pleadings do not disclose the time and place of each such "specific occasion".

11 Paragraph 21 alleges various representations by the defendant to the plaintiff to the effect that Vize had a bona fide claim which she could not be prevented from having tried. The pleader has alleged that the defendant made such representations recklessly and repeats that the defendant failed to take steps which paras. 19 and 20 alleged should have been taken. The paragraph is thus repetitious. I can see no point in the allegation that representations were made or that the defendant acted recklessly. If the allegations of representations are to be relied on to ground some cause of action then linked to those allegations should be allegations of reliance on those representations and some degree of particularity as to how and when they were made, including whether they were made orally or in writing. I suspect that what the plaintiff is attempting to do is to allege that -

(a) the pleadings were so clearly deficient in form and or content that the plaintiff did not know the case he had to meet and that a solicitor acting with due care, skill and diligence would have sought particulars of allegations in the pleading; and

(b) if such particulars were not forthcoming such a solicitor would have applied to have the claim struck out.

12 For allegations of this nature to be sustainable it would need to be alleged that such an application would have been successful and would have terminated the Vize claim.

13 It would also need to be alleged that in failing to take such action, the defendant was in breach of his duty.

14 It emerges later in the pleading that in fact particulars were supplied and the matter did go to trial. Consequently, the likely result of any strike out application would have been an amendment or the provision of particulars. If the consequence of the defendant's allegedly wrongful conduct was the late particularisation of Vize's claim with the result that the plaintiff's case was damaged in a material respect, it will be necessary to allege with clarity and precision how this is said to have taken place.

* repeat allegations that the defendant failed to have the Vize claim particularised;

* allege a duty of care by Vize to Peter Kurtz (Developments) Pty Ltd and, in turn, that Peter Kurtz (Developments) Pty Ltd and the "architect administering the job" should have been joined as parties to the action;

* repeat allegations of knowledge on the part of the defendant that the Vize allegations were baseless. (It is further alleged, pointlessly, that Vize's solicitors knew that the allegations were baseless as well (para.32));

* repeat the allegations in paras. 19, 20 and 21, using different forms of words, (para.33). The allegations concerning the joinder of Peter Kurtz (Developments) Pty Ltd and the architect seem pointless. Nowhere is it alleged in the pleadings that the plaintiff had a sustainable claim against such prospective parties or that the plaintiff would have obtained a material benefit from their joinder. Although it is alleged in para. 30 that the defendant failed to join such prospective parties, while representing that he intended to do so, it is not alleged that the joinder is something that a solicitor exercising due skill and diligence would have effected or that the defendant was in breach of duty through not effecting the joinder.

16 These paragraphs contain allegations of the failure by the defendant to provide the plaintiff with a copy of Vize's affidavit of documents, and with the plaintiff's own affidavit of documents. There is no allegation as to what consequences flowed from such alleged conduct or even as to whether in acting as alleged, the defendant was in breach of his duty to the plaintiff.

17 Paragraph 40 contains the irrelevant allegation that -

"Prior to discovery, the plaintiff had received no information whatsoever from Ms Vize, in support of her allegation. He had been provided with an invoice only until that date ..."

Apart from the irrelevance of the allegation it is not linked with any other allegations in the pleading which might suggest that it has anything to do with the questions of liability, causation or quantum. Paragraph 41 alleges failure on the part of a defendant to conduct "proper discovery". One particular of the allegation is that the defendant "permitted tainted discovery by Ms Vize with the provision of documents which had been tampered with, e.g. items 37, 21, 19, 16". It is difficult to know what the defendant means by the allegation. It might mean that the defendant should have been aware of irregularities and raised some point or other about them, or it might mean that, somehow, the defendant condoned improper conduct. It is not alleged how documents had been "tampered with" or what bearing that had on the outcome of the Vize proceedings.

18 It is alleged that the defendant failed to engage counsel until three days prior to the hearing, although he knew or should have known that Vize had retained counsel "in January, 1990". It is not alleged that as a result of that conduct the barrister engaged was not properly briefed or unable to properly conduct the trial. I fail to understand the relevance of the assertion concerning the time at which counsel was engaged by Vize's solicitors.

19 It is alleged in para. 17 that the defendant should have had "Ms Vize's claims and pleadings struck out". Paragraph 70 alleges that the defendant "ought to have obtained an opinion on the pleadings, which ought to have been recognised as being deficient and scandalous, from the outset of this matter ...". There are thus two sets of allegations. One that the defendant himself should have appreciated that the pleadings were so deficient as to enable the defendant to have them struck out. The other is that the questions raised by the pleadings were sufficiently difficult that a barrister's opinion should have been obtained on them. It is readily apparent that there is a degree of incompatibility between the two propositions. It is not alleged in para. 70 that had an opinion been obtained, it would have been to any particular effect. Nor are there allegations which deal with the consequences of having obtained such an opinion, i.e. that it would have been acted on with specified results. An obvious possible consequence of a strike out application is thatVize would have been given leave to amend her pleadings. If the plaintiff wished to include that consideration in his allegations, he would have needed to include further allegations as to what consequences would have flowed from the amended pleadings.

20 These paragraphs contain very serious allegations against not only the defendant but against the plaintiff's counsel, Ms Vize, and her solicitors. The allegations, apart from being superfluous and scandalous in relation to persons who are not parties to the action, are not particularised.

21 This is one of the allegations in which the plaintiff appears to be extremely concerned with what copy, if any, of a plaint was on the Magistrates Court file. The plaintiff seems to attach great importance to those matters. It is implicit in the pleading that absent a document on the file in a particular form, the Vize action could not have proceeded to trial. It is not alleged that the documents actually produced on the hearing and relied on the parties were not ones which had been exchanged between the legal representatives of the parties. Accordingly, it is difficult to see why the Magistrate hearing the matter could not have proceeded on the basis of pleadings agreed between parties. If there is a cause of action lurking in there somewhere, the nature of it is, as yet, undiscoverable.

"The defendant failed to interview any witnesses for the defence, failed to subpoena any documents and/or witnesses for the defence, and thereby withheld witnesses and concealed information and documents provided for discovery and evidence, from the Court.

Nowhere is it alleged that there were documents which ought to have been tendered in support of the plaintiff's case but which were not, as a result of their not having been subpoenaed. There is no allegation that a particular witness or witnesses had evidence to give which could have assisted the plaintiff's case, which witness or witnesses was or were not called. It is not said what information might have been obtained from a particular witness had such witness been interviewed by the defendant. I note that there is no allegation that the plaintiff's counsel failed to interview any witness called on behalf of the plaintiff. In para. 86, it is alleged that the defendant permitted the solicitors for Vize to "take sole possession" of a particular witness "who was in the position of being a witness for both parties". It is difficult to know precisely what is intended to be conveyed by the allegation. It is not alleged that the defendant's conduct was in breach of his duty or, if it was, how the outcome of the case was adversely affected. Nor is it suggested that the evidence given or able to be given by the witness was somehow affected.

23 It is alleged that two persons were called on behalf of Vize who "gave evidence behind the back of" the plaintiff. It is further alleged that the presence of those persons as witnesses and the evidence that they gave "caused surprise to the builder", and that their appearance was "improper" and that gave (by implication) "undiscovered evidence". The allegations are ambiguous and confused. They appear to assume that discovery must be given in respect of documents in the possession of witnesses who are not parties to the action. There is no allegation that had the plaintiff been informed of the matters of which he complains, the conduct or result of the case would have been any different. Rolled up in the allegations is yet another allegation of misconduct on the part of the defendant and the plaintiff's counsel.

24 These paragraphs contain allegations of perjury by Ms Vize and that she procured others to perjure themselves. There then follows a series of paragraphs which might possibly be seen as an attempt to particularise the allegations in paras. 92 and 93, but included in these further paragraphs are various other allegations of inadequate discovery, inadmissibility of documents, the way in which the case was conducted by the defendant and so on. The allegations become more disjointed and obscure than in the earlier parts of the pleadings.

25 The content of the statement of claim suggests that the plaintiff is obsessed with his claims against the defendant and has lost any objectivity he may otherwise have had. In his pleading he has attempted to refer to every grievance or perceived error on the part of the defendant, whether real or imagined, without regard to its significance or connection with any claims of substance he may be able to advance. If the plaintiff has bona fide allegations to pursue and can point to ways in which the defendant breached his duty to the detriment of the plaintiff, it should not be beyond his capabilities to make the allegations in an unobjectionable form. It should also be apparent to the plaintiff by now that there is nothing to be gained by producing a document which records a great many complaints against a defendant which, if established, reveal inappropriate or wrongful conduct on the defendant's part, unless they can be shown to have caused or contributed to the plaintiff's loss. Part of the problem with the pleading is that it loses its structure and cohesion in a morass of detail, much of which appears to be irrelevant.

26 The statement of claim replaces one ordered to be struck out by Chesterman J in October 1998. The plaintiff has appealed against Chesterman J's decision in action 4227 of 1997 but not, it seems, in 9292 or 6521. He seeks a stay of the strike out application pending the outcome of the appeal. As the appeal is not in this action and, necessarily, does not concern a statement of claim in this action, I cannot see what bearing the outcome of the appeal has on this application. Even if there had been an appeal from an order striking out the statement of claim in this action, as a fresh statement of claim has been delivered, it would be desirable to adjudicate on it. There is also the consideration that the plaintiff's pleadings are such that I think it quite improbable that an appellate court might be tempted to reverse the order of Chesterman J.

27 There is no material before me which supports any contention that the applicant's solicitors are in a position of conflict or are otherwise behaving improperly so as to invoke the inherent jurisdiction of the court to disqualify them from representing the applicant.

28 The plaintiff also submitted that the matter was too complex to be dealt with in the course of a hearing on a chamber day and that an opportunity should be provided to enable "the evidence (to) be properly and fully examined and tested before the court". That submission betrayed a misunderstanding of the nature of the defendant's application. He also sought to have the matter adjourned on the basis that he had been unwell and had insufficient time to prepare.

29 The defendant's summons was served on the plaintiff rather more than a month prior to the hearing date and he was alerted to the fact that the arguments to be advanced on behalf of the defendant would generally follow the lines of those advanced before Chesterman J. Against that background, it seemed to me that no point would be served by adjourning the matter. I did, however, think it appropriate to give the plaintiff the opportunity of delivering written submissions in response to the outline of submissions which I received from Mr Derrington, who appeared for the defendant. In matters of undoubted complexity, such as the one under consideration, it seems to me that it is generally desirable for an unrepresented party to be provided with written submissions prior to the morning of the hearing. Accordingly, I gave the plaintiff until 9 a.m. on Monday 25 January 1999 to deliver any written submissions he wished to deliver in response to the defendant's submissions.

30 The defendant seeks an order that the plaintiff's action be dismissed on the basis that the plaintiff has shown an incapacity to observe the rules of court in relation to pleadings and that nothing is to be served by permitting him to replead. I am not prepared to take that action. I do not know whether or not facts exist which might support valid causes of action by the plaintiff against the defendant. Certainly, no material was put before me which demonstrated that there was no conceivable basis upon which the plaintiff could mount a valid claim for breach of duty against the defendant firm of solicitors. The pleadings delivered consequent upon Chesterman J's determination against the plaintiff do not leave me in much hope that the plaintiff will attempt to benefit from the matters pointed out to him in the course of argument and in reasons for judgment. But I am not prepared to deny him a further opportunity of putting his allegations in appropriate form.

1. The plaintiff's amended statement of claim delivered on 5 November 1998 be struck out.

2. The plaintiff pay the defendant's costs of and incidental to the application, to be taxed.

3. The plaintiff have liberty to deliver a further amended statement of claim on or before 5 p.m. on Monday 8 March 1999.

2. The plaintiff pay the defendant's costs of and incidental to the summons, to be taxed.