Butler v Crowley & Greenhalgh Butler v Simmonds Crowley & Galvin [2000] QSC 120

[2] A person therefore who commences proceedings in Court must be prepared to prosecute those proceedings expeditiously and this is recognised in r 5(3) of the UCPR which provides that "[i]n a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way."

[3] The Court has developed rules to aid in the fair, just and expeditious resolution of disputes by providing for pleadings which crystallise the real issues in dispute and the disclosure of relevant material so each party can be fully informed of the other's case.

[4] This case involves events which are said to have occurred more than 10 years ago. From 1986 to 1990, Crowley and Greenhalgh, a firm of solicitors then known as Lyn Crowley and Company, represented the respondent, Clive George Butler, in a matter. From 1989 until 1991, the respondent also sought advice in relation to the same and another matter from a second firm of solicitors, Simmonds Crowley and Galvin.

[5] On 12 September 1991, Simmonds Crowley & Galvin obtained default judgment against Mr Butler in the Magistrates Court for fees owed by him.

[6] Some years later, Mr Butler commenced a number of actions against his former solicitors. He has also commenced actions against other firms of solicitors who have acted for him. On 8 August 1996, the plaintiff commenced an action by writ of summons No 6521 of 1996 against Crowley and Greenhalgh for negligence and/or breach of duty of care and/or breach of contract. This writ was not served until 4 August 1997. On 1 November 1996, the plaintiff also commenced an action by writ of summons No 9292 of 1996 against Simmonds Crowley & Galvin for "unspecified damages for negligence and/or breach of duty of care and/or breach of contract. The Plaintiff also claims for professional negligence, profound deception and false pretences." This writ was served on 30 October 1997. While the delay in service of the writ was permissible under O9r1 of the Rules of the Supreme Court, it is nevertheless a circumstance to be taken into account against the plaintiff in considering the discretion to strike out.[1]

[7] Meanwhile the plaintiff also commenced an action for damages for malicious prosecution against Simmonds Crowley & Galvin in SC No 4227 of 1997 filed on 13 May 1997 in relation to the default judgment for unpaid fees which they had obtained against the plaintiff on 12 September 1991. In December 1997, the plaintiff applied by summons to the Supreme Court to have the default judgment set aside. That application was dismissed on its merits by Fryberg J.

[8] The statement of claim in the malicious prosecution action was delivered on 14 July 1998. On 8 October 1998, an order was made striking it out. An appeal against that order was dismissed by the Court of Appeal on 12 November 1999.[2] The Court of Appeal held that the statement of claim did not disclose a cause of action and struck out the action as embarrassing. It was held that it was unlikely that any further amendment would overcome any difficulties in the pleadings.[3]

[9] On 15 November 1999, the defendants in actions 6521/96 and 9292/96 applied to this Court for orders striking out the statements of claim and/or the actions in the following terms:

"1. The plaintiff's action be struck out on the basis that it constitutes an abuse of process in that it:

(a) was commenced outside of the limitation period prescribed by section 10 of the Limitation of Actions Act 1974 (Qld);

(b) is a collateral attack upon a final decision of a court of competent jurisdiction.

2. Further or in the alternative, that the plaintiff's further further statement of claim delivered 9 March 1999 [and 11 March 1999] be struck out pursuant to Rule 171, on the basis that it discloses no reasonable cause of action and/or it would have a tendency to prejudice or delay the fair trial of the proceeding.

4. Further and in the alternative, the defendant have judgment against the plaintiff on the claims in respect of which the defendant relies on the Limitation of Actions Act 1974 (Qld) as a defence."

(1) whether the action or any part of it is barred by the Limitation of Actions Act 1974; and

(2) whether the statement of claim should be struck out because it discloses no reasonable cause of action or would have a tendency to prejudice or delay the fair trial of the proceeding and consequently the action dismissed.

[11] In order to decide these matters it is necessary to give a brief history of 6521/96 and 9292/96. As already set out, writ No 6521/96 was issued against Crowley and Greenhalgh on 8 August 1996 and served on 4 August 1997. The statement of claim was delivered but it is unclear when. The statement of claim itself has a delivery date of 26 September 1996 although it is also annotated in pen as 26 September 1997. The defendant's solicitor swears it was delivered on 24 October 1997. A statement of claim was delivered in writ No 9292/96 on 4 December 1997. On 19 January 1998, a notice of change of solicitors showing that Minter Ellison was acting for the defendants was filed.

[12] On 8 October 1998, Chesterman J struck out the statements of claim in 9292/96 and 6521/96. His Honour gave leave to the plaintiff to deliver fresh statements of claim. In his reasons for judgment, Chesterman J said that the plaintiff had accepted that he had not complied with the rules as to pleading and he was content to re-plead. His Honour adopted the remarks of Dunn J in Madden v Kirkegard Ellwood and Partners[4]. In that case, his Honour held that the Court had power to strike out a statement of claim in which objectionable matter was so mingled with other matter that the pleading as a whole might tend to embarrass the fair trial of the action, notwithstanding that a cause of action might be spelled out of the pleading as a whole. His Honour said of the statement of claim:[5]

"Its condition is such that no "surgery" can save it. It will be an act of mercy to terminate its existence. It should be re-pleaded in such a way as to make it clear to the first defendant, and to the Court, what the plaintiff's case really is."

Chesterman J also indicated that he accepted the submissions of Mr Derrington of counsel for the defendants which asserted with great particularity that the statement of claim was incomprehensible both in its structure and its content.

[13] On 5 November 1998, the plaintiff delivered an amended statement of claim in 9292/96. On 13 November 1998, outside the time within which the plaintiff had been directed to deliver a further statement of claim, the plaintiff delivered an amended statement of claim in 6521/96.

[14] On 28 January 1999, Muir J also struck out the amended statements of claim in both 9292/96 and 6521/96. His Honour gave a non-exhaustive list of deficiencies in the statements of claim and illustrated some in detail. In his Honour's view, the deficiencies meant it would be unjust to permit trials of the actions based on the statements of claim:

"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."[6]

[15] Muir J gave the plaintiff liberty to deliver further amended statements of claim in 9292/96 and 6521/96 on or before Monday 8 March 1999.

[16] The plaintiff delivered further amended statements of claim for 9292/96 on 9 March 1999 and for 6251/96 on 11 March 1999. Both pleadings were delivered out of time. These are the pleadings presently in issue before the court.

[17] On the hearing of these applications in chambers, the plaintiff sought and was given the opportunity to make further written submissions to clarify the matters he wished to raise. The plaintiff took the opportunity to file voluminous, largely irrelevant, written submissions which have been painstakingly answered by counsel for the defendants who submitted that there was "no attempt at a logical or rational clarification of the statement of claim" that was under attack. It was argued that the "rambling and often incoherent submissions" evidence that the plaintiff is incapable of logically structuring any claim and "provides further justification for not permitting him a fourth opportunity to plead his case". I agree with the defendants that the plaintiff has been given every opportunity to state his case and that the rambling and incoherent nature of his written submissions reflects the nature of the statements of claim which the defendants seek to strike out. An inability on the part of the plaintiff to properly formulate a statement of claim is an important consideration in favour of granting a striking out application.[7]

[18] The plaintiff has been unable to intelligibly set out his allegations against the defendants with regard to events claimed to have occurred more than ten years ago. The actions commenced more than four years ago and have been characterised by periods of delay from their inception. The plaintiff has repeatedly had his statements of claim struck out and been given the opportunity to replead them. The statements of claim contain unnecessary material and yet are insufficiently particularised and are embarrassing in their form. The statements of claim do not disclose any reasonable cause of action.

[19] Pleadings are intended to clarify the issues to be decided at trial. To allow the pleadings in their present form would be to prejudice the fair trial of the action. I would respectfully adopt the criticisms made of the pleadings by Muir J at para 3 of his judgment,[8] none of which appear to have been remedied by the plaintiff's amended pleadings. The facts as pleaded are quite incapable of supporting the "damages and costs in excess of $1,000,000.00" claimed in each action. The actions have been unable to properly proceed because of the inability of the plaintiff to articulate his case in such a way as to ensure a fair trial of the actions. The actions should be dismissed. There is no need in the circumstances for the court to rule on the limitation defences except to observe that they appear to be well-founded.

1. The plaintiff's statement of claim delivered 11 March 1999 be struck out;

1. The plaintiff's statement of claim delivered 9 March 1999 be struck out;

[1] Cooper v Hopgood & Ganim [1998] QCA 114; [1999] 2 Qd R 113 at 120.

[2] Butler v Simmonds Crowley & Galvin [1999] QCA 475.

[3] Butler v Simmonds Crowley & Galvin (supra) at [42] and [45].

[4] [1975] Qd R 363 at 366.

[6] See para 4 of Muir J's reasons for judgment: Unreported, SC No 9292 of 1996 and SC No 6521 of 1996, 28 January 1999.

[7] Cooper v Hopgood & Ganim (supra) at 119.