It was not suggested that, at least for present purposes, this was other than a sufficient summary.
16 I understand the reasoning of the Associate Judge to proceed along the following lines. First, the pleading was defective in failing sufficiently to disclose the requisite material facts to constitute a cause of action of the type sought to be advanced by Ms Cairns against Mr Turner [see [26] of his Honour's judgment]. Ordinarily, if a pleading were defective in that way, one would expect that leave to replead would be granted. However, his Honour proceeded to hold, secondly, by reference to the evidentiary material put before him, that not only did the Statement of Claim disclose no reasonable cause of action, but that there was no such reasonable cause of action, so that there was no utility in granting leave to replead [see [27] - [28]]. It is clear (from [29]) of his Honour's judgment that ultimately his Honour summarily dismissed the proceedings under UCPR, r 13.4, rather than merely striking out the pleading or part of it under UCPR, r 14.28.
17 The Notice of Motion advances eight grounds of appeal. The first ground is that his Honour erred in acceding to Mr Turner's application for dismissal, on a ground not advanced by Mr Turner. If this is intended to mean that his Honour granted relief on the basis of deficiencies in the pleadings rather than on the weakness of the plaintiff's case or the strength of the defendants' case, then I do not accept that that ground was not advanced by Mr Turner. The Notice of Motion before the primary judge plainly sought, as well as summary dismissal under r 13.4, a striking out of the pleading under r 14.28. The invocation of r 14.28 implicitly involves an attack on the sufficiency of the pleading. Merely to assert - as Ms Cairns's written submissions before the Associate Judge did - that the plaintiff does not understand what other attack is made on its case or what other case is brought in support of the claim for dismissal or striking out does not mean that the ground is not one advanced. To my mind, any application by Mr Turner invoking r 14.28 would necessarily have required attention to be given to so much of the Statement of Claim as pleaded a case against him.
18 If the first ground of appeal is intended to refer to the ground under r 13.4 and the contention advanced in argument that it was implicit in the Associate Judge's conclusion that he found that there was no evidence in Ms Cairns's possession that could sustain a viable case against Mr Turner, then, again, I do not accept that this was a ground not advanced by Mr Turner. By invoking r 13.4 and filing an affidavit which asserted "I believe that the plaintiff does not have any valid claim or cause of action against me ... ", Mr Turner made abundantly clear that he was asserting that there was no tenable or viable case that Ms Cairns could advance against him. That is ultimately exactly what the Associate Judge found. Ground 1 therefore fails.
19 The second ground of appeal is that his Honour erred in finding that the Statement of Claim did not plead a cause of action against Mr Turner. My understanding, both from what his Honour recorded in the supplementary judgment delivered after the UCPR, r 36.16, application (to which I shall come) and indeed from what counsel indicated before me today, is that ultimately it was accepted on behalf of Ms Cairns that the Statement of Claim is deficient in its pleading of a cause of action against Mr Turner. In those circumstances, Ground 2 is untenable and fails.
20 The third ground is that his Honour erred, in exceeding the assistance permitted to be given to an unrepresented litigant, by raising an argument not advanced by Mr Turner, and in refusing an opportunity to replead without Mr Turner opposing that course. So far as raising an argument not advanced is concerned, this is directed to the conclusion reached by his Honour as to the sufficiency of the pleading. It is true that Mr Turner did not expressly raise the defect to which his Honour referred in the judgment. However, as I have said, the motion invoked r 14.28 which inevitably raised a question as to the sufficiency of the pleading and his Honour was unquestionably entitled to look at the pleading and see for himself whether or not it sufficiently disclosed a cause of action. Indeed, it is perfectly permissible for the Court of its own motion to strike out pleadings or parts of pleadings that are deficient. There was no overstepping of the mark whatsoever in the course that his Honour adopted in that respect.
21 As to refusing Ms Cairns an opportunity to replead without Mr Turner opposing such a course, it is implicit in Mr Turner's application in reliance on r 13.4 that there was opposition to an application for leave to replead. The basis of his Honour's decision to decline an opportunity to replead seems to have been that there was no arguable case, so that repleading would be futile. In those circumstances, Ground 3 fails.
22 The fourth ground of appeal is that in granting Mr Turner's application, his Honour, first, acted on an incorrect principle of law, namely, that no opportunity should be given to a plaintiff to replead a cause of action; secondly, failed to take into account a relevant consideration, namely, the absence of prejudice to Mr Turner; thirdly, failed to take into account the prejudice to Ms Cairns; and fourthly, failed to take into account that counsel for Ms Cairns had indicated (from the bar table) that Ms Cairns was in possession of evidence which in counsel's view would justify a pleading against Mr Turner. As to these matters: first, it is just wrong to assert that the Associate Judge acted on a principle that no opportunity should be given to a plaintiff to replead the cause of action: his Honour gave no such opportunity in this case because his Honour concluded that it would be futile to do so. In those circumstances, the questions of comparative prejudice to Mr Turner and Ms Cairns raised by the second and third points are immaterial. In any event, it would be prejudicial to Mr Turner to be compelled to remain a party to the litigation and incur the associated costs. But the fundamental point in this respect is that his Honour acted on the basis that there was no tenable cause of action. As to the fourth point - namely, that counsel had indicated that Ms Cairns was in possession of evidence which in counsel's view would justify a pleading - his Honour was correct to disregard any such indication. Applications, even for summary judgment, are decided on evidence, not on assertions from the bar table. If Ms Cairns was in possession of evidence that would justify a pleading against Mr Turner, then the proper course was for Ms Cairns to adduce that evidence before the Associate Judge. At least on the initial hearing, she did not do so. Ground 4 accordingly fails.
23 The fifth ground is that in granting Mr Turner's application the Associate Judge erred in finding, in the absence of evidence, that there was no evidence, before the Court or otherwise, that would support any cause of action against Mr Turner. His Honour made no express finding in those terms. What his Honour concluded in paragraph 29 was that there was no cause of action against Mr Turner that could in any way be supported on behalf of Ms Cairns. I take that to be no more and no less than a conclusion that the proceedings had no reasonable prospect of success or were, in the terminology used in some of the cases, "manifestly hopeless or doomed to fail".
24 As I have indicated in the passage cited from Spencer above, the power conferred by r 13.4 may be exercised where the plaintiff's case is so weak, or in rare cases where the defendant's case is so strong, that to permit the proceeding to go to trial would be futile. Relief in such a case is appropriate only where the defect in the plaintiff's case is clearly established. If factual issues turn upon evidence likely to be in the possession of the defendants, that circumstance may itself be sufficient to refuse an application for summary dismissal. It may be reasonable to suppose that evidence will become available in the course of the proceeding, either as a result of interlocutory procedures for discovery and interrogatories, or evidence called by co-defendants or third parties [see, for example, Wickstead v Browne (1992) 30 NSWLR 1].
25 In this case the position was that the Associate Judge had Mr Turner's evidence that he had had no commercial dealings with the deceased and that he had never authorised anyone to borrow funds or raise funds on his behalf from the deceased. There was before the Associate Judge nothing in response to that evidence of Mr Turner. Moreover, that evidence was unchallenged by cross-examination before the Associate Judge. Had the Associate Judge been referred to the correspondence about particulars, he would have seen that, in response to a request for the usual particulars of the alleged oral loan agreement, Ms Cairns's answer was that she was unable to provide any further particulars at that stage.
26 In my view, Mr Turner's evidence in that context was sufficient at least to require Ms Cairns to point to some evidence to suggest that she had something to take to trial against Mr Turner. While it is true that, on an application for summary dismissal, it is not appropriate for the Court to embark on resolving contested questions of fact, a mere assertion in a pleading unsupported by any evidence does not of itself establish that there is a triable question of fact. Such an allegation in a pleading is a mere allegation, not evidence, nor even evidence that there will be some evidence to make it good. Such an allegation does not establish that there is a contested question of fact to go to trial, at least when it is confronted by sworn and unchallenged evidence of a defendant to the contrary.
27 I have not overlooked that this is a case in which Ms Cairns is an executrix and therefore not privy to the relevant conversations and is entirely dependent upon obtaining evidence elsewhere. In such circumstances, the plaintiff would only need to point to slight material to justify the matter going to trial. But it seems to me that, at least in the first part of the hearing before the Associate Judge, not even that happened. Accordingly, it seems to me that the Associate Judge was entitled to conclude at that stage - as his Honour it did at [29] - [32] - that the proceedings as against Mr Turner should be summarily dismissed. That conclusion would have only been fortified by the knowledge that Ms Cairns had indicated that she was unable to provide any better particulars of the alleged loan agreement.
28 Following his Honour coming to that conclusion and expressing it, an application was made on Ms Cairns's part under UCPR r 36.16 to vary or set aside the order. The effect of that application, if permitted - as it eventually was - was to re-open the hearing before the Associate Judge. The application was apparently made for the purpose of addressing the shortcomings in Ms Cairns's case, and establishing that there was, or would likely be, evidence capable of supporting her claim.
29 On the reopening, Ms Cairns tendered some documentary material. One of those documents was an authority signed by Mr Turner, apparently in his capacity as Director of Sunset Cove, and addressed to Mr Unicomb, dated 24 December 2004 (the date of the alleged December 2004 loan) and directing payment of funds from "Sunset Cove Development Pty Limited funds held in your trust account" to ICA Finance Group, Lifelong Planners and to Mr Unicomb's firm. That document was admitted by the Associate Judge on the rehearing. Also tendered on the rehearing was an affidavit of Mr Unicomb sworn on 25 November 2005 in earlier proceedings in this Court, in which Ms Cairns had sought preliminary discovery from Mr Unicomb and others. That affidavit contained Mr Unicomb's response to allegations about various amounts in a schedule to the Summons in those proceedings, including the following:
$200,000 - The amount borrowed by Peter Cairns from Galadriel Lothlorian Pty Limited. Funds were borrowed by Warren Turner in an attempt to secure property at Wirrina Cove. This was a goodwill gesture by Peter Cairns made with his full knowledge of what risks that this involved and made with the intention of assisting the recovery of previously lost investments that he had made with Mr Freeman. The amount was paid at Peter Cairns' direction into my Practice's Trust A/c. Amounts totalling $20,000 were disbursed as instructed by Warren Turner and sanctioned by Peter Cairns and the balance was transferred to ICA Ltd in Sydney for payment to the MFS Group, which is the first mortgagee over the Wirrina Resort. I will say more about this investment later.
30 However, there does not appear to be anything later, at least in that affidavit. That affidavit was tendered, as I have said, before the Associate Judge on the re-opening. His Honour said:
[44] When the hearing resumed after the luncheon adjournment, counsel for the plaintiff sought to tender an affidavit, or part thereof, sworn by Mr Unicomb, the second defendant, not in the present proceedings but in other proceedings. It was at that point that I was alerted to the fact that I had been under the incorrect impression that the affidavit to which counsel had earlier made reference was an affidavit which had been filed in the present proceedings.
[45] Since that affidavit was not an affidavit of Mr Turner himself and since it had not been filed in the present proceedings, I did not admit the tender of that document or of the parts thereof upon which counsel wish to rely…
31 Ground 6 in the Notice of Appeal is that Associate Judge erred in rejecting the tender of that affidavit of Mr Unicomb. The transcript of the proceedings before his Honour reveals that his Honour rejected it on the basis that "it is not part of the evidence in the proceedings" [Transcript, 26 February 2008, p 15, line 3]. Implicit in his Honour's reasons - that the affidavit was not an affidavit of Mr Turner himself and had not been filed in the present proceedings - is that it was not admissible as an admission by Mr Turner and it would not ordinarily be admissible in proceedings in which it had not been filed (although UCPR, r 31.9, provides that an affidavit filed in other proceedings may be used in evidence if the Court grants leave for it to be used in relation to the proof of particular facts).