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[2011] NSWSC 1138
Supreme Court of NSW
2011-09-16
Harrison J
Original judgment source is linked above.
The long history of these, and earlier related, proceedings is recounted in the judgment of Latham J and in the earlier judgments, including that of Schmidt J, dated 13 August 2010 ([2010] NSWSC 899) to which her Honour refers. It is sufficient for present purposes to note the following.
On 8 March 1999 Ms Cameron was injured in the course of her employment with the first respondent. Ms Cameron subsequently brought proceedings in the District Court against the first respondent claiming damages. After eight days of hearing before McLoughlin DCJ the proceedings were settled on terms that included a judgment in favour of Ms Cameron in the sum of $940,000 less certain deductions, with the parties to pay their own costs. Ms Cameron was at that time represented by the present second respondent, a solicitor, and by a barrister.
Ms Cameron subsequently filed notices of motion in the District Court seeking to have the settlement set aside. They were dismissed. She then filed in the Common Law Division of the Supreme Court the Statement of Claim that commenced the present proceedings against the respondents. The respondents applied to have it struck out as embarrassing and disclosing no cause of action. Schmidt J accepted that that was an appropriate description of this Statement of Claim but granted Ms Cameron leave to amend. In doing so, her Honour clearly identified the deficiencies in the Statement of Claim.
On 22 September 2010 Ms Cameron filed an Amended Statement of Claim. On the application of the respondents Latham J struck out that pleading and declined to give Ms Cameron leave to replead. In giving her reasons, her Honour said: '19 ... I am more than satisfied that the [amended] statement of claim is legally embarrassing, in the sense that it is unintelligible, ambiguous, vague and too general: Pethers v Minister for Agriculture [2010] NSWSC 805 at [22]. The identification, such as it is, of material factual allegations is so lacking in precision that neither of the defendants could have adequate notice of the real substance of the plaintiff's claim: Bott v Carter [2009] NSWSC 236 at [18]. ... 21 ... [I]n the circumstances of this case, the plaintiff has been given every reasonable indulgence by the courts, and by the defendants, and has persistently failed to remedy the substantial defects in the pleadings.'
The submissions that Ms Cameron made to this Court in support of her application for leave to appeal from that judgment did not identify any rational basis for a conclusion that Latham J was in any respect in error. As a result, an appeal made in accordance with a grant of leave to appeal would not have any significant prospects of success. The views that Latham J expressed concerning the Amended Statement of Claim and the indulgences afforded to Ms Cameron appear to me to have been entirely apposite.
It is unnecessary in these circumstances to deal with the fact that the application for leave to appeal is long out of time and that the respondents assert that they have been prejudiced by Ms Cameron's delay.
For these reasons I propose that Ms Cameron's application for leave to appeal be dismissed with costs." 6The most distressing aspect of this long and protracted litigation is that it has dissipated a substantial fund to which Ms Cameron became entitled following the settlement of her claim, ultimately, it would seem, for no good purpose and for no legitimate reason. Ms Cameron's dissatisfaction with the District Court settlement has returned a result to her that is, on one fairly available view, wholly disproportionate to any concerns that she could possibly have had about its perceived inadequacy in the first place or the fulfilment of professional duties owed to her by legal representatives whom she then retained in the second place. Whatever complaint she may have had, or perceived that she was able to agitate, with respect to the outcome of her District Court litigation, has continued to obsess her. The end result of this is that a not inconsiderable fund that became available for Ms Cameron's own use and benefit from the settlement has now been largely swallowed up by adverse costs orders and similar avoidable outcomes. Notwithstanding all of this, Ms Cameron persists to tilt at understandably dispassionate and disinterested windmills that cannot be expected to deliver the resolution that she craves. 7The orders that Ms Cameron still seeks are clearly in respect of matters that were long ago subsumed in the original settlement. As unpalatable as it may be for Ms Cameron to accept, the case is over. It has been for some time. Ms Cameron must in my view sooner rather than later come to terms with this reality lest the balance of any monies that she can yet enjoy also disappears on whimsical projects with no real or meaningful prospect of a return. Ms Cameron unfortunately labours without the benefit of legal advice and shows no sign in those circumstances of coming to any realistic appreciation of the self-destructive course of her unremitting endeavours. 8I can see no basis for the making of any orders in her favour. Her notice of motion is hopeless and must be dismissed. It may be that her opponents will form the view that the costs of her ill-advised application are no longer worth pursuing. I will however obviously hear the parties on the costs of this application if called upon to do so.
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