Gillies v Moir

Notices of Motion 24On 21 May 2014, the second defendant filed a Notice of Motion, seeking the following orders: "1. The Amended Statement of Claim filed 9 April 2014 be dismissed as against the Second Defendants, pursuant to rule 13.4 of the Uniform Civil Procedure Rules. 2. In the alternative to order 1 above, the Amended Statement of Claim filed 9 April 2014 be struck-out as against the Second Defendants pursuant to rule 14.28 of the Uniform Civil Procedure Rules. 3. Judgment for the Second Defendants. 4. The Plaintiffs pay the Second Defendants' costs of the proceedings. 5. Any further order the court sees fit." (sic) 25On 21 July 2014, the third defendant filed a Notice of Motion. On 3 September, the first defendant filed a Notice of Motion. The Motions of the first and third defendants are near identical in terms with each other. 26The Motions seek orders pursuant to, r 14.28 of the Uniform Civil Procedure Rules 2005 ("the UCPR") that the Amended Statement of Claim be struck out, and in the alternative that the proceedings be dismissed pursuant to r 13.4 of the UCPR on the basis that: "(a) No reasonable cause of action is disclosed; and/or (b) The pleadings are embarrassing and not capable of being understood; (c) The plaintiff does not have the requisite standing or leave to bring those claims that are the subject of the proceedings; (d) The proceedings are an abuse of process of the Court." 27Additionally, the Motions seek an order that the plaintiff's claim be dismissed pursuant to r 12.7(1) of the UCPR for the plaintiff's failure to prosecute the proceedings with due dispatch. 28Further in the alternative, the Motions seek the determination of certain separate questions. 29Finally, the Motions seek judgment for the first and third defendants against the plaintiff, and that the plaintiff pay the first and third defendants' costs of and attendant to the Motions. 30The hearing of the three Notices of Motion came before me on 9 September 2014. The parties agreed that it was appropriate for the Court to hear and determine the Motions together. 31The first and third defendants are represented by the same lawyers, and accordingly, the submissions for both were substantially similar.

Evidence 32On the hearing of the Motions, the first and third defendants relied upon the affidavit of Mr Christopher Brierley, sworn 21 July 2014. 33Mr Brierley deposes to the case management hearings of the proceedings generally. 34Of significance, it appears that having filed the Statement of Claim on 9 December 2013, the plaintiff was granted leave by the Court to file an Amended Statement of Claim providing that that the amended claim was filed by 24 February 2014. The purpose of that amendment was to allow the first defendant to be correctly identified. 35The plaintiff did not comply with this order. However, on 9 April 2014, the plaintiff filed the Amended Statement of Claim which not only altered the name of the first defendant, but also amended the names of the second defendant and joined the third defendant to the proceedings. No leave was granted for this to occur. 36The plaintiff did not serve on, nor provide a copy of the Amended Statement of Claim to, the lawyers for the first and third defendants. 37On 22 May 2014, the matter came before the Court for directions. The second defendant, Harris Wheeler, had on 21 May 2014, filed a Notice of Motion seeking to strike out the Statement of Claim and seeking summary judgment. I have referred in outline to that Motion above. 38On 22 May 2014, the plaintiff did not appear. Orders were made by the Common Law Registrar with respect to service of the second defendants' Notice of Motion and any evidence in support. 39The matter was again listed for directions on 1 July 2014. The plaintiff failed to appear on this day. Leave was granted to the other defendants to file Motions with respect to the plaintiff's claim, and all Motions were listed for hearing before the Duty Judge on 9 September 2014. 40After that date, the first and third defendants requested particulars of the Amended Statement of Claim, each by letter dated 1 July 2014. A response was required to those particulars by 15 July 2014. No response was provided by the plaintiff. 41Mr Brierley, the solicitor for the first and third defendant, deposes to the following matters with respect to the plaintiff's bankruptcy, which are different from, or perhaps in addition to, the allegations made in the Amended Statement of Claim to which I have earlier made reference. 42He says, and I accept, that on 3 November 2006, the plaintiff filed a Statement of Affairs and was accordingly made bankrupt on his own petition. The plaintiff's bankruptcy ended on 4 November 2009, when he was discharged by law from the status of being a bankrupt. These facts are proved from an extract of the National Personal Insolvency Index. 43Mr Brierley deposes as follows: "The plaintiff has not provided any evidence or confirmation that he has sought or been granted leave from the Trustee in Bankruptcy to commence these proceedings and seek relief for the causes of action claimed, all of which vested with the Trustee in Bankruptcy on or about 3 November 2006." 44The Trustee appointed with respect to the 2006 Debtor's Petition was the Official Trustee in Bankruptcy. 45The search of the National Personal Insolvency Index also reveals that on 8 September 2005, pursuant to s 188 of the Bankruptcy Act 1966 (Cth), the plaintiff entered into an arrangement with a trustee for the benefit of his creditors. It appears that this arrangement terminated on 12 October 2005, and thereafter his property was no longer the subject of the control of the Trustee. 46The details of that earlier bankruptcy were not tendered, and were not relied upon in the course of submissions before this Court. 47The second defendant relied upon the affidavit of their solicitor, James Baird, sworn on 8 September 2014. Mr Baird deposed to the progress of the proceedings, and some interactions which he had with the plaintiff with respect to the ordinary progress of the matter. 48It is clear that considerable difficulties were encountered with the plaintiff serving his Amended Statement of Claim and complying with the Court orders.

The First Defendant 49The first defendant submits that the Amended Statement of Claim discloses no reasonable cause of action. He submits that there is a myriad of allegations, inadequately pleaded, which are so interwoven that it is unclear how they relate to other allegations, and in particular to the various claims for relief made, or causes of action articulated. 50The first defendant submits that it should not have to meet a case brought based on a pleading which is generally incapable of any confident interpretation and that it should not be his role to distil from the pleading what the causes of action are. 51He submits that the pleading as a whole is unintelligible, ambiguous and so imprecise in its identification of material and factual allegations as to deprive him of proper notice of the real substance of the claim or defence and, accordingly, should be struck out. The first defendant draws attention to the decisions of Gunns Limited v Marr [2005] VSC 251 at [14]-[15] and David Charles Bott v Trevor John Carter [2009] NSWSC 236 at [18]. 52In seeking summary dismissal, the first defendant draws attention to the fact that whilst the precise nature of the alleged causes of action may be obscure, all contact, according to the pleading, between the plaintiff and the first defendant ceased in August 2005, and that accordingly pursuant to s 14(1) of the Limitation Act1969, any action in tort or contract, which it is submitted the Amended Statement of Claim ought be understood as being, must be brought within six years of the accrual of the cause of action. The first defendant submits that insofar as any of the claims on tort or contract are concerned, the limitation period has well expired, and that there is no basis for any extension of the limitation period. 53The first defendant submits that whilst there are loosely based assertions in the Amended Statement of Claim of fraudulent conduct on the part of the first defendant, the provisions of s 55(1) of the Limitation Act are not pleaded or relied upon. He submits that even accepting the plaintiff's case as being based on fraud, even though this is not adequately pleaded, the further pleading discloses that the plaintiff became aware of the alleged fraud by no later than 17 October 2005, in respect of a claim with respect to a proof of debt, and 27 March 2006, in respect of a claim with respect to some expert fees. 54Accordingly, the first defendant submits that any suspension of the time bar would not avail the plaintiff beyond these times. Accordingly, such a claim became statute barred. 55Finally, the first defendant submits that by reason of the plaintiff becoming bankrupt in November 2006, all causes of action giving rise to entitlements for damages or recovery of costs or other like claims constitute property which vested in the Trustee at the date of bankruptcy. He submits that the plaintiff no longer has any entitlement to bring these proceedings, at least not without the Trustee having assigned to him the benefit of the choses in action, upon which he now relies. 56Whilst the first defendant accepts that summary dismissal is remedy which is to be applied in limited cases, he nevertheless submits that it ought be applied here.

The Second Defendants 57The second defendants submit that the gist of the claim made by the plaintiff against them asserts some ill-defined fraud or illegality with respect to their acts on behalf of their client, Ms Eastlake, against the interests of the plaintiff. They submit that it is apparent from the pleading that the plaintiff's loss and damage must have crystallised no later than 15 September 2005. 58In that respect, the second defendants point to paragraphs 70-74 in the Amended Statement of Claim. Paragraphs 70 and 71 of the Amended Statement of Claim note that on 15 September 2005, the plaintiff received a letter which contained notification that the caveats lodged by Ms Eastlake over his properties had been voluntarily withdrawn on 7 July 2005. He alleges that this is the first occasion upon which he became aware that the caveats had been withdrawn. Paragraph 74 of the Amended Statement of Claim refers to an assertion made by the plaintiff on 18 September 2005, that he had suffered loss and damage as a consequence of the existence of the caveats, which loss and damage he asserts gives rise to a cause of action. 59In the letter dated 18 September 2005, the terms of which are substantially reproduced in paragraph 74 of the Amended Statement of Claim, it is clear that the plaintiff was able to formulate, and make a claim for, a specific sum of money by way of damages to which he claimed he was entitled by reason of the conduct of the second defendant. He also threatens to commence proceedings in that letter. 60Accordingly, it does appear that by at least the time the plaintiff wrote that letter, he was able to crystallise any claim he had for loss and damage which he said was occasioned by reason of the existence of the caveats, those caveats giving rise to the cause of action against the second defendants. 61The second defendants submit that by reason of both of the September 2005 bankruptcy and the November 2006 bankruptcy, the plaintiff has no entitlement, in the absence of any assignment from the Trustee of the causes of action, to bring these proceedings. 62The second defendants rely upon an earlier decision of mine, Gillies v Eastlake [2014] NSWSC 611 at [91]-[93] as authority for the proposition that the absence of a pleading of the existence of any assignment, if there be one, or reliance upon s 129AA of the Bankruptcy Act 1966 (Cth), is sufficient to demonstrate the absence of standing to bring the proceedings. 63The second defendants in addition rely upon s 14 of the Limitation Act. They submit that, on any view, all loss and damage must have been sustained no later than 3 November 2006, when the plaintiff went bankrupt. On that basis, the second defendant submits that the present claim must be out of time. 64Finally, the second defendant submits that no reasonable cause of action is disclosed by the terms of the current pleading.

The Third Defendant 65The third defendant also submits that summary judgment should be granted in his favour. He submits that the two prayers for relief, which are directed at him, are both unintelligible and that, no material facts are thereafter pleaded, which suggests any viable or proper cause or action against him. 66It can be observed from the prayers for relief which I have set out earlier, that the only prayers which mentioned the third defendant are 1 and 3a. The third defendant submits that there is no pleading of any material fact to establish complicity, nor any knowledge of fraudulent conduct or falsity of any aspect of the proof of debt to which reference is made. He further submits that fundamentally there is no pleading of how any conduct on the part of the third defendant is said to give rise to any cause of action, or any other right to a claim for relief. There is no allegation of causation of loss. He submits that it is not apparent from any part of the claim how it is said, "that the conduct in question might be relevant to the various losses which are pleaded". 67The third defendant also relies upon the expiration of the limitation period created by s 14 of the Limitation Act, and the provisions and effect of the Bankruptcy Act in the same way as the other defendants.

Previous Proceedings 68Mr Gillies has commenced a number of proceedings in this Court in recent times. The submissions of the defendants draw attention to these proceedings and submit that the principles established in those proceedings can by analogy apply here. In particular, the defendants draw attention to the way in which the Court has previously dealt with the standing of the plaintiff to bring proceedings in the manner in which he has done. 69In Gillies v Eastlake, I held that claims made by Mr Gillies against Ms Eastlake and her father, Mr Coombes, for damages for, amongst other things, the lodging of the unlawful caveats, and also damages for false allegations giving rise to criminal proceedings, ought be summarily dismissed. 70Amongst other things, I held that the claims could not succeed because the bankruptcy of Mr Gillies, in the absence of any assignment by the Trustee of the causes of action which pre-existed his bankruptcy, meant that he had no right to bring the proceedings. The proceedings were summarily dismissed. 71In Gillies v Forrest [2014] NSWSC 648, Davies J dismissed the proceedings on the basis that they were an abuse of process because, amongst other things, of the effect of his bankruptcy. Those proceedings sought a declaration that the plaintiff held a 50 per cent interest in a property at Anna Bay as a tenant in common with the first defendant. 72In [4], Davies J noted that in his statement of affairs declared on 2 November 2006, Mr Gillies did not identify any monies as being owing to him. His Honour said: "Section 31 of the standard form Statement of Affairs asks "Do you have any debts owed to you?" and the plaintiff said "no". " 73His Honour concluded that Mr Gillies had not disclosed the existence of the property which he claimed to be entitled to in that Amended Statement of Claim. Accordingly, his Honour concluded that Mr Gillies had no standing to bring the claim and dismissed it. 74In Gillies v Brewer [2014] NSWSC 1198, Rothman J considered a claim made by Mr Gillies against a barrister and a solicitor who formerly acted for him. They acted for him in the course of criminal proceedings in 2006, and Mr Gillies sought recovery of monies allegedly paid by him to them for the provision of their professional services. 75His Honour provided the background to the particular facts concerning the retainer of the defendants in those proceedings, he identified the proceedings before him, and went on to consider the effect, amongst other things, of the fact that the pleadings did not disclose a reasonable cause of action, and that the proceedings had been commenced after the expiry of the relevant limitation period fixed by s 14 of the Limitation Act. 76For the reasons which he gave, his Honour upheld the claims of the defendants in those proceedings, that no reasonable cause of action was disclosed, and the limitation period relevant to his claims had expired. Accordingly, his Honour determined that the proceedings should be dismissed. 77It is apparent that Mr Gillies has also commenced proceedings against the State of NSW. In Gillies v State New South Wales [2014] NSWSC 1350, Hamill J, although dealing with a different issue, did note the nature of the proceedings there brought. 78It is apparent that Mr Gillies was seeking to bring proceedings asserting malice on the part of the prosecution authorities and individuals concerned with the prosecution in criminal prosecutions brought against him in 2006. 79It is clear from his Honour's reasons that there is considerable difficulty with the way in which the Statement of Claim is pleaded, and further that the claims sought to be articulated were contended by the defendant to be statute barred by reason of the provisions of s 14 of the Limitation Act. 80His Honour notes that the defendant seeks summary dismissal of the proceedings, and that, in the alternative, the Statement of Claim should be struck out. 81These previous decisions are relevant because it shows that, perhaps unusually for some litigants in person, Mr Gillies has had the benefit of considerable exposure to the principles required for proper pleading, the existence of the limitation period and the interaction of his bankruptcy upon the viability of the causes of action upon which he relies in the conduct of this litigation.

Legal Principles 82It is clear that summary judgment cannot be given except in the clearest of cases. In Gillies v Eastlake at [12]-[18] I drew attention to a number of authorities on this question. As Rothman J said in Gillies v Brewer at [19]: "The ... applicants on the motions, bear the onus of establishing that there is no issue that prevents the denial of the plaintiff's ordinary right to have his claim tried. The test is stringent and demanding and requires a high degree of certainty about the ultimate outcome of the proceedings if it were to be tried in the ordinary course: see Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552."

Discernment 83I have earlier outlined the submissions of the defendants. Notwithstanding that he was served, the plaintiff did not attend on the hearing of the Motions, and did not file any submissions in opposition to the relief which the defendants sought. 84The Amended Statement of Claim does not articulate any cause of action in any meaningful or rational way. It wholly fails to comply with the proper requirements of a pleading. It does not, in accordance with the requirements of the UCPR, set out each cause of action, and set out the facts, matters and circumstances upon which it is said the cause of action arises. It pleads evidence and not facts, and does not in a readily understandable fashion, plead the elements of the various causes of action which are said to be available. 85I am satisfied that any of the causes of action which are pleaded must have arisen prior to the plaintiff becoming a bankrupt in 2006 (if not earlier in 2005). This Court has held in the past that the plaintiff has no standing to bring proceedings where the causes of action have vested in the Trustee in Bankruptcy, and have not been subsequently reassigned to Mr Gillies. There is no suggestion in the evidence before me that the provisions of s 129AA of the Bankruptcy Act would have any effect and, accordingly, there is no suggestion of any re-vesting of any cause of action. 86I am satisfied that in respect of the causes of action brought, Mr Gillies as plaintiff has, by reason of his 2006 bankruptcy, no standing to bring the causes of action and his claim must be dismissed. 87I am also satisfied that the limitation period has clearly expired. On any view of the pleadings and evidence, the causes of action pleaded which are seemingly brought in contract and tort, must have been complete and damage incurred prior to 8 December 2007. That date is relevant because the Statement of Claim commencing these proceedings was filed on 9 December 2013. Accordingly, the causes of action have accrued more than six years prior to the commencement of the proceedings. 88Having regard to the facts such as they are that are pleaded, I would be prepared to conclude that the causes of action accrued during 2005, if there were any causes of action. There are no acts, facts, matters or circumstances after September 2005 which could rise to any suggestion of any causes of action, or loss or damages first accruing after that point in time by reason of pre-existing causes of action. On any view there is a significant difference in time between September 2005 and December 2007. There is no room on the facts in this matter for any argument that there the limitation period has not expired so as to enable the proceedings to have been commenced within time. 89Accordingly, I am satisfied that all of the causes of action pleaded are statute barred. 90In my view, it is an abuse of the process of this Court for a litigant with no entitlement to bring proceedings, as Mr Gillies does not, to commence proceedings for claims which are clearly statute barred, as these claims are, in circumstances where the pleading is irrational and unintelligible. 91It is appropriate that the whole of these proceedings be summarily dismissed as against each of these defendants.

Orders 93I make the following the orders: (1)Judgment for the first, second and third defendants on the plaintiff's claim. (2)Plaintiff is to pay the first, second and third defendants costs of the proceedings, including the costs of the Notices of Motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2014