GLENDINNING -v- CUZENS [2011] WASC 247 (20 September 2011)

2 On 22 June 2007, the plaintiff amended the indorsement, without leave. The amendments added claims for a resulting trust and an allegation of fraud, and altered particulars in (a) to (e).

3 The second and third defendants entered a conditional appearance on 23 November 2007. In December 2007, they applied by chamber summons for an order that the writ be set aside, alternatively that the indorsement on the writ be struck out. It is unnecessary to detail the grounds of the application. The master upheld the application, and ordered that the writ be set aside.

4 The plaintiff appealed. In January 2009, her appeal was allowed. The Court of Appeal held that the plaintiff should be given an opportunity to amend the indorsement to put it into a proper form.

5 The plaintiff took the opportunity she was offered. A minute of amended endorsement was filed, and on 15 May 2009, a very slightly amended form of that minute, as amended and signed by Pullin JA, was ordered to stand as the indorsement of the plaintiff's claim (the May 2009 indorsement). The date on which the amendment is to take effect was reserved to the trial judge.

6 The May 2009 indorsement sets out a claim against three defendants, Mr Harley Cuzens (Ms Glendinning's former de facto spouse) as first defendant, and his mother and father as second and third defendants.

[C]ontributions both financial and nonfinancial made by the Plaintiff to a joint endeavour between the Plaintiff, the First Defendant, Second Defendant and Third Defendant and, upon the failure of that joint endeavour, the unconscionable retention of the benefit of those contributions by the Defendants. The Plaintiff claims a constructive trust over the joint endeavour property or the proceeds thereof to the extent of her contributions, or alternatively damages or equitable compensation in relation thereto.

The unconscionable retention of the benefit of the Plaintiff's contributions by the defendants commenced from July 2001.

8 There follow particulars of the joint endeavour and of the financial and nonfinancial contributions made by the plaintiff. The joint endeavour is said to have commenced in or around March 1997 and ceased in or around 30 July 2001. It involved the conduct of farming enterprises on properties in Dowerin, Wooroloo and Baskerville and the purchase of a property at Baskerville, the purchase of a property at Millendon, and '[t]he planning, development and conduct of a licensed equestrian business on two properties at Baskerville from 1998 to 1999, then at Millendon from August 1999 to 2002'.

9 The reference in the original writ to properties at Gidgegannup and East Fremantle was not retained.

10 Part B also outlines a claim against the three defendants. It alleges:

Alternatively, the Plaintiff's claim arises out of an oral promise made in or around January 1999 to the Plaintiff by the First Defendant, Second Defendant and Third Defendants that a half interest in the property at Millendon would be transferred to her by the First Defendant, Second Defendant and Third Defendant. Having relied on that promise to her detriment through the making of financial and nonfinancial contributions the Plaintiff claims that she is the beneficiary of a constructive trust in respect of a half interest in the property or the proceeds thereof or damages or equitable compensation in relation thereto.

11 Particulars are given of the contributions in relation to the property at Millendon and it is further stated:

The Defendants declared that the half interest in the Millendon property would not be transferred to the Plaintiff on or around 31 July 2001.

12 Part C sets out a claim against the first defendant only:

The Plaintiff's claim arises out of financial contributions made by the Plaintiff to a joint endeavour between the Plaintiff and the First Defendant and, upon the failure of that joint endeavour, the unconscionable retention of the benefit of those contributions by the First Defendant. The Plaintiff claims a constructive trust over the joint endeavour property or the proceeds thereof the extent of her contributions or damages or equitable compensation in relation thereto.

13 Again there are particulars, with the joint endeavour particularised as a joint endeavour to breed, raise and sell sheep at a property in Wooroloo, the property at Baskerville, and at other properties at Dowerin. The plaintiff's contributions are particularised.

14 Finally, Part D sets out a claim of breach of trust against the third defendant only:

The Plaintiff's claim arises out of the authorisation provided in or around January 1999 by the Plaintiff to the Third Defendant for the Third Defendant to hold on trust an amount of $135,000 being the property of the Plaintiff with a direction for the monies to be contributed to the purchase of the property at Millendon. In breach of trust in or around July 1999, the Third Defendant diverted the funds from the directed purpose by the Third Defendant to another unauthorised purpose.

15 The plaintiff claims damages and/or an account, equitable compensation, and payment of monies had and received.

16 A statement of claim was filed on 31 May 2010. It was prepared without professional assistance. For now, it is enough to observe that it travels well beyond the claims set out in the May 2009 indorsement. For example, it includes allegations with regard to the preparation of the plaintiff's tax returns by the third defendant; claims for misleading representations with regard to the use of funds; a claim for negligent misstatements relating to financial matters; and a claim for 'the tort of wrongful influence'.

17 An amended statement of claim, filed on 5 October 2010, makes various minor changes and additions to the claims set out in the first pleading. It also contains some more significant changes. In particular, the plaintiff alleges that a property at Gidgegannup is part of the joint endeavour property, and claims a half interest in the Gidgegannup property.

18 A proposed amended writ of summons filed on 5 October 2010 also significantly alters the plaintiff's proposed claim. It contains allegations of breach of promise, misrepresentation, wrongful or undue influence, and quite new claims of breach of promise. The plaintiff now expressly claims in the writ that the property at Gidgegannup was purchased as a 'substitute property' for the plaintiff and first defendant to own, and that the defendants unconscionably retain that property.

19 Because the plaintiff had not been able to clearly state her case in a statement of claim, I made orders for the plaintiff to file a narrative of the events relevant to her claim. The aim was to identify the factual basis of the claim, without the plaintiff trying to express herself in terms of her understanding of causes of action. This was partially successful, although it showed that the plaintiff seeks to pursue several matters which are not part of the causes of action mentioned in any of the versions of the writ.

20 The plaintiff has applied to again amend her writ. Because of this application, the court has not yet been asked to rule on the extent to which the statement of claim complies with O 20 r 2 of the Rules of the Supreme Court 1971 (WA).

21 An indorsement is not intended to be in the nature of a pleading (Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 595):

[It] should not be construed as such, but read for it is, namely, a notice of the nature of the plaintiff's claim, of the cause thereof and of the relief sought in the action. It suffices if it conveys that information generally and without particularity save where and to the extent to which particularity is indispensable to notify the required elements of the indorsement.

22 An indorsement on a writ should not be read narrowly: Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233, 239.

23 The decision of the Court of Appeal in Glendinning v Cuzens [2009] WASCA 21 [28] [29] contains a convenient summary of the principles I should apply.

What will constitute an adequate indorsement on a writ is not something that can be reduced to hard and fast rules. As McLure JA pointed out in ABB Service Pty Ltd v Hetherington [2001] WASCA 235 (ABB Service):

'The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend upon a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole [11].'

But in determining whether an indorsement on a writ is adequate, it is necessary to bear in mind that an indorsement serves three important functions:

1. it informs the defendant of the nature of the claim made and the relief sought so as to enable the defendant to determine whether he or she should enter an appearance and, if so, whether it should be a conditional or unconditional appearance;
2. it enables the determination, for the purposes of the relevant Limitation Act, of whether a cause of action is contained in the writ, as the Limitation Act is concerned with the date upon which an action is commenced. A cause of action in this context means a factual situation which will entitle a person to approach a court for relief: Morgan v Banning (1999) 20 WAR 474, 475; and
3. it sets out the metes and bounds within which the statement of claim must be framed; O 20 r 2(2) provides that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.

24 The proposed amendments are extensive. As well as many additions, there are deletions which may be just as significant.

25 The second and third defendants oppose the making of these amendments. They have provided, by way of submission, a schedule setting out the changes to the indorsement which they oppose, and the reason for opposing each one. The second and third defendants do not object to all of the changes, and, in particular, have said nothing about those which relate only to the first defendant. Even then, the schedule contains 45 separate items, many with sub items. This gives an indication of the extent of the proposed amendments.

26 The way in which the defendants have put their objections is a response to how the amendments have been made. The plaintiff has inserted phrases and clauses into the existing paragraphs, and has deleted other phrases or even single words. For example, in Part A (the joint endeavour claim) the plaintiff now states the following (as marked up):

[C]ontributions both financial and nonfinancial made by the Plaintiff in reliance of promises and by conduct represented by the Parties of benefits to a joint endeavour between the Plaintiff, the First Defendant, Second Defendant and Third Defendant and, with the First Defendant and the Plaintiff as beneficiaries, each with a half share of capital gains profit from an enterprise at Dowerin, 3 properties in the Swan Valley being the Baskerville property, a leased property and the Millendon property, then at Gidgegannup, [and Badgingarra?] properties, contracting, equestrian and livestock trading, from the sole labour contributions of the Plaintiff and First Defendant and upon the failure at the end of that joint endeavour, the unconscionable retention in breach of trust and duty of the benefits, represented and relied upon by the Plaintiff that caused a detrimental reliance of those contributions by the defendants.

The plaintiff claims a constructive trust and estoppel by conduct over the joint endeavour property and or the proceeds thereof to the extent of her contributions made in reliance of promised benefits to a joint endeavour as the beneficiary of a half interest of unencumbered property, proceeds from businesses [historical & future] and, or alternatively damages and disgorgement of profits for a breach of duty and trust, misrepresentations, knowingly assisted, duress or wrongful conduct and/or equitable compensation including consequential losses in relation to conduct and the joint endeavour thereto.

The unconscionable retention of benefits of the joint endeavour of the Plaintiff's contributions by the defendants commenced from July 2001.

27 The defendants object to some, but not all, of these changes. There are separate, although interrelated, objections articulated to 12 of the changes in these paragraphs alone. The objections include that there is no adequate specification of the date or nature of the alleged promises, or the party making them. Similarly, there is no adequate specification of those matters with regard to the allegation of 'conduct'.

28 While this is an indorsement and not a pleading, I accept that these objections are well founded. Part A in the May 2009 indorsement set out a cause of action relating to unconscionable retention of the benefits of the plaintiff's contributions to a joint endeavour. Specifically it stated that the unconscionable retention commenced from July 2001, and that the joint endeavour commenced in or around March 1997 and ceased in or around 30 July 2001. It claimed a constructive trust over the joint endeavour property to the extent of those contributions.

29 The proposed indorsement departs from that cause of action. As I construe the document, it sets out claims based on promises and representations by conduct. The claim in estoppel, and the claims for breach of trust, breach of duty, knowing assistance, misrepresentation, duress, and wrongful conduct are new. If they are based on the 'promises' and 'conduct', there must be some further specification of the matters necessary to allow the defendants to consider their defence under the Limitation Act 1935 (WA): see ABB Service [16]. The two occasions when the May 2009 indorsement had stated facts going to when the cause of action in Part A might arise when the benefits of the joint endeavour were first retained, and when the joint endeavour ceased have been deleted.

30 The Particulars of Joint Endeavour in Part A are also heavily amended. There are now allegations of:

(1) misrepresentation and conflict of duty against the third defendant, as accountant and financial manager and adviser;

(2) wrongful conduct and duress by the first defendant; and

(3) abusive/threatening behaviour by the third defendant.

31 These are not particulars of the joint endeavour. They also are new claims, and are completely openended regarding what is alleged to have occurred, and when.

32 The Particulars of Contributions have been amended to include a claim that the contributions were 'in reliance of declarations and representations of promised benefits'. These changes are open to the same objections.

33 Part B has been changed to remove reference to when the defendants made the promise on which the plaintiff says she relied, and when it was broken. Claims of estoppel by conduct, and 'breach of trust/duty with knowing assistance and duress' are added.

34 Part C now includes a claim that the first defendant knowingly assisted in a breach of fiduciary duty 'encompassing wrongful conduct/duress' as well as a claim of estoppel by conduct over the joint endeavour property. The plaintiff adds a claim for punitive damages, including punitive damages for wrongful conduct and duress and for loss of enjoyment and amenity.

35 A new Part D sets out claims against the second defendant only. The claims against the third defendant (now in Part E) are expanded. The plaintiff now claims damages and an account 'to restore the plaintiff's benefits of a half interest in property and businesses [historic and future] and to disgorge profits'.

36 I see little benefit in dealing individually with each of the changes and each of the many objections. The document resulting from the many amendments does not meet the requirements of an indorsement of claim. In my opinion, it is not simply a matter of the plaintiff providing particulars of the new claims. It is possible, for example, to construe Part A as including a claim, or group of claims, based on misrepresentation, and to order the plaintiff to give sufficient particulars of the statements or conduct said to constitute the representation. But I am not satisfied that the claim, so construed, is what the plaintiff intends.

37 In her written submissions in support of the proposed amendments, the plaintiff says, in effect, that she relies on fraud and duress to delay the operation of limitation periods. She makes a general claim that the defendants' conduct was 'unconscionable and fraudulent with elements of duress and/or wrongful conduct'. The proposed indorsement, as a whole, fails in its primary purpose of giving notice of the nature of that claim.

38 In some cases, a particular change may be severable. But I cannot be satisfied that if I allow some of the amendments (including those not objected to) while disallowing others, the result will be a statement of the claim the plaintiff wishes to pursue.

39 This case is hard to manage. It presents many of the difficulties attending the conduct of cases by self represented litigants. The plaintiff is attempting to conduct these proceedings at the same time as she conducts proceedings in the Family Court.

40 The plaintiff's claims are complex, with ever present limitation issues. The role of the judge in civil proceedings where a party is not represented was discussed in detail in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129 [26] [30]; and see Tobin v Dodd [2004] WASCA 288. I will not repeat those comments, other than to note the passage in the judgment of Samuels J in Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, 16 June 1986), cited in Minogue [28]:

[T]he absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

41 The plaintiff seeks a substantial award by way of account, damages or compensation. She makes very serious allegations against all of the defendants. I do not consider that I can do justice between the parties without requiring the plaintiff to give proper notice to the defendants of her claim.

42 Refusing leave to amend will not deprive the plaintiff of her claim, as the writ with the May 2009 indorsement will stand. If she wishes to pursue claims that do not come within the existing writ, she must do so by amendments that meet the requirements of the Rules, or bring further proceedings.

43 The application to amend the writ in accordance with the minute of proposed indorsement is refused.