These proceedings were commenced in the Equity Division of this Court on 25 June 2019. The initial statement of claim identified various defendants as having been involved in a type of property brokering deal for a proposed community development that involved two properties at Mount Burrell. It was alleged that there was a trust account set up, which had associated with it particular plans, and various people paid sums of money into it, including Ms Norman and Mr Berry.
There was, amongst other things, pleaded in this document various potential causes of action, including failure of fiduciary duty by a solicitor, the defendant, Mr Wall. It was evident that pleading was prepared without the assistance of legal advice.
The matter came before Darke J in the Real Property List on 2 August 2019. Darke J made various orders directing the plaintiffs to serve upon the defendant a further amended statement of claim by a date in September 2019.
On 27 September 2019 the matter was listed before Darke J again. At that point a notice of discontinuance was filed which effectively discontinued the proceedings against everybody except Mr Wall. Darke J provided guidance to the plaintiffs in terms of a potential confined action against Mr Wall, that action being confined to professional negligence and/or breach of fiduciary duty and/or breach of trustee's duty, and given those circumstances he transferred the matter to the Professional Negligence List of the Common Law Division.
On 18 November 2019, Registrar Jones made various orders regarding the filing of a further amended statement of claim and on 1 December 2019 a notice of motion was filed by the plaintiff for leave to file and serve a further amended statement of claim and an affidavit was filed in support of it which included a lot of - and I say this respectfully - discursive narrative, no doubt in an effort by Ms Norman to assist the Court with understanding the case she and Mr Berry wished to bring.
The solicitor for the defendant, at that stage a Ms Cunich, filed and served an affidavit sworn 7 February 2020 setting out a procedural history and annexing correspondence between the parties raising objections to this further proposed Statement of Claim.
The document titled: "The Second Amended Statement of Claim", (in effect the third iteration of the Statement of Claim) was prepared and seemed to make more effort to confine the forms of relief sought. It was again prepared without the assistance of legal advice, and appeared to be very genuinely directed at trying to properly describe the parameters of the plaintiffs' potential claim. It claimed compensation for financial loss, expenses incurred in remedying the negligence and legal costs, and attempted to plead the defendant's duty of care owed to them at paras 7, 8, 9 and 10 and negligence at paras 17 to 26, and at 32, 34, 35 and 36 set out the harm that they have suffered. It was however prolix and full of unnecessary detail.
On 9 December 2019, Registrar Jones provided a timetable for service of evidence in respect of the plaintiff's notice of motion and it was listed for hearing on 21 February 2020 before me.
On 21 February 2020, I formed the view that the plaintiffs should be provided with assistance from the Bar Association pro bono assistance scheme. At that point I limited the referral to Ms Norman and the referral to "advice and preparation of a further amended statement of claim", noting that the referral was limited to advising the plaintiffs on the viability of a cause of action in tort, breach of fiduciary duty and/or breach of trust and to assist with drafting any amended statement of claim. My reasons for forming that view and making that referral are set out in Norman v Wall [2020] NSWSC 129.
On 4 March 2020, a notice of motion was filed by the defendant seeking an order in respect of accidentally disclosed confidential communications. On 6 March 2020, I made case management orders for the defendant's notice of motion and listed that for hearing before me on 17 April 2020.
On 25 March 2020, I made case management orders in Chambers to accommodate the fact that the pro bono assistance referral I had made had not been actioned until the week commencing 23 March 2020. I varied the orders that I made on 21 February 2020 to allow further time for the plaintiffs to have prepared a further amended statement of claim, extending that time to 15 May 2020. I vacated the hearing that had been set down for April in respect of that potential proposed pleading and asked the parties to ascertain a suitable date for a three-hour hearing in May.
The matter again was delayed because Ms Norman advised the Pro Bono Scheme Liaison Officer on 9 June 2020 that the plaintiffs would be pursuing their case in the High Court and therefore the pro bono assistance was not wanted.
On 22 July 2020, an email from Ms Norman to my Chambers advised that there had been "new developments" and Ms Norman proposed a series of directions that included reattaching to the proceedings a Mr Brennock and removing all of the proceedings to the High Court.
On 26 July 2020, the plaintiffs provided a further proposed amended statement of claim to Chambers, copied to the defendant's solicitor via email, the document entitled "Amended Statement of Claim 25 July 2020 Pursuant Directions by Justice Lonergan". This was the fourth iteration of the statement of claim.
On 27 July 2020 the matter was listed for hearing before me, namely the application for leave to file and rely upon that further amended statement of claim. That document was provided to the Court and to the defendant at 5:49pm on 26 July, that is the evening before the hearing listed on 27 July 2020. This further amended statement of claim, the fourth iteration, was prepared without legal assistance. It sought to rejoin Mr Brennock to the proceedings. I took the view that leave should not be granted, for the reasons set out in my judgment Norman v Wall (No 2) [2020] NSWSC 997. I also took the view that the proceedings should be dismissed for want of due dispatch pursuant to Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW). My reasons for making that additional order was also set out in the judgment.
That judgment was given ex tempore and as I gave my reasons ex tempore I formed the view that I should revisited the issues before me. I decided that I should set aside my dismissal order and that given the plaintiffs were yet to have the assistance of pro bono assistance, I should provide one last chance for them to (a) avail themselves of that assistance and (b) have time to consider whether they wish to revisit the statement of claim and have the benefit of the Court exercising its discretion under Rule 14.28 to strike out the pleadings or part of them.
This approach was to provide the plaintiffs with yet another chance to pursue their cause of action should they be able to do so.
Accordingly, a further judgment ex tempore was provided on that day: Norman v Wall (No 3) [2020] NSWSC 998. In that decision I set aside the dismissal orders, I set aside the costs orders and noted that the further amended statement of claim served on the evening of 26 July 2020 could be the subject of consideration under Rule 14.28 after hearing from the parties. Mr Raftery in a customary fashion assisted the Court with this approach and provided oral submissions on the issue of what parts of that particular iteration of the statement of claim may well be able to be interpreted as having the bare bones of a potential case against the defendant, and could be pleaded to and what could not.
In my judgment Norman v Wall (No 3), I noted that I needed to bear in mind that the plaintiffs had proceeded to that point with no legal assistance, that Ms Norman had articulated with great clarity that she felt a difficulty in understanding how best to plead the case, and that there had been a genuine effort to try to comply with the Court's requirements in that regard. In that judgment, which, I hasten to add, was provided by email to the parties, as was every judgment I prepared in these proceedings, I set out in detail what seemed to be the problematic aspects of the pleading and what seemed to be a potential factual underpinning of a potential case against Mr Wall that would accord with the law and be acceptable, but noting that each iteration of the statements of claim from the very beginning, although differently worded in some of them, included other distracting and irrelevant material.
I note that in preparing the judgment in this way I needed to bear in mind the admonishments of the Court in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 per Adamson J at [46] where her Honour observed, consistently with other Court authority:
"[46] … By repeatedly filing pleadings which do not comply with the UCPR, the plaintiff is abusing the processes of the Court. In effect, the plaintiff is demanding that the Court and the defendant work out his causes of action for him and endeavouring to cast an onus on the defendant to prove that there is nothing in the morass of inconsistent allegations that might ground a cause of action which might afford him no relief. It is no part of the Court's function to provide a litigant with legal advice. Nor is the Court to "settle" a defective pleading so as to remove the dross to expose and craft the allegations which might amount to a reasonable cause of action. In effect, the plaintiff is seeking to have the Court require the first defendant to plead to a claim which, because of its form, is not susceptible of a proper response in a defence."
I consider that my judgment Norman v Wall (No 3) provided a great deal of assistance to the plaintiffs as to what needed to be done with their pleading.
On that day, in Norman v Wall (No 4) [2020] NSWSC 999 I also dealt with the defendant's application in respect of some mistakenly provided material.
I reserved my decision on 27 July 2020 as to whether I should grant the plaintiffs leave to file any further amended statement of claim, and in my judgment of 14 August 2020, Norman v Wall (No 5) [2020] NSWSC 1062, I granted leave to the plaintiffs to file a further amended statement of claim, limited to a case in professional negligence, breach of financial duty and breach of trust against Mr Wall only and that that further amended statement of claim was to be filed and served by 5:00pm on 28 August 2020. I also ordered that the proceedings would be dismissed if a further amended statement of claim was not filed and served by that time. I listed the matter for hearing before me on 1 September 2020 for further management and reserved the question of costs.
On 17 August 2020 a further amended statement of claim was provided to the defendant and to my Chambers via my Associate for consideration. That was the fifth iteration of the statement of claim.
On 1 September 2020, at the directions hearing, counsel for the defendant, Mr Raftery, very properly suggested that it would be consistent with an appropriate approach for the Court to order again for Ms Norman and Mr Berry to access the pro bono assistance scheme to assist them with any outstanding problems with the proposed pleading and to progress the matter.
In Norman v Wall (No 6) [2020] NSWSC 1211, I reactivated the pro bono assistance I had initially made on 21 February 2020 and concluded that the first plaintiff be referred for advice and assistance with preparation of a further amended statement of claim and listed the proceedings for directions before me on 28 October 2020.
On 7 October 2020, I varied the date for the directions hearing to 5 November 2020.
On 27 October 2020 consent orders were made directing the plaintiffs to serve a copy of their proposed further amended statement of claim by 20 November 2020 and listing the matter for further directions before me on 27 November 2020.
On 25 November 2020, a further amended statement of claim of that date was provided by email to Chambers and to the defendant. That was the sixth iteration of the statement of claim.
On 27 November 2020, at the directions hearing Mr Bolster of counsel appeared for the plaintiffs. He noted that he had provided assistance to the plaintiffs, but when I drew to his attention the further draft received by the Court seemed to have some problems with it, it became evident that that draft was not the document that he had drafted, and so the directions hearing was adjourned to allow advice to be taken and for the defendant to consider this further document that had just been provided 2 days before.
On 17 December 2020 a proposed Further Amended Statement of Claim of that date was forwarded to Chambers. This was the seventh iteration of the statement of claim. Again, this was just the day before the directions hearing listed on 18 December 2020.
At the directions hearing on 18 December 2020 Mr Bolster advised that he was appearing amicus curiae because he needed to seek leave to withdraw. I mistakenly thought that the parameters of my referral to the Bar Association may have been too limited in terms of asking for advice and assistance with preparation of a further amended statement of claim, because at that point there were negotiations between the solicitors for the defendant and Mr Bolster in an effort, a genuine effort, to have the pleading in a fit state to base ongoing proceedings. I was instead informed that it was not the Bar Association Pro Bono Scheme that had withdrawn instructions but that it had been a decision of the plaintiffs themselves to dispense with his assistance. Ms Norman, in her customarily courteous fashion, acknowledged the assistance of Mr Bolster but expressed that she and Mr Berry took the view that his advice and his plan for the proceedings was "not consistent" with theirs and so they wished to proceed without him.
I took the time to note on the record that this was a surprising choice given the assistance that had been provided to them for nothing by a senior, experienced member of the Bar. I also noted at that point that the Court had provided guidance with the assistance of rules being forwarded to the plaintiffs by email, by assistance from the pro bono scheme and, thirdly, a great deal of patience in providing multiple opportunities for the plaintiffs to get their statement of claim in a form that was acceptable to the Court. I also noted, and I reiterate this today, that Mr Raftery of counsel and those who instruct him have been highly professional and patient in the way they had dealt with the multiple iterations and directions hearings. I noted, however, that a line has to be drawn and the pleading will stand or fall according to its compliance with the Court rules. I explained that what this meant was that early in the new year, because I was not in a position to deal with it that day, the proposed pleading will be dealt with by me and that if it does not reflect a properly pleaded cause of action I will refuse leave for it to be filed and the proceedings will be dismissed.
I added that I understood there were still discussions between the parties. I urged the plaintiffs to carefully consider their position in terms of the decision made to terminate a willing pro bono barrister's assistance.
I listed the matter for hearing on 16 February 2021, specifically to hear and determine any application in respect of the proposed further amended statement of claim.
On 12 February 2021, I made some orders in Chambers to facilitate preparation and fix the hearing today. I specifically required the defendant to provide to the plaintiffs by 2 March 2021, notice of the nature of any application(s) that he wished to make or reagitate in respect of the proceedings and a very short outline of submissions, with a copy of that to be provided to Chambers. This was done.
Today Ms Norman and Mr Berry appear without legal assistance. As noted above, that is of their choosing.
On 8 March 2021, an email was forwarded to the defendant and to Chambers purporting to enclose yet another iteration of the statement of claim. This is the eighth iteration. The email enclosing the document asked the defendant's legal representatives to consent to the plaintiffs being able to proceed with this eighth iteration of the statement of claim. It is headed "Proposed Amended Statement of Claim" and, unfortunately, does not underline the amendments as required by the Rules.
Given the lateness of its arrival and as I am duty judge I have not had the opportunity to read and absorb this seventeen-page document and I have not had sufficient time to determine to what extent it alters or amends or is different from the many previous iterations of the statement of claim.
However, as I foreshadowed on 18 December 2020, a line must be drawn. For that reason I refused leave for the plaintiffs to rely on this further iteration, which, I hasten to add, was forwarded at 3:18pm yesterday afternoon. Again, as seems to be the case on many occasions in this matter, a last-minute, last-ditch attempt is provided which does nothing to clarify or aid in proper progress of these proceedings.
[2]
Submissions regarding leave to file the further amended Statement of Claim
Ms Norman argued that I should receive this statement of claim and consider the application based on this eighth iteration today. I have refused that application for the obvious reasons being that the matter has been proceeding for many months now, it is nearly two years since the proceedings were commenced , an eighth iteration has been provided at the last minute and this does nothing but potentially derail and confuse the issues that need to be reviewed and determined by me today.
Ms Norman argued that she did not understand "the Court procedures" and "meant no offence" by sending the statement of claim late and thought that she was assisting by responding the matters raised in the letter forwarded by Alex Haslam of Gilchrist Connell, solicitors for the defendant of 2 March 2021 that was forwarded in conformity with my order made on 18 December 2020.
That letter is a courteous letter that carefully sets out the problems with the (seventh iteration) pleading and clearly states in the final paragraph that the plaintiffs should withdraw or discontinue the proceedings and if they fail to do so, the defendant's instructions were to oppose the filing of the further amended statement of claim and to seek dismissal of the proceedings with costs. It also expressed that the right was reserved to rely on the letter on the question of costs, including indemnity costs.
Ms Norman argued that she "felt" that the previous iteration, that is the December iteration, could use some augmentation of what she described as "the particulars in relation to causality", and the document of 8 March 2021 was a genuine effort directed towards remedying that.
Mr Berry, the second plaintiff submitted that the defendant was not willing to discuss with the plaintiffs "what he considers" to be the shortcomings and that the letter of 2 March 2021 was "the first time" the problems were properly explained. He said that there was previous correspondence that explained the problems in more detail. Mr Berry submitted that in his view this current iteration was "not much different" from the previous ones and that "any person could form a response" to the allegations in it. He repeated this submission more than once. He said that in his view, this was an effort by the defendant to prevent the matter proceeding and that the matter should proceed because the evidence was available that supported the case that the plaintiffs wished to pursue and he "objected" to the Court not allowing the matter to proceed.
Mr Raftery, counsel for the defendant confirmed that it was his client's position that any application to further amend was opposed. He pointed out multiple problems with the current iteration, that is the December 2020 iteration. Mr Raftery made the submission that of course drafting a statement of claim is not easy in these proceedings given there are complicated questions of law and fact; the problem is, however, that the current iteration is still not properly pleaded so that the defendant can appropriately plead a defence and understand the case he is to meet.
Mr Raftery noted that the pro bono scheme had been instrumental in providing assistance, but that assistance had been rejected. He pointed out that whilst the plaintiffs may have a cause of action, there have been multiple opportunities to properly plead it, and at this stage it was time for the Court to draw a line under these attempts.
In summary, the current iteration of the statement of claim includes rolled up allegations, rolled up causes of action, does not properly plead the available causes of action, and the plaintiffs should not have any further opportunity to amend, given the multiple opportunities that had already been given and squandered.
Mr Raftery assisted the Court with what he, correctly, submitted to be the continuing problems with the current iteration of the statement of claim. He pointed out amongst other problems that paragraph 4 has a rolled up number of causes of action not properly pleaded; paragraphs 5, 6 and 7, whilst they seem to refer to a fiduciary relationship, do not plead the indicia of the fiduciary relationship; paragraph 7 seems to plead some kind of duty by way of the "neighbourhood principle" but is not properly pleaded and does not properly address the elements of the cause of action; paragraphs 8 and 9 do not assist as the details of the asserted retainer are not pleaded and so the duty of care that is being said by the plaintiffs to be owed by the defendant to them cannot be understood or ascertained; paragraph 14 is unclear in what it is alleging in terms of the knowledge of the defendant and its relevance to any duty of care or cause of action; paragraph 15 seems disconnected from other assertions and does not plead material facts that would allow the case being asserted by that paragraph to be understood or pleaded to; paragraph 16 includes a rolled up number of causes of action with what may be a "Barnes v Addy" ((1874) LR 9 Ch App 244) type of claim, but it is not properly pleaded.
In reply, Ms Norman raised that she did not agree with Mr Raftery's analysis of problems with the pleading and drew my attention to page 6 paragraphs 3-18 under the heading "Chronology of Events" and submitted that that chronology very specifically sets out the facts that define the relationship and that they are clear, and so any assertion that the defendant cannot understand the case should be put to one side as the causality of the loss and damage has been very specifically set out and explained in those paragraphs. Ms Norman also submitted that the breach of duty of care was defined in that part of the statement of claim.
[3]
Principles and decision regarding the application for leave to amend the Statement of Claim
Those examples are in my view sufficient to demonstrate and illustrate the ongoing problems with the current pleading.
As stated in Bauskias v Liew [2013] NSWCA 2009 per Gleeson JA, with whom Beazley P and Barrett JA agreed, the Court has certain obligations and duties in respect of self-represented litigants, but those duties and obligations are limited. As his Honour set out in paras [67]-[70], a number of propositions can be drawn from authorities that have addressed this issue. To summarise them, the Court's obligation is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties; second, the Court's duty is not only to the unrepresented litigants but to ensure a fair trial for all parties; third, the trial judge needs to assist an unrepresented litigant, but it does not extend to advising the litigant as to how his or her right should be exercised; and, fourth, the trial judge must remain an impartial adjudicator and measure that impartiality against the touchstone of fairness.
In this case it is my view that both Black J initially, and I on repeated occasions, have extended a very large of amount of assistance and latitude to the unrepresented parties in this case. That assistance included the actual provision of pro bono assistance, which was taken up to an extent and then rejected at a critical time in the proceedings.
Mr Berry, in response, submitted that he was "still in the dark" as to the cause of action and what the difference between material facts and others were, and he considered that those matters were "legalese". He submitted that given the opportunity to put forward evidence, the Court would see that the plaintiffs had evidence to support the case they wished to make. He also said in response to criticisms about rolled up pleadings, that he was "prepared to unroll and separate" if given the opportunity and wanted to the matter to proceed.
In my view the lengthy outline of assistance, repeated directions hearings and the circumstances, including eight iterations of the statement of claim, clearly demonstrate that the plaintiffs have been given multiple, fair, complete and repeated opportunities to prepare and file a pleading that is appropriately compliant with the rules and acceptable. Unfortunately, the actual provision of pro bono assistance was twice squandered and once the advice rejected.
A line has to be drawn, and it seems to me today is when that line must be drawn.
The December 2020 iteration of the pleading is fatally flawed.
Section 64 of the Civil Procedure Act 2005 (NSW) allows the Court to grant leave to amend at any stage of the proceedings, but that must be exercised subject to paras 56, 57 and 58 of the Civil Procedure Act. Those sections require the Court to consider on every occasion in the exercise of any power or discretion the facilitation of just, quick and cheap resolution of the real issues in the proceedings, noting that the parties are under a duty to assist the Court to further that purpose and comply with directions on every occasion.
Section 57 provides that the objects of case management are to further that purpose, namely the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of proceedings and all other proceedings in the Court at a cost affordable by the respective parties.
Section 59 requires that I must implement the procedures of the Court with the object of eliminating lapse between commencement of proceedings and their final determination and I need to make sure costs remain proportional under s 60 of the Civil Procedure Act.
Justice to the applicant for an amendment has to be balanced against injustice to the respondent or defendant and requires that I keep in mind the overriding purpose of efficient and timely disposal of the proceedings.
As noted in the High Court decision of Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 2007, the earlier approach adopted by the Courts that costs are sufficient compensation for any amendment is no longer a proper approach. Prejudice caused to the opposing party by obvious delays caused by proposed amendments can be sufficient on their own to mean the amendment should not be allowed. The Court must have regard to case management principles and other business of the Court.
As has been demonstrated by the outline of the procedural history in this matter, I have spent significant amounts of judicial time on these proceedings and in providing repeated opportunities to the plaintiffs to prepare a acceptably confined statement of claim.
Taking all those matters into consideration, I refuse leave to the plaintiffs to file and rely on their statement of claim of 17 December 2020.
[4]
The defendant's dismissal application
An application for dismissal has been made by the defendant today, with notice. The potential for the proceedings to be dismissed was raised at the directions hearing on 18 December 2020, and in a letter of Gilchrist Connell of 2 March 2021, the specific intention to seek dismissal of the proceedings was articulated.
The application is made pursuant to UCPR 12.7 which provides for dismissal of proceedings for want of due despatch. The rule provides that if a plaintiff does not prosecute the proceedings with due despatch, the Court may order that the proceedings be dismissed, or make such other order as the Court thinks fit.
[5]
Submissions
Mr Raftery drew my attention to the decision of Dickens, a pseudonym, v State of New South Wales [2018] NSWCA 222 ("Dickens"). That was a decision of the Court of Appeal where the Court entertained an application for leave to appeal against a decision of Adamson J where she dismissed proceedings on the basis of, amongst other things, that she did not consider that there was "any significant prospect that Mr Dickens would be able to produce a better version than the current pleading if given the opportunity to do so": [43].
In deciding that Mr Dickens should not be afforded that opportunity, her Honour referred to, amongst other things, the following observations of Nettle and Osborne JJA in Karam v Palmone Shoes Pty Ltd [2012] VSC A97 ("Karam") [36]:
"[36] A self-represented litigant cannot be allowed forever to stand behind the shield of his own ignorance, especially when it continues to subject other parties to cost and inconvenience and add pointlessly to the load on the courts' already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices."
The Court of Appeal in Dickens goes on at [12] to identify her Honour's reasons and reliance on Karam for dismissing these proceedings for want of due despatch:
"[12] For these reasons her Honour concluded that the proceedings should be dismissed on the ground of want of due dispatch pursuant to rule 12.7, for the following reasons. Her Honour also considered at [46] that they should be dismissed on the additional basis that they were an abuse of process under rule 13.4:
"By repeatedly filing pleadings which do not comply with the UCPR, the plaintiff is abusing the processes of the Court. In effect, the plaintiff is demanding that the Court and the Defendant work out his causes of action for him and endeavouring to cast an onus on the defendant to prove that there is nothing in the morass of inconsistent allegations that might ground a cause of action which might afford him no relief. It is no part of the Court's function to provide a litigant with legal advice; nor is the Court to settle of a defective pleading to remove the dross to expose and craft the allegations which might amount to a reasonable cause of action. In effect, the plaintiff is seeking to have the Court require the first defendant to plead to a claim which, because of its form, is not susceptible of a proper response in a defence."
Mr Raftery submits, and I agree, that this case is on all fours with Dickens, and in terms of principle, that with these multiple attempts, now at the seventh iteration, the prospect that a better version than the current pleading will ever be produced, is most unlikely.
In response, Ms Norman submitted that the application should be rejected because the delays, if there indeed were any, were all due to the "Court procedures adjourning for months and months".
Ms Norman neglected to mention, I interpolate, that those adjournments were on multiple occasions to allow the plaintiffs to avail themselves of the pro bono scheme, and on other occasions to allow the plaintiffs time to prepare an amended pleading, which I note on nearly every occasion was only produced at the very last-minute, causing disarray and further delays.
Ms Norman submitted that in her view the pleading is "not flawed" and sought to cavil with and argue about the part of the ex tempore decision I had already delivered that was directed to the December 2020 iteration of the statement of claim.
Ms Norman said that proceeding with due dispatch was "not the plaintiffs' problem" and that whilst there was assistance provided, the adjournments were made by the Court on repeated occasions. She said that it was an error of fact that the current pleading was not able to be responded to and the plaintiffs had not had an opportunity to elaborate to the Court on the reasons why they did not agree with advice Mr Bolster had given them. Ms Norman emphasised it was her view that it was unfair that the matter was not proceeding to hearing.
Mr Berry emphasised this same point with some force. Mr Berry submitted that it would be "most unfair" not to allow the proceedings to go ahead because he considered the plaintiffs should be given the opportunity to show their evidence and should not be knocked out on "some technical pleading point", as he sees it. He emphasised in his view that the decisions that Mr Raftery had taken me to and, in particular Dickens, were about different circumstances and different facts and that I should not simply transplant the views of the Courts in that matter to this matter.
Mr Berry argued that it was not correct to conclude that it was unlikely that the plaintiffs could not make a better job of the pleading, stating information that "he and others" were "talking to a barrister" (unnamed and unidentified), who is "willing to look at the matter" and, therefore, I should conclude that there may well be a better iteration of the pleading later.
Both Ms Norman and Mr Berry argued that, in effect, there had been timely work on the proceedings and that "progress has been made", and that the progress was significant. They both argued that just, quick and cheap disposal of proceedings did not include justice in disposing of proceedings on "some spurious basis" where the plaintiffs "had not had sufficient opportunity", or "any opportunity for their evidence to be heard by the Court" and their dispute with the defendant determined, a dispute which they emphasised is one important to them and about which Mr Berry says they have "irrefutable evidence".
[6]
Dismissal of proceedings
In my view, the time has come for a line to be drawn under these multiple, confusing attempts at pleading. I emphasise that when this matter was first before Justice Black, he made it clear to the plaintiffs that any cause of action must be confined to breach of fiduciary, breach of trust and/or a possible professional negligence claim against Mr Wall only. I re-emphasise that on almost every occasion this matter was before the Court, the pro bono referral was expressed to be, as it had to be, limited to those available potential causes of action. No matter how many times I emphasised this, the pleading that arrived, prepared by the plaintiffs (and which was the subject of my earlier decision today), was prolix and full of irrelevant other details and allegations and material that did not further any basis for any of those potential causes of action.
I do not accept that the delays in the proceedings and the want of due dispatch were "caused by procedures adopted by the Court". On each occasion, the procedures adopted by the Court set out in the judgments I have referred to earlier in this judgment, were to assist the plaintiffs and to provide further opportunities to them to seek advice and prepare an acceptable pleading. On every occasion there was late provision of an unsatisfactory pleading and/or the squandering of legal assistance that was provided.
Although Mr Raftery very properly did not make an application that I should dismiss the proceedings on the basis of abuse of process, which was the alternative basis upon which Adamson J dismissed the proceedings in Dickens, I am of the view that the proceedings have indeed reached that stage, and so I add to the reasons why I am dismissing the proceedings, an additional finding under UCPR 13.4 that it appears to the Court that the proceedings now are an abuse of process of the Court. I base that finding on the constant, late, prolix pleadings provided that have not progressed the matter.
For that reason, in addition to the basis set out in UCPR 12.7, I dismiss these proceedings.
[7]
Costs
An application has been made by the defendant for the costs of the notice of motion and the proceedings. As is evident from the lengthy reasons I have set out in this judgment, I rejected the plaintiff's application for leave to amend the statement of claim and I formed the view that the proceedings should be dismissed on the basis of want of due dispatch, as well as abuse of process.
For those reasons, costs should follow the event and the plaintiffs should pay the defendant's costs of the proceedings.
Mr Raftery did put the plaintiffs on notice that an application would be made for costs on an indemnity basis. Mr Raftery noted that the plaintiffs had been on notice for a long period of the problems with the various iterations of the statement of claim which have on a number of occasions been pointed out, either in correspondence or in submissions made to the Court. However, I am not minded to make an order for indemnity costs against persons who are self-represented, and so the costs order will simply be the plaintiffs to pay the defendant's costs of the plaintiffs' application to amend the statement of claim, and the costs of the proceedings.
[8]
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: 11 March 2021