Seidler v Carroll & O'Dea

Court of Appeal (NSW)|2014-03-10|Before: McColl JA, Macfarlan JA, McCallum J, Coll JA

Seidler v Carroll & O'Dea, 10 May 2013 Seidler v Carroll & O'Dea (No 2) [2013] NSWSC 1172 Before: McCallum J File Number(s): 2011/372531

Judgment 1McCOLL JA: This is an application for leave to appeal from 3 judgments of McCallum J. 2In the first, Seidler v Carroll & O'Dea [2013] NSWSC 338 (the "amendment judgment") delivered on 12 April 2013, her Honour refused the applicant Kathyrn Seidler, leave to amend a statement of claim (the "original statement of claim") filed on 21 November 2011 in which she claimed damages and other relief from a firm of solicitors, Carroll & O'Dea (the first - fifteenth and seventeenth - eighteenth respondents) and Robert Harrington, a barrister (the sixteenth respondent) who had acted for her in proceedings in the District Court of NSW in which she sued the University of NSW. The sixteenth respondent has never been joined as a defendant to the proceedings, but has been named as the respondent to a number of motions filed in the court below. He did not submit that he was not a proper party to the appeal: see Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 51.4(1). 3In the second judgment, Seidler v Carroll & O'Dea, delivered on 10 May 2013 (the "document judgment"), McCallum J dealt with applications the applicant made for confidentiality orders. 4In the third judgment, Seidler v Carroll & O'Dea (No 2) [2013] NSWSC 1172 delivered on 23 August 2013 (the "dismissal judgment"), McCallum J dismissed the proceedings for want of dispatch. 5The applicant filed a notice of appeal from the three judgments on 26 September 2013. 6On 24 October 2013 Carroll & O'Dea filed a notice of motion seeking to have the appeal dismissed as incompetent. On 28 October 2013 Mr Harrington filed a notice of motion seeking the same relief. 7On 16 December 2013 the applicant filed a summons seeking leave to appeal. 8On 31 October 2013 the applicant filed a notice of motion which was subsequently amended pursuant to orders made by Registrar Riznyczok. The amended notice of motion was filed on 21 February 2014. The amended notice of motion, which was also before the Court, seeks, inter alia, orders joining 16 new parties and substantive relief in relation to causes of action the applicant concedes had not been pleaded in the original statement of claim but, rather, constituted a new way of pleading her case, albeit that she was in the course of "discovering" that case.

Background 9In the amendment judgment (at [2]), the primary judge described the statement of claim as "reflect[ing] the difficulty a person who is not legally trained faces in pleading a legal claim" and recorded that the applicant "has accepted (even embraced) the proposition that the existing pleading requires amendment". The applicant did not resile from that concession in this Court. The applicant sought leave to amend the existing statement of claim in the form of a document she provided to the court, an application her Honour rejected on the basis that the draft pleading, if filed, would be liable to be struck out pursuant to UCPR 14.28(1): amendment judgment (at [5]). Her Honour concluded (at [70]) that the proposed amended statement of claim was "so confused, incomprehensible and prolix as to cause embarrassment in the conduct of the proceedings, even allowing some latitude for the position of a self-represented litigant". Accordingly she refused leave to amend the statement of claim. 10In the document judgment the primary judge dealt with an application made by the applicant in relation to confidential material "which, although forming the basis of some of the causes of action she wish[ed] to prosecute, she ...wished to keep confidential from as many people as possible": document judgment at [1]). Her Honour made orders establishing a confidentiality regime in relation to certain documents, providing for a "copy of the plaintiff's file" to be provided to the applicant. Her Honour also directed the applicant to provide to the defendants any proposed further amended statement of claim on or before 4 June 2013 and ancillary orders including as to service "upon any other proposed additional defendant". In the course of her reasons, her Honour recorded (at [6]) "that it has been indicated by [the applicant] that the amendment will include a new claim which, as far as I understand it, has not presently been pleaded against the defendants". 11The applicant did not serve a further amended statement of claim within the time limited by the 10 May 2013 orders. On 5 July 2013 the primary judge gave the applicant a further opportunity to file an amended statement of claim on or before 2 August 2013. On that occasion, the primary judge warned the applicant that "if she did not comply with the orders then made, [her Honour] would call upon her to show cause why the proceedings should not be dismissed" pursuant to UCPR 12.7. 12The applicant failed to comply with the 5 July 2013 order. 13The matter came back before the primary judge on 23 August 2013 on which occasion, as she had forewarned the applicant, the primary judge called upon her to show cause why the proceedings should not be dismissed: dismissal judgment (at [16]). 14In the course of the dismissal judgment, the primary judge said (at [11]) that she discerned in the course of case managing the proceedings "a grievance" relating to the fact that, while acting for her in the District Court proceedings, an employee of Carroll & O'Dea "in breach of an obligation of confidentiality and [the applicant's] express instructions, inspected a document which she claimed contained confidential medical information about her". 15Her Honour stated: "14 Miss Seidler appears to have formed the view that the content of the medical report the subject of the initial action ought to have put her lawyers on notice of medical negligence on the part of a doctor who treated her some many years ago. She appears to wish to prosecute an action based on the contention that the defendants, in having that material before them and using it, in some way fell under an obligation of an implied retainer to prosecute the medical negligence claim or something of that nature. ... 16 When the proceedings came before me this morning I ...called upon [Miss Seidler] to show cause why the proceedings should not be dismissed. In short, her response was to explain that she had spent a great deal of time on a proposed amended pleading, but distracting herself ...with pleading a claim based on the second grievance I have identified above which she has now come to recognise might better be put as a claim for the loss of opportunity to sue the doctor. She stated that she had recently come to the view that before prosecuting an action on that basis she would first have to sue the doctor and seek an extension of the limitation period. 17 It appears that as at today Miss Seidler has formed the view on that basis that all of the work she did on the proposed amended pleading which was due to have been served on 2 August 2013 would have now to be pulled out of the proposed draft leaving a short pithy pleading of the original grievance. Miss Seidler sought two further weeks for that purpose." 16Her Honour rejected (at [18]) "any allegation that the defendants have in any way contributed to the plaintiff's inability to plead her cause."

Leave application 17The applicant's written submissions on the leave application suffer substantially from the same vice the primary judge identified in the statement of claim. They are prolix, diffuse and fail to identify any error in any of the three judgments which would attract the Court's appellate jurisdiction having regard to the principles in House v King [1936] HCA 40; (1936) 55 CLR 499. Regrettably her oral submissions suffered from substantially the same failings. 18The Court asked Ms Seidler to identify the errors in the three judgments which she submitted would warrant a grant of leave to appeal. She did not seek to identify any such error in either the amendment or the document judgments. Insofar as the dismissal judgment is concerned, Ms Seidler's submission appeared to be that as at 23 August 2013 she was still in the course of "discovering" a new way to put her case which would have "taken it down" to a claim of breach of confidentiality, loss of a chance and medical negligence. She also complained that her ability to plead this amended case was impaired by the fact that the file returned to her following the document judgment was incomplete and that the primary judge erred in not granting her the opportunity to plead the proposed reframed case.

Application for leave to appeal: conclusion 19As will be apparent the applications for leave to appeal the amendment and document judgments were out of time, not having been filed within the 28 days limited for such applications: UCPR 51.10(1)(b). The applicant did not advance any reason for that delay. She did not seek an extension of time to make the application, but, notwithstanding that fact, none of the respondents who were parties to the proceedings below objected to the Court hearing the application on its merits. In any event, as I have said, the applicant did not advance any argument which identified error in any of the orders made in either of those 2 judgments. 20To the extent complaint about the dismissal judgment can be discerned in relation to the failure to give the applicant yet another opportunity to plead a case and, further, about asserted failure by Carroll & O'Dea fully to provide documents, those complaints cannot be sustained. The primary judge had given the applicant ample opportunity to replead her case, an opportunity she had, as Carroll & O'Dea submitted, persistently ignored. More than 3 months had elapsed since the 10 May directions concerning filing an amended statement of claim and, despite the show cause warning, nothing had been done. Her Honour had rejected the applicant's complaint that any conduct by the defendants had contributed to her inability to replead. The applicant sought to identify in this Court documents she asserted would make good her submission concerning inadequate compliance with the directions made on 10 May. Any such claim should have been, if it was not (and that is difficult to determine from the applicant's submissions), canvassed before her Honour, if necessary, in any of the months prior to the show cause hearing. 21In my view the applicant has not demonstrated any of the three decisions the subject of her application for leave to appeal is attended with sufficient, or any, doubt to warrant its reconsideration on appeal: Paramasivam v Sabanathan [2013] NSWCA 362.

Incompetence notice of motions 22The two incompetence notices of motion sought orders dismissing the notice of appeal filed on 26 September 2013 as incompetent because the judgments below were interlocutory. The applicant did not resist them as a matter of law, but complained they were filed out of time. That is so in respect of Mr Harrington's motion, which was one day out of time, but not of Carroll & O' Dea's. Further, in any event, even the notice of appeal was filed 2 days out of time insofar as the dismissal judgment was concerned. 23The delays do not militate against the Court dealing with the substance of the issue which goes to its jurisdiction to entertain an appeal in the matter. 24An appeal does not lie to the Court of Appeal, except by leave of the Court of Appeal, from an interlocutory judgment or order in proceedings in the Court: s 101(2)(e), Supreme Court Act 1970 (NSW). The order dismissing the proceedings for want of due dispatch was interlocutory. Such an order "determines the question of whether the proceedings have been prosecuted with due diligence [but] involves no final determination of a matter in issue between the parties in the proceedings: National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) [2001] FCA 237; (2001) 183 ALR 700 (at [8]) per Cooper, Whitlam and Tamberlin JJ. The amendment judgment and the document judgments were also plainly interlocutory applying the same test. 25Accordingly, the orders sought in the two incompetence notices of motion should be made.

Amended notice of motion 26The amended notice of motion dealt to some extent with matters the subject of the application for leave to appeal, seeking, for example orders dismissing the incompetence notices of motion by reason of a matter relating to service. I have dealt with those motions. 27Other aspects of the amended notice of motion sought orders joining parties to claims which were not made in the proceedings below, are not made as far as the Court was made aware in any extant filed pleading and appear to relate to the applicant's proposed new case, foreshadowed in the court below, but not yet formulated. The applicant informed the Court that she had prepared 75% of a new pleading presumably intended to encapsulate the new case. 28It is unnecessary to set out the assertions made in the amended notice of motion. It is sufficient to say that, save to the limited extent I have outlined, they are not sought in relation to the three judgments the subject of the application for leave to appeal. They are not matters which can be raised in an appeal court for the first time. 29I would dismiss the amended notice of motion.

Costs 30The applicant having been unsuccessful in her application for leave to appeal should pay the costs of that matter. Insofar as the incompetence motions are concerned, at least Mr Harrington's was filed a day out of time. There was no explanation for the delay nor application to extend the time for its filing. However the delay was insignificant and not such as to deprive the 16th respondent of his costs of that motion. 31As I have said, the amended notice of motion sought to join a further 16 parties. Two were counsel for Carroll & O'Dea and counsel for the sixteenth respondent below and in this court. Mr Windsor appeared for the 31st - 34th respondents (the latter being himself). The amended notice of motion also sought leave to join Bayer Australia Limited for which Mr N Bender of counsel appeared and Avant Insurance Limited and Dr Chris Eliades for whom Mr M Lynch appeared. Although one of the orders I propose is that the amended notice of motion be dismissed so that none of Bayer Australia Limited, Avant Insurance Limited or Dr Chris Eliades or the 31st - 34th respondents will be made parties to the proceedings, they and others who have not appeared were made respondents to the amended notice of motion and it is clear that they will or may have incurred costs of engaging legal representation to resist the orders sought or of considering the amended notice of motion In my view it is appropriate in exercise of the Court's wide power as to costs to order the applicant to pay the costs of the parties to the proceedings as well as those of the respondents the amended notice of motion and Dr Chris Eliades in respect of the amended notice of motion.

Orders 32I propose the following orders: (1)Dismiss the summons seeking leave to appeal with costs. (2)Dismiss the appeal filed on 26 September 2013 with costs. (3)Dismiss the amended notice of motion with costs. 33MACFARLAN JA: I agree with McColl JA.

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: 12 March 2014

amend statement of claim and dismissal of proceedings for want of dispatch - appeal incompetent Legislation Cited: Supreme Court Act 1970 NSW) Uniform Civil Procedure Rules 2005(NSW)

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