Tresize v National Australia Bank Ltd

REASONS FOR JUDGMENT BACKGROUND 1 On 11 August 2005, on the motion of the first respondent, I ordered that pars 79 to 92 of the amended statement of claim (the claim) in this proceeding be struck out. My reasons for so ordering are contained in Tresize v National Australia Bank Ltd (2005) 220 ALR 706 (the earlier reasons). 2 After I made the orders referred to above and published the earlier reasons, Mr Watts, counsel for the applicants, applied for leave to replead the struck out pars. I granted leave and gave the applicants 45 days (that is, until 26 September 2005) to replead. 3 No further amended statement of claim was filed by 26 September 2005. 4 On 8 December 2005, my Associate wrote to solicitors for the applicants and the first respondent, noting that "the proceeding seems to have stalled" and advising them that I had listed it for directions on 30 January 2006. 5 On 19 January 2006, Mr Strauss, solicitor for the applicants, wrote to my Associate. Mr Strauss said that, though his firm remained on the record as solicitors for the applicants, he had "advised [the applicants] that I am no longer in a position to carry out a litigation practice, having decided to close my office" and suggested that the directions hearing be adjourned. On 23 January 2006, my Associate wrote to Mr Tresize, the first applicant, Mr Watts and solicitors for the first respondent, advising them that I had vacated the directions hearing and listed the proceeding instead on 24 February 2006. (Solicitors for the applicants filed a notice of ceasing to act on 27 January 2006.) 6 An affidavit of Martin Kovac of solicitors for the first respondent, sworn on 23 January 2006 and filed the next day, discloses what passed between Mr Tresize, solicitors for the applicants and solicitors for the first respondent between 11 August 2005 and the swearing of the affidavit. Mr Strauss wrote to Mr Kovac on 27 September 2005, advising that "Mr Watts is still finalising [the claim] but expects to be able to file and serve the same within the next 10 days". Mr Kovac replied the next day that: "Should your clients wish to file and serve a document out of time, they are required to apply for leave to do so. We would expect any such application to be supported by proper affidavit material, together with a draft of the proposed pleading. Upon receipt of that material, we will seek instructions as to whether our client has any opposition to the application." Solicitors for the first respondent received no further correspondence from the applicants or their solicitors until Mr Tresize wrote to them on 19 January 2006. That letter began: "As you are aware my solicitor 'Strauss & Associates' has now retired from practice, in future please direct all correspondence to myself at the above address." Mr Kovac replied the next day that: "We were not aware until we received your facsimile that your former solicitors in the proceeding … had ceased to act for you. We assume that notice of the removal of solicitor or withdrawal of solicitor will be filed with the Court …. In the meantime, we will seek confirmation from Strauss & Associates that they have ceased to act for you." Mr Kovac wrote to Mr Strauss in those terms the same day. 7 On 24 January 2006, the first respondent filed notice of a motion that the whole of the claim be struck out pursuant to O 11 r 16 of the Rules of Court on the grounds that it discloses no reasonable cause of action, has a tendency to cause prejudice, embarrassment or delay in the proceeding or is an abuse of process. That motion is supported by the affidavit of Mr Kovac referred to earlier and a further affidavit of Mr Kovac sworn on 21 February 2006 and filed the next day. 8 I will not rehearse the case that the claim - in the form that it took before 11 August 2005 - sought to put. It is described at [2]-[17] of the earlier reasons. 9 I explained at [18] of the earlier reasons that the struck out pars - whose content is described at [14]-[17] of those reasons - contain the claim's "substantive" and "subsidiary" allegations and its prayer for relief. Therefore, without the struck out pars, the claim is meaningless. 10 The applicants had not, before the hearing of the motion, filed a further amended statement of claim, sought leave to file one out of time or filed any affidavit explaining their failure to do either of those things. Further, it became clear at the hearing of the motion that a proposed further amended statement of claim is some way off - notwithstanding Mr Strauss' letter to Mr Kovac referred to earlier. 11 Mr Tresize's answer to the motion is two-fold. First, he is now unrepresented and must prepare a further amended statement of claim himself. Secondly, in order to complete that task he requires the first respondent to provide certain documents - which they will not provide. According to Mr Tresize, these matters - which I will deal with in turn - mean that the hearing of the motion should be adjourned or that he should be granted leave to file a further amended statement of claim out of time. 12 Mr Tresize has already had considerable time, in which he had the benefit of legal representation (including experienced counsel), to replead the claim. According to the record, he was represented by solicitors until 27 January 2006. In reality, that representation ceased before that date. However, it had not ceased before 8 December 2005 - the date on which my Associate wrote to the parties. Indeed, it was six weeks after that date that Mr Strauss informed my Associate - only seven working days before the date on which I had first listed the proceeding for directions - that solicitors for the applicants had ceased to act. 13 In his letter to Mr Kovac referred to earlier, Mr Tresize requested the first respondent to produce certain documents: the compromise referred to at [13] of the earlier reasons and a mortgage agreement. Mr Tresize said that he required these for the directions hearing on 30 January 2006 and that he would obtain them by subpoena if need be. Unsurprisingly, the first respondent refused to comply with that request. In his letter to Mr Tresize referred to earlier, Mr Kovac went on to say: "In light of the fact that the present pleading against our client is meaningless, it is impossible for us to assess the relevance or possible relevance of the documents you are seeking. … We advise that our client reserves all its rights in the proceeding, including the right to apply to have the proceeding struck out." In late January 2006, I refused Mr Tresize leave to issue a subpoena directed to the first respondent seeking those documents for much the same reason that the first respondent refused to comply with his request. 14 In his outline of submissions in support of an adjournment, Mr Tresize claimed a conflict of interest arose from the fact that the solicitors for the first respondent also acted in the proceeding that gave rise to the claim. That fact has no relevance to the application for an adjournment or to the motion. 15 As the claim is meaningless, the applicants face an insurmountable obstacle in compelling the first respondent to produce the documents referred to. More importantly, the effort to obtain those documents is akin to putting the cart before the horse. The applicants can only compel the production of documents after they replead the claim so that it means something. They have not done so within the (generous) time I allowed them. Until the hearing of the motion, they have not sought leave to do so out of time. They have not filed an affidavit explaining their failure to do either of those things. 16 For those reasons, I reject the application to adjourn the hearing of the motion. For the same reasons, I refuse leave to file a (putative) further amended statement of claim out of time. Moreover, the absence of such a document means I cannot assess whether there is any point to a grant of leave. 17 The motion itself is easily disposed of. As I have said twice, the claim is meaningless. For that reason alone it discloses no reasonable cause of action and is embarrassing. Moreover, it is clearly an abuse of process. The motion is allowed. 18 In those circumstances, it is appropriate to dismiss the proceeding. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.