Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors - [2011] NSWSC 1122 - NSWSC 2011 case summary

Supreme Court of NSW|2011-09-15|Before: Johnson J

es Attorney-General's Department as the State of New South Wales (Second Defendant) Scott Cook Principal and Licensee The Hunter Group (NSW) Pty Limited (Third Defendant) Principal and Company Director/s Chris and Elsie Locksmiths Pty Limited trading as "Novocastrian Combined Locksmiths" (Fourth Defendant) Representation: Mr Volodymyr Udowenko (Fourth Plaintiff and, by leave, spokesperson for other Plaintiffs) Mr PT Newton (First Defendant) Mr M Hutchings (Second Defendant) No solicitor for Plaintiffs Kemp Strang (First Defendant) Crown Solicitor's Office (Second Defendant) Laycock Solicitors (Fourth Defendant) File Number(s): 2010/268611

Judgment 1JOHNSON J : This judgment relates to the continuation of proceedings which were before the Court, and were the subject of a judgment on 29 July 2011: Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors [2011] NSWSC 867. 2The judgment of 29 July 2011 explains the nature of the litigation and issues which fell for determination on that day. That judgment should be read in conjunction with the present judgment.

The Position of Mr Volodymyr Udowenko 7The judgment of 29 July in 2011, at [9] and [10], referred to the fact that Mr Volodymyr Udowenko has appeared for the Plaintiffs on occasions when the proceedings have been before Davies J and myself. 8I have permitted Mr Volodymyr Udowenko to continue to act as a spokesperson for the Plaintiffs today. It has been, and remains, unclear whether Mr Volodymyr Udowenko is a plaintiff in the proceedings. In my judgment of 29 July 2011 at [9], I observed that Mr Volodymyr Udowenko was referred to in the description of parties as "Person Affected, Injured Victim, Registered Power of Attorney and as tutor for the First, Second and Third Plaintiffs and/or Fourth Plaintiff" . That description continues to be utilised in the Further Amended Statement of Claim (at page 25). Mr Volodymyr Udowenko has sworn the affidavit verifying for the purposes of the Further Amended Statement of Claim (at page 28). Reference is made to a registered Power of Attorney in that context. 9I observe that there is a real question as to whether Mr Volodymyr Udowenko can appear for parties to the proceedings purportedly under a Power of Attorney: Giniotis v Farrugia (Court of Appeal, 19 August 1985, BC8511562). 10I raised these matters today with Mr Volodymyr Udowenko. He informed the Court that he seeks to be the Fourth Plaintiff in the proceedings, although it seems that there has been some question as to his status as a party in early dealings with the Registry. 11Having regard to the role that he has played so far before Davies J and myself on 29 July 2011, and having regard to the fact that today is the continuation of the hearing which commenced on 29 July 2011, I took the view that it was appropriate to grant leave to Mr Volodymyr Udowenko to appear, effectively, as a spokesperson for the First, Second and Third Plaintiffs, and for himself, to the extent that he is said to be the Fourth Plaintiff. Counsel for the Defendants did not oppose that grant of leave. 12The issues raised in these proceedings today go far beyond the status of Mr Volodymyr Udowenko to participate as a spokesperson in Court for other persons. The issues raised today by the Defendants involve fundamental problems with the Further Amended Statement of Claim. It is to those matters to which I will shortly turn, taking into account the submissions made by counsel for the Defendants and also the submissions of Mr Volodymyr Udowenko.

The Judgment of 29 July 2011 13Before doing so, it is appropriate that I indicate a number of findings and observations made by me in my earlier judgment. Those matters form the background against which today's applications fall to be determined. 14In the judgment of 29 July 2011, I sought to summarise a number of principles concerning pleadings (at [16] and [17]) and dismissal of proceedings for want of prosecution (at [18]). Having determined that the Amended Statement of Claim then before the Court was "beset with defects of a variety of types" (at [20]), I sought to identify some, but not all, of those defects. The then pleading was, self evidently, embarrassing. I observed at [53]: "I have to say that the Amended Statement of Claim is a very good example of a pleading which offends nearly all the principles of pleadings to which I have referred. The only course is to make an order striking it out." 15Having determined that the Amended Statement of Claim should be struck out, I turned to the question of the Defendants' application that the proceedings be dismissed for want of prosecution. For reasons given in that judgment, I declined to take that step at that time. I said at [56]-[65]: "56 It is submitted for the Defendants that what has happened already is such that, even though only 11 months have passed since the proceedings were commenced, the Court should form the view that the proceedings ought be dismissed for want of prosecution. 57 What is put is that there have been issues raised in correspondence, and when the proceedings were before Davies J, which provided opportunities to the Plaintiffs to consider, and reconsider, the pleadings. Finally, the version of the amended pleading pressed by the Plaintiffs is profoundly defective. The Defendants submit that to give the Plaintiffs another opportunity to seek to recast this claim will lead to a continuation of what has happened already. 58 In effect, the submission is that the Plaintiffs are indissolubly wedded to a formulation of their case. Despite what was raised with them in correspondence and by a Judge of this Court, and in written submissions advanced for the purpose of today's hearing, there is a fixed and immovable view as to how the Plaintiffs' case should be framed, so that further delay will merely see more of the same and more costs run up with an inevitable result. 59 The step of dismissing a claim for want of prosecution is an exceptional one. The fact that these proceedings are less than a year old does not mean that the proceedings are not vulnerable to such an order. One looks at the reality of what has happened since August 2010, and more accurately what has not happened, to form a view as to whether the Court should exercise this exceptional power, even at this point. 60 In the end, I have formed the view that, despite the unpromising history of the litigation, I should bear in mind that today is the first time there has been a judicial determination with respect to the pleadings. Davies J has been attempting to point out to the Plaintiffs, in a patient and constructive way, what the problems are with their pleadings. So far, the Plaintiffs have not taken notice, at least in the sense of dealing with the problems about which I have now formally made findings, and will shortly make orders. 61 Mr Udowenko submits that the Plaintiffs should be given an opportunity to replead, and that will be done bearing in mind the Court's ruling. He states that there is the prospect of legal advice being taken. 62 The nature of the claim involves a claim for trespass. I do not think it is appropriate to shut the Plaintiffs out finally at this time by making an order dismissing the proceedings. 63 However, I make it entirely clear that the Court cannot and will not stand by and allow variations on the current theme to be advanced, which continue to fail to comply with the requirements of pleading. The obligations on the Court under the Civil Procedure Act 2005 means that my duty is to ensure compliance with that Act and the UCPR. 64 The interests of justice do not mean that open-ended opportunities will be given to the Plaintiffs to frame their claim in a manner that does not comply with the relevant Rules. 65 The Court will determine what will happen in due course. However, I am not presently persuaded that an order of dismissal of the proceedings for want of prosecution is appropriate." 16At [68] of that judgment, I said: "If Mr Udowenko continues to take the view that the Plaintiffs' pleading ought be drawn in a way that does not comply with the UCPR, then the outstanding application to dismiss the proceedings for want of prosecution may fairly and squarely arise."

Submissions Concerning the Further Amended Statement of Claim 17I turn to the submissions made concerning the Further Amended Statement of Claim filed 26 August 2011. 18Mr Newton, counsel for Westpac Banking Corporation Limited, submits that the Further Amended Statement of Claim does not plead an arguable case against any of the persons described as the First Defendant. He notes that the Plaintiffs' claim for declarations and damages with respect to alleged trespass is said to have been committed in relation to the execution of a writ of possession issued by the Supreme Court of New South Wales. He submits that the Plaintiffs do not allege that the trespass was committed by the persons described as the First Defendant. 19Mr Newton submits that it appears that the Plaintiffs contend that the trespass was committed by the Sheriff of New South Wales and police officers in connection with the execution of a writ of possession. He submits that it cannot be argued that the trespass was committed on behalf of any of the persons described as the First Defendant. The writ of possession of land was issued by the Court to the Sheriff of New South Wales: s.104 Civil Procedure Act 2005 ; Rule 39.1(1)(d) UCPR and Form 60. He submits that neither the Court, the Sheriff of New South Wales nor police officers are agents of the First Defendant or its officers. 20Mr Newton submits that the Plaintiffs have failed to properly identify the First Defendant and to plead a cause of action against any of the persons described as the First Defendant. In these circumstances, the First Defendant seeks orders that the Further Amended Statement of Claim be struck out, that leave to replead should be refused and that the proceedings should be dismissed for want of prosecution. 21Mr Newton emphasises that the latest version of the pleading remains beset by problems, and breaches the requirements for pleadings summarised in my judgment of 29 July 2011. 22Mr Hutchings, counsel for the Second Defendant (the State of New South Wales interests) seeks orders that the Further Amended Statement of Claim be struck out, that leave to replead be refused and that the proceedings be dismissed for want of prosecution. 23Mr Hutchings submits that the Plaintiffs continue to avoid using the provisions of the Crown Proceedings Act 1988 to correctly identify the apparently intended Defendant as "The State of New South Wales" . Rather, the Further Amended Statement of Claim persists with a formula "Her Majesty's Department of Justice and New South Wales Attorney General's Department as the State of New South Wales" . 24I pause to observe that this aspect, in one sense, is a formal issue. What this aspect reveals, however, is a persistent and fixed view that the Plaintiffs will approach this litigation in a manner which they consider to be appropriate, despite the clear and simple provisions of the Crown Proceedings Act 1988 , with which any reasonable litigant would seek to comply. The Plaintiffs continue to use a formula of words that avoids compliance with that statutory formula. This is a significant hint with respect to the approach of the Plaintiffs to pleadings in this claim and, indeed, a significant hint as to how the litigation would be conducted, if it proceeded beyond today. 25I return to the submissions of Mr Hutchings. Mr Hutchings submits that there are more fundamental difficulties, however, with the Further Amended Statement of Claim than the description of the Second Defendant. He submits that it is embarrassing and appears to contain written submissions in support of the claim, rather than a proper identification of the material facts said to give rise to a legal right or claim. 26Mr Hutchings submits that the pleading is yet another example of the Plaintiffs' obdurate approach to the proceedings, and that the point has been reached where the proceedings ought now be dismissed for want of prosecution. 27The written submissions of Mr Hutchings identify relevant legal principles and parts of the UCPR which bear upon the requirements for a properly pleaded Statement of Claim, together with further submissions concerning dismissal of proceedings for want of prosecution.

Consideration of Further Amended Statement of Claim 28I turn now to the Further Amended Statement of Claim filed on 26 August 2011. 29Despite the oral submission of Mr Udowenko that the claim is a simple one, the document extends for 28 pages, comprising 65 paragraphs and formal parts. 30The document commences with a claim for relief in the form of a declaratory judgment. The form of the declaration which is sought remains controversial, in my view, but that aspect alone would not be a reason to strike it out. This is, however, a further indication of the fixed view on the part of the Plaintiffs that this is the relief they seek. This is said to be a claim in tort. All the way through the pleading, one finds reference not just to trespass to land but, in footnotes and other parts of the document, there are references to other torts (including false imprisonment, trespass to the person, deprivation of liberty, unlawful search and seizure, conversion and intentional interference with chattels). 31In my view, a claim for a declaration, followed by a bare claim for "remunerations by way of costs, compensation and punitive damages" , provides an initial illustration of non-compliance with the UCPR. I do not propose to expand on that issue. 32I turn to what are described as the "Pleadings and Particulars" . 33Paragraph 1 of the Pleadings and Particulars refers to the fact that the amended pleading is being produced pursuant to my directions on 29 July 2011, and immediately refers to a judgment of RS Hulme J in Bennie v State of New South Wales [2009] NSWSC 96. It seems that the purpose of this reference (attempting to construe what these paragraphs mean) is that, despite the fact that there was a problematic pleading in Bennie v State of New South Wales at the time the matter proceeded to hearing, RS Hulme J was able to deal with the proceedings and give judgment. 34Paragraph 2 of the Further Amended Statement of Claim says: "It would therefore seem reasonable that if a learned member of the judiciary can adduce and render decisions from a complicated matter as complex in Bennie, there is sufficient belief given the opportunity to introduce the evidence in joinder with the facts, his honor would be capable of delivering a decision based on all the necessary elements in a fair and equitable manner." 35I pause to observe that the draftsperson of the Further Amended Statement of Claim appears to have adopted the view that, if it was good enough in Bennie v State of New South Wales to have a defective pleading, then it is good enough here. This view ignores what I said in my judgment of 29 July 2011. Indeed, it seems to bear out the submission of the Defendants that the Plaintiffs are approaching this litigation on the basis that they will plead the claim in accordance with their own fixed perceptions of the matter. 36Paragraphs 1 and 2 of the Pleadings and Particulars constitute an extremely unpromising start to an examination of this pleading, to see if it complies in any respect with the requirements of pleading. 37Paragraph 3 contains a broad statement that the Plaintiffs and persons affected (the latter term being an apparent reference to Mr Volodymyr Udowenko) seek declaratory judgments, financial remuneration by way of compensation and punitive damages against the Defendants. Then inserted in paragraph 3 are a series of extracts from the Law Reform (Vicarious Liability) Act 1983 . Those provisions are simply misplaced in the pleading. 38Rule 14.7 UCPR states that a pleading must contain only a summary of the material facts on which the party relies, and not the evidence on which those facts are to be proved. The Statement of Claim should plead specifically any matter that may take a defendant by surprise: Rule 14.4 UCPR. The Plaintiffs are required to provide proper particulars of material facts pleaded: Rule 15.1 UCPR. 39It is not appropriate for a party to plead arguments, reasons, theories, conclusions or mere matters of prediction: East West Airlines (Operations) Limited v Commonwealth of Australia (1983) 49 ALR 323 at 325-326. Nor, for that matter, should a pleading include large extracts from statutes dropped into the document because the draftsperson considers that, in some way, they might have something to do with the claim. 40Paragraph 4 then refers to provisions of the Civil Liability Act 2002 . 41Paragraph 5 reads in the manner of a written submission: "Having established statutory authority over the defendants to bring forth a claim of remunerations/damages for their excessive actions on 21 November 2008. The next question to address is why the defendants chose to use the means which they did...." 42Paragraph 6 refers to a 19th-century case and includes a quote. 43Paragraph 7 includes a reference to a 1999 decision of a Judge of this Court with respect to the Inclosed Lands Protection Act 1901 . 44Paragraph 8 then moves a little closer to the mark in attempting to assert some factual matters. However, that is done in a manner which is still not without difficulty. 45Paragraph 9 turns to a type of argument, by reference to the decision of the Court of Appeal in this State in Lippl v Haines (1989) 18 NSWLR 620 and s.352 Crimes Act 1900 , with some reference to the facts of this case. 46In paragraphs 10 and 11, there are extracts from decisions of the High Court of Australia (containing references to English authority), some of which appeared in the earlier Amended Statement of Claim which I struck out on 29 July 2011. 47There is then, in paragraph 12, a short linking paragraph which says: "It is clearly evidenced by the learned Lord of a simple yet succinct statement that holds true today of the obligations of private persons and authorities alike, when venturing onto property to which they envisage a need to utilize in their activity be it for business and or pleasure." 48Paragraphs 13 and 14 contain quotations from authorities. 49Paragraph 15 returns to some factual assertions. It opens with the words, "It is not contested that Lot 'A' is owned by the plaintiffs" . I am not sure on what basis it is stated as "it is not contested" . In any event, that is a minor issue. 50There is then, in paragraph 16, reference to factual matters, intermixed with a reference to the facts in Bennie v State of New South Wales and then a further quote from the decision of the High Court in Plenty v Dillon [1990-1991] 171 CLR 635. 51Paragraph 17 refers to other cases and principles. 52Paragraph 18 appears to move back, in some respects, to the facts of this case. 53Paragraph 19 refers to facts, and then moves into an extract from the decision of the High Court in March v E and MH Stramare Pty Limited [1990-1991] 171 CLR 506. 54Paragraph 20 then moves back to the facts as does paragraph 21. 55Paragraph 22 involves a factual assertion, as does paragraph 23. 56Paragraph 24 opens again with the formula "It is not contested" that certain things happened. 57There is, at the bottom of page 9, a lengthy footnote which occupies more than one third of the page. It seems to be a printout from a legal publication. Precisely what role it has to play in the matter is not clear. It is sufficient simply to observe it has no role to play in the pleading. 58Paragraph 26 refers to some factual allegations, as does paragraph 27. 59Paragraphs 28 and 29 move to the International Covenant of Civil and Political Rights , those references being, firstly, not appropriate to be placed in the pleading and, secondly, problematic and confusing as to their location. 60Paragraph 30 includes a reference to a provision of the Law Enforcement (Powers and Responsibilities) Act 2002 . 61There is then a form of submission in paragraph 31. 62Paragraph 32 includes a lengthy extract from the decision of this Court in Karout v Stratton [2010] NSWSC 1034 at [76]. 63Paragraph 33 returns again to a mixture of factual and legal matters. 64Paragraph 34 includes the definition of false imprisonment from Butterworths "Concise Australian Legal Dictionary" . This is contrary to pleading rules and is embarrassing. 65Paragraph 35 involves a combination of argument, with reference to a case of Nye v New South Wales [2003] NSWSC 1212. 66Paragraphs 39 and 40 refer to the decision of the High Court of Australia in Sullivan v Moody [2001] 207 CLR 562. 67There is some limited factual element in paragraph 41, followed by a reference to a Canadian case. 68At paragraph 42, reference is made to nervous shock, with a footnote containing an extract on "nervous shock" from the "Encyclopaedic Australian Legal Dictionary" . 69There is then a quote from a 19th-century English case at paragraph 43. 70At paragraph 44, there is reference to the decision of the High Court of Australia in Wicks v State Rail Authority of New South Wales [2010] 241 CLR 60. 71There are references to a 2009 Queensland case with extracts at paragraphs 45, 46, 47 and 48. 72Paragraph 50 then refers to the torts of asportation, conversion and intentional tort to chattels, with a footnote to those topics which appears to have been drawn from a legal dictionary. 73Paragraph 51 returns to events said to be "several months earlier" , presumably events in months before November 2008. Precisely where these matters fit in and why they are in the pleading, I have to say, is not clear. 74Paragraph 52 refers to a 2010 decision of the Supreme Court of the Australian Capital Territory, and includes a quote. 75Paragraph 53 advances legal argument. 76Paragraphs 54 and 55 include legal propositions, with reference to authority. Paragraph 56 does the same. 77Paragraph 57 says: "It is sufficient, given the amount of factual information provided in this Further Amended Statement of Claim for the Court to permit the advancement of the claim rendered by the Plaintiffs and person affected. The unlawful detention, arrest, battery, assault, deprivation of liberty, false imprisonment, damage to property, and injury to person, leave this novel case for the Court to provide justice for the plaintiffs and person affected." 78There is then a further reference, in an argumentative way, to the decision in Bennie v State of New South Wales . 79Paragraph 62 refers to some cases that may deal with the question of mistake. 80Paragraph 63 refers to a 1974 South Australian case and includes a quote. 81Paragraph 64 says: "Whilst the plaintiffs are not able to engage a legal representative on their behalf it should not give rise to the question as to the validity of their claim. This Court being a court of common law should have sufficient regard for the manner and form in which the plaintiffs have endeavoured to comply with the Court's request in execution of the wording and setting out of the pleading. In the matter of Resch v Federal Commissioner of Taxation [1942] 66 CLR 198, that language in all government legislation and or other material should be of the common language used by everyday persons. This remains a precedent today and has not been overturned." 82There is then argument in, paragraph 65, as to pleadings. 83Then finally, at page 23, there are some particulars. There is an assertion of trespass, for the purpose of gaining access to execute a writ of possession, issued by the New South Wales Supreme Court, to a land-locked property "in proceedings related to a banking matter [a subject also within the jurisdiction of the Commonwealth under s.51(xiii) of the Commonwealth Constitution] " . 84It is said thereafter, that trespass was committed, that the First Defendant issued orders to the Second Defendant to trespass in full knowledge that no lawful means of access existed - that is a reference to crossing, as I understand it, what is said to be one property to reach land locked property to execute the writ. 85The parties are more simply described in the Further Amended Statement of Claim although as I have already observed, the description of the Second Defendant somewhat stubbornly refuses to use the formula in the Crown Proceedings Act 1988 .

The Strike-Out Application 86The UCPR and the general law concerning pleadings, are to be applied again with respect to the Further Amended Statement of Claim. The Plaintiffs have been in a position, through access to my judgment of 29 July 2011, to understand what the law requires. 87The UCPR constitutes essential reading for any litigant who appears in person in civil proceedings in this Court. Mr Volodymyr Udowenko tells me that he has not read the UCPR. Extracts from the UCPR are contained in the written submissions, in particular on behalf of the Second Defendant. That does not help the Plaintiffs, as it serves to emphasise what those Rules require. 88The Further Amended Statement of Claim constitutes a continuing failure to comply with the Rules. Mr Volodymyr Udowenko has explained to the Court that there have been efforts made to obtain legal advice. I have referred in my earlier judgment to the pro bono referral made by Davies J. 89The Court well understands that the legal requirements of pleading are not necessarily simple matters for lay persons to understand. However, persons who bring proceedings in this Court take on the burden of complying with the law. Each of the Plaintiffs, three of whom are not here, are under an obligation to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings. 90The Defendants, of course, are under the same obligation under s.56 Civil Procedure Act 2005 . 91The Court must seek to give effect to that overriding purpose: s.56(2). 92Under s.57 Civil Procedure Act 2005 , for the purpose of furthering the overriding purpose in s.56(1), the Court should have regard to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings and all other proceedings in the Court, at a cost affordable by the respective parties. 93Section 58 Civil Procedure Act 2005 is an important provision. In deciding whether to make various orders or directions for the management of the proceedings, the Court must seek to act in accordance with the dictates of justice: s.58(1). 94For the purpose of determining what are the dictates of justice in a particular case, the Court must: (a) have regard to the provisions of ss.56 and 57: s.58(2)(a); (b) have regard as well to other matters as are relevant, including (s.58(2)(b)): (i) the degree of difficulty or complexity to which the issues in the proceedings give rise; (ii) the degree of expedition with which the respective parties have approached the proceedings (including the degree to which they have been timely in their interlocutory activities); (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties; (iv) the degree to which the respective parties have fulfilled their duties under s.56(3) of the Act; (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under the Rules of Court, the practice of the Court, or any direction of a procedural nature given in proceedings; and (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. 95Section 59 of the Act requires that, in any proceedings, the practice and procedure of the Court should be implemented with the object of eliminating any lapse of time between the commencement of proceedings and their final determination, beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 96Section 60 requires the Court to keep in mind the proportionality of costs. 97I mention those matters because they are part of the modern framework of civil litigation in this Court. 98These proceedings were commenced on 12 August 2010. My judgment of 29 July 2011 provided the history of what happened thereafter, including the pro bono referral made by Davies J and his Honour's efforts, on a number of occasions including 15 December 2010, 28 February 2011, 4 April 2011 and 9 May 2011, to have the Plaintiffs come to grips with the problems disclosed in the pleadings. Opportunities were given, time was allowed and his Honour indicated that these issues needed to be confronted and dealt with by the Plaintiffs. 99Matters developed ultimately to the filing of the Notices of Motion by the Defendants on 9 May 2011, which I heard on 29 July 2011. My judgment of that date reveals the outcome of that hearing. 100Since then, the Plaintiffs have had yet another opportunity to take stock on what they were seeking to do in this litigation. 101Mr Udowenko says that it is really a simple claim, a simple case. I have to say the pleadings which have been generated by the Plaintiffs are beset by difficulties and breaches of the rules of pleadings. They constitute clear examples of embarrassing pleadings. 102It is of limited assistance to the Plaintiffs to say that they have not been able to find legal assistance in recent times. The earlier recital of the Further Amended Statement of Claim indicates that it is replete with statutory and case law references, many of which might have some possible bearing on the claim. However, they are embarrassing in nature and do not comply with the UCPR. Mr Udowenko states that he has taken some advice and that persons at the University of Queensland have provided some assistance. 103The Plaintiffs are obliged to plead the case in accordance with the UCPR and pleading rules, and the Defendants are entitled to have a pleading which does that. The concept of the dictates of justice in this context is not a one-way street. 104At a point in argument on 29 July 2011 and again today, Mr Udowenko indicated that time (and more time) should be allowed to the Plaintiffs because the justice of the situation required (if not, demanded) that the Plaintiffs have as long as they need to put their case in a proper way. I do not think that this summary misstates the Plaintiffs' position. 105The Plaintiffs must comply with the law and, in particular, the obligations of parties under the Civil Procedure Act 2005 and the UCPR. The dictates of justice extend not just to plaintiffs, but to defendants as well. The Court is under an obligation to use Court time effectively. The Court has already spent a day, and now going on towards half a day, dealing with the problems flowing from the Plaintiffs' pleadings. 106In submissions made on 29 July 2011, the Defendants predicted that a further opportunity for the Plaintiffs to replead would merely see more of the same, and a fixed view being taken as to the way in which the case was put. Those submissions have been borne out and the prediction has come to pass. 107What should the Court do in those circumstances? The starting point is that the Further Amended Statement of Claim cannot stand. I trust that what I have said already indicates that it is a document beset by difficulties, some of them along the lines of its predecessor and some of them new. 108It might be possible to pluck a paragraph here and a paragraph there and to tack them together, in some way, to provide a rudimentary understanding of what the case is about. 109However, it is not the function of the Court to settle the Plaintiffs' pleading which, once again, is replete with objectionable and embarrassing matters: McGuirk v University of New South Wales [2009] NSWSC 1424 at [35]. 110The obligation of the Court is to determine the current controversy according to law. In my view, the inevitable result is that the Further Amended Statement of Claim should be struck out. I will, in due course, make that order.

Should Leave to Replead be Granted? 111The question then arises as to whether there should be an opportunity to replead. Courts allow opportunities, within reason, to litigants to refine and replead in circumstances where pleadings are struck out. However, that does not apply in every case, and it does not operate so that pleading after pleading is struck out, with the Court providing yet another opportunity. That approach would fly in the face of the provisions of the Civil Procedure Act 2005 to which I have made mention. 112The Court does not sit for the purpose of hearing lengthy and repetitive submissions, by reference to pleadings which have not materially improved despite an earlier judgment of the Court. It seems to me that the position which I foreshadowed in my earlier decision has come to pass. At [63], I made it entirely clear that the Court "cannot and will not stand by and allow variations on the current theme to be advanced, which continue to fail to comply with the requirements of pleadings" . I said, as well (at [68]), that if Mr Udowenko "continues to take the view that the Plaintiffs' pleading ought be drawn in a way that does not comply with the UCPR, then the outstanding application to dismiss the proceedings for want of prosecution may fairly and squarely arise" . 113The question whether leave is granted to replead is a related question. It comes down to this: at this point in the litigation, should the Court's discretion be exercised to allow a further opportunity to the Plaintiffs to file an amended pleading? The history of this matter, the occasions before Davies J and what are now two hearing days before me provide the Court with no confidence that, if leave was granted, the position would be any better next time. 114In my view, the appropriate order, in the exercise of discretion, is that leave to replead ought be refused, and I will, in due course, make that order.

Should the Proceeding Be Dismissed for Want of Prosecution? 115That brings me to the application to dismiss for want of prosecution. In one sense, having struck out the Further Amended Statement of Claim and refused to leave to replead, that will be the end of the matter. The question is whether, in the circumstances of this case, a further order should be made. 116The submissions of Mr Newton concerning the deficiencies of the Further Amended Statement of Claim with respect to his client have considerable force, and I accept them. I accept, as well, the submissions of Mr Hutchings with respect to the pleading against the Second Defendant. 117Should the Court take the exceptional step of dismissing the proceedings for want of prosecution? I said in the judgment of 29 July 2011 (at [56]) that this question was not dependent on how long has passed while the proceedings have been on foot. Nor is it dependent upon there being a lengthy period of inaction on the part of a party. One can have a case such as this where, although the proceedings have been on foot for some 13 months (on one view not a long period), that when one looks at what has happened in that time and what has not happened, it can be seen that the proceedings have not moved to first base, let alone beyond it. 118The Plaintiffs have still not filed a properly pleaded initiating process. There is no reasonable prospect, in my view, that if given time they will do so. In one sense, this is an unusual and exceptional state of affairs. Having been called upon twice to consider the state of this litigation, I am satisfied that this describes accurately the current state, and the future prospects of this litigation. 119Mr Udowenko can point to the fact that, from the Plaintiffs' perspective, a lot of paper has been generated. The problem is that what has been done simply has not complied with, and ignores, the requirements of the law. 120I am conscious that the power to order dismissal of proceedings for want of prosecution should not be lightly exercised: Fleet v State of New South Wales [2009] NSWSC 75 at [15]. On the other hand, as I observed at [18] of my earlier judgment, the Court should exercise that power if there is a proper basis for it, and will bear in mind the requirements on all litigants to comply with obligations under the Civil Procedure Act 2005 and the UCPR. 121The concept of proceedings being dismissed without a hearing is not a novel one. The provisions in ss.56-61 Civil Procedure Act 2005 , when applied in a context such as this, may lead to such an outcome. As Campbell J (as his Honour then was) said in Szczygiel v Peeku Holdings [2006] NSWSC 73 at [7]-[13], this complex of statutory provisions in s.56-61 Civil Procedure Act 2005 means that it is within the specific intent of the statutory framework, in which the Court conducts its business, that it can on occasions be appropriate to dismiss proceedings, even though there has not been a hearing on the merits, in circumstances where there has been a failure to comply with directions. 122In my view, this is the reality of the present litigation. Directions have been made, most recently by me on 29 July 2011, which identified clearly the problems and the principles to be applied to overcome those problems. 123As I have said, Mr Udowenko has not looked at the UCPR. The other Plaintiffs have never come to Court and, from what he has said, there is a question as to the level of their understanding as to what is actually happening in these proceedings. 124The fundamental problem is that, if the proceedings are left on foot, in my view, there will be no progress. What will occur will be contrary to the requirements of the Civil Procedure Act 2005 . I am satisfied, in the unusual circumstances of this case, that dismissal for want of prosecution is warranted and that such an order ought to be made.

Orders 125I make the following orders: (a) I make an order under Rule 14.28 Uniform Civil Procedure Rules 2005 striking out the Further Amended Statement of Claim filed 26 August 2011. (b) I refuse leave for the Plaintiffs to replead their claim. (c) I make an order under Rule 12.7 Uniform Civil Procedure Rules 2005 dismissing the proceedings for want of prosecution. [Submissions were made as to costs]

Costs 126I have given judgment in which I have struck out the Further Amended Statement of Claim filed 26 August 2011, refused the Plaintiffs' leave to replead and dismissed the proceedings for want of prosecution. 127Following the delivery of judgment, counsel for the Defendants sought orders with respect to costs. The orders sought by both the First and Second Defendants were orders for costs against the First, Second and Third Plaintiffs, and Mr Volodymyr Udowenko, who is described as the Fourth Plaintiff in the Further Amended Statement of Claim but that, to avoid any question on the matter, ought be included by name. The orders sought are that those four persons be jointly and severally liable for the costs of the First and Second Defendants. 128In civil proceedings, the ordinary rule is that costs should follow the event: Rule 42.1 UCPR. In addition, Rule 42.20 UCPR provides that, if the Court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action, or in relation to the whole or part of any claim, then unless the Court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed. That rule emphasises that the starting point is that the Plaintiffs should be ordered to pay the Defendants' costs. 129In case there was any question that Mr Volodymyr Udowenko is a Plaintiff in the proceedings, the Court is asked to make an order under s.98(1)(b) Civil Procedure Act 2005 that would include an order for costs against a person. I am satisfied, for the purpose of the application, that Mr Volodymyr Udowenko should be treated as a party to the proceedings. He is described as the Fourth Plaintiff in the Further Amended Statement of Claim. He is, in reality, the person who has been running the litigation on behalf of the Plaintiffs. If a costs order is to be made, it should be made against all Plaintiffs (including Mr Volodymyr Udowenko). 130Mr Udowenko has submitted that no order for costs should be made. He has made submissions by reference to the merits of the matter. He says that the Defendants committed an unlawful act against the Plaintiffs and they now seek to be compensated for that, and thus costs should not be ordered. 131This submission reflects a misunderstanding of the costs power. The purpose of an order for costs is to compensate the person in whose favour it is made, and not punish the person against whom the order is made. See the authorities referred to in Fillipou v Coates Hire Operations Pty Limited [2011] NSWSC 986 at [30]. 132The Plaintiffs brought these proceedings. The unhappy history of the proceedings has already been recited sufficiently in the two judgments which I have delivered on 29 July 2011 and today. Because of the conclusions that I have reached, the matter will not proceed to a hearing on the merits. 133The nature of the Plaintiffs' claim was relevant, and it operated in the Plaintiffs' favour on 29 July 2011 (see [62] of my judgment). However, the Plaintiffs' pleadings remain hopelessly defective. Civil litigation instituted by the Plaintiffs has now ended unfavourably to them. Costs should ordinarily follow the event. There is no reason to depart from that rule, and I will make that order shortly. 134Mr Udowenko has indicated he will seek to appeal from my decision. That, step, of course, is open to the Plaintiffs if they so wish. No doubt it will be necessary for any process brought by the Plaintiffs to comply with the Civil Procedure Act 2005 and the UCPR, if that step is taken. My task today is to make orders with respect to the final step of the proceedings before me, and that is the question of costs. 135Mr Udowenko asked that costs be reserved. I see no purpose in reserving costs. The matter is at an end. What steps the Defendants may take to enforce any costs orders will be a matter for them. The obligation of the Court is to resolve the outstanding application for costs, and I am satisfied that orders should be made in favour of the Defendants against the Plaintiffs in that respect. 136I make an order that the First, Second and Third Plaintiffs and Mr Volodymyr Udowenko (described as the Fourth Plaintiff) pay the First Defendant's costs of the proceedings, and that those persons be jointly and severally liable with respect to that costs order. 137I make an order that the First, Second and Third Plaintiffs and Mr Volodymyr Udowenko (described as the Fourth Plaintiff) pay the Second Defendant's costs of the proceedings, and that those four persons be jointly and severally liable with respect to that costs order.

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Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors

At a glance

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Judgment (13 paragraphs)

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Cited By (12)