In these proceedings there are a series of issues for determination.
To begin with, the Court made orders on 23 April 2020 pursuant to s 61 of the Civil Procedure Act 2005 (NSW), and r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), that two questions be determined as preliminary questions in the proceedings separate to all other issues. Those questions are in the following terms:
1. whether the plaintiff was a person under legal incapacity, for the purposes of Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 (NSW) or in any other sense, during the period 27-29 November 2017, [or] at any other time prior to 30 June 2018 (and if so when); and
2. if so, whether the judgment of Johnson J in proceedings 2015/226349 delivered on 19 December 2018 could and should be set aside.
Williamson v Elders Rural Services & ors [2020] NSWSC 933 | Case summary | Zoe
It will be apparent from the terms in which those questions are posed that if the first question is answered in the negative, the second question does not arise.
Also before the Court is an amended notice of motion brought by the plaintiff seeking leave to rely on an amended statement of claim in the form of MFI 1.
Finally, each of the defendants in the proceedings seeks orders pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) that the plaintiff be prohibited from instituting proceedings in New South Wales against the defendants or their employees, directors, officers or legal representatives.
Before addressing the issues in that order, it is necessary for me to set out some brief background to the litigation between the plaintiff and the defendants.
In 2005 the plaintiff brought proceedings in this Court alleging, amongst other things, a fraudulent misrepresentation by an employee of the first defendant, Leslie Joseph Hannan. Those proceedings resulted in a judgment for the first defendant, Elders Rural Services Australia Limited, delivered by Johnson J on 19 December 2018. [1]
Johnson J set out the nature of the proceedings brought by the plaintiff in the following terms: [2]
[3] Put shortly, the Plaintiff alleges that a fraudulent misrepresentation was made by an employee of the Defendant, Leslie Joseph Hannan, in relation to the sale to the Plaintiff of a property known as "Reevesdale" at Bungonia. Bungonia is a small town in the Southern Tablelands of New South Wales. The sale of "Reevesdale" occurred in July 2007 when the Defendant (then known as Elders Limited), was joint agent for the sale of that property. Mr Hannan, who is now deceased, was a licensed real estate agent and an employee of the Defendant, who accompanied the Plaintiff on an inspection of "Reevesdale" in April 2007.
[4] The Plaintiff alleges that Mr Hannan fraudulently misrepresented the reason why the vendor was selling "Reevesdale". It is alleged that Mr Hannan was aware at that time (prior to July 2007) that the true reason why "Reevesdale" was on the market at the price then being sought was because an application had been made for a quarry to be built on a nearby property, "Ardmore Park". The Plaintiff contends that Mr Hannan gave the reason for the vendor selling the property as being the alleged presence of ghosts in "Reevesdale".
[5] The Plaintiff claims to have purchased "Reevesdale" in reliance upon this representation by Mr Hannan, and claims to have suffered loss by reason of his purchase of the property. He alleges that, if he had known of the proposed quarry on "Ardmore Park", he would not have purchased "Reevesdale". The Plaintiff contends as well that he would not have engaged in a refinancing exercise with Rabobank Australia Limited for both the purchase of "Reevesdale" and the refinancing of his residential property in Cascade Street, Paddington.
[6] By its Defence to the Third Amended Statement of Claim filed on 19 June 2017, the Defendant denies any liability to the Plaintiff, including a denial that any fraudulent representation was made by Mr Hannan. The Defendant raises as well other defences to the Plaintiff's claim, including a contention that the proceedings are statute-barred by operation of s 14(1)(b) of the Limitation Act 1969 (NSW).
In entering judgment for the first defendant in those proceedings, his Honour made a number of findings which are material for present purposes.
Firstly, his Honour found that any loss sustained by the plaintiff occurred on 24 July 2007, when the plaintiff entered into a contract to purchase Reevesdale, and that any cause of action arose on that date with the result that the proceedings were barred by the Limitation Act 1969 (NSW). [3]
Secondly, his Honour concluded that the plaintiff had not established that the representation pleaded in his statement of claim and as presented at trial had been made. [4]
Thirdly, his Honour found that there was no evidence to establish that either the pleaded representation, or the statement allegedly made by Mr Hannan, was false. [5]
Fourthly, his Honour found that the plaintiff did not rely upon anything that Mr Hannan had said about the reasons for the vendor selling Reevesdale. [6]
Fifthly, his Honour concluded that at the date that the plaintiff purchased Reevesdale, it was worth at least the amount of money that the plaintiff paid for it. [7]
Finally, his Honour concluded that any losses sustained by the plaintiff were not, in any sense, caused by anything said or not said to the plaintiff by Mr Hannan. [8]
The plaintiff did not bring proceedings in the Court of Appeal arising from Johnson J's decision. However, he did bring an application for leave to appeal against an earlier decision of Adams J in 2016 refusing leave to amend the statement of claim. [9] The Court of Appeal refused the plaintiff's application for leave in a judgment determined in 2019, [10] after the delivery of judgment by Johnson J. The Court observed that the findings which had been made by Johnson J following the final hearing gave rise to an issue estoppel binding the plaintiff. [11]
Against that background, the plaintiff filed a statement of claim against the present defendants on 13 September 2019. Under the heading "Setting Aside of Previous Judgment Due to the Plaintiff's Disability" the following was pleaded: [12]
"8. The third amended statement of claim in 2015/226349 received judgment on 19 December 2018.
9. That judgment is sought to be set aside on the basis that the plaintiff was disabled within the meaning of s 11(3) and s 52 of the Limitation Act 1969 and a serious miscarriage of justice will result if the judgment is not set aside."
The judgment to which reference was made in those paragraphs was the judgment of Johnson J to which I previously referred.
Under the heading "Plaintiff's Medical Crisis", it was pleaded that the plaintiff suffered a serious brain injury in 2010, [13] which (inferentially) was said to have affected his capacity to conduct the proceedings which came before Johnson J in which the plaintiff had appeared for himself. It is in light of those pleadings that the two questions now arise for determination by the Court.
Earlier today, I gave judgment [14] in proceedings brought by the plaintiff in the Equity Division of the Court against Bendigo and Adelaide Bank Limited, seeking to set aside a settlement agreement which had been reached at a court-annexed mediation. A question was raised in those proceedings which was not dissimilar to the first of those now raised in these proceedings. In the course of that judgment, [15] I recounted statements made by the plaintiff to the Court, the effect of which was to withdraw any suggestion that he was under any incapacity at the relevant time. When asked to make submissions in relation to the first of the questions for determination in these proceedings, the plaintiff said: [16]
"[…] it follows from the judgment you have just given that I was not incapacitated and indeed I think I was not. […] Justice Johnson said I was apparently normal so I adopt what he says. So I believe that the suggestion that I was incapacitated is a false suggestion."
In light of those statements, the first of the questions for determination in these proceedings must be answered in the negative. It will be apparent from those parts of the pleadings in the statement of claim to which I have already referred that the proceedings were brought by the plaintiff on the basis of an incapacity which he now concedes did not exist. It follows that the proceedings have no proper basis. In those circumstances the second question does not arise for determination.
The plaintiff now seeks leave to rely on a further statement of claim in the form of MFI 1, which is the latest iteration of the plaintiff's claim against the defendants. It purports to plead an entirely different case to that set out in the original statement of claim. It pleads, amongst other things, a fraud said to have been committed by Mr Hannan. Without wishing to be critical of the plaintiff, it is evident that this further amended statement of claim has been prepared without legal assistance. The pleadings might be described in some respects as discursive. In my view, when read as a whole, they do not properly plead a cause of action. The form of the statement of claim does not comply with the rules in respect of pleadings. It is frankly almost impossible to determine with any precision what case the plaintiff seeks to bring, other than a case under the broad umbrella of an allegation of fraud.
Moreover, it appears to me that the matters sought to be raised by the plaintiff in the proposed further amended statement of claim are the same issues, at least in part, as those adjudicated upon by Johnson J. In those circumstances, as the Court of Appeal observed, the findings of Johnson J operate to estop the plaintiff from further agitating, or seeking to agitate, the same issues.
For those reasons, the plaintiff's claim as set out in that further amended statement of claim should not be permitted to proceed.
That leaves the question of what should be done in respect of the notices of motion filed by the defendants seeking orders pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW). That is not a matter which is before me at the present time. It is appropriate that it be listed before the Registrar for the purposes of setting a timetable with a view to bringing the matter before a judge for hearing at some stage in the future.
Accordingly, for those reasons, I make the following orders:
1. Question 1, namely, whether the plaintiff was a person under legal incapacity for the purposes of Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 (NSW), or in any other sense, during the period 27-29 November 2017, or any other time prior to 30 June 2018 (and if so when), is answered "No";
2. The plaintiff's application for leave to file the further amended statement of claim in the form of MFI 1 before me is refused.
3. The plaintiff's claim against all four defendants is dismissed.
4. The plaintiff is to pay the costs of the first, second, third and fourth defendants as agreed or assessed.
5. I list the defendants' applications for relief pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) for directions before the Registrar on Friday, 24 July 2020 at 9.30am.
[2]
Endnotes
Williamson v Elders Rural Services Australia Limited (2) [2018] NSWSC 1986.
Commencing at [3].
At [145]-[151].
At [165].
At [167].
At [175]-[176].
At [179].
At [180]-[182].
Williamson v Elders Ltd and ors [2016] NSWSC 450.
Williamson v Elders Rural Services Australia Ltd [2019] NSWCA 137.
At [28]-[29].
At [8]-[9].
At [42]-[45].
Williamson v Bendigo and Adelaide Bank [2020] NSWSC 934.
At [12].
T27.43-T27.47.
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Decision last updated: 23 July 2020