Young v Hones

Notices of Motion 9Ms Young is the applicant on a Notice of Motion filed on 6 March 2012, seeking an order that she be granted leave to file and serve a further Amended Statement of Claim. As I have said, Ms Young is the plaintiff in that proposed pleading. In the course of this judgment, Ms Young may well be referred to by her name, or else as the applicant or else as the plaintiff. 10The orders sought in this motion are opposed by each of the respondents, who are presently defendants in the proceedings. If the Amended Statement of Claim were permitted to be filed, they would remain as defendants. 11The first and second respondents, and defendants, are Mr Brian Hones and Mr Jason Hones. Mr Brian Hones operated, at all relevant times, a solicitors practice at North Sydney, known as Hones Lawyers. He employed Mr Jason Hones, who is also a solicitor, to work for him. 12The third respondent is Mr Ian Hemmings, a barrister who was instructed by Hones Lawyers to appear for Ms Young in proceedings in the Land and Environment Court of NSW. He was experienced in matters involving planning law. 13The fourth respondent, Hughes Trueman Pty Ltd, is an engineering services company. It employed Mr Stephen Perrens, an expert engineer, who provided advice to the lawyers acting for Ms Young, and was also an expert witness in the proceedings in the Land and Environment Court. 14Hones Lawyers moved on a Notice of Motion filed originally on 30 August 2011, seeking orders that the proceedings be dismissed. 15Mr Hemmings moved on a Notice of Motion filed 2 March 2012, seeking similar orders. 16The fourth and fifth defendants, by a motion filed on 6 March 2012, also sought similar orders. 17The orders dismissing the proceedings were based variously upon s 61(3) of the Civil Procedure Act 2005, asserting that the plaintiff was in default of many orders of the Court, and by reason of that default and failure to adequately prosecute the matter, the proceedings ought to be dismissed. As well, the motion relies upon rr 12.7, 13.4 and 14.28 of the Uniform Civil Procedure Rules 2005. 18In order to understand the submissions of the parties, it is necessary to set out the history of these proceedings, and also a summary of other proceedings between the parties, in particular the proceedings in the Land and Environment Court.

History of these Proceedings 19On 19 February 2004, the then proceedings in the Land and Environment Court involving the neighbours were settled, and orders were made by that Court. It is that settlement and the surrounding circumstances, which form the point at which Ms Young alleges in this case, that her cause of action arose. 20On 15 February 2010, six years after the settlement in the Land and Environment Court, these proceedings in this Court were commenced by the filing of a Statement of Claim. It appears that the Statement of Claim was served on all parties, over five months later, on or about 27 July 2010. 21It may be observed that the proceedings were commenced only a few days before the expiry of the limitation period: s 14 Limitation Act 1969, for the causes of action then pleaded. 22As well, it is to be observed that the Statement of Claim was not served until about two weeks prior to the expiration of the time of validity for service: r 6.2(4) UCPR. It was certainly not served as soon as reasonably practicable: r 10.1 UCPR. 23The matter came before the Court on 1 September 2010, when amongst other consent orders, Ms Young was ordered to file an Amended Statement of Claim by 29 September 2010. Although she subsequently promised to have that Amended Statement of Claim by 11 October 2010, it appears that the proposed amended pleading did not materialise at that time. 24On 26 October 2010, Ms Young filed a Notice of Motion seeking orders that she be granted leave to file and serve an Amended Statement of Claim. Neither the Notice of Motion nor the affidavit in support attached a proposed Amended Statement of Claim. 25The matter came before the Court on 3 November 2010, when it appeared, that on 2 November 2010, Ms Young's lawyers had sent through to the lawyers for the first to third defendants, a further proposed Statement of Claim. It was entitled "Proposed Amended Statement of Claim". 26On that day, as the transcript of the proceedings before Adams J discloses, there was considerable discussion about the then proposed Amended Statement of Claim. During that discussion, it became apparent that it was necessary for Ms Young to reformulate the pleading which she wished to propound. Adams J ordered that the plaintiff have leave to amend the Statement of Claim. Consequential orders were made. Adams J ordered that the Amended Statement of Claim be filed and served by 10 November 2010. 27On 11 November 2010, Ms Young filed and served a Further Amended Statement of Claim. Lengthy requests for particulars were made by each of the defendants with respect to the contents of that version of the Statement of Claim. After answers were provided, each defendant seems to have filed defences, the last of which was filed by May 2011. 28There were two occasions, 23 March 2011 and 15 June 2011, when the matter was before the Court for case management directions. On 15 June 2011, a proposed Further Amended Statement of Claim was provided by the solicitor for the plaintiff to the defendants. 29On 26 August 2011, the third defendant moved by a Notice of Motion to strike out that Statement of Claim, and to have the proceedings dismissed. 30That motion, together with a motion in similar terms by the first and second defendants filed on 29 August 2011, came before the Court for hearing on 31 January 2012. 31At that time there was also a motion by the plaintiff seeking to have the hearing of the proceedings stayed, until the finalisation of proceedings in the Land and Environment Court of NSW. 32The hearing on that day proceeded, including the taking of evidence. In the course of that hearing, Ms Young tendered a document entitled "Applicant's Nature of the Case Statement". This was a document dated 27 January 2012, and which had been prepared for the Land and Environment Court proceedings, then on foot between Ms Young and Mr and Mrs King. It was not tendered to establish the truth of the facts in it, but rather to indicate the nature, breadth and factual range of the underlying suit between the neighbours. It is a document of 171 pages, and 521 paragraphs. It was described by Mr Newell, counsel for Ms Young, as being a full explanation of their case. The other parties had only received the document a very short time before the hearing. They had not had any reasonable opportunity to read it or comprehend its effect, if any, on the claims against them. 33Counsel for Ms Young of that document, said this: "The proposal put to his Honour Justice Sheehan, was that this would provide a unified view of the claims against all the parties about whom we complain, and the foundation of it ... But what it does - it was also prepared in contemplation of fully disclosing the reasoning - the material facts in a highly detailed way over a several year period that founds the complaint against the defendants in this case, because it founds the complaint against all of the parties about whom we make complaints. It is a set of particulars which explains our case." 34In the course of the submissions on the hearing of the motion, it became apparent that the pleading which was being sought to be amended was that dated 11 November 2010. It also became apparent that the contents of it were quite different from the factual detail in the Nature of the Case Statement. 35The question of whether Ms Young wished a further opportunity to prepare another proposed Amended Statement of Claim was raised with Mr Newell. He said: "There is a purpose to be served. I concede this that at the time that the pleading was done there were things that we did not know that we now know. There is a tendency to think that we know everything but I think we do largely understand what occurred now. The purpose would be that it would concentrate our minds on precisely how the causes of action would be pleaded." 36There was further discussion and submission about the nature of the pleading, and the allegations which Ms Young wished to make. Ultimately, there was this exchange: "Newell: ... There is no doubt about this, the pleading needs to be reframed, because the critical issue ... we more or less say you were up to something, we were going to get something completely different than we thought, we now know what it was, how it was to happen, so there is no doubt that that pleading, the way that that complaint is particularised should be reframed. His Honour: Let me start, you accept do you, that the pleading as presently filed isn't the pleading upon which you will ultimately proceed in this Court? Newell: Yes, your Honour. ... Newell: I am saying that I believe we can put forward a very useful pleading that will articulate our case as well as any case has been articulated on the basis of the known facts. I don't want to be heard to be saying there won't any marginal amendments later when other facts come light. There may be such an application which I hope would be dealt with on the merits. I am just saying there are things about which we do not know, and if they change matters, but I do not expect them to change the way we particularise our claim in any significant way." 37Some features of these submissions can conveniently be noted here. Mr Newell, counsel for Ms Young, was informing the Court of these matters about Ms Young's case: (a)The pleading which was the then current pleading was pleaded in ignorance of a number of facts which were of relevance; (b)He now knew or largely understood what had happened; and (c)Now was a time when he could plead Ms Young's case in a way which might only require marginal amendments in the future. 38At the conclusion of, and in light of, the submissions and discussion, orders were made that Ms Young ought serve a proposed amended statement of claim on or before 21 February 2012, and that a copy ought be provided to the Court. 39The matter was adjourned part-heard, and listed for further directions on 28 February 2012. 40On 28 February 2012, it became apparent that the proposed Amended Statement of Claim had been served only on the day before notwithstanding the orders of the Court. Mr Newell informed the Court that this version of the Amended Statement of Claim was the pleading upon which his client wished to go forward. The defendants indicated that they maintained their previous attitude and objected to leave being granted to file the document, and wished to have the proceedings summarily dismissed. 41Orders were made for various amendments of the motions to take account of the most recent version of the proposed Amended Statement of Claim. The motions were stood over for hearing to 16 March 2012. 42At that time, the Statement of Claim which was current, and which was being sought to be once again amended, was that version which was filed on 11 November 2010. With respect to that version, Mr Newell had made it plain that it did not appropriately plead the case which Mrs Young wish to argue. Of it, he had agreed that it was not a pleading upon which Ms Young wished to proceed. Since it had been filed, there had been a number of further versions of a proposed pleading, circulated to the defendants. 43The parties, and the Court, proceeded on the basis that the claim as pleaded in this November 2010 version had been abandoned, although no order had been made formally striking it out. 44On 16 March 2012, the plaintiff filed an Amended Notice of Motion to enable her to rely upon the Further Proposed Amended Statement of Claim. The defendants were all opposed to the motion. There had in fact been two versions of the Statement of Claim served on the previous day, and it became clear on 16 March 2012, during the hearing, that the plaintiff was seeking to proceed on a document which had 111 paragraphs. 45At the conclusion of the submissions, I indicated to counsel for the plaintiff that I was not presently inclined to grant leave to file the pleading which was the subject of the motion. 46Counsel sought and was granted, subject to the reservation of all questions of costs, leave to prepare a further proposed pleading. The hearing of all of the motions was stood over part heard. 47On 3 April 2012, which was the date upon which the motion was to resume, directions having been given for a pleading to be filed by 26 March 2012, counsel for the plaintiff made an application for an adjournment. He had not been able to prepare any further pleadings. Counsel for the plaintiff submitted that there were further factual matters which had recently become apparent. He said "... the four matters that are material and recently reframed our understanding of a highly complex matter that we had not fully digested are: and the case now depends on the implications of the dynamics arising from these matters." 48He went on to say that: "Those matters I have recited to your Honour become the foundation for the case so far as it concerns representations or misconduct. And that means a complete not reframing of the claim that was before your Honour, but a complete reframing of the conceptual foundation of how the plaintiff was misled and by what techniques." 49Counsel went on further to explain that some of the facts had come to his attention at the time the Nature of the Case Statement had been prepared in January 2012. He went on: "Further matters came to our attention after that and we were trying to shove them all into this pleading. When these matters were properly explored, the case needed to be rethought entirely. Now the case has been rethought entirely, and that has led to ... the representations that are complained of, that caused mischief, were all made by subtle and complex courses of conduct. ... Misrepresentations involved in order to plead them, and they are not the same representations in the previous document at all, require an enormous amount of work to properly plead and particularise them." 50For the reasons which I gave in an ex tempore judgment of 3 April 2012, I adjourned the proceedings of the motion to 13 April 2012, and directed the plaintiff to serve a proposed Further Amended Statement of Claim by 12 April 2012. 51The statements made to the Court on 3 April 2012, are to be seen as being in complete contrast to what the Court had been told on 31 January 2012, just a few months earlier. Having said in January 2012, that the plaintiff knew what had happened, and had encapsulated in the 171 page Nature of the Case Statement, a highly detailed statement of facts which fully explained her case, Mr Newell was now telling the Court that the case had been "... rethought entirely ..." and an enormous amount of work was needed to properly plead and particularise the claim, at least so far as misrepresentations were concerned. These statements were being made two years after the first Statement of Claim had been filed. 52Counsel's duty to the Court is undoubtedly one which requires complete candour. No doubt Mr Newell was assiduously seeking to comply with that duty. However, it is, to say the least, surprising to be confronted, within such a relatively short space of time, with statements of such apparent conflict. This is particularly so, when during that period there have been no steps taken in the course of the Court's process, such as the giving of discovery, which might readily explain the entirely different position. 53It was against that procedural background that the matter came to be heard on 13 April 2012.

The Final Proposed Amended Statement of Claim 54The ultimate form of pleading presented to the Court on 13 April 2012 upon which Ms Young wishes to rely, confusingly, comprises three documents. 55The first is an unsigned document headed "Proposed Amended Statement of Claim" which consists of 136 paragraphs on 59 pages, and has a number of handwritten additions to it. The second document, which supplements that document, is a four-page document headed "Paragraph 39 Particulars - Particulars of Intention to Accept Sham Undertaking". 56The third document is a single sheet of paper which has upon it paragraph 131 which is to be read in substitution for the similar part of that paragraph in the proposed Amended Statement of Claim. There is no change proposed to the particulars pleaded in the original paragraph 31 in the principal document. 57It will be necessary to consider this pleading in due course, but to give further context to, and provide an understanding of, the underlying facts giving rise to the causes of action now pleaded, it is convenient to examine the proceedings in the Land and Environment Court.

Proceedings in the Land and Environment Court 58The proceedings in the Supreme Court against the solicitors, the barrister and the expert engineer, arise out of Land and Environment Court proceedings taken by Ms Young against Mr and Mrs King. These proceedings resulted in a judgment by the then Chief Judge of the Land and Environment Court of NSW, McClellan JA: Young v King [2004] NSWLEC 93. 59It is apparent from that judgment that proceedings had been initially commenced by Ms Young in the Land and Environment Court in April 2003. In those proceedings, in which Mr and Mrs King were the respondents but the local government authority, Warringah Council, was not, Ms Young sought various declarations and orders. 60The course of the matter relevantly for present purposes, is succinctly described in the judgment of the then Chief Judge. At [26] he said: "26. When the matter was called on, Mr Ian Hemmings, appearing for the applicant, briefly opened his case. I then invited Mr Griffiths, the solicitor for the respondents, to tell me the position in relation to his clients' defence. At that stage Mr Griffiths indicated that he conceded that the works referred to in ... the points of claim were carried out without consent. The parties by that stage were apparently engaged through their experts in discussion about what work might need to be done to rectify any environmental problem on the site occasioned by the works already undertaken. The experts were meeting in the precincts of the Court. By 3.00pm on the Monday afternoon, the experts had agreed on the works which needed to be done. They involved the reconstruction of the drainage for the retaining wall to ensure that the capacity of the downstream drains from the wall itself are adequate to dispose of the water in times of heavy flows. Evidence was given about the likely cost of these works and Mr Springett, a civil and structural engineer engaged by the respondents, confirmed that the cost was of the order of $1,000. 27. Accordingly, by the end of Monday, the dispute between these parties had been entirely resolved except in relation to matters of costs. As part of the compromise which the parties reached in relation to the whole matter, the applicant did not press for relief beyond that which was agreed to be involved in the works agreed upon by the experts. The matter was disposed of by the respondents giving an undertaking to carry out those works." 61It was necessary for his Honour to determine the question of costs. In the course of that determination, his Honour had to weigh up the evidence given by Mr Springett, the engineer retained by Mr and Mrs King, and Dr Perrens, the expert engineer retained by Ms Young, who is one of the respondents to this motion. Both of these experts gave oral evidence before his Honour, the then Chief Judge. 62His Honour found Mr Springett to be an unsatisfactory witness for a number of reasons including his taking the position of an advocate. He accepted the evidence of Dr Perrens. His Honour described Dr Perrens as being the opposite of his description of Mr Springett as an unsatisfactory witness. He also accepted his superior qualifications and expertise. On the basis of Dr Perrens' evidence, his Honour concluded that Ms Young had succeeded. That finding formed the basis, amongst other things, of the order which his Honour made that Mr and Mrs King pay Ms Young's costs of those proceedings. In those circumstances, it no doubt came as somewhat of a surprise to Dr Perrens to find himself as a defendant in these proceedings, alleging amongst other things, that he was negligent. 63His Honour formally noted the undertaking of Mr and Mrs King provided in a document to the effect that they would carry out the agreed drainage works and then, by the consent of all parties, his Honour dismissed the proceedings. He made an order that, as I have said, Mr and Mrs King pay Ms Young's costs. His Honour reserved liberty to any party to apply. 64With that judgment, the proceedings finished in 2004. 65Subsequently, upon the basis that the parties had liberty to apply, Ms Young filed a Notice of Motion initially in 2008, but reaching a final form somewhat later, by which she applied to the Land and Environment Court to vacate or set aside the consent orders made by the then Chief Judge. 66That application was heard by Sheehan J who delivered judgment on 19 October 2012: Young v King (No 4) [2012] NSWLEC 236. 67As is apparent from the judgment of Sheehan J, after the Chief Judge concluded the proceedings, it became necessary for the undertaking which had been given to be amended. Accordingly, on 8 March 2004, the Chief Judge, on the motion of Mr and Mrs King, but with Ms Young's consent, permitted the withdrawal of the original undertaking, and noted an amended form of undertaking. 68That amended undertaking was in the following terms: "The respondents [Mr and Mrs King] undertake to the Court to: 1. Carry out the works identified in Exhibit A within 21 days of granting of development consent by Council or by the Court. 2. Lodge a development application with Warringah Council for the erection of a retaining wall on the boundary between number 35 and 37 Calca Crescent, that wall to include drainage works referred to in clause 1 above. That development application is to be lodged within 21 days of the days of the date of this undertaking. 3. The respondents are to make all reasonable endeavours to progress the development application through Council. 4. The respondents are to complete the retaining wall works within 21 days of the granting of development consent by the Council or by the Court." 69As is apparent from Sheehan J's judgment, whilst Mr and Mrs King paid the requisite sum for legal costs, the implementation of the other orders made by the Chief Judge was difficult and contentious. 70On 8 March 2004, Mr and Mrs King lodged a development application with Warringah Council as envisaged by paragraph 2 of the undertaking. The Council eventually refused to grant a consent to undertake the work set out in that development application. One ground, at least, for that refusal, appears to have been Mrs Young's refusal to give her consent to the development application, which required work on the boundary of the two properties. 71For the reasons which he gave, Sheehan J dismissed Ms Young's Notice of Motion to vacate the consent orders, or to re-open the proceedings. He granted the motion of Mr and Mrs King, that the proceedings on the Notice of Motion be summarily dismissed. 72As Sheehan J's judgment noted, there were, or else had been, other proceedings between Ms Young and Mr and Mrs King, including in the Local Court of NSW and the District Court of NSW. However, it is unnecessary for me to discuss the details of those matters.

Substance of Proposed Cause of Action 73It is convenient here to attempt to describe the substance of the proposed causes of action. Ms Young seeks to establish that she has suffered damage to her property from the ongoing inadequate drainage which was to be, but which was not, rectified by the Land and Environment Court proceedings, financial loss because she will need to pay for the rectification of that drainage problem, and pure economic loss by reason of her wasted legal costs. 74Shortly put, she claims that her lawyers and the expert engineer, whom they retained, were negligent and in breach of their respective retainers in a way which gave rise to the position in which she now finds herself. Namely, Ms Young believes that she now is without an adequate remedy against her neighbours, Mr and Mrs King, for the drainage problems which she says they have created. 75Counsel for Ms Young accepts that if all that was pleaded was a claim in tort and a claim in contract, there would be a real question as to whether Ms Young could successfully sue. This is so, because Ms Young's lawyers and an expert witness retained for the purpose of giving evidence in the proceedings and providing advice in respect of the proceedings, would raise their immunity from suit by reason of the circumstances in which their conduct arose, namely, in the course of and for the purpose of litigation: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 223 CLR 1; Cabessi v Vila [1940] HCA 41, (1940) 64 CLR 130. 76The immunity from suit extends to claims for wasted costs. As Beazley JA (as her Honour then was) said in Donnellan v Woodland [2012] NSWCA 433 at [232]: "Further, and perhaps fundamentally on the costs question, R S Hulme J came to a different conclusion from that of Hamilton J in respect of that part of the order that related to indemnity costs. That is the very vice to which the immunity is directed. The test of finality is not only, nor necessarily whether the final decision in the original case was correct. Rather, it extends to the case where, as explained by the plurality in D'Orta-Ekenaike, at [66]: "... a consequence has befallen the client which has not been, and cannot be, sufficiently corrected within the litigation in which the client was engaged" It is for that reason that wasted costs claims fall within the immunity." 77Accordingly, Ms Young's counsel seeks to plead causes of action alleging that each of the defendants did not act in good faith, acted mala fides and thereby are denied the benefit of immunity from suit. Whether this approach is recognised by the authorities is a matter which will be touched upon in due course.

Pleadings 78As the plaintiff's motion deals with seeking leave to file an amended pleading, it is appropriate to examine the principles of law affecting a pleading. 79The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirements of procedural fairness, namely that a party should have the opportunity to meet a case against him or her: Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286, 296, 302-3. As well, the issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] HCA 70; (1982)148 CLR 658 at 664. 80Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005; McGuirk v The University of NSW [2009] NSWSC 1424 at [24] per Johnson J. 81As Hodgson JA (with whom Mason P and Handley JA agreed) said in Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at 142-143: "The requirement for a pleading to state material facts which is to be found in the Rules includes the cause or causes of action which are relied upon. Materiality of facts means how those facts are material to a cause of action." 82Bongiorno J said in Gunns Ltd v Meagher [2005] VSC 251 at 57, in a passage with which, if I may say with respect, I entirely agree: "Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly." As his Honour went on to say, "A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general." 83In Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 at [18], Tamberlin J dealt with the concept of embarrassment, with respect to a pleading, in this way: "Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. ..." 84As Bryson J recognised, a pleading may be embarrassing if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Ltd (Bryson J, 7 March 1995, unreported).

Summary Dismissal 85Having regard to the orders sought by the defendants in their motions, it is appropriate to consider the principles applicable to summary dismissal. These principles are well known. I have referred to them comprehensively in Rahman v Dubs [2012] NSWSC 1065 at [36] ff. I adhere to what I there said. 86In Dey v Victorian Railways Commissioner [1949] HCA 1; (1949) 78 CLR 62 at [13], Dixon J said: "The application is really made in the inherent jurisdiction of the Court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable is well-settled. The case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court... But once it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process." 87Most recently, in the High Court of Australia, French CJ and Gummow J in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 said at [24]: "The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis the action is frivolous or vexatious or an abuse of process. The same applies where such disposition is sought in the summary judgment application supported by evidence ..." 88In a practical way, the present defendants undertake the burden of establishing that there is no triable issue by contending that there is no reasonable cause of action set out in the proposed Amended Statement of Claim, and that that amendment ought not be allowed: Wickstead v Browne (1992) 30 NSWLR 1 at 11.

The Proposed Amended Statement of Claim 89In paragraphs 1 to 8 inclusive, Ms Young sets out relevant particulars identifying the parties to the proceedings. No complaint can be, or is, made about these paragraphs. 90From paragraphs 9 through to, and including, paragraph 21, Ms Young sets out historic facts which are alleged to provide the context to the later proceedings in the Land and Environment Court of NSW. It will be necessary to refer to these "material facts" in due course. However, in summary, Ms Young pleads that Mr and Mrs King and the Warringah Council colluded with a view to achieving an outcome which benefited them at the expense of Ms Young. The aim and outcome of this collusion is called the "Council agenda". 91The proposed pleading then goes on to deal with the claims against, variously, the solicitors, the barrister and the expert witness. It will be necessary to outline all of these claims in due course, but it is convenient to commence with the claims against the solicitors, including an examination of the factual basis, and the other matters pleaded which are said to be relevant, because many of these facts and matters are the same for the other defendants. An analysis of the claims against the barrister and the expert witness then conveniently follow.

Claim against the Solicitors 92It is pleaded that the second defendant was an employee of the first defendant, and that the first defendant is vicariously liable for the conduct of the second defendant. Later in the pleading, the first defendant is directly alleged to have undertaken certain conduct which gives rise to a cause of action. 93It is unnecessary in considering the allegations against the solicitors to differentiate between them. It is not suggested that ultimately, if the second defendant has engaged in the conduct pleaded, that the first defendant would not be liable. They are represented by the same lawyers, and no point is taken about the different allegations between them. 94The facts upon which the claims against the solicitors are based, commence in paragraph 22. In that paragraph, Ms Young pleads that in or about April 2003, she retained solicitors. From paragraph 23 to paragraph 41 inclusive, a range of facts, assertions of knowledge - both actual and constructive, imputations of motive, conclusions of fact and law are pleaded. 95It is fair to say that the pleadings in these paragraphs are dense, fact and conclusion rich, prolix and verbose. Ms Young submits however, that each of these paragraphs is essential. 96It seems that the causes of action which Ms Young seeks to rely upon against the solicitors are: (a)a breach of retainer: paragraphs 42-43; (b)a breach of a duty of care said to arise from the existence of the retainer: paragraphs 43-44; (c)a breach of a fiduciary duty, said to arise by reason of the relationship of solicitor and client: paragraph 51; (d)the tort of deceit constituted by the making of knowingly false representations with the intention of deceiving Ms Young: paragraphs 54, 57, 60, 63 and 69; (e)contravention of the Fair Trading Act 1987 by the making of misleading and deceptive representations: paragraph 71; (f)a conspiracy to injure Ms Young engaged in by the solicitors with the barrister: paragraph 128; (g)a claim for restitution with respect to a sum of $20,000 paid by way of fees: paragraph 136. 97It will be convenient to consider the first three causes of action together because they arise out of the relationship of solicitor and client, and involve similar factual allegations. 98Central to the retainer, is an allegation of actual knowledge residing in the second defendant which is said to have been acquired "... by reason of information provided by [Ms Young] ...". The knowledge is pleaded to include: (a)that the Council had acted fraudulently in considering and dealing with a development application in the period September 2001 to February 2002; (b)that Mr and Mrs King and the Council intended to proceed by "...a falsification of the structure and function ..." of the drainage system on the property; (c)that Mr and Mrs King had procured a fraudulent survey; (d)that the Council had intentionally induced a false belief in Ms Young, and that the Council must have had a collateral purpose for that conduct. It is clear that each of these facts or events are said to have occurred before the retainer with the solicitors commenced, and were part of the information provided by Ms Young to the solicitors. 99In light of these allegations, it is necessary to say something more about the Council agenda. The facts underlying the Council agenda are, in summary: (i)Mr and Mrs King undertook unlawful building works in about 2001, which works had the effect of trespassing on Ms Young's land; (ii)the Council although asked to intervene by Ms Young did not do so; and (iii)from September 2001, the Council and Mr and Mrs King colluded to, in effect, place the drainage burden and expense on Ms Young, rather than on Mr and Mrs King. 100This agenda was said to be going to be advanced by nine separate steps, the end point of which was that Ms Young would be compelled to sell her house to Mr and Mrs King at a substantial discount to the proper market price. 101Properly understood, what is alleged by this agenda is that Mr and Mrs King engaged in: (11)an unlawful agreement with one or more unidentified officers or employees of Warringah Council, to be implemented by means of the Council abrogating its statutory duties and obligations as a planning authority; and (12)by a deliberate misleading of Ms Young, to cause a significant financial advantage to accrue to Mr and Mrs King, and thereby a significant financial loss to Ms Young. 102Neither Mr and Mrs King, nor the Council are parties to these proceedings. Of its nature, and having regard to her claims for damages, Ms Young was, necessarily, entirely ignorant of this agenda, because it involved the complete deception of her as an integral feature of the agenda's path to success. 103Curiously, the pleading alleges that by reason of the instructions provided by Ms Young to the solicitors, at the start of, or else during the course of, their retainer, the Council agenda, of which she was necessarily unaware, was actually known to the solicitors. This is not an allegation which, on the basis of the matter pleaded, is capable of being sustained. 104As well, the allegation of the Council agenda is embarrassing because it is, at least, a statement of imputed intention, accompanied by, through the mechanism of hindsight, a constructed conclusion of serious misconduct by parties who are not parties to the proceedings. The agenda is not characterised by any precision of pleading at all. It is unclear when certain events occurred, and when knowledge is said to have become available, and hence when particular results were demonstrated. 105The pleading also alleges that the solicitors were aware of the Council agenda because such knowledge ought be inferred from their course of conduct in the discharge of the retainer, which is referred to in paragraphs 43, 45, 52 and 53 of the proposed pleading. This is a pleading of actual knowledge residing in the solicitors. The use of a process of inference is the path by which the solicitors are said to have acquired the knowledge. 106Paragraph 43 is the pleading that the solicitors were negligent and in breach of their retainer. Of itself this paragraph is not capable of sustaining the inference of knowledge which is claimed. 107Paragraph 45 is a pleading which sets out what the risk of harm to Ms Young was, against which precautions ought to have been taken by the solicitors. This paragraph is seemingly, an attempt to accommodate s 5B of the Civil Liability Act 2002. By itself, it is quite incapable of giving rise to the inference of knowledge on the part of the solicitors. 108Paragraph 52 is a pleading which supports a pleading of breach of fiduciary duty. In relevant part it says: "The breach of fiduciary duty ... is to be inferred from the circumstances in which the proceedings were settled by the second and third defendants." 109Again, this pleading, namely of conduct in 2004, is of itself not capable of being a basis of inference of knowledge in the solicitors, of the Council agenda which necessarily existed at a much earlier point in time. 110There is then added to that introduction, 19 separate facts, matters and circumstances which, although this is not clear, seem to have been events which have occurred at or about, or else largely after the settlement of the Land and Environment Court proceedings. 111Whilst it may be possible to argue that some of these facts and matters may be seen now, in light of all other circumstances, by an observer to have had the result which is said to have occurred, namely the delivery of a part of the Council agenda, it is not open to use these events or facts and matters to ground an inference of actual knowledge in the solicitors at a much earlier point in time. Perhaps what the pleader seeks to say, although this is not what is said, is that these facts are consistent with the existence of the Council agenda, and perhaps the facts constitute evidence of steps taken in pursuance of the agenda. However, these facts are not capable of proving the pleaded knowledge in the solicitors. 112It is necessary to observe that these facts, matters and circumstances are not pleaded as a basis for a finding that a reasonable person in the solicitor's position ought to have reached the belief that the Council and Mr and Mrs King had the agenda set out and, accordingly, the knowledge ought to have been held by the solicitors. Such a pleading, in effect, of constructive knowledge, is not sought to be made. It is possible, although I express no opinion on it, that such a pleading would more easily withstand the type of attack now mounted on this proposed pleading. 113However a pleading of actual knowledge is, for the reasons which I have just discussed, not capable of being sustained by these 19 facts, matters and circumstances. The pleading is embarrassing. As well, the volume and complexity of these 19 facts and matters, expressed without reference to time, constitutes prolixity of a kind sufficient to mean that the pleading is embarrassing. 114There is a further difficulty with the way in which this paragraph is pleaded. That is, that it combines an allegation a breach of duty, with a process of inference. It pleads that a breach of duty ought be inferred. 115Breaches of a duty, whether it be a fiduciary duty or one at common law or arising from a statute, are not matters which a court infers. A breach of duty is found to have existed by reason of conduct which has occurred, or else conduct which should have but did not occur. Such conduct is measured against the obligation created by the duty, and ultimately a court reaches a factual conclusion. The notion of inference of a breach is legally a nonsense. This pleading is embarrassing. 116Paragraph 53 amounts to a pleading that in the course of the management of the Land and Environment Court proceedings, the solicitors made representations to the plaintiff, the substance of which were: (a)the Council was not a necessary party to the Land and Environment Court proceedings for the purposes of obtaining the relief sought; (b)a feature of the retaining wall between the properties, namely the footing, might reasonably be expected to remain in place for the purposes of the resolution of the plaintiff's drainage complaint; (c)the offers of settlement, and the conduct of the proceedings, were being undertaken on the basis that Mr and Mrs King would accept the obligation to drain and retain the plaintiff's land; and (d)the existence of an offer of compromise made to Mr and Mrs King on 1 October 2003, and the terms of that offer. 117The making of the representations, which all seem to be oral, is said to be a fact evidencing actual knowledge in the solicitors of the Council's agenda and the other matters to which reference is made. The fundamental difficulty with this pleading, and use of it as a basis for actual knowledge is, in addition to the much later time at which these events are said to have occurred, that the representations are ones of opinion, of understanding and of fact. Some representations mix these features. 118The other difficulty is one of timing. It is wholly unclear at what point in time these later events are claimed to have given rise to the inference of actual knowledge. Nor is it pleaded when the actual knowledge existed. 119I am not satisfied that this pleading is sufficient to support the pleading of actual knowledge. 120I am not satisfied that all of these paragraphs to which specific reference is made, are sufficient to support a finding of actual knowledge. 121The complexity introduced by this factual pleading of the Council's agenda is, to be particularly seen in the pleading in paragraph 35, of the content of both the common law duty of care owed by the solicitors to Ms Young, and their contractual obligations. That pleading, which occupies about three and a half pages, includes allegations that the solicitors were obliged by reason of their duty to advise Ms Young that Mr and Mrs King were seeking to evade their obligations to drain her land, that Mr and Mrs King and the Council were "seeking to burden the plaintiff's land with a drain so as to shift the considerable expense of draining her land and the basement room to the plaintiff's land", that Mr and Mrs King did not have and were unwilling to obtain an appropriate outlet for the water they had an obligation to drain. The length and prolixity of this pleading which does not on its face seem merited clearly warrant the description of an embarrassing pleading. 122As well, it is pleaded that the absence of an easement, or any requirement to obtain an easement, contained in a development consent indicated that "... the Kings and the Council had no intention of the plaintiff's land being drained by the Kings and there was every reason to believe that the consent was a sham for the purpose of inducing the plaintiff to give a consent to a development application which would lead to a contrivance to put a drain onto her land." 123Further advice, which it is said should have been given was that the development consent was given on a false basis, that the plaintiff should not offer to compromise the proceedings, but should rather proceed to "obtain the protection of findings by the Court" and the shape in which the settlement of any proceedings should take. 124The breach of the duties which are then pleaded is constituted by an allegation of a failure or omission to provide advice to Ms Young of the matters set out in the pleaded duty. 125These allegations are to my mind, the product of tortuous reasoning and bizarre logic. The whole paragraph in its current form is embarrassing. 126The balance of the causes of action pleaded against the solicitors depend, essentially, upon the same facts, matters and circumstances which underlie the causes of action which I have already discussed. The pleading does not adequately support these further causes of action, and for the reasons which I have given in discussing the paragraphs referrable to the earlier causes of action, these pleadings can not constitute an allowable pleading.

Claim against the Barrister 127The claim against the third defendant, Ms Young's barrister, commences with the pleading of a retainer in paragraph 75. The content of the retainer is pleaded thus: "... was retained ... as counsel to advise the [solicitors] for the benefit of [Ms Young] as to the conduct of the proceedings in the interests of [Ms Young] and the preparation of court documents." 128The next paragraph pleads the acquisition of knowledge by the barrister in a rather peculiar way. It alleges that, in addition to matters with which he was briefed, the barrister: "... by reason of his access to the second defendant ... acquired the knowledge." 129The knowledge acquired is said to be that set out in paragraph 24 of the pleadings. As I have earlier said, paragraph 24 is a complex and convoluted pleading of mixed fact, conclusion and assertion without any direct identification of the time at which each of these facts, matters and circumstances was or ought to have been known. The notion that the barrister acquired knowledge by reason of "...access to..." his instructing solicitor, is not a pleading which can be permitted. Knowledge cannot be acquired by access to a person in some, apparently, osmotic process. The pleading is embarrassing. 130As well, Ms Young pleads against the barrister the following causes of action: (a)breach of fiduciary duty: paragraphs 92-95; (b)making of knowingly false representations: paragraphs 96-99; (c)deceit, constituted by making knowingly false representation: paragraph 100; (d)breach of the Fair Trading Act, 1987; and (e)conspiracy to injure the plaintiff: paragraphs 128-130. 131Each of these causes of action depend upon the fundamental proposition, which has been discussed earlier, that the barrister, together with the solicitors, was intent upon advancing the "Council agenda" at the expense of the plaintiff. 132For the reasons which I have expressed with respect to the solicitors, these causes of action, based as they are on the earlier factual pleadings, are inadequately particularised, the product of tortuous reasoning and bizarre logic and are embarrassing. 133In essence, the claims against the barrister see him, once briefed, as joining in with the solicitors in a joint enterprise to advance the Council agenda rather than the interests of the plaintiff. This seems to be alleged to have occurred because he was instructed by the solicitors and thereby acquired all of the knowledge and insight which they had. The factual sub-stratum of these claims is largely similar to the factual pleading to which I have earlier made reference. For that reason, where the pleadings against the solicitors are embarrassing, then pleadings against the barrister which rely upon those earlier factual pleading will also be embarrassing.

Claim against Expert Engineers 134As against the expert engineers, that is, the fourth and fifth defendants, Ms Young pleads the following causes of action: (a)breach of a retainer: paragraphs 104-112; (b)breach of common law duty to exercise all reasonable care, skill and diligence in advising Ms Young: paragraphs 104-112; (c)tort of deceit by publishing a report contrary to property engineering standards; (d)breach of the Fair Trading Act 1987; and (e)joining in with a conspiracy to injure Ms Young, which conspiracy existed at the time, between the first, second and third defendants. 135The essence of the causes of action pleaded against the expert engineers is that they became, together with the solicitors and the barrister, parties to an arrangement to advance the Council agenda at the expense of the plaintiff. Necessarily, these causes of action suffer from being dependent upon the pleading of the "Council agenda" and the pleading against the solicitors and the barrister. 136As well, the alleged breaches of the retainer and duties, suggest that, in somewhat confused terms, the report prepared by the engineer was false because it depended upon matters of fact which were not properly established. 137For the same reasons as I have earlier given with respect to the other defendants, the causes of action depending upon the notion of, and the advancement of, the Council agenda, are embarrassing. 138I have accordingly concluded that having regard to the embarrassing nature of many of the paragraphs pleaded, the complexity, prolixity and verbosity of the proposed amended statement of claim, it is not a pleading which ought receive a grant of leave to enable it to be filed.

Summary Judgment 139Each of the defendants seeks to have orders made that the proceedings be summarily dismissed. They each rely on the Civil Procedure Act and the UCPR. 140Section 61(3) of the Civil Procedure Act is in the following form: "61. Directions as to practice and procedure generally (1) The Court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. ... (3) If a party to whom such a direction has been given, fails to comply with the direction, the Court may, by order, do any one or more of the following: (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff; (c) ..." 141Rule 12.7 of the UCPR, permits a court to order that proceedings may be dismissed where a plaintiff: "... does not prosecute the proceedings with due dispatch." 142Rule 13.4 of the UCPR is also relied upon. This rule permits a court to order that proceedings be dismissed generally, or in relation to a particular claim, where no reasonable cause of action is disclosed or, if the proceedings are an abuse of the process of the Court. 143Rule 14.28 of the UCPR is a further basis for the orders sought. That rule is directed towards striking out a pleading rather than summary dismissal. It can be put to one side for the purpose of considering these motions brought by the defendants. 144The submissions from the defendants on these motions were largely similar. They were: (a)The present filed Statement of Claim (the November 2010 version) is not one upon which the plaintiff wishes to proceed. They submit that, effectively, Ms Young has disowned it. (b)Given that the proceedings were commenced, and then served only a short time before the limitation period expired and the Statement of Claim became stale, it behoved the plaintiff to ensure that the proceedings were prosecuted with all due dispatch. This has not occurred. (c)The fact that the plaintiff had attempted to amend her Statement of Claim on so many occasions would give rise to a strong inference that no real arguable cause of action exists. (d)The plaintiff's conduct of the proceedings to date, including the entirely inconsistent statements of Mr Newell in a relatively short period of time, significantly fail to comply with the obligation of a litigant and a lawyer acting for the litigant as set out in the Civil Procedure Act. (e)In considering the submissions in (d), the Court ought keep in mind that the outlandish, or perhaps extreme, terms in which the allegations are pleaded, has a continuing adverse effect on the professional practices and reputations of each of the defendants. It was submitted that this is of particular disadvantage in circumstances where each of the defendants, but particularly the third defendant, continued to practice in the Land and Environment Court, an area of speciality which has a limited pool of lawyers and expert witnesses. (f)The nature of the latest version of the proposed pleading does not reveal a viable cause of action. 145To the extent that submissions in response to these can be adequately summarised, the plaintiff seems to argue that: (a)The nature and complexity of the factual matrix is such as to fully explain both the many attempts at producing a pleading, and the delay occasioned by those attempts; (b)The complexity to which I have just referred is to be largely laid at the feet of the defendants because of the nature of the conduct pleaded, in particular, the allegations of deceit and conspiracy to injure, and the fact that the conduct was concealed from Ms Young; (c)The existence of the proceedings in the Land and Environment Court which involved the same counsel has meant that Ms Young's legal resources were being utilised for the claims in both courts, with the consequence that delay in one or other of the courts was inevitable; and (d)Ms Young has a viable cause or causes of action, and summary dismissal would be inappropriate. 146None of the parties sought to argue about the proposition, contained respectively in their defences, that the defendants were entitled to summary dismissal because, if the facts, matters and circumstances pleaded were proved, Ms Young could not succeed against any of them, because each of them were entitled to immunity. 147Mr Newell, at one stage, submitted that one of the reasons why the pleading raised multiple causes of action, including causes of action which suggested mala fides, such as the tort of deceit or conspiracy to injure, or such similar causes of action, was to avoid the reach of the "advocates" immunity. 148In the absence of full submissions on this question, it is better that I do not express any concluded view on whether this submission of Mr Newell's is correct, nor to consider the existence of the "advocates" immunity as a basis for summary judgment. 149However, having regard to the reasoning of the High Court of Australia in D'Orta-Ekenaike and in particular, the plurality judgment at [31]-[36], in respect of lawyers, and [38]-[42] in respect of witnesses, it is not easy to see the basis upon which Mr Newell would be entitled, on behalf of Ms Young, to plead such causes of action with the reasonable expectation that thereby the advocates immunity would be avoided. 150However, if the defendants seek to rely upon this as a basis for summary dismissal, no doubt, having regard to the fact that there are identified paragraphs in their defences to the presently filed Statement of Claim and assuming that, this version of the pleading is the one which will be propounded by Ms Young, a separate question under r 28.2 of the UCPR could be identified and used as the vehicle for the determination of such questions, in advance of all other matters in the proceedings. 151The complaints made by the defendants about the time taken to prosecute the matter, and the ongoing debate as to adequacy of a pleading, are strong and powerful reasons why the Court would summarily dismiss the proceedings. 152However, properly understood, the plaintiff has through her lawyers, set about pleading an extraordinary and unduly complex set of causes of action. The facts which the plaintiff is attempting to rely upon are made complex because of the concept adopted by the pleader of asserting a Council agenda in terms, as I have described, of vagueness and embarrassment. 153As well, although there have been significant breaches of the timetable fixed by the Court, those breaches are in part explicable by the proceedings in the Land and Environment Court which can be properly seen to be proceedings taken by the plaintiff in an attempt to mitigate her claims for damages in these proceedings. 154Clearly, there has been excessive delay. Clearly, the plaintiff has not attended to progressing this matter as diligently as she ought to have. Clearly, the defendants have been taxed and troubled by such lack of diligence and as well, put to considerable extra expense. 155However, I am not prepared to dismiss the proceedings summarily because of these matters. It is entirely possible that these matters are beyond the control of the plaintiff and wholly within the control of her lawyers. 156In those circumstances, it would not be correct or in the interests of justice to summarily dismiss the proceedings.

Conclusion 157The current proposed Amended Statement of Claim is prolix, embarrassing and cannot be allowed. 158Accordingly, the plaintiff's motion needs to be dismissed. 159The defendants' motions also will be dismissed. 160If contrary to the statements by Mr Newell, the position is that the plaintiff now seeks to proceed on the November 2010 Statement of Claim, then on or before Friday 1 June 2013, the plaintiff will need to notify the defendants of her intention so to do, and the defendants will have leave to file any further Notices of Motion dealing with an application to deal with the advocates immunity defences as a separate question under r 28.2 of the UCPR.

Orders 161I make the following orders: (1)Motion filed by the plaintiff on 6 March 2012 is dismissed. (2)Motion filed by the first and second defendants on 30 August 2011 is dismissed. (3)Motion filed by the third defendant on 2 March 2012 is dismissed. (4)Motion filed by the fourth and fifth defendants on 6 March 2012 is dismissed. (5)Order the plaintiff, if she now seeks to proceed on the Statement of Claim filed on 11 November 2010, then on or before 4pm Friday 1 June 2013, the plaintiff will need to notify the defendants in writing of her intention so to do (6)Order that defendants have leave to, if so advised, file any further notices of motion seeking the hearing of a separate question under r28.2 of the UCPR with respect to the issues raised by the pleaded advocates immunity defences, providing that such motions together with all affidavits in support are filed on or before 4pm 28 June 2013. (7)Grant leave for the motions to be returnable before me at 9.30am on Friday 5 July 2013. (8)Proceedings stood over to 9.30am on Friday 5 July 2013 for directions. (9)Liberty to apply on three days notice. (10)Costs reserved.

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: 17 May 2013