Supreme Court New South Wales Medium Neutral Citation: Susana Greenfield v John Patrick Miskell trading as J.P. Miskell & Associates [2020] NSWSC 677 Hearing dates: 12 May 2020 Date of orders: 03 June 2020 Decision date: 03 June 2020 Jurisdiction: Common Law Before: N Adams J Decision: (1) The proceedings against the defendant are dismissed summarily under Uniform Civil Procedure Rules 2005 (NSW) r 13.4. (2) The plaintiff is to the pay the defendant's costs of the motion and the proceedings. Catchwords: CIVIL PROCEDURE – summary dismissal – self-represented litigant – settlement of deceased husband's workers compensation claim – settlement occurred in 1998 – whether statement of claim discloses a cause of action – pro bono assistance – explanation for delay – standing Legislation Cited: Health and Other Services (Compensation) Act 1995 (NSW), s 33B Limitation Act 1969 (NSW), s 14 (a)-(b), s15, s 48(a)). Uniform Civil Procedure Rules r 7.36(2A), r 13.4, r 14.28 Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Curnuck v Nitschke [2001] NSWCA 176 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Gillies v Eastlake [2014] NSWSC 611 Greenfield v John Patrick Miskell trading as J.P. Miskell & Associates [2019] NSWSC 1200 Lin v Rail Corporation New South Wales [2011] FCA 261 825 Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Shaw v New South Wales [2012] NSWCA 102 Spencer v Commonwealth of Australia. (2010) 241 CLR 118; [2010] HCA 28 Wardley v State of Western Australia (1992) 175 CLR 514; [1992] HCA 55 Westpac Banking Corporation v Lahood (2011) NSWCA 157 Category: Procedural and other rulings Parties: Susana Greenfield (Plaintiff) (Self-Represented) John Patrick Miskell trading as J.P. Miskell & Associates (Defendant) Representation: Counsel: Solicitors: Gilchrist Connell (Defendant) File Number(s): 2019/00127647 Judgment Background 1. On 4 August 1997, Mr Peter Maurice Greenfield passed away at Royal Prince Alfred Hospital due to complications arising from silicosis. On 4 August 2018, the 21st anniversary of his death, his widow Ms Susana Greenfield came across a letter in her possession sent to her by her late husband's lawyers, D.J. Fischer & Associates ("D.J. Fischer"), on 19 August 1997. The letter was signed by Mr J.P. Miskell. Based on the contents of that letter, Ms Greenfield contends that she is the sole beneficiary of money owed to her late husband which his then lawyers failed to provide to her. On 24 April 2019 she commenced proceedings against the solicitor who was the author of the letter sent nearly 23 years ago, "John Patrick Miskell trading as J.P. Miskell & Associates" ("Mr Miskell"). 2. By notice of motion filed on 26 February 2020, Mr Miskell seeks summary dismissal of the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules (NSW) ("UCPR"). Alternatively, he seeks an order that the statement of claim be struck out in whole or in part under r 14.28 of the UCPR or that the proceedings are permanently stayed. 3. Ms Greenfield appears unrepresented. The Law Society of NSW appointed a manager to Mr Miskell's practice last year, after he suffered a stroke. Gilchrist Connell, solicitors, act for Mr Miskell in this matter. Mr Alexander Haslam is a Principal at Gilchrist Connell and Ms Griffiths from that firm appeared for Mr Miskell on the motion. 4. Given the significant effluxion of time since the events the subject of Ms Greenfield's complaint, the chronology forming the background to this application is incomplete. I propose to set out the relevant facts of which I am satisfied, based on the contemporaneous documents, before turning to address the parties' submissions. 5. In support of its motion, Mr Miskell relied on the affidavit of Alexander Boyd Haslam sworn 26 February 2020 with Exhibit "ABH-2", consisting of 90 pages. Ms Greenfield relied on her affidavit sworn on 7 May 2020 with Annexures A to S. This consisted of 222 pages. Background 1. On or about 28 March 1996, workplace compensation proceedings were commenced by D.J. Fischer in the Supreme Court of NSW on Mr Greenfield's behalf. 2. According to particulars filed in this court at the time, Mr Greenfield was injured on 21 September 1988 when a motor vehicle collided with an A-Frame sign that then struck him causing him to suffer several injuries including a head injury, an injury to the right shoulder and an injury to the lower back. As of the time of filing, he had already received Workers Compensation payments in the sum of $47,668.77 as well as the amount of $7,861.86 for medical expenses. As of March 1996, he was unable to return to work and was claiming loss of earnings of $220,140.00 as well as Griffiths v Kerkemeyer damages of $72,243.60. These particulars were filed by D.J. Fischer on Mr Greenfield's behalf by Mr Miskell, who was a solicitor at the firm at that time. 3. On 1 August 1997, the proceedings were transferred to the District Court of NSW following a legislative change. Sadly, Mr Greenfield passed away three days later. 4. On 19 August 1997, a letter was sent to Ms Greenfield recording that a meeting had occurred between Ms Greenfield and a representative of D.J. Fischer on 11 August 1997. This letter was signed by Mr Miskell. Given the significance of this letter to these proceedings I propose to set it out in full: "Dear Madam, RE: YOUR LATE HUSBAND PETER GREENFIELD'S MATTER As you are aware, we have been acting on behalf of your late husband, Peter Greenfield in relation to his common law claim which was listed for call-up in the Supreme Court of New South Wales on Friday, 1st August 1997, on which occasion the Court ordered that the proceedings be transferred to the District Court, in view of the recent Statutory Amendments. Since that time, we have received a letter from the Supreme Court of New South Wales, confirming the transfer of proceedings to the District Court, in view of the recent Statutory Amendments. We also note that our dear client and your husband, Mr. Peter Greenfield died on 4th August, 1997, the cause of death being due to silicosis, namely a dust disease. We refer to our lengthy conference with you on 11th August, 1997 when the position of Mr. Greenfield's matter/s was discussed and reviewed and at which time we noted that in all probability Mr. Greenfield did not leave a Will and that should it be established that he did die intestate, you are the sole beneficiary of his estate. This being the position, we note your instructions that you are prepared to attend to the following:- 1. Obtain Letters of Administration. 2. Continue your late husband's common law action in the District Court of New South Wales. 3. Investigate your late husband's cause of death, with a view to successfully prosecuting a death claim through the Dust Diseases Tribubal (sic). 4. Resolution of Industrial Deafness Claim with the Health Insurance Commission. We wish to say from the outset that we would be pleased to act on your behalf in relation to the above matters and will be obtaining a Death Certificate from the Registrar of Births Deaths and Marriages. Upon receiving same we will again contact you. We also understand that your visa has been extended and it may well be necessary to again extend the same in order for you to finalise the above matters, which will require your presence and continuing instruction. Lastly, we note your recent discussion that you must also finalise affairs with the Department of Social Security. In this regard should you have any difficulties, we would be pleased should you request the Administrators of the respective Departments to contact us for further clarification. We thank you for your instructions and will keep you advised of the position of the various matters and should you have any queries or require any other assistance, please do not hesitate to contact us at your convenience. Yours faithfully D.J. FISCHER & ASSOCIATES J.P. MISKELL" (Emphasis added.) 1. On 15 December 1997, the District Court proceedings were settled and terms were entered into on a without admissions basis. The terms were signed by Mr Miskell as Mr Greenfield's solicitor. This document is also of significance to the application, so I have set it out in full as well: "TERMS OF SETTLEMENT BY CONSENT:- 1. Without admission of liability, judgment the Ms Greenfield against the Defendant in the sum of $79,303.86, inclusive of costs. 2. NSW Ministerial Corporation (formerly GIO of NSW) is authorised to deduct and/or pay from the said sum the amount of $40,000.00 to the Cross-Defendant being the workers' compensation insurer of the plaintiff together with any monies repayable by the plaintiff together with any monies repayable by the plaintiff to any person or body in respect of social services, sick leave payments, make-up pay, accident pay, or any charge or amount refundable under the Health and Other Services (Compensation) Act 1995 (C'wealth), Health and Other Services (Compensation) Care Charges Act 1995 (C'wealth) or Health and Other Services (Compensation) Consequential Amendments Act 1995 (C'wealth) or otherwise and whether in respect of any statute, regulation, award or agreement or otherwise concerning which any demand or notice has been served on or given to the Defendant or their Solicitor or its Solicitor or insurer (known hereafter as NSW Insurance Ministerial Corporation (formerly GIO of NSW)) either before, on or after the date hereof and also any monies paid and payable pursuant to the Motor Vehicle Accidents Act, 1988 as amended. 3. The plaintiff undertakes and agrees to pay out of the said sum any monies repayable by the plaintiff to any person or body in respect of workers' compensation, social services, sick leave payments, make-up pay, accident pay, any charges or monies assessed under the Health and Other Services (Compensation) Act 1995 (C'wealth), Health and Other Services (Compensation) Care Charges Act 1995 (C'wealth), Health and Other Services (Compensation) Consequential Amendment Act 1995 (C'wealth) or otherwise which may not have been deducted by GIO General Limited pursuant to paragraph 2 hereof and/or pay to the parties entitled all outstanding medical, hospital, ambulance, out of pocket expenses or charges assessed. 4. The plaintiff acknowledges and agrees that this settlement includes settlement of all existing claims and existing rights to claim that he might have against NSW Insurance Ministerial Corporation (formerly GIO of NSW), its agents, its insured persons and/or their agents or other persons pursuant to the Motor Vehicle (Third Party Insurance) Act 1942, the Transport Accidents Compensation Act 1987 and the Motor Accidents Act 1988, as amended, for personal injury claims up to the date these Terms of Settlement. The plaintiff further agrees to indemnify NSW Insurance Ministerial Corporation (formerly GIO of NSW) and GIO General Limited against any future payments which NSW Insurance Ministerial Corporation (formerly GIO of NSW) or GIO General Limited may be required to make to or on behalf of the plaintiff in respect of such claims. This is subject to the exclusion of any other claim as advised hereunder Date Location Claim Number 5. No interest shall be payable in respect of the judgment herein if same be paid within 28 days from the date of judgment or within 28 days after the receipt of an Authority to Receive satisfactory to NSW Insurance Ministerial Corporation and a copy of the judgment duly signed or initialled by the Registrar or within 28 days from the issue of any Notice pursuant to Section 24 or 25 of the Health and Other Services (Compensation) Act 1995 (C'wealth), whichever is the later. 6. The plaintiff acknowledges that he has been informed that he may be liable to pay amounts under the Health and Other Services (Compensation) Act 1995 (C'wealth), Health and Other Services (Compensation) Care Act 1995 (C'wealth) and/or Health and Other Services (Compensation) Consequential Services Act 1995 (C'wealth) and it is further acknowledged that the plaintiff was notified of this obligation prior to any offer of settlement being made. 7. The Defendant/Cross-Claimant shall pay the sum of $40,000.00 on behalf of the plaintiff to the Cross-Defendant as set out in paragraph 2 hereof within 28 days of the date of judgment. No interest shall be payable in respect of such payment if same is paid within 28 days from the date of judgment. 8. Providing the Cross-Claimant makes the payment to the Cross-Defendant as set out in paragraph 7 hereof the Cross-Claim shall be dismissed with each party to pay its own costs. 9. These terms not to be disclosed." 1. By reference to paragraphs 2 and 7 of the Terms of Settlement, the $40,000 to be paid to the NSW Ministerial Corporation was to be paid directly by the defendant. It is to be presumed that the remaining $39,303.86 was paid into D.J. Fischer's trust account. On 15 January, Ms Greenfield signed a notice issued under s 33B of the Health and Other Services (Compensation) Act 1995 (NSW) from the NSW Ministerial Corporation noting that $7,930.39 was repayable as a statutory charge upon settlement. This left a balance of $31, 373.48. 2. In Annexure H to Ms Greenfield's affidavit dated 7 May 2020, she enclosed copies of three cheques dated 4 February 1998. According to these cheques, $400 was paid to Gibsons Solicitors, another unspecified amount was apparently paid to other solicitors (the writing was too indistinct to determine the name of these solicitors) and another $2,022.53 was paid to "A.G.C.". Another $700 was paid to a party whose name was illegible but the second part of the name appears to be "Solicitors". Ms Greenfield also provided a copy of a cheque which was paid to her for $300 on 2 April 1998. Of the balance of $31,373.18, less $2,022.53, $400, $700 and $300 there is no documentation to account for the remaining $27,950.65. The defence case is that these funds would have gone to pay the statutory charges referred to in the Terms of Settlement as well as legal fees and disbursements. 3. On 22 January 2000, D.J. Fischer ceased to operate or trade and was deregistered. Subsequent events 1. I have taken the following chronology from the affidavits before me, a letter from Mr Haslam to Ms Greenfield on 1 August 2019 and a letter from Ms Anusha Kailasanathan to Ms Greenfield on behalf of the Law Society of New South Wales, dated 29 March 2019. Ms Kailasanathan is an investigation solicitor with the Professional Standards Department of the Law Society of New South Wales. Ms Greenfield made a complaint to the Law Society of NSW about Mr Miskell on 12 February 2019. There was no material before me about what happened with that complaint. 2. Ms Greenfield states that, after she came across the 19 August 1997 letter on 4 August 2018, she tried to locate the author of the letter, Mr Miskell. By 2018, Mr Miskell was trading as J.P. Miskell & Associates. 3. On 21 August 2018, there was communication between Ms Greenfield and Mr Miskell concerning the proceedings. Ms Greenfield contends in her complaint to the Law Society (I was provided with the complaint but not the attached documents) and her statement of claim that she spoke to Mr Miskell on 23 August 2018. He made inquiries for her and learned that there was an inactive probate application in 1998 in relation to Mr Greenfield's estate. She agreed to lodge the Notice of Intention to publish an application for grant of Letters of Administration. Mr Miskell paid the relevant fee and filed the application. Ms Greenfield states that he offered to act for her free of charge. 4. At some point after this, Mr Miskell suffered a stroke and, as stated above, the Law Society of NSW appointed a manager of the firm trading as J.P. Miskell & Associates. 5. On 28 December 2018, Ms Greenfield lodged a summons for the Letters of Administration. She was self-represented at this time. On 8 February 2019, the Supreme Court granted Letters of Administration to Ms Greenfield to manage and distribute the assets of Mr Greenfield's estate. 6. The Letters of Administration attach an inventory of property disclosed to the Court by Ms Greenfield as being owned by the deceased Peter Maurice Greenfield. The only assets listed are "Head Injury Worker's Compensation" with the total value of $79,303.86 (excluding interest) and "Superannuation Death Benefit, plus any Insurance Payout" and "Long Service Payment to the Estate of Peter Maurice Greenfield, Deceased Registered Worker". 7. As stated above, on 24 April 2019, Ms Greenfield commenced the current proceedings against Mr Miskell. For unexplained reasons, this statement of claim is headed "Amended 7 March 2019". The plaintiff's claim 1. The statement of claim does not set out any cause of action. Rather, it sets out a narrative similar to that I have set out above. The additional claims made in it that I have not already referred to are: 1. Mr Miskell was difficult to communicate with after the Letters of Administration were photocopied at his office; 2. Mr Miskell informed her on 17 October 2018 that the Letters of Administration could not be issued because the estate of "$79,303.86" could not be found, but that he would enquire with the Law Society. Ms Greenfield claims that this was said to "pacify" her; 3. All of her enquiries "in several occasions from 2018" were left "unanswered" by Mr Miskell. 1. In her verifying affidavit Ms Greenfield further alleged that: 1. The sum of $79,303.86 was taken by D.J. Fischer and deposited into their trust account; 2. In January 1998, D.J. Fischer asked her to sign a document with her name and capacity already completed and she trusted that further money would be forthcoming. Subsequent procedural history 1. On 1 August 2019, Mr Haslam wrote to Ms Greenfield setting out in some detail the relevant background and the difficulties with her pleadings. Mr Miskell's position was that there was no reasonable cause of action disclosed in the Statement of Claim. Ms Greenfield was invited to provide particulars to enable Mr Miskell to better understand the basis of her claim. 2. The response to the request for particulars was an email in these terms: "Dear Gilchrist Connell, Thank you for your email. I still need my inheritance back though. It was my Beloved Husband, PETER MAURICE GREENFIELD'S 'BLOOD HEAD INJURY WORKERS COMPENSATION MONEY!'. It would have an 'Interest in Legacy", for over 21 years that they kept the money in previous 'and current law firm, which Mr. Miskell was the 'Principal Solicitor'. As a lawful wife, you just do not want me to 'do nothing!'" Yours sincerely, Susana Greenfield" 1. On 14 August 2019, the Registrar listed the matter for directions on 20 August 2019. On 20 August 2019, the Registrar adjourned the matter for directions on 10 September 2019 and ordered the Ms Greenfield to file and serve a motion and affidavit in support seeking pro bono legal advice/assistance returnable by 10 September 2019. 2. The notice of motion was filed on 2 September 2019. On 10 September 2019, the Registrar referred the notice of motion to the Duty Judge, Lonergan J. Justice Lonergan ordered that Ms Greenfield be referred to the Registrar for referral to a solicitor or barrister on the pro bono panel for legal assistance including advice in relation to her prospects of success in the proceedings: Greenfield v John Patrick Miskell trading as J.P. Miskell & Associates [2019] NSWSC 1200. Her Honour also ordered that, subject to the terms of any such advice, Ms Greenfield should obtain assistance with drafting an amended statement of claim, if appropriate, and assistance with representation. 3. On 20 September 2019, the Registrar listed the matter for further directions on 25 October 2019. 4. On 25 October 2019, the Registrar listed the matter for further directions on 12 December 2019. Mr Haslam deposed in his affidavit of 26 February 2020 at [22] that his employed solicitor who appeared that day, Ms Roseanna Smith, informed him that the matter was adjourned because there was no progress on the Ms Greenfield's pro bono referral. This is consistent with the notation on the Registry file before me. 5. On 12 December 2019, Registrar Riznyczok noted the following on the file: "[b]arrister has agreed to read the paperwork on a pro bono basis". Mr Haslam deposed in his affidavit of 26 February 2020 at [23] that Ms Smith informed him that Ms Greenfield informed Registrar Riznyczok that "she had received an email to the effect that her matter had been referred to a barrister for his/her consideration". The matter was listed for further directions on 13 February 2019. 6. Mr Haslam deposes he was informed by Ms Smith, who again appeared on that day, that at the directions hearing on 13 February 2020 Registrar Jones stood the matter down after Ms Greenfield informed her that she had received no communication from the NSW Bar Association since 3 December 2019. Ms Greenfield was directed to find out the status of the referral by contacting the NSW Bar Association. When the matter was resumed that day, Ms Greenfield informed the court that a barrister had reviewed her matter and said that they could not be further involved in the matter. Following this information, Registrar Jones then made orders terminating Ms Greenfield's referral in accordance with r 7.36 UCPR, made orders enabling the current strike out application and listed the matter for hearing of the notice of motion on 14 April 2020. 7. On 26 February 2020, the current notice of motion and supporting affidavit of Mr Haslam were filed. On 13 April 2020, Harrison AsJ vacated the hearing date on 14 April 2020 by consent and listed the matter for hearing on 12 May 2020. The applicant/defendant's submissions 1. Mr Haslam advanced several reasons in his affidavit as to why this court should strike out Ms Greenfield's claim and Ms Griffiths expanded on them at the hearing. Those submissions were as follows. 2. First, Ms Greenfield does not have standing to prosecute the statement of claim on the basis that the proper Ms Greenfield would be the administrator of the estate of Ms Greenfield's late husband, not Ms Greenfield in her own right. Even if this amendment were made, subject to the granting of leave by the Court, it was submitted that there has been no loss suffered by the estate of the Ms Greenfield's late husband. 3. Secondly, Ms Greenfield does not have any reasonable cause of action against Mr Miskell. In the letter sent to Ms Greenfield on 1 August these difficulties were identified. Having regard to the deductions from the full amount as identified in the Terms of Settlement letter, there is no legal basis disclosed in the Statement of Claim for Mr Miskell being required to pay Ms Greenfield $278,758. 4. Further, the legal services were provided by D.J. Fischer & Associates, which ceased to operate or trade on 22 January 2000. 5. It was submitted that the uncertainty as to the nature of the claim meant that determining a limitation period was difficult. 6. Ms Griffiths referred to the relevant decisions of Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 ("General Steel"), noting that the court needs to reach a "high level of satisfaction" before an order for summary dismissal is made. She further referred to Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, Westpac Banking Corporation v Lahood (2011) NSWCA 157 and Shaw v New South Wales [2012] NSWCA 102. 7. It was also submitted that the court must give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) as indicated in s 56 and s 58 (6) of that Act. Ms Greenfield's submissions 1. Ms Greenfield disputed the factual assertions made on behalf of Mr Miskell. She denied having a lengthy meeting with Mr Miskell, as is alleged in the August 1997 letter. She stated that before 15 January 1998, the firm had called her "once in a while" during that time. She stated that the only time that she had met with employees of D.J. Fischer was on 15 January 1998. She further stated that in the meeting of 15 January 1988, representatives from D.J. Fischer had encouraged her to sign a note, saying that "…your visa's out of time. Immigration will come and pick you up any time." 2. She then maintained that D.J. Fischer called her on her mobile "numerous times" before denying this and stating that they had only called her once, in relation to her immigration status as well as for the purposes of obtaining letters of administration. She further alleged that at a meeting "toward the end" of 1998, she had sent them a letter and indicated that she wanted to file a complaint. She later denied sending such a letter, stating that she gave the office of D.J. Fischer a letter in person. 3. In response to questioning as to why she had not taken action in the past 20 years, Ms Greenfield replied that she tried to contact the office of D.J. Fischer and there was no response. She indicated that she tried to approach Legal Aid but that this was not successful. She also stated that she was in a grieving state after the burial of her husband. 4. Ms Greenfield submitted that the problems with her statement of claim were due to the fact that she had no legal advice. She denied any suggestion that she had not accepted the pro bono legal advice she been given following the direction by Lonergan J. Instead, she asserted that Ms Heather Sare told her "they don't want to get involved", suggesting that nobody had ever read her referral from the court. Ms Greenfield further stated that she had not spoken with "any pro bono lawyer at all", that she had been waiting for that and that Ms Sare, who she described as the "J.P. Miskell contact person", told her that "no lawyer would like to get involved in your case." 5. Ms Greenfield denied that she had told the court that a barrister reviewed her matter on 13 February 2020. She told the court "no barrister reviewed my matter at all". Ms Greenfield also disputed the Registrar's record of proceedings on 12 December 2019, where it was recorded that a "barrister has agreed to read her paper on a pro bono basis." Ms Greenfield stated that she was not aware whether there was a barrister who would read her case and that the statements in relation to the barrister's involvement came from Ms Sare. 6. Ms Greenfield explained that she had named J.P. Miskell & Associates as the defendant because Mr Miskell had "changed the name of the other firm". She said that she was referring to him as a person and not as his firm. 7. As to the terms of the 19 August 1997 letter which record, inter alia, that she had agreed to attend to certain matters herself, she explained: "I just stayed in bed, and I didn't go out of my place, so I wouldn't have had a chance to speak with anyone, so I was surprised they're saying I had that conversation, and instructions like this how would they understand that? So, I haven't spoken to them at all." 8. Finally, Ms Greenfield submitted that she should be given leave to file a statement of claim alleging breach of contract and breach of fiduciary duty. She further stated that the defendant did not inform her of the judgment date of "2 December" and did not investigate her husband's death in the Dust Diseases Tribunal. She then stated that she did not see Mr Miskell on 16 January 1998 and that the only time that she went to the office was in late 1998 when she attended with a one-page letter of complaint. At this time, she said she "had a suspicion that something was not right, something was unfair that was ongoing". She stated that she should have been informed that the office of D.J. Fischer had been closed because she still had an active case with them. She stated that she did contact them at that time but was also studying a Bachelor of Nursing. Consideration 1. Before a court would dismiss proceedings summarily, it must be satisfied that the proceedings are "so obviously untenable that it cannot possibly succeed", "manifestly groundless", or "so manifestly faulty that it does not admit of argument": General Steel at 128-129; [1964] HCA 69. In Dey v Victorian Railway Commissioners at 91, Dixon J observed that before summary intervention can be justified, the case must be a very clear one and there must be no real question of fact or law to be determined. 2. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 the Court of Appeal (Beazley P with whom Macfarlan and Ward JJA agreed) observed at [3]: "The High Court decision in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application: (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a 'fanciful' prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid). (c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24])." 1. With these principles in mind, I turn to consider Mr Miskell's application for summary dismissal. I am satisfied that there are a number of significant problems with Ms Greenfield's claim against his firm. 2. First, Ms Greenfield does not have standing to claim funds she says are outstanding to her. Rather, that would be a matter for the administrator of her late husband's estate. Although it would not be difficult for the statement of claim to be amended on this basis it is a threshold difficulty. 3. Secondly, the defendant has not been properly named either. If, as it seems likely, Ms Greenfield is claiming that the law firm who acted for her late husband failed to give her (or her husband's estate) moneys owed to him under a settlement of the District Court proceedings, it is not apparent why a different law firm is liable for that amount. Given D.J. Fischer has not operated for nearly 20 years, it is uncertain whether it could be reinstated and how any insurer would respond. 4. Thirdly, no cause of action is identified in the statement of claim. It is not clear whether Ms Greenfield claims the law firm was negligent, breached the contract for legal services, failed to account for funds or breached its fiduciary duty to Ms Greenfield. No actual claim is made in the statement of claim; it is simply a narrative of what Ms Greenfield wants. 5. Fourthly, it is clear that Ms Greenfield has little or no memory of events at the relevant time. Her submissions included many internal inconsistencies and were also inconsistent with the contemporaneous documents. 6. Fifthly, although the contemporaneous documentation is scarce, it is tolerably clear to me, given the terms of the Terms of Settlement, that the settlement money is accounted for. The unexplained shortfall is consistent with having gone towards the statutory fees referred to in the Terms of Settlement and legal fees and disbursements. Ms Greenfield cannot prove otherwise and she bears the burden of proof in the substantive proceedings. To the extent that Ms Greenfield complains that D.J. Fischer did not investigate her husband's death in the Dust Diseases Tribunal, the 19 August 1997 letter makes clear that Ms Greenfield had told Mr Miskell that she would attend to that matter herself. Thus, even if some cause of action could be identified, the facts upon which Ms Greenfield relies do not give rise to any basis for these belated complaints. 7. Finally, the claim is well out of time, no matter what cause of action is alleged. If her cause of action lies in a failure to account, then the limitation period expired six years after "the matter arose" (Limitation Act 1969 (NSW), s 15). Presumably, Ms Greenfield's matter after the Terms of Settlement was signed, so she had until December 2003 to begin proceedings. If her claim lies in contract or negligence, on the other hand, her cause of action presumably accrued when the defendant failed to pay her the amount promised in the Terms of Settlement (s 14(1)(a)-(b)). Presumably, this occurred sometime between the signing of this document in December 1997 and D.J. Fischer being deregistered in 2000 (see Curnuck v Nitschke [2001] NSWCA 176 [54]-[56]). This means that the latest date that Ms Greenfield had to initiate proceedings was January 2006. The same limitation period applies if her action is one for breach of trust (s 48(a)). 8. The delay has caused significant forensic difficulties for the defendant. The law firm has been disbanded, the solicitor has had a stroke and most of the relevant documents are no longer available. Moreover, as I have already observed, Ms Greenfield demonstrated that she does not have a clear recollection of the relevant time period either. 9. There has been no satisfactory explanation for the inordinate delay in this matter. Even if I was satisfied that there had been, I am not satisfied that Ms Greenfield has any cause of action against Mr Miskell. 10. I have had regard to the principles that limitation questions should generally not be decided in interlocutory proceedings except in the clearest of cases. As was observed by Mason CJ, Dawson, Gaudron and McHugh JJ in Wardley v State of Western Australia (1992) 175 CLR 514 at 525; [1992] HCA 55 at [31]: "We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the applicant and of the circumstances in which it was sustained to justify a confident answer to the question." 1. In Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295 Basten JA noted at [62] that this principle is subject to the particular limitation scheme at issue and with "appropriate reference to the factors in play under the legislative provision engaged in the particular case". 2. Courts have struck out time-barred proceedings in "the clearest of cases", as was observed in Wardley v Western Australia at 533. An example of this is where the claim discloses no reasonable cause of action, as occurred in Lin v Rail Corporation New South Wales [2011] FCA 261, or where it has clearly expired. As Rares J commented in Lin at [42]: "…However one might view Ms Lin's claims, it is plain that they have been brought too late for the purposes of any limitation provision and must fail. Exercising the caution which is necessary before concluding that a litigant should be summarily prevented from pursuing a cause of action, I am nonetheless satisfied that the proceedings should be dismissed because there is no likelihood that Ms Lin will be able to prosecute them successfully: see also Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Limited (2006) 236 ALR 720 at 731 [44]-[46]." 1. As for Ms Greenfield's request for legal assistance, she has already been referred by the court for pro bono assistance once. I am satisfied from the court file notations and the evidence of Mr Haslam that she was, in fact, provided with advice. I also infer from the fact that Ms Greenfield now denies what she told the court on those occasions that she did not accept the advice she was given. A second such referral can only be made if there are "special reasons" for doing so: UCPR r 7.36(2A). There is no basis for another referral. I am satisfied that Ms Greenfield has no cause of action against Mr Miskell. 2. For these reasons, I am satisfied that the claim is manifestly groundless. I would not grant leave to permit Ms Greenfield to file an amended statement of claim. I am satisfied that the proceedings should be summarily dismissed. 3. Mr Miskell has been successful on the motion. Although the Court's discretion to award costs is broad, UCPR r 42.1 provides that the usual rule is that costs follow the event, unless it appears to the Court that some other order should be made. No apparent reason to depart from this usual rule was raised in this matter. Accordingly, I would order that Mr Greenfield pay Mr Miskell's costs of the motion and the proceedings. ORDERS 1. Accordingly, I make the following orders: 1. The proceedings against the defendant are dismissed summarily under Uniform Civil Procedure Rules 2005 (NSW) r 13.4. 2. The plaintiff is to the pay the defendant's costs of the motion and the proceedings. ********** Amendments 16 June 2020 - [58] quote - "the applicant" instead of "Ms Greenfield" 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: 16 June 2020