Supreme Court New South Wales Medium Neutral Citation: Norman v Wall (No. 2) [2020] NSWSC 997 Hearing dates: 27 July 2020 Date of orders: 27 July 2020 Decision date: 27 July 2020 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Refuse leave to the plaintiffs to file and rely upon the further amended statement of claim provided to the defendant and the Court at 5:49pm on 26 July 2020 and the plaintiffs' notice of motion filed 1 December 2019 dismissed; (2) The plaintiffs are to pay the defendant's costs of the notice of motion; (3) Pursuant to Rule 12.7 of the UCPR, the proceedings are dismissed for want of due despatch; (4) The plaintiffs are to pay the defendant's costs of the proceedings. Catchwords: CIVIL PROCEDURE — originating process — amendment — disallowance of amendment — Court to follow the dictates of justice — breach of court order as to filing of amended statement of claim — plaintiffs given assistance by the Court — plaintiffs referred to the Pro Bono Assistance Scheme — assistance unable to be pursued CIVIL PROCEDURE — summary disposal — dismissal of proceedings — want of due despatch — proceedings commenced more than one year ago — proceedings ought to be dismissed by the Court's own motion CIVIL PROCEDURE — parties — representation — by unqualified persons COSTS — party/party — general rule that costs follow the event — application of the rule and discretion — plaintiffs have failed in their action to amend the statement of claim Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Profession Uniform Law (NSW) Real Property Act 1900 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Darwin v Norman [2020] NSWSC 356 Norman v Wall [2020] NSWSC 129 Category: Procedural and other rulings Parties: Gillian Linda Norman (First Plaintiff) Ron Berry (Second Plaintiff) Wrothwell Wall (Defendant) Representation: Counsel: J Raftery (Defendant) Solicitors: G Norman (Self-Represented) R Berry (Self-Represented) Gilchrist Connell Lawyers (Defendant) File Number(s): 2019/196798 Publication restriction: Nil REVISED EX-TEMPORE Judgment 1. This matter is listed before me today to deal with an application made initially by a notice of motion filed on 1 December 2019 by the plaintiffs, for leave to file and serve a further amended statement of claim. 2. The application first came before me on 21 February 2020. At that point I formed the view that the plaintiffs really needed legal assistance. There are a number of reasons for that view, the principal being that there was some complexity with the professional negligence case that they sought to make, but, more importantly a great deal of complexity with the case that they wanted to make against others which was beyond any professional negligence case against Mr Wall. 3. For that reason I made an order for pro bono assistance, but it is necessary in dealing with the application before me today, to go into the history of the matter in some detail. 4. The version of the statement of claim before me to determine the application, which is in effect made pursuant to s 64 of the Civil Procedure Act 2005 (NSW) ("the Act"), was provided to the defendant and the Court yesterday at 5:49pm. 5. It is a complex document that has been prepared without legal assistance. In addition to some lack of specificity about the potential negligence case against the current only named defendant Mr Wall, it seeks to re-join another defendant, Mr Brennock, who was a defendant in the first iteration of these proceedings last year but by consent, proceedings against him were dismissed. Again this is a matter of some complexity and I will return to it. 6. To the extent that I can discern from the various iterations of the statement of claim, all obviously prepared without the assistance of legal advice, amongst other irrelevant distracting assertions may be a potential claim against a solicitor, Mr Wrothwell Wall, of a firm in Mullumbimby called Wall and Company Lawyers. In short, it seems the case that is sought to be made against him is that he received money on trust from both of the plaintiffs, from Ms Norman in the sum of $120,000 and from Mr Berry in the sum of $80,000 back in 2015, but he never accounted for that money. 7. When the application for leave to amend the statement of claim was first filed in December 2019, there was, filed with it, an affidavit of Ms Norman sworn 2 December 2019, which provided 21 pages of discursive narrative. Also on the file is an affidavit of Mr Berry, the second plaintiff, dated 12 September 2019 but sworn on 3 December 2019, which seems in broad terms to repeat similar subject matter to the matters set out in the statement of claim that was then before the Court. Initial Statement of Claim and early background 1. The proceedings were initially commenced on 25 June 2019 against Mr Wall and five other defendants. In broad terms that initiating statement of claim identified the various defendants as involved in a kind of property-brokering deal for a proposed community development involving two properties in Mt Burrell. It was alleged that Mr Wall was appointed as the "Community Lawyer", responsible for legal management of the "Community" and responsible for the purchase of land titles. It is asserted that there was a trust account set up, which had associated with it particular identified plans and various people paid sums of money into it, including Ms Norman and Mr Berry. 2. Also alleged in the initiating statement of claim was that there was a type of marketing exercise by, it seems, the various named other defendants, that led in August 2015 to Ms Norman paying the sum of $120,000 and Mr Berry the sum of $80,000 into the trust account of Mr Wall. 3. Their understanding, it seems, was that this money was to be applied to the designated purpose of buying properties which would provide to them what they understood to be "co-proprietary rights" to those properties (Paragraph 11 of the initiating statement of claim). 4. The plaintiffs say that they were never provided with a receipt by Mr Wall or any acknowledgement of the payment and there was no direction by them to Mr Wall for him to disburse their money. The initiating statement of claim makes reference to the requirements of the Legal Profession Uniform Law (NSW), asserting that a lawyer's duties with respect to funds to which a third party is entitled is the same as if the person was a client, and that there is a fiduciary duty associated with it, to manage the funds in "a legitimate manner". 5. There is reference to other investors having deposited funds and various types of relief was sought, including an order for specific performance of "any governing contract or agreement" if "other restitution is not possible" pursuant to s 68(b) of the Supreme Court Act 1970 (NSW). 6. There is also a detailed chronology of events, reference to a number of companies that were to purchase a particular property and an assertion that funds deposited were used for nefarious purposes at the direction of a Mr Darwin. There are assertions about false representations of other then named defendants and fraudulent intent of other named persons and that detriment had been suffered by the investors. There is reference to a company known as Wolumbin Horizons, which was de-registered in 2017, and a reference to some involvement in proceedings in the Federal Court in Queensland. 7. There is also reference to defamation proceedings that had been commenced in the Supreme Court of NSW, seeking urgent injunctions, initiated by Mr Darwin and Mr Brennock. Those proceedings, obviously seen by the plaintiffs to be interrelated, sought orders for removal of blogs published by Ms Norman. 8. Those proceedings were the subject of a judgment by Fagan J on 8 April 2020, the proceedings having been heard by him in August and October 2019. His decision Darwin v Norman [2020] NSWSC 356, resulted in awards of damages in favour of Mr Brennock and Mr Dixon in the sum of $200,000 each, although it seems that Ms Norman and another defendant had some success in respect of the proceedings between them and a fourth plaintiff. The judgment also refers to a plan for there to be a permanent injunction against further defamatory publications by Ms Norman, however I do not have the details of how that aspect resolved. 9. Returning to the initiating statement of claim, there is reference to a number of bases for action by the Court with reference to, amongst other things, a "failure of fiduciary duty" by Mr Wall. A freezing order was requested to protect what was termed a "minimum equity" in "the property" pursuant to s 129 of the Real Property Act 1900 (NSW). There was also orders sought under s 68 of the Supreme Court Act "to grant specialised powers of registration of a legitimate proprietary claim by transfer of property title to an unincorporated association", whose members include the named plaintiffs and others. Listing before Darke J on the Real Property List 1. Because the proceedings were commenced in the Equity Division, the initiating statement of claim was first considered by Darke J on 2 August 2019 in the Real Property List. Darke J directed the plaintiffs to serve upon the defendants, (other than the third defendant against whom no action was pressed), a further amended statement of claim by 13 September 2019. 2. The matter was again before Darke J on 27 September 2019, 7 weeks later, at which time a Notice of Discontinuance was filed, which effectively discontinued the proceedings against everybody except Mr Wall. The plaintiffs' further statement of claim was considered. His Honour assisted the plaintiffs in the identification of a potential confined action against Mr Wall. In pursuit of that, his Honour ordered that the proceedings be transferred to the Professional Negligence List of the Common Law Division for directions. His Honour took care in his ex tempore judgment to note that the referral was based on a recognition that there appeared to be a possible more circumscribed case available to the plaintiffs against Mr Wall, limited to a claim for professional negligence and/or breach of fiduciary duty and/or breach of trustee's duties. 3. The matter was duly transferred and on 18 November 2019, Registrar Jones made various directions regarding the filing of a further statement of claim. The matter was listed before me on 21 February 2020 to hear the plaintiffs' application to be allowed to further amend their statement of claim. 21 February 2020 Hearing 1. The solicitor for the defendant, Ms Cunich, filed and served an affidavit sworn on 7 February 2020, which sets out the history of the proceedings to date and annexed correspondence between herself and the plaintiffs raising objections to the further proposed amended statement of claim. Ms Cunich's affidavit provided a helpful history to the proceedings. 2. At the hearing on 21 February 2020, I took into account that the plaintiffs were seeking to bring a complex case for which they have not received any legal assistance. For that reason, and as explained in detail to the plaintiffs, I made a formal order with an accompanying judgment, referring Ms Norman for specifically confined Pro Bono assistance pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW). I emphasised the limited nature of the potential claim before this Court was confined to professional negligence and/or breach of fiduciary duty and/or breach of trustee's duty against Mr Wall. I emphasised that the referral to the Pro Bono Assistance Scheme was confined to advice in relation to that claim and for assistance with pleading any amended statement of claim for that case only. 3. I provided a generous timetable within which the plaintiffs could file and serve their further amended statement of claim, recognising that it may be that if pro bono assistance was not able to be provided, then the plaintiffs would need to prepare their own pleading. I also instructed my Chambers staff to forward, for the assistance of the plaintiffs, extracts from the Civil Procedure Act and Uniform Civil Procedure Rules to assist them with what was required in terms of preparing an appropriately formulated and directed pleading. 4. As drawn to the attention of the parties this morning, Ms Sare from the Pro Bono Assistance Scheme has advised me that the referral was actioned with one barrister unable to take the case, for reasons that I do not need to go into, but that further assistance was unable to be pursued because on 9 June 2020, Ms Norman advised the Pro Bono Scheme Liaison Officer that the plaintiffs would be changing their case to the High Court and that they would be informing the Supreme Court accordingly. 5. I understand from Ms Sare that a lengthy Notice of a Constitutional Matter was provided to the Pro Bono Assistance Scheme evidencing this intention, together with a notice of receipt from the Attorney General. Ms Sare took the view that what was proposed was outside the limited nature of the referral I had made, and so there was no further assistance that could be given. 6. Those events were not drawn to my attention until 22 July 2020, when I received an email in Chambers from Ms Norman stating that there had been "new developments" and proposing a series of directions that included a re-joining of Mr Brennock and a removal of the proceedings to the High Court. 7. Ms Norman and Mr Berry, who both appear for themselves today by telephone, have assisted me in outlining what it is they say are their intentions with the case. I note that the order that I made initially in terms of time for the amended statement of claim to be provided was an April 2020 date, which I extended to 15 May 2020 in Chambers because there was some initial delay in the referral of the matter to the Pro Bono Scheme, the referral not taking place until 24 March 2020. In any event, the first attempt at an amended statement of claim in response to my order that expired on 15 May 2020 was not provided until 5:49pm yesterday. 8. I should make some observations about that document. The proposed amended statement of claim, which is dated 25 July 2020, extends the proposed case past the professional negligence claim against Mr Wall and seeks to re-join Mr Brennock as a defendant. It seeks or purports to include what are termed to be "third parties", described as "about 20 other contributors who deposited trust money into the defendant's trust account". It makes allegations of unconscionable conduct and unjust enrichment against Mr Brennock. It sets out a long chronology and an affidavit verified by Ms Norman, which makes further assertions regarding activities of Mr Brennock with ASIC, a company known as "Together in Harmony" and other matters regarding, principally, Mr Brennock. 9. Also contained in the amended statement of claim are assertions of the factual basis upon which it is said Mr Wall is liable to the plaintiffs for disbursing of the money that they gave him, but those assertions are tied up with and rendered difficult to separate from the assertions made against the putative second defendant, Mr Brennock. 10. Accompanying the amended statement of claim was what purports to be a Notice of a Constitutional Matter dated July 24, 2020. That notice appears to raise allegations against Mr Brennock "and other", although the "other" is not specified and therefore, as submitted by Mr Raftery, counsel for the defendant, the notice bears no relevance at all to the matter before me this morning or to the cause of action potentially able to be pursued in the Professional Negligence List of this Court against Mr Wall. 11. The Constitutional Matter Notice seems to be related to assertions about Aboriginal sovereignty claims on particular property that is being asserted by Mr Brennock and matters arising from the defamation proceedings heard and determined by Fagan J earlier this year. 12. From oral submissions made by Ms Norman today I understand that she and Mr Berry together see these proceedings as all interrelated. By that I mean the defamation proceedings determined by Fagan J in April this year, any potential constitutional aspect of Mr Brennock's behaviour, as well as the proceedings they wish to pursue against him and Mr Wall in this list. Ms Norman stated that she intended to appeal the decision made in the defamation proceedings but had not yet filed her notice of appeal, or notice of intention to appeal, because she sees the proceedings as all interrelated and that the proceedings all ought to be heard in the High Court. 13. Ms Norman also advised the Court today that she has been sued for contempt of Court. That matter, notified to her recently, had been listed before Sackar AJ in the Equity Division on 24 July 2020 and is listed to return to Sackar AJ on 7 August 2020. Ms Norman saw those proceedings too as matters interrelated with these proceedings, and the appeal she wishes to bring in the defamation proceedings. 14. In terms of legal advice, both Ms Norman and Mr Berry confirm that they have not had the assistance of legal advice. They both inform me that they have been in contact with somebody who may be prepared to assist them, but as yet they have not secured any legal assistance. Ms Norman informed the Court that it is possible, on her understanding, that Legal Aid may assist her to defend the contempt proceedings brought against her, but at this stage there is no confirmation that is the case. 15. In end result, the position is that the defendant, a solicitor, has an extant proceeding commenced in this Court against him, more than a year ago. Counsel for the defendant, Mr Raftery, has submitted that I should refuse the plaintiffs' application to amend the statement of claim and that I should further, on the Court's own motion, dismiss the proceedings under r 12.7 of the Uniform Civil Procedure Rules for want of due despatch. He submitted that the Constitutional Notice is not relevant to this claim at all, it concerns a person who is not currently a party to the proceedings and relates to completely different factual matters. 16. Ms Norman made submissions that I ought to, in determining whether the amendments to the statement of claim should be allowed and whether the proceedings should be dismissed, consider the significance of the matters to be decided in the proceedings. She candidly acknowledged that the matter has "taken too long" to get to this stage, but that she has had difficulty formulating the case in writing and has not been able to get legal assistance. She explained her views that the actions are all inter-dependent and that, as she sees it, the case against Mr Wall cannot proceed properly without Mr Brennock also being made a party, because she sees their roles as interrelated. She expressed the strong preference, and has in effect made an application orally and in writing by email on 22 July 2020, to remove the proceedings to the High Court, as in her view there is a constitutional point and she wishes to argue that before the High Court. 17. Mr Berry's view is a little different. In addition to broadly adopting what Ms Norman says, his view is that the proceedings as set out in the current proposed amended statement of claim are clear and he does not see why it is that the defendant cannot respond to it. He reinforced that the plaintiffs were still trying to obtain legal assistance and he too considered there was some prospect of obtaining legal assistance, although he was unable to specify any legal representative who had as a matter of fact, agreed to take on the proceedings. Decision 1. In respect of the plaintiffs' application to amend the statement of claim, s 64 of the Act provides that at any stage of the proceedings the Court may order that any document in the proceedings be amended, or that leave be granted to a party to amend any document in the proceedings. I am required to have regard to s 58 of the Act and bear in mind that any necessary amendments are to be made for the purposes of determining the real questions raised by or otherwise dependent on the proceedings and to avoid multiplicity of proceedings. 2. Section 58 of the Act provides that the Court is to follow the dictates of justice, and when deciding whether to make any order or direction for the management of proceedings, including any order for the amendment of a document, the Court must seek to act in accordance with the dictates of justice. 3. Section 58(2) sets out the matters to which regard should be had. They include that regard must be had having regard to the provisions of ss 56 and 57 of the Act, which I will come to shortly, and regard may be had to matters such as the degree of difficulty or complexity which the issues in the proceedings give rise to, the degree of expedition with which the parties have approached the proceedings, (and any lack of expedition which has been caused by circumstances beyond the control of the parties), the degree to which parties have fulfilled their duties to the Court, the use any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under the rules of the Court, the practice of the Court or any direction of a procedural nature given in the proceedings, the degree of injustice that will be suffered as a consequence of any order or direction and any other matters I consider to be relevant in the circumstances. 4. Section 56 of the Act requires me, at any time I make any order, to bear in mind the requirement to facilitate the just, quick and cheap resolution of the real issues in the proceedings. I must give effect to the overriding purpose when I exercise any power under this Act. I note that s 56 also requires a party to civil proceedings to comply with its duty to assist the Court to further the overriding purpose and to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court. 5. I note in relation to that last matter that it is without question that the plaintiffs have breached the generous order made previously as to the time within which they needed to file their amended statement of claim. They have in fact breached it by well over two months. I also note that the referral by me to the Pro Bono Scheme, whilst slow to start with, was completely thwarted by Ms Norman advising that Scheme on 9 June 2020 that they were removing the matter to the High Court and therefore, as noted by Ms Sare in her email to the Court, the pro bono referral could not be further actioned. I note in this regard my published decision in Norman v Wall [2020] NSWSC 129 on 21 February 2020, where the proscribed and limited nature of the referral is set out. A copy of that decision was provided to the parties shortly after it was published. 6. In all the circumstances outlined in this judgment, it is my view, acting consistently with the requirements of the Act, that I ought not exercise my discretion to allow the plaintiffs to file the proposed amended statement of claim dated 25 July 2020, for the reasons that I have outlined. Dismissal of proceedings? 1. Moving then to the question of whether this Court should of its own motion pursuant to r 12.7 of the Uniform Civil Procedure Rules dismiss the proceedings for want of due despatch, I am of the view that I should. In my view the plaintiffs have not prosecuted the proceedings with due despatch, despite the assistance that the Court has given them on 21 February 2020, the assistance provided by Darke J initially on two occasions in 2019, the forwarding to the plaintiffs of the relevant Uniform Civil Procedure Rules for their assistance and the lack of co-operation with the referral for pro bono assistance. 2. I understand that in their view, this is a matter that needs to go to the High Court and in their view, all the activities by the various persons that are named (and not named) are interrelated, however, the proceedings before me, that is in the Professional Negligence List, for an action against Mr Wall for professional negligence, has still not yet been properly confined. 3. A year has elapsed since the proceedings were commenced, and recognising the requirements of s 56 of the Act, I dismiss the proceedings for want of due despatch. Costs 1. Rule 42.1 of the Uniform Civil Procedure Rules provides that generally costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. 2. Ms Norman submitted that the Court ought not order costs against her and Mr Berry, first, because they have been rendered impecunious by the events that occurred in 2015 and 2016 involving Mr Wall and the putative second defendant, Mr Brennock and others. Second, she states that she feels that this Court has not considered her's and Mr Berry's case on its merits and feels aggrieved by that position. Ms Norman also articulated that she is on an aged pension and sees the position as one where the defendant would be, if he chose to pursue costs against her, pursuing her for what she could afford, which would be something like $5 a week. 3. This Court should be reluctant to make any order that is pointless. It does seem to me that there is some basis to believe that the defendant would not be able to satisfy any costs judgment he obtained against the plaintiffs, however, the defendant has been put to time, expense and costs in attending Court to try and bring to an end, in an appropriately cost-effective manner, these difficult proceedings. Countering that is my concern that such a costs order may never be one that results in payment. 4. Having considered the competing submissions, I am of the view that the usual position should be maintained and that is, that costs should follow the event. The plaintiffs have failed in their action to amend the statement of claim. A substantial amount of Court time has been used in dealing with the various iterations of the statement of claim and the application to amend. The defendant has had to go to time, expense and costs in retaining counsel and defending that application and, I observe, has acted in a way that has kept the costs contained rather than bringing multiple notices of motion and applications before the Court. 5. In all the circumstances I order that the plaintiffs are to pay the defendant's costs of the notice of motion filed on 1 December 2020 and the costs of the proceedings. Orders 1. I make the following orders: 1. Refuse leave to the plaintiffs to file and rely upon the further amended statement of claim provided to the defendant and the Court at 5:49pm on 26 July 2020 and the plaintiffs' notice of motion filed 1 December 2019 dismissed; 2. The plaintiffs are to pay the defendant's costs of the notice of motion; 3. Pursuant to Rule 12.7 of the UCPR, the proceedings are dismissed for want of due despatch; 4. The plaintiffs are to pay the defendant's costs of the proceedings. ********** 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: 03 August 2020