Wilcox v Chapple (No 2) [2021] NSWSC 1607

Supreme Court New South Wales

Medium Neutral Citation: Wilcox v Chapple (No 2) [2021] NSWSC 1607 Hearing dates: 16 November 2021 Date of orders: 10 December 2021 Decision date: 10 December 2021 Jurisdiction: Equity Before: Robb J Decision: See par [47]. Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — Where defendant filed motion seeking dismissal of proceedings for want of due despatch — Where plaintiff commenced proceedings though over a course of six months failed to comply with Court orders directed at the prosecution of his claim — Where Court made orders dismissing proceedings with such orders being stayed to provide plaintiff with a last opportunity to prosecute his claim Legislation Cited: Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Wilcox v Chapple [2021] NSWSC 860 Wilcox v Chapple [2020] NSWSC 1859 Texts Cited: Ritchie's Uniform Civil Procedure NSW (LexisNexis Butterworths, looseleaf) Category: Procedural rulings Parties: Benjamin Wilcox (plaintiff) John Francis Chapple (first defendant) Trevor John Harland (second defendant) Representation: Counsel: P Afshar (first defendant)

Solicitors: Benjamin Wilcox (plaintiff)(self-represented) Newnhams Lawyers (first defendant) Bridges Lawyers (second defendant) File Number(s): 2019/131798

Judgment 1. The matter before the Court is a notice of motion filed by the first defendant on 15 October 2021, which seeks an order pursuant to rule 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the proceeding be dismissed, as well as an order pursuant to rule 12.7(2) that the amended statement of claim filed on 21 October 2019 be struck out. 2. UCPR r 12.7 provides: (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit. 1. As r 12.7(2) is concerned with a want of due despatch by the defendant, it is not relevant to any application that may be made by the first defendant. 2. The proceedings were commenced by the filing of the plaintiff's statement of claim on 29 April 2019. The primary relief sought by the plaintiff was damages against the first defendant, as the legal personal representative of the late Patricia Anne Wilcox (the deceased), for breach of contract by the deceased to make and not change a will providing bequests to the plaintiff. The plaintiff also sought an order that the first defendant be removed as executor or trustee of the deceased's estate and an order that an account be taken. 3. The second defendant has not joined in the application to dismiss the proceedings and it is not necessary to consider the plaintiff's claim against him. My understanding of the second defendant's position is, however, that he has been represented at hearings concerning the notice of motion and has proceeded upon the basis that, if the proceedings are dismissed at the suit of the first defendant, it should be dismissed for all purposes. 4. The plaintiff filed a notice of motion on 7 June 2019 seeking an order that the first defendant pay to the plaintiff a sum of money that the plaintiff alleged the first defendant had admitted the plaintiff was entitled to be paid out of the deceased's estate. The plaintiff also sought a further order that the defendants be restrained from dealing with specified properties in the estate of the deceased. 5. On 22 July 2019, the second defendant filed a written undertaking to the Court not to deal with the properties specified in the plaintiff's notice of motion without first providing the plaintiff with 14 clear days' notice in writing of his intention to do so. 6. On 30 July 2019, the first defendant filed a notice of motion seeking an order that specified paragraphs of the statement of claim be struck out pursuant to UCPR r 14.28, or in the alternative that the plaintiff provide further and better particulars of the matters pleaded in certain specified paragraphs. 7. The first defendant then filed a notice of motion on 26 August 2019 seeking orders that certain subpoenas issued by the plaintiff be set aside. 8. On 4 October 2019, a hearing took place before Kunc J. The plaintiff was represented by senior and junior counsel. 9. As to the plaintiff's 7 June 2019 notice of motion, his Honour noted that it had been partly resolved between the parties, dismissed the balance of the motion and ordered the plaintiff to pay the first defendant's costs. 10. In respect of the first defendant's notice of motion filed on 30 July 2019, his Honour ordered the plaintiff to file an amended statement of claim on or before 18 October 2019. An order was made that the plaintiff's and the first defendant's costs of the notice of motion be costs in the cause. 11. Certain orders were made on the notice of motion filed on 26 August 2019 concerning the setting aside of subpoenas and access to documents produced, and the plaintiff was ordered to pay the first defendant's costs of the motion. 12. On 21 October 2019, the plaintiff filed an amended statement of claim. The prayers for relief were in the same terms as the original statement of claim but substantial amendments were made to the allegations of fact. 13. The first defendant filed a defence to the amended statement of claim on 6 December 2019. 14. Case management orders were made by the Registrar on 2 December 2019 and the first defendant was ordered to pay the plaintiff's costs of the day. 15. On 11 May 2020, the first defendant filed a notice of motion seeking orders setting aside a notice to produce served by the plaintiff on 27 April 2020. 16. Orders were made by the Registrar on 26 June 2020 in response to the 11 May 2020 motion setting aside the notice to produce in part. The costs of the motion were ordered to be costs in the cause. 17. On 16 October 2020, the first defendant filed a notice of motion seeking advice under s 63 of the Trustee Act 1925 (NSW) as to whether he was justified in defending the claim made by the plaintiff and in having recourse to the property of the estate of the deceased to pay his reasonable costs. 18. In a judgment published on 16 December 2020, Rees J gave the first defendant the advice that he had sought confirming that he was justified in defending the claim and paying his costs from the estate: Wilcox v Chapple [2020] NSWSC 1859. 19. The plaintiff's most recent solicitor filed a notice that she had been appointed to act as the plaintiff's solicitor in these proceedings on 27 January 2021. 20. On 30 April 2021, the plaintiff filed a notice of motion in which he sought the Court's leave to file and serve a further amended statement of claim in the form annexed to the notice of motion. 21. I heard the plaintiff's notice of motion on 1 July 2021 and published my judgment on 15 July 2021: Wilcox v Chapple [2021] NSWSC 860. I stated the following conclusions at the end of the judgment: [69] I propose to publish these reasons for judgment and to give both the plaintiff and the first defendant some time to consider the consequences. If the first defendant's complaint continues to be limited to the concern that the draft further amended statement of claim contains pleading deficiencies, then the plaintiff should revise the draft to accommodate the conclusions reached in these reasons. [70] I recommend that the plaintiff revisit his application for leave to file a further amended statement of claim that would introduce breach of trust and fiduciary duty claims against the first defendant personally, having regard to the applicable principles of the law of succession to which I have referred briefly above. [71] It is a notable omission from the draft further amended statement of claim that it contains no allegations as to when the first defendant made distributions of the assets in the deceased's estate to the plaintiff and the second defendant. The draft pleading is also silent on the issue of whether the distributions were made by the first defendant with actual knowledge of the claim that was made in the statement of claim filed on 29 April 2019. [72] It is therefore not clear how the relevant principles of the law of succession may apply to the plaintiff's claim for breach of contract against the estate of the deceased, or to the question of whether the plaintiff is entitled to recover from either the first defendant or the second defendant any shortfall in capacity of the first defendant to pay any damages that may be awarded to the plaintiff out of the assets that remain in the estate. It is also not clear whether the first defendant would be entitled to recover any shortfall from the second defendant. There may be a question as to whether there must be a rateable apportionment of any shortfall as between the shares in the estate distributed to the plaintiff and the second defendant. [73] The parties' legal representatives should confer for the purpose of exploring the possibility that the plaintiff's real claim may be conducted in a cost effective way. [74] There is an outstanding question concerning the costs of the application for leave to amend and the costs order that should be made if leave to amend is given. I will defer dealing with the issue of costs until I know the response of the parties to these reasons for judgment. [75] My Associate will arrange a telephone directions hearing with the parties at a convenient time to consider the way forward. 1. As the application before me was the second application for leave to amend made by the plaintiff, I explored in the judgment the application of a number of relevant principles of law that, as it appeared to me, may not have been sufficiently taken into account by the plaintiff's legal representatives in the preparation of the draft further amended statement of claim. The Court had been informed that the first defendant, as the executor of the deceased's estate, only retained limited funds that were available to pay the costs of the proceedings. The parties had obviously already incurred considerable costs. I was concerned to ensure that, if the proceedings were to continue, they would do so on a sound basis of principle. 2. When I delivered the judgment, I expected that the plaintiff's legal representatives would consider the reasons and that there may be some additional amendments to the draft before the further amended statement of claim was filed. 3. The plaintiff's solicitor filed a notice of ceasing to act on 6 August 2021. 4. On 18 August 2021, a directions hearing occurred at which the plaintiff appeared for himself. I made an order standing the proceedings over to 17 September 2021 for directions and directed the plaintiff to inform the defendants by 13 September 2021 what orders the plaintiff would seek at the directions hearing. 5. On 17 September 2021, I noted that there was no appearance for the plaintiff at the telephone directions hearing on that day. I noted that the plaintiff had not complied with the direction made on 18 August 2021 that he inform the defendants of what orders he would seek. I made orders that included the following: 3. On the application of the defendants in order to give the plaintiff a final opportunity of informing the defendants of what orders he will seek in response to the issues raised by the Court in its judgment published on 1 July 2021 extend order 2 made on 18 August 2021 to 5:00PM on Friday, 24 September 2021. … 6. If the plaintiff fails to comply with order 3 grants leave to the defendants to file and serve a notice of motion with supporting affidavit by 5:00PM on 7 October 2021 seeking such relief as they may be advised. 7. Grants leave to make the notice of motion referred to in order 6 returnable at 9:15AM on 18 October 2021 for directions. 1. The first defendant filed the notice of motion that is now before the Court on 15 October 2021. 2. The plaintiff did not comply with order 3 made on 17 September 2021. The plaintiff was self-represented at the directions hearing on 18 October 2021. I made an order extending order 3 made on 17 September 2021 to 27 October 2021. I stood the first defendant's notice of motion over to 12 November 2021. 3. On the morning of 12 November 2021, the first defendant's solicitor forwarded to my Associate an email that she had received from the plaintiff that morning. The email said: I am writing to inform you that I have fallen ill and I won't be able to attend court today. Attached is a medical certificate of my consultation with the doctor stating that I am unfit for work or court and school. I regret any inconvenience that this may have caused you and the associated parties bound to this matter. In response to your letter yesterday dated the 11th 11th I can only say that given the pandemic in the short amount of time that the restrictions have been over it has been extremely difficult for me to execute my claim in a proper manner. once I'm feeling a bit better I will endeavour to answer the questions have been put before me. I Will now notify the court of my position in terms of my health. would you please let all relevant parties know what my situation. Thank you 1. Later that morning, before the hearing, the first defendant's solicitor forwarded to my Associate a further email received from the plaintiff that was in the following terms: Please be advised that my pleadings are to proceed and remain in the same order as they originally were in before the refilling of my SOC. My previous council decided to change the order of the pleadings without my consent and authority! I cannot understand or comprehend why this was done. However It was with out my "authority. " I'm sorry it has taken me so long to reply. However I don't have anywhere to live. I am confronted with my brothers actions in court against me. I am having trouble with my phone and internet service. There are no services available to get anything fixed in the middle of the worst 100 year lock down in modern history and global pandemic. Thus it is not that easy to just stroll down the street and find further representation. 1. On one view of matters, this email constituted an election by the plaintiff to proceed with the draft further amended statement of claim that was the subject of my judgment, rather than to seek to further amend it to accommodate the comments that I had made. 2. There was no appearance for the plaintiff on 12 November 2021. I made the following orders: The Court 1. DIRECTS the plaintiff to inform the solicitor for the defendants and the associate to Robb J by email not later than 2:00pm on Monday, 15 November 2021 of (a) the pleading and the date the pleading was filed that the plaintiff wishes to prosecute in this matter; and (b) the directions that the plaintiff asks the Court to make for the purpose of the preparation of the proceedings for hearing. 2 STANDS the proceedings over to 10:00am on Tuesday, 16 November 2021 before the Duty Judge for hearing of the first defendant's notice of motion filed on 15 October 2021 or any other application that may seem fit to the Court to decide. 3 NOTES that the Court will on the adjourned date finally deal with the first defendant's notice of motion and the proper course to take with regard to the determination of these proceedings. 4 DIRECTS the solicitor for the first defendant to serve these orders on the plaintiff by email by 2:00pm on Friday, 12 November 2021. 5 ORDERS the plaintiff to pay the defendants' costs of today. 1. Order 2 refers to the Duty Judge because I knew that I would be sitting in the Duty List on that day. 2. The plaintiff represented himself at the hearing of the first defendant's notice of motion that took place on 16 November 2021. 3. At the hearing, counsel for the first defendant made the following submissions (based on written submissions dated 12 November 2021), after addressing the relevant legal principles: 8. First, since Robb J's judgment, which was delivered on 15 July 2021, nothing of substance has been done by the plaintiff. 9. Second, there has been no proper explanation of the plaintiff's failure to comply with the Court's directions. 10. Third, the justifications provided by the plaintiff for his repeated failures to comply with the Court's orders would not be accepted by the Court. Given the plaintiff's experience with litigation, including this litigation, during which he has regularly retained solicitors and counsel (including two senior counsel in this proceeding alone), the assertions concerning the inability to find representation or the vague statements concerning the effect of lockdowns would not be accepted as anywhere near adequate. 11. Fourth, the Court would be satisfied and would infer from the plaintiff's conduct that he has no real interest in pursuing this litigation, or to do so with due dispatch. The unexacting nature of the Court's directions since July 2021 and the plaintiff's repeated and unexplained failures to comply even with such directions for almost four months provide ample support for the aforementioned submission. 12. Fifth, the latest delays are of the plaintiff's own making rather than of any legal representatives, because he has had none for a number of months. 13. Sixth, this proceeding was commenced almost 5 years after the events, of which the plaintiff complains. 14. Seventh, and as the plaintiff has failed to prosecute his claims, the remaining funds of the estate as held by the first defendant, an executor, are being diminished by the expenditures of legal fees. 1. In his oral submissions in reply, the plaintiff was able to do little more than to apologise and to say that he was facing personal difficulties that were preventing him from prosecuting his claim with expedition. The plaintiff has said to the Court on various occasions that he had not been able to engage a new legal representative, that he had been thrown out of home by his girlfriend, that he was homeless, and that he did not have effective access to email communications. At the hearing on 16 November 2021, the plaintiff threw himself at the mercy of the Court and asked for a further chance (T 13.29). 2. The principles to be applied to an application by a defendant for an order dismissing a plaintiff's claim for want of due despatch are set out in Ritchie's Uniform Civil Procedure NSW as follows at [12.7.5]: The power to dismiss an action (or strike out a defence) for want of prosecution is not confined by rigid guidelines: Stollznow v Calvert [1980] 2 NSWLR 749; Witten v Lombard Australia Ltd [1968] 2 NSWR 529; (1968) 88 WN (Pt 1) (NSW) 405 at 411; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; BC200104963. Although delay is the threshold circumstance that potentially enlivens the power, it is a relative concept and the significance of any delay must depend on the particular circumstances of the case involved: Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863; Masel v Transport Industries Insurance Co Ltd [1995] 2 VR 328… The essential criterion for the exercise of the power is whether or not, in all the circumstances, justice requires that the proceedings should be dismissed or the defence struck out. That criterion commonly involves striking a balance between the plaintiff and the defendant: Witten v Lombard Australia Ltd [1968] 2 NSWR 529; (1968) 88 WN (Pt 1) (NSW) 405 at 411; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491; McKenna v McKenna [1984] VR 665; Stollznow v Calvert [1980] 2 NSWLR 749; Hartigan v International Krishna Consciousness Inc [1999] NSWSC 57; BC9900282; although more general considerations concerning the efficiency of the court's proceedings are also relevant considerations: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; BC200104963 at [63]–[64] and see also CPA s 58. The balancing exercise involved permits consideration of a wide range of factors, many of which were helpfully detailed in Hoser v Hartcher [1999] NSWSC 527; BC9902856 at [19] and [30] and approved in Gill v Eatts (1999) Aust Torts Reports 81-529; [1999] NSWSC 1056; BC9906939. Those factors can be summarised as follows: Prejudice to the party complaining about the lack of progress Under this heading the court will look at present, past and future prejudice: Casauria v De Kever (VSC, Hayne J, No 508/198821, November 1994, unreported, BC9405828) (any future trial would occur 12 years after the relevant events). The court should consider: (a) the length of the delay, and the nature of any procedural non-compliance, in the conduct of the proceedings; (b) (particularly in the case of delay by a plaintiff) the delay between the cause of action, any notice of intended action, and the commencement of the action; (c) any relevant change in circumstances, particularly changes in relation to insurance, since the cause of action accrued; (d) the prior attitude and conduct of the other party, such as: (i) waiver of or acquiescence in, the delay; (ii) being themselves the cause of unnecessary delay; or (iii) allowing an opposing party to incur further costs in the reasonable belief that no point would be taken about the delay: Queensland Trustees Ltd v Drysdale Hendy & Co (a firm) [1992] 2 Qd R 625; Ulowski v Miller [1968] SASR 277; St Martin's Centre Pty Ltd v Civil & Civic Pty Ltd (1989) 10 BCL 113; Roebuck v Mungovin [1994] 2 AC 224; [1994] 1 All ER 568; [1994] 2 WLR 290 (action by a defendant that induces a plaintiff to incur further expense in prosecuting the proceedings does not preclude an application to strike out for want of prosecution and is only one of the discretionary factors to be taken into account). Anxiety resulting from the existence of the unresolved litigation is not itself a sufficient prejudice to justify striking out proceedings for want of prosecution by a plaintiff: Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197; [1989] 1 All ER 897; [1989] 2 WLR 578; Lewandowski v Lovell (1994) 11 WAR 124; BC9401588. Prejudice to the party responsible for the lack of progress In considering prejudice to the party responsible for the impugned delay the court will have regard to: (a) the nature and extent of, as well as the party's explanations for, any delay: eg Petronaitis v Rowles [2012] NSWCA 236; BC201205729 (inadequate explanation for failure to attend on multiple occasions); (b) the party's degree of personal fault for the delay: Building Insurers' Guarantee Corporation v Touma [2010] NSWSC 4; BC201000056 (defendant in default of discovery frequent changes of legal representation and spurious adjournment applications — defence struck out); (c) the degree to which the party has kept the other parties informed of the cause of the delay (noting that the obligations of a plaintiff to have the action brought on promptly are greater than those of a defendant): Calvert v Stollznow (NSWSC, Cross J, CL 8416/70, 1 April 1980, unreported); on appeal Stollznow v Calvert [1980] 2 NSWLR 749 at 751; Ulowski v Miller [1968] SASR 277. 1. There is some strength in each of the submissions made on the first defendant's behalf as to why the Court should dismiss the plaintiff's claim for want of due despatch. However, the plaintiff prosecuted his claim with some vigour up until the Court published its judgment on 15 July 2021. That is so even though the plaintiff made a number of applications to amend, which may well have resulted from different lawyers taking different views as to the way his case should be formulated. It appears that my expectation that the commentary in my judgment would focus the parties' attention on what I considered to be the real issues was misplaced. 2. It is true that the plaintiff has not prosecuted his claim with adequate despatch since 15 July 2021, but although a six-month delay in the efficient conduct of the case is significant, it is not protracted. I am prepared to accept the plaintiff's claim that he has fallen on hard times, although the plaintiff has not been sufficiently experienced to provide proper evidence to the Court to prove his current circumstances. The plaintiff has been polite to the Court during the telephone hearings. I formed a strong sense that the plaintiff is bewildered by the terms of my judgment and the consequences for his proceedings. 3. The first defendant has not established that the continuation of the proceedings is causing him any positive prejudice, save to the extent that the costs that the first defendant is incurring are steadily depleting a limited fund that he retains in his capacity as the executor of the estate of the deceased. 4. Although I am satisfied that the plaintiff's conduct in not efficiently prosecuting his claim is not in any way delinquent, it is a simple fact that, if he cannot put his house in order and prosecute his claim efficiently, there will be no alternative available to the Court than to dismiss the claim for want of due despatch. Whatever the plaintiff's present circumstances may be, he has to face the fact that he has commenced proceedings in this Court against the defendants, he has caused them to incur what is no doubt considerable costs, and the defendants have a right to require the plaintiff to prosecute his case with proper expedition, and if he does not do so, for the proceedings to be dismissed. The time has come when the plaintiff must consider his real circumstances and decide whether he is able to prosecute his case or not. 5. In these circumstances, I do not think it would be just for the Court to dismiss the plaintiff's claim for want of due despatch now. That course would not prevent the plaintiff from recommencing proceedings, subject to the possible lapse of relevant limitation periods, but would subject him to the obligation to pay the defendants' costs. 6. On the other hand, the plaintiff's conduct of his claim has been so unsatisfactory that it would not be just to the defendants for the Court simply to make an order that the plaintiff take some appropriate step in the continuation of the proceedings by a stated date. The plaintiff has not proved himself to be sufficiently reliable for that course to be appropriate. Instead, I propose to make an order that the plaintiff's claim will be dismissed on an appropriate date in the future, with an order that the plaintiff pay the defendants' costs of the proceedings, unless before that date arrives the plaintiff has made an application for and obtained an order from the Court setting aside the order for dismissal of the proceedings. The Court is only likely to make such an order if it is satisfied that the plaintiff has remedied his defaults and is in a position to serve a further amended statement of claim on the defendants that pleads in a proper way an arguable case for relief. The plaintiff should in any event be ordered to pay the first defendant's costs of the notice of motion, given that the course that I will follow essentially confers on the plaintiff the mercy of the Court that he sought. 7. It is proper for the Court to observe that the issues raised by the plaintiff in his pleadings are of such legal and practical technicality and complexity that it would not be realistic for the plaintiff to think that he can prosecute his claim without the assistance of proper legal representation. However, that does not mean that the Court requires the plaintiff to retain legal representation. 8. The Court's orders are: 1. Order pursuant to rule 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) that the proceedings be dismissed. 2. Order that the plaintiff pay the defendants' costs of the proceedings. 3. Order that orders (1) and (2) be stayed until 25 February 2022. 4. Grant leave to the plaintiff, if he should be so advised, to file a notice of motion returnable before Robb J on a date before 25 February 2022 to be arranged with the Associate to Robb J after communication with the solicitors for the defendants, seeking an order setting aside orders (1) and (2). 5. Order that the grant of leave by order (4) may only be exercised if the plaintiff annexes to the notice of motion a draft further amended statement of claim that has proper regard to the matters raised in the Court's judgment published on 15 July 2021. 6. Order the plaintiff to pay the first defendant's costs of the notice of motion filed on 15 October 2021 in any event.