Skelton v Evers [2023] NSWSC 570

Supreme Court New South Wales

Medium Neutral Citation: Skelton v Evers [2023] NSWSC 570 Hearing dates: 27 April 2023 Date of orders: 27 April 2023 Decision date: 27 April 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The notice of motion is dismissed. (2) I do not grant leave to the plaintiff to file a further amended statement of claim. (3) No further motion can be filed seeking leave to file a further amended statement of claim. Catchwords: CIVIL PROCEDURE — Commencement of proceedings — Statement of claim – self-represented litigant – where plaintiff has made a number of attempts to properly plead his case – whether leave should be granted to the plaintiff to file an amended statement of claim Cases Cited: Skelton v Foggo (No 2) [2022] NSWSC 1289 Skelton v Foggo (No 3) [2023] NSWSC 72 Skelton v The Nominal Defendant (Supreme Court of NSW, Enderby J, 20 April 1988) Category: Procedural rulings Parties: Brett Skelton (Plaintiff) Michael Evers (Third Defendant)) Representation: B Skelton (Plaintiff) S Selvakumaran (Third Defendant) File Number(s): 2021/75684 Publication restriction: None

REVISED EX TEMPORE Judgment 1. This matter comes before me by way of a further motion brought by the plaintiff, who seeks leave to file a further amended statement of claim against the third defendant, a solicitor who the plaintiff asserts represented him for a period. 2. This application has a long history. It is summarised in the judgment of Dhanji J of 27 September 2022 [1] and further referred to in the judgment of Elkaim AJ of 10 February 2023. [2] It is not necessary for me to go through the extensive background and summary as provided by Dhanji J. Suffice to say, the plaintiff appears today unrepresented, in circumstances where he suffers from cognitive impairment as a result of a motor vehicle accident which happened in 1982. In 1988, he obtained a judgment in his favour in the amount of $347,453. The defendant in that case appealed but its appeal was dismissed. 3. The plaintiff was then placed in the hands of someone he describes as an insurance salesman who, I accept (based on the plaintiff's statements) was handling the plaintiff's money and seemingly lost it all. 4. Despite the findings of the original trial judge, Enderby J, as to the nature and extent of the plaintiff's injuries and disabilities, [3] no one thought to ensure that the plaintiff was able to provide proper instructions back in the 1980s and 1990s. 5. After the insurance salesman lost his money, the plaintiff sought further legal representation for the purposes of pursuing an action against the advisor/insurance salesman. 6. Proceedings were pursued in the Federal Court. Ultimately, the plaintiff received advice to settle those Federal Court proceedings for the sum of approximately $60,000. He again complains, perhaps with some justification, that he was not capable at that time of providing proper instructions. He says he was railroaded into a settlement by those representing him at the time. That occurred in March 1995. 7. Since that time, the plaintiff has continued to seek redress in relation to that which happened in the early 1990s or thereabouts. Over time, his cases against all of the other defendants have been dismissed or not pursued. Only the third defendant remains. 8. The simple point that I am endeavouring to make in this judgment, which is being made with the assistance of the plaintiff (who is providing me with information as I am delivering it), is that the case against the third defendant is really based on things he did in 2004, but the loss suffered by the plaintiff occurred back when the insurance salesman/financial advisor lost his money in 1992 or thereabouts. Importantly, in those circumstances, should the plaintiff wish to continue to pursue the third defendant, he must properly set out in his statement of claim the basis of his case against the third defendant, including what loss was caused by the third defendant. 9. The plaintiff has had a number of attempts at properly formulating his statement of claim. He was afforded another opportunity to do so by Dhanji J in September 2022. He was afforded a further opportunity to do so by Elkaim J in February 2023. The document he has provided today to the solicitors for the third defendant and the Court pleads two causes of action: 1. breach of fiduciary duty; and 2. negligence. 1. He pleads his case in breach of fiduciary duty in one sentence. His claim in negligence is more fully set out. 2. The plaintiff tells me today that he received in the mail some anonymous advice, which he showed me, being advice outlining how to properly plead a statement of claim. He says he has relied on that for the purposes of the pleading. He pleads that the third defendant owed a duty of care when providing legal advice. He pleads that the third defendant was in breach of that duty of care, specifically by: 1. failing to supply the copy of the judgment of Judge Enderby to counsel; and 2. failing to apply for a tutor or responsible person for the plaintiff. 1. The plaintiff says that his loss is the loss of opportunity to bring proceedings that would see him finally receive the Court award. 2. The pleadings are in a better form than on earlier occasions but it was pointed out by the third defendant that there is no pleading outlining what the third defendant actually did and when he did it. More fundamentally, there is no pleading as to what the third defendant did in 2004 which would have enabled the plaintiff (as he says) to recoup the loss that he sustained as a result of the conduct of the first defendant and the financial advisor back in the 1990s. 3. During the course of this ex tempore judgment, the plaintiff has helpfully provided further information in response to a number of things that I have said during the course of the judgment. I have assured him that I understand his position and the case he is trying to pursue. 4. However, in my view, there is a fundamental problem with the case, which is insurmountable as against the third defendant. The law of negligence involves not only establishing a duty of care and a breach, but also causation. That is, it would be necessary to prove that what the third defendant did in 2004 caused the loss that happened back in the 1990s. The plaintiff has not addressed this in his proposed further amended statement of claim. 5. This is a most difficult matter because the plaintiff appears unrepresented with a brain injury. The Court can and should be entirely sympathetic to the plaintiff in those circumstances and the Court does understand the plaintiff's grievance about, as he says, the way his life has turned out and the very bad things that have happened to him. 6. However, I am required to deal with the proceedings according to the law. I am not satisfied the plaintiff has properly articulated the case he pursues in the proposed further amended statement of claim and I am further not satisfied that it will ever be possible to properly articulate the case he intends to pursue against the remaining defendant (the third defendant), because of the fact that the third defendant is alleged to have done things in 2004. 7. In the circumstances: 1. the notice of motion is dismissed; and 2. I do not grant leave to the plaintiff to file a further amended statement of claim. 1. Further, it seems to me that an order should be made that no further motion can be filed seeking leave to file a further amended statement of claim. The plaintiff has had at least three attempts. I understand he is unrepresented but, in my judgment, as a matter of fact and law, the plaintiff will not be able to properly articulate the case against the third defendant for the reasons I have set out. 2. In the circumstances, I do not grant any further leave to the plaintiff to file any further motion seeking to amend the statement of claim, and his current motion is dismissed. 3. To bring certainty to what is happening in these proceedings, and consistent with the power I have, I make it plain that the proceedings are at an end. No further leave should be given to the plaintiff to attempt to file his further statement of claim.