Panton v Bailey & 2 Ors [2004] NSWCA 12

New South Wales Court of Appeal

CITATION : Panton v Bailey & 2 Ors [2004] NSWCA 12 HEARING DATE(S) : 03/02/04 JUDGMENT DATE : 12 February 2004

JUDGMENT OF : Meagher JA at 1; Sheller JA at 13; Ipp JA at 14 DECISION : Summons dismissed with costs.

CATCHWORDS : PRACTICE AND PROCEDURE: Statements of claim - Causes of action - No cause of action disclosed - Content of pleadings - Amendment of pleadings. LEGISLATION CITED : Trade Practices Act (1974) (Cth) Supreme Court Rules CASES CITED : Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 Bernard John Panton PARTIES : v Bruce Leonard Bailey t/as Saccasan Bailey Partners & 2 Ors FILE NUMBER(S) : CA 40505/03 COUNSEL : A: In Person R: R E Dubler SOLICITORS : A: John R Quinn & Co R: Phillips Fox

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT SC 5534/01 FILE NUMBER(S) : LOWER COURT Bryson J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40505 of 2003

MEAGHER JA SHELLER JA IPP JA

Thursday, 12 February 2004 BERNARD JOHN PANTON v BRUCE LEONARD BAILEY T/as SACCASAN BAILEY PARTNERS & Ors Judgment 1 MEAGHER JA: Mr Panton, the claimant, who appeared in person, sued Mr Bailey, his accountant. 2 The great difficulty is to work out on exactly what causes of action. Mr Panton told us he sought to rely on three causes of action: negligence, breaches of fiduciary duty, and breaches of the Trade Practices Act 1974 (Cth). These causes of action all allegedly arose out of some wrongful financial documents prepared by Mr Bailey for a Mr Cox, who later became a partner of Mr Panton. Mr Panton never saw these documents, and in no sense relied on them. 3 In reliance on Pt 15 r26 of the Supreme Court Rules Mr Bailey sought to strike out Mr Panton's Statement of Claim as disclosing no cause of action, and as being embarrassing. Acting-Master Berecry made orders to this effect, but also made orders granting liberty to Mr Panton to replead. Mr Panton appealed against the former and Mr Bailey against the latter. On appeal, Bryson J upheld Mr Bailey's appeal and dismissed Mr Panton's. The matter has now come before this Court. 4 The whole point of a pleading is to enable a plaintiff to set out in some coherent order those matters of fact which he intends to prove in order to obtain the orders he seeks. This Mr Panton has signally failed to do. Merely as one example, he has pleaded no facts which would substantiate a claim to having suffered damage. However one reads his Statement of Claim, there is no way one can find a path through the trackless jungle of his effusions. 5 As far as his alleged case in negligence is concerned, he made it clear that he was not relying on a Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 cause of action. This is just as well, as he denied ever seeing the allegedly negligent document, much less relying on it. 6 He addressed the Court for some hours, and as the submissions rolled on, Ipp JA devised a cause of action for him, the essential structure of which is as follows: (a) Panton at all material times believed, because Cox told him so, that there was a period of 14 years which would have to elapse before the mortgagee bank could take action to recover the partnership land. (b) Bailey negligently produced accounts for the benefit of the mortgagee bank. (c) By reason of that negligence, the mortgage became payable on demand, not after 14 years. (d) Mr Panton suffered loss by reason of the mortgage suddenly becoming payable on demand. 7 That is only a sketch of a possible cause of action which might have been available to Mr Panton. It is not a complete statement of such a cause of action. But, what is more important is that it is not really the cause of action which Mr Panton has pleaded. 8 He has had every chance to amend his pleading. He could have done so before the matter came on before Mr Deputy Master Berecry. The Deputy Master granted him liberty to amend, but he did not avail himself of it. Before Bryson J he had before him, apparently, an amended Statement of Claim in his hands, but he never sought leave to file it. Before us, no application was made to file a new Statement of Claim. 9 None of his three alleged causes of action could possibly proceed with any success in their unamended form. 10 In these circumstances, the question arises why should this Court grant leave to appeal. 11 I can see no reason. To my mind he has exhausted every indulgence granted to him and is entitled to no further indulgences. 12 The summons should be dismissed with costs. 13 SHELLER JA: I agree with Meagher JA. 14 IPP JA: I agree with Meagher JA.