New South Wales Supreme Court CITATION : Negrine v Abacus Finance Pty Limited & 3 Ors [2006] NSWSC 1034 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 03/10/2006 JUDGMENT DATE : 5 October 2006 JUDGMENT OF : Associate Justice Malpass DECISION : The Statement of Claim is dismissed. The plaintiff is to pay the costs of the defendants on an indemnity basis. CATCHWORDS : Entitlement to summary dismissal - indefensible process - entitlement to a jury trial under s85 Supreme Court Act 1970 - indemnity costs. LEGISLATION CITED : Uniform Civil Procedure Rules 13.4 & 14.28 s85 Supreme Court Act 1970 CASES CITED : Muir v The Council of Trinity Grammar School [2005] NSWSC 555 Charles Negrine (Plaintiff) Abacus Finance Pty Limited (1st Defendant) PARTIES : Taylor Woodings Chartered Accountants (2nd Defendant) Abbott Tout Lawyers (3rd Defendant) Gray Perkins Lawyers (4th Defendant) FILE NUMBER(S) : SC 20213/2006 Mr C. Negrine (In Person) (Plaintiff) COUNSEL : Mr R. G. Forster (1st - 3rd Defendants) Mr M. Henry (4th Defendant) SOLICITORS : Mr Bartrop (1st -3rd Defendants) Ms K. Kahlar (4th Defendant) - 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 5 October 2006 20213/06 Charles NEGRINE v Abacus Finance Pty Limited & 3 Ors JUDGMENT 1 MALPASS ASSOCIATE J: The plaintiff is, or was, a shareholder in Rainbow Nominees Pty Limited (Rainbow). Rainbow borrowed monies from the first defendant. The borrowing was secured by a mortgage given by Rainbow, together with a mortgage and guarantee given by the plaintiff. 2 There was default. The first defendant appointed the second defendants as receivers and managers. The security given by Rainbow (The Bernly Hotel) was sold and the indebtedness to the first defendant was satisfied out of the proceeds of sale. The security given by the plaintiff was not exercised. 3 Abbott Tout are a firm of solicitors who acted for the receivers and managers. Gray Perkins are a firm of solicitors who were retained by the plaintiff in relation to the matter. 4 On 8 June 2006, the plaintiff filed a Statement of Claim in this court. It named four defendants. I have already mentioned the first and second defendants. The third defendant is named as "Abbott Tout Lawyers". The fourth defendant is named as "Gray Perkins Lawyers". 5 Before proceeding further, I should observe that neither of what has been named as the third and fourth defendant are legal entities. 6 The structure of the Statement of Claim falls into two parts. The first part sets out the nature of the relief that is claimed (paragraphs 1-7). All of that relief is specified to be relief by a jury. It is relief claimed by way of damages. The second part is headed "Pleadings and Particulars" (paragraphs 1-20). It proceeds to recite what is said to be the facts and assertions relied on by the plaintiff. 7 There are two Notices of Motion presently before the court. One is brought on behalf of the first, second and third defendants. (It was the subject of an amendment application which came to be put aside). The other is brought on behalf of the fourth defendant. Each defendant seeks either summary dismissal or the striking out of the claims. 8 There were two affidavits relied on by the defendants. An affidavit from the plaintiff was also read. It was similar in content to what was asserted in the Statement of Claim. In addition to this material, three exhibits were tendered. 9 The relevant provisions are rules 13.4 and 14.28. It is convenient to first look at the question of the striking out of the process. 10 Division 3 of Part 14 sets out the requirements that must be met by pleadings. These provisions have application to all litigants (be they litigants in person or represented parties). 11 It takes but a casual glance to reveal the obvious shortcomings of the plaintiff's process. It fails to meet the pleading requirements in many respects. 12 I shall briefly mention certain of the problems. Primarily, the process was indefensible as a pleading because it failed to allege any reasonable cause of action against any of the defendants. Generally speaking, it is replete with argumentative, scandalous and irrelevant material. It makes allegations concerning various persons who are not parties to the proceedings and contains submissions on questions of law (including those made in respect of a statute that was repealed long ago). The process is indefensible as a pleading and liable to be struck out. 13 I have already mentioned problems concerning the named third and fourth defendants. There is also another party problem. Save for what is said against the named fourth defendant, any claim against the other defendants would seem only to be maintainable by Rainbow. There is nothing to support the view that the plaintiff has a personal right of action against them. 14 In resisting the relief claimed by the defendants, the plaintiff restricted himself to brief submissions which did not seek to address the substance of the allegations being made against his process and his case. Largely, he took the stance that he was a victim of a fraudulent contract and required his case to be heard by a jury. 15 He persisted with the misconception that in some way Magna Carta ensured him the right to a jury hearing (see inter alia paragraph 1 of the Statement of Claim). He has not sought to otherwise obtain a trial by jury and does not seem interested in so doing. 16 The entitlement to a jury trial is now governed by s85 of the Supreme Court Act 1970 (NSW). Under the existing provisions, proceedings are to be tried without a jury unless the court orders otherwise. The court has a discretion to make an otherwise order. It has been said to be a discretion exercisable only in limited circumstances (Muir v The Council of Trinity Grammar School [2005] NSWSC 555). 17 There is also a need to satisfy the requirements of Rule 29.2. In the present case, those requirements have not been satisfied. 18 The authorities establish that summary dismissal is only available in what might be described as clear cases. The onus of demonstrating an entitlement to relief rests on the applicants for that relief. 19 The plaintiff has not sought to amend the Statement of Claim and I am satisfied that the deficiencies of the process could not be cured by amendment. His claims are doomed to fail and the Statement of Claim is an abuse of process. 20 As earlier said, any claim that may be bought against the first, second and third defendants would have to be brought by Rainbow and not the plaintiff. The thrust of the case against the third and fourth named defendants would appear to be that they "were guilty of malpractice in that they perpetuated wrongs resulting from an unlawful and wrongful contract". What this was said to be was not elaborated. There is nothing to suggest that the plaintiff could have any claim against Abbott Tout. There is nothing to suggest that the claim made against his own solicitors is one that sounds in breach of contract or duty and which has caused the plaintiff to suffer loss and damage. 21 In my view, the defendants have discharged the onus of demonstrating an entitlement to summary dismissal. I consider that it is in the interests of all parties to bring these proceedings to an end as expeditiously as possible. 22 The Statement of Claim is dismissed. The plaintiff is to pay the costs of the defendants. 23 The defendants seek an order that these costs be payable on an indemnity basis. In my view, the circumstances of this case justify the making of such an order. 24 The authorities establish that such an order is made where a party persists with hopeless proceedings. This is what has happened in this case. The plaintiff's process was indefensible and he has resisted its dismissal. 25 The first, second and third defendants seek the order on an additional basis. The plaintiff failed to respond to an offer which would have brought about a more favourable result to him. 26 I order that the costs be paid on an indemnity basis. Exhibits may be returned. ********** 06/10/2006 - Deletion of Certification stamp - Paragraph(s) Conclusion of judgment 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.