New South Wales Supreme Court CITATION : Grivas v Harrison [2010] NSWSC 208 HEARING DATE(S) : 18 March 2010 JUDGMENT OF : Davies J EX TEMPORE JUDGMENT DATE : 18 March 2010 DECISION : (1) Leave to the Plaintiff to amend the Statement of Claim in accordance with the judgment that I have given. (2) Any such amended Statement of Claim is to be served by 5pm on 9 April 2010. (3) The Plaintiff is to pay the costs thrown away by reason of the amendments to the Statement of Claim, including the costs of the Notice of Motion. (4) Stand the matter over for Mention before me to Tuesday, 27 April 2010 at 9.30am. CATCHWORDS : PROCEDURE - amendment - Statement of Claim on foot for two years - Plaintiff acting for himself seeks leave to amend - claim for exemplary and punitive damages disallowed - other claims closely related to existing claims. LEGISLATION CITED : Civil Procedure Act 2005 CATEGORY : Procedural and other rulings Aon Risk Services v Australian National University (2009) 258 ALR 14 CASES CITED : Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 Grey v Motor Accident Commission (1998) 196 CLR 1 PARTIES : Gregory Grivas (Plaintiff) Howard Harrison and 13 others (Defendants) FILE NUMBER(S) : SC 2008/289197 COUNSEL : In person (Plaintiff) Mr J Downing (Defendants) SOLICITORS : HWL Ebsworth Lawyers (Defendants) - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DAVIES J 18 MARCH 2010 2008/289197 GRIVAS v HARRISON & ORS JUDGMENT 1 These proceedings commenced by the filing of a Statement of Claim on 7 February 2008. At the time the Plaintiff was acting for himself and has continued to do so up to the present hearing of an application before me to amend the Statement of Claim. 2 The proceedings concern a claim against Mr Grivas' former solicitors, Carroll & O'Dea, who had acted for him in a claim that he made against a doctor, Dr Benjamin Teh who had given him advice and treated him. 3 In the proceedings against the doctor, advice was given by Carroll & O'Dea and two barristers (who are at the moment the 13th and 14th Defendants in the claim) in relation to the settlement of the claim against the doctor. The proceedings against the doctor settled when the Plaintiff gave instructions to Carroll & O'Dea to settle for the amount that had been offered by those acting for the doctor together with costs. 4 In the present proceedings, Mr Grivas claims that the solicitors were negligent in the carrying out of that work in that they improperly assessed the strength of his case and advised him to settle the matter for a figure which was less than what it was actually worth. 5 Mr Grivas subsequently engaged Slater & Gordon to act for him and he provided to them a lengthy draft affidavit setting out his complaints against Carroll & O'Dea. Slater & Gordon drafted a Statement of Claim for Mr Grivas, although for reasons that are not made clear, Mr Grivas acted for himself in filing the Statement of Claim. 6 He has now brought a Motion to amend the Statement of Claim to add two further claims. The first is that the solicitors improperly pressured him to settle the claim. The second is that they gave him misleading information about the costs that they would charge him. In the Amended Statement of Claim he additionally asks for exemplary and punitive damages. He also seeks to discontinue the claim against the two barristers. 7 In justification for the application to amend, Mr Grivas says that the Statement of Claim prepared by Slater & Gordon did not include the two matters that he had included in his draft affidavit to them concerning the improper pressure and the negligence in informing him about the costs. In his affidavit in support of the Notice of Motion, he says simply that he subsequently noted that there was no pleading in the Statement of Claim about those two matters. 8 At the hearing of the Notice of Motion before me today, he informed me that it was the weekend after he filed the Statement of Claim on the 7 February 2008 that he sat down and had a look at it and saw that it did not contain those matters. In further explanation of his delay between then and his Notice of Motion, he says he has tried to obtain legal assistance from a number of people but has been unsuccessful. 9 The application to amend was opposed by the Defendants. They made reference to the recent decision of the High Court in Aon Risk Services v Australian National University (2009) 258 ALR 14. It is true to say that that decision has altered the playing field in terms of amendments and adjournments. The High Court indicated that it is not sufficient merely to say that the other side can pay costs as a result of the amendments or adjournment sought. However, what the High Court stressed in the decision was that one always had to look at the governing Act and Rules of the Court concerned and that that was the starting point for any such application. 10 The Civil Procedure Act 2005 places a great deal of emphasis on just and quick resolution of litigation and it is fair to say that a delay in more than 18 months in seeking to amend the Statement of Claim in the present case is scarcely in accordance with those dictates. However, I have to have regard to the fact that Mr Grivas is and has been unrepresented in the matter. 11 In my opinion some but not all of the amendments should be allowed. 12 It seemed to me that one reason Mr Grivas wanted to amend to include the claim regarding undue pressure to settle was to enable him to make the claim for exemplary and punitive damages. He says that is one aspect of it but is not the sole reason for the amendment. 13 I do not consider he should be permitted to make such a claim in the light of the High Court's decision in Grey v Motor Accident Commission (1998) 196 CLR 1 at 9 and particularly because of what Chief Justice Spigelman said in Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 at [44] in a case that involved fiduciary duties arising out of a contractual arrangement. 14 Provided that the claim in relation to the pressure to settle does not contain within it the claim for exemplary and punitive damages, I do not think that Mr Grivas should be prevented from making that amendment. It seems to me to arise out of the same facts already pleaded. 15 Mr Grivas told me and Mr Downing for the Defendants agreed that the affidavit material filed already in the proceedings contains evidence about some aspect of the alleged improper pressure in any event. 16 A further reason that causes me to think that the amendments should be allowed, is that the claim for improper pressure seems to me merely to be another manifestation of the existing negligence claim already made against the solicitors. 17 In relation to the claim for costs, this is certainly a new aspect to the claim, although it arises out of the same retainer and largely the same facts as the existing claim. There is some prima facie evidence about the level of disclosure made by the Defendants' solicitors. The amount that they ultimately charged and the fact that those costs were assessed downward to a very significant degree, seems to me to justify why an amendment should be allowed to include that claim in the circumstances. 18 Mr Downing very properly concedes that there was already material available that suggested that the matter is not something that takes the Defendants by surprise in the conduct of the proceedings. It is true that the amendment will result in some delays, but I think that has to be balanced against the right of an unrepresented plaintiff to add these claims for which there is at least some prima facie justification. 19 I understand that the 13th and 14th Defendants (the barristers) have not been served. It is appropriate to permit a discontinuance there by the amended Statement of Claim sought to be filed. 20 The form of the proposed Statement of Claim however, is unsatisfactory. The majority of the amendments plead evidence and not material facts and it is not appropriate that the amended Statement of Claim in its proposed form be filed. 21 I have indicated during the course of argument that paragraphs 24A to C, 27A, 30A to 30H, 31A to 31G and 32A should not be allowed to be pleaded. There will need to be come corresponding amendments to other paragraphs which have incorporated references to those paragraphs. 22 It is appropriate in the circumstances that the usual rule in relation to costs should follow, namely, that the Plaintiff pay the costs thrown away by reason of the amendments. 23 I will make these directions: (1) The Plaintiff is given leave to amend the Statement of Claim in accordance with the judgment that I have given. (2) Any such amended Statement of Claim is to be served by 5pm on 9 April 2010. (3) The Plaintiff is to pay the costs thrown away by reason of the amendments to the Statement of Claim, including the costs of the Notice of Motion. (4) I will stand the matter over for Mention before me to Tuesday, 27 April 2010 at 9.30am. ********** 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.