Cameron v Qantas Airways Ltd & Anor. [2011] NSWSC 178

Supreme Court New South Wales

Medium Neutral Citation: Cameron v Qantas Airways Ltd & Anor. [2011] NSWSC 178 Hearing dates: 21 February 2011 Decision date: 25 February 2011 Before: Latham J Decision: The statement of claim filed 22 September 2010 is struck out against the first defendant and against the second defendant pursuant to Part 14, rule 14.28 of the Uniform Civil Procedure Rules 2005. Leave not granted to the plaintiff to replead. Catchwords: PROCEDURE - application to strike out proceedings - statement of claim fails to appreciate limited nature of proceedings - statement of claim unintelligible, ambiguous, vague and too general. Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Cameron v Qantas Airways Ltd [2008] NSWCA 275 Cameron v Qantas Airways Ltd [2009] NSWCA 339 Pethers v Minister for Agriculture [2010] NSWSC 805 Bott v Carter [2009] NSWSC 236 Category: Principal judgment Parties: Rita Cameron - (Plaintiff) Qantas Airways Ltd - (1st Defendant) Walker Legal - (2nd Defendant) Representation: Counsel: Self-Represented - (Plaintiff) J Catsanos - (1st Defendant) M Dicker - (2nd Defendant) Solicitors: Self-Represented - (Plaintiff) HWL Ebsworth - (1st Defendant) Yeldham Price O'Brien Lusk (2nd Defendant) File Number(s): 2010/118941

Judgment 1This matter has a long and unsatisfactory history. The plaintiff instituted proceedings in the District Court in 2001 against Qantas claiming damages for injuries suffered in the course of her employment on 8 March 1999. A number of firms of solicitors (at least four) were successively engaged by the plaintiff in the course of the proceedings. An arbitration in 2002 was rejected by the plaintiff and she sought a re-hearing. Seven years after the commencement of the proceedings, following several days of hearing in the District Court, the parties reached a settlement on 1 February 2008. Shortly thereafter, the plaintiff sought to resile from the settlement and terminated the services of her then solicitors, the second defendant in the instant proceedings. The plaintiff has been unrepresented since that time. 2In June of 2008, the first defendant paid the settlement moneys into court, less a sum which was paid out according to the terms of settlement and later, by way of costs incurred by the plaintiff's former solicitors. It appears that about half of the total settlement sum remains. 3In October 2008, the plaintiff's application for leave to appeal to the Court of Appeal against the consent orders made in the District Court was dismissed. In the course of that judgment ( Cameron v Qantas Airways Ltd [2008] NSWCA 278), Hodgson JA observed that the plaintiff's claim with respect to the alleged undue influence brought to bear upon her by the second defendant was properly brought by way of fresh proceedings before a single judge, who had the capacity to hear evidence on the issue. In addition, it was noted that the plaintiff told the Court that she was in touch with a solicitor who was in a position to assist her. In the event that that assistance failed to materialise, the Court referred the plaintiff to the Registrar for referral to a barrister or solicitor on the pro bono panel, for the purpose of providing the plaintiff with appropriate advice. 4In December 2008, the plaintiff filed a notice of motion in the District Court seeking to set aside the consent orders. That notice of motion was heard in April 2009 by the judge who presided over the original proceedings and the settlement orders. In October 2009, the Court of Appeal granted the plaintiff leave to appeal that decision and made orders by consent remitting the matter to the District Court. Once again, the Court insisted on the need for fresh proceedings to be instituted by the plaintiff and referred the plaintiff to the Registrar for referral to a lawyer on the pro bono panel. Relevantly, the Court noted that the nature of the plaintiff's allegations against the second defendant usually arose where the client proceeded directly against her former lawyers and that, in such a case, the plaintiff may be required to demonstrate that there was unconscionable conduct on the part of her lawyers, and that the first defendant was on notice of that conduct : Cameron v Qantas Airways Ltd [2009] NSWCA 339. 5Notwithstanding these judgments, a further notice of motion filed by the plaintiff came on for hearing before Johnstone DCJ in the District Court. That notice of motion was dismissed on 28 January 2010, on the basis that the notice of motion was irregular and that the plaintiff had indicated her intention to commence proceedings in the Supreme Court. In the course of making orders, Judge Johnstone noted that, subsequent to the Court of Appeal's decision on 14 October 2009, the plaintiff was referred by the Registrar to senior counsel who provided an advice to her, but that he had informed the court that he was unable to provide further assistance to her. 6The plaintiff commenced proceedings in this Court by way of statement of claim on 13 May 2010. An amended statement of claim was filed on 13 July 2010. On 6 August 2010, Schmidt J. heard the defendants' notices of motion seeking orders that the amended statement of claim be struck out. Her Honour delivered judgment on 13 August 2010, in which much of the history related above is set out. 7In the course of the proceedings before Schmidt J. on 6 August, her Honour was at pains to explain to the plaintiff the need for the allegations of the kind made in the statement of claim to be supported by underlying facts. By way of demonstrating to the plaintiff one of the problems with the statement of claim, her Honour took the plaintiff to a paragraph where the plaintiff alleged both defendants "were negligent in trying to cover up the accident". The plaintiff confirmed that that was an allegation made in relation to the accident she suffered at work in 1999. Her Honour pointed out to the plaintiff that the second defendant, who entered the proceedings just prior to the hearing in January 2008, could not have been involved in such conduct and that "the document is littered with problems of that kind". The plaintiff agreed with that suggestion. Her Honour further noted that the plaintiff had been referred in the past for legal assistance. Her Honour queried whether the plaintiff had had legal assistance in preparing the statement of claim. The plaintiff replied that she had not. 8As a result of this discussion, the plaintiff sought leave to further amend the amended statement of claim. Ultimately, that leave was granted, primarily on the basis that her Honour was :- satisfied that justice demanded that Ms Cameron, an unrepresented litigant, be given an opportunity to replead the case which she actually wishes to advance. Those amended pleadings must conform to the requirements of Uniform Civil Procedure Rules. 17. Those rules are intended to ensure that both the defendants and the Court are given a clear indication, from the outset, of the claims which are made by Ms Cameron; the factual basis upon which those claims are advanced; and the orders which are sought. The parties' pleadings have important functions to perform in relation to the conduct and eventual hearing of the case, particularly in relation to the identification of the legal and factual issues lying between the parties and the evidence which is relevant to their determination. 18. Ms Cameron's current pleadings are embarrassing, in the sense that is discussed in the authorities, namely that they are unintelligible, imprecise and ambiguous, depriving the defendants of a proper opportunity of understanding what actual allegations comprise the substance of her claims. They do not provide material facts to support the serious allegations made [citations omitted] 20. Due consideration must be given to the fact that Ms Cameron is unrepresented. Nevertheless, the requirements of the Rules must be observed by all litigants, including those who are unrepresented. Here allegations of the most serious kind have been made against the defendants, including matters such as fraud, undue influence, breach of duty of care, perjury, breach of court orders, collusion, perversion of the course of justice, duress, discrimination, stalking, and acting under false pretences. No factual foundation for these allegations has been provided. Which defendant they are pressed against and how they relate to any relief sought and even what relief is sought, is not readily apparent. Cameron v Qantas Airways Ltd [2010] NSWSC 899. 9Her Honour ordered that the plaintiff pay the defendants' costs on the notice of motion. 10Regrettably, nothing that passed between her Honour and the plaintiff, or the terms of her Honour's judgment set out above, appears to be reflected in the amended statement of claim filed by the plaintiff on 22 September 2010. The latest pleadings have prompted a further notice of motion from the second defendant, in which the first defendant joins, seeking orders that the statement of claim be struck out on the basis that it discloses no reasonable cause of action, and/or has a tendency to cause prejudice, embarrassment and delay, and/or is an abuse of process. The defendants also oppose any grant of leave to replead, and they seek an order for costs against the plaintiff. 11It is difficult to make any sense of the latest statement of claim. In order to appreciate the extent to which the pleadings fail to disclose a reasonable cause of action, it is necessary to bear in mind the guidance that was provided to the plaintiff by two Court of Appeal judgements, by the advice of senior counsel in late 2009 and by her Honour Justice Schmidt. By way of example, the claim that the defendants (plural) were "negligent in trying to cover up the accident" appears at paragraph 35 of the statement of claim, notwithstanding the plaintiff's acknowledgement during the hearing before Schmidt J. that such a claim was unsustainable against the second defendant. 12The statement of claim is ostensibly divided into pleading and particulars in relation to the first defendant (paragraphs 1 to 35 and a further 60 paragraphs thereunder) and pleading and particulars in relation to the second defendant (paragraphs 1 to 34). Paragraphs 1 to 35 recount the circumstances of the accident, the consequences to the plaintiff, and the history of the proceedings. They include a large number of rolled up allegations in relation to the conduct of the first defendant, for example false reporting, removal of evidence and deliberate breaches of court orders. There are no or insufficient particulars given of these allegations. 13At paragraph 29 the plaintiff alleges that there was a "forced settlement" on 1 February 2008, in the sense that the plaintiff "did not agree to anything and by the end of the day ... without a break and continuous disagreements and arguments, I signed the documents." This appears to be the basis of the plaintiff's case against the second defendant. There is no clear indication anywhere in the statement of claim that the first defendant was a party to "disagreements and arguments". 14At paragraph 35 and in the course of 60 paragraphs following, the plaintiff claims against the defendants (plural) negligence, breach of duty of care, deceit, "forced undue influence", "negligence in trying to cover up the accident", "negligence in not reporting to the police", "causing loss of life and liberty", perverting the course of justice, and terminating the plaintiff from her employment. There is a further allegation that "the defendant" (unspecified) was unprofessional in their conduct and that "the defendant [unspecified] deliberately forced me to accept the forced settlement and did not care about my welfare or anything else." 15In short, despite all of these paragraphs of the statement of claim appearing under the heading "in relation to the first defendant", a significant number of them refer to "the defendants" without differentiating between the first and second defendant, and a significant number simply refer to "the defendant" in circumstances that render it impossible to determine which of the defendants is said to be liable for what. 16Paragraph 1 to 13 under the heading "in relation to the second defendant" include assertions by the plaintiff concerning the events of 1 February 2008, followed by the allegation that "the defendant" was professionally negligent, that "the defendants" were guilty of unprofessional conduct, "breached its duty of care", were "deceitful" and had exercised undue influence on the plaintiff to accept the settlement. There is a further allegation in paragraph 18 that "the defendants caused her to suffer from severe depression and nervous breakdown". 17At paragraphs 25, there is an allegation that "both the defendants committed perjury on the stand on 14 April 2009." This appears to be a reference to the proceedings before the trial judge in the District Court on the plaintiff's notice of motion, in the course of which the plaintiff's solicitor and barrister gave evidence. This is reinforced by an allegation at paragraph 33 that "the defendants (Mr Walker and Mr Moffet) committed perjury on the stand on 14 April 2009". Mr Moffet, the plaintiff's barrister in the District Court, is not a party to the proceedings. 18Once again, it is difficult to disentangle the multiplicity of allegations against the defendants jointly, as opposed to those against the first defendant and those against the second defendant. Even if that were possible, it is not incumbent on either of the defendants or on the Court to attempt to divine the plaintiff's meaning from the pleadings. 19It is not necessary for the purposes of this judgment to relate in further detail the number of serious allegations made against the defendants jointly and severally, nor the repetition of those allegations throughout the statement of claim, without a supporting factual basis. I am more than satisfied that the statement of claim is legally embarrassing, in the sense that it is unintelligible, ambiguous, vague and too general : Pethers v Minister for Agriculture [2010] NSWSC 805 at [22]. The identification, such as it is, of material factual allegations is so lacking in precision that neither of the defendants could have adequate notice of the real substance of the plaintiff's claim : Bott v Carter [2009] NSWSC 236 at [18]. 20None of the above detracts from the most substantial problem with the statement of claim, namely that it completely fails to appreciate the limited nature of the present proceedings. The plaintiff's complaint is that she was forced into a settlement and accordingly, she seeks to have the judgment and orders proceeding from that settlement set aside. The basis upon which this Court would compromise the finality of that litigation is limited. It is no part of that limited cause of action to seek to reagitate issues that were determined by the judgment in the District Court. The plaintiff's claim against the first defendant in the sum of $8 million appears to relate to the claim under the original proceedings. The plaintiff's claim against the second defendant in the sum of $2 million is not explained. 21I am mindful of the principles applying to an application to strike out proceedings, particularly where the plaintiff is an unrepresented litigant. However, in the circumstances of this case, the plaintiff has been given every reasonable indulgence by the courts, and by the defendants, and has persistently failed to remedy the substantial defects in the pleadings. The plaintiff's claim that she has been unable to obtain appropriate legal advice for the purposes of drafting her pleadings must be considered in the light of the history of the litigation since the inception of the plaintiff's claim in 2001. It is apparent from that history that the plaintiff has proved resistant to the advice of a number of legal practitioners and counsel. The plaintiff is entitled to reject legal advice that is given to her, but her attitude thus far suggests that any further attempt by the Court to refer the plaintiff to the Registrar for the purposes of obtaining pro bono assistance would be futile. 22The plaintiff is no doubt convinced that she is the victim of an injustice. It is extremely unfortunate that her single-minded pursuit of her cause has effectively resulted in the dissipation of a reasonably generous award of damages in her favour. That circumstance cannot however dissuade the Court from recognizing the merits of the defendants' submissions on the notice of motion. 23Accordingly, the statement of claim filed 22 September 2010 is struck out against the first defendant and against the second defendant pursuant to Part 14, rule 14.28 of the Uniform Civil Procedure Rules 2005. I would not grant leave to the plaintiff to replead. 24The effect of these orders is to summarily dismiss the proceedings. Whilst that may be a draconian step to take in some circumstances, I am satisfied that the irrelevant and extravagant claims made by the plaintiff in this case justifies resort to rule 13.4. There is no prospect, in my view, that the plaintiff will file a statement of claim that allows the defendants to meaningfully respond. 25The plaintiff resists an order for costs against her on the notice of motion. Apart from the fact that an order for costs would follow the event, the plaintiff was on notice that there were significant deficiencies in her pleadings. An order for costs was made against the plaintiff by Schmidt J. Given that the plaintiff did not remedy those deficiencies, the defendants are entitled to their costs on the notice of motion. I reserve the question of costs in the proceedings and grant leave to the parties to re-visit that issue at a later time.