Cameron v Qantas Airways Limited [2011] NSWSC 1138

Supreme Court New South Wales

Medium Neutral Citation: Cameron v Qantas Airways Limited [2011] NSWSC 1138 Hearing dates: 16 September 2011 Decision date: 23 September 2011 Jurisdiction: Common Law Before: Harrison J Decision: Plaintiff's amended notice of motion filed 27 April 2011 dismissed. Catchwords: PROCEDURE - plaintiff's notice of motion for relief already subsumed in settlement - motion dismissed Cases Cited: Cameron v Qantas Airways Ltd [2011] NSWCA 258 Category: Procedural and other rulings Parties: Rita Cameron (Plaintiff) Qantas Airways Limited (First Defendant) Walker Legal (Second Defendant) Craddock Murray Neumann (Third Defendant) Representation: J Catsanos (First Defendant) I Dicker (Second Defendant) HWL Ebsworth (First Defendant) Yeldham Price O'Brien Lusk (Second Defendant) Craddock Murray Neumann (Self-represented) (Third Defendant) File Number(s): 2001/92202 Publication restriction: None

Judgment 1HIS HONOUR : Ms Rita Cameron filed an amended notice of motion on 27 April 2011. On 22 June 2011 I disposed of orders 1 and 2 that were sought by her. I directed that Ms Cameron be paid, out of the funds in court following the settlement of her claim against Qantas Airways Limited, all monies other than an amount approximately representing the sum of contested claims for costs against her. Ms Cameron has now received a sum of money paid to her in accordance with my order. The balance remains in court. 2That leaves for consideration what is left of her notice of motion. Seven prayers for relief remain. By agreement between Ms Cameron and her respective opponents, however, orders 6, 7 and 8 have been disposed of and order 9 is in general terms and can be disregarded. The remaining orders 3, 4 and 5 are in the following terms: "3. That the Honourable Court make orders that the first defendant pay all of the District and Supreme Court legal costs and disbursements as well as the costs of this amended notice of motion and the matters in the Honourable Courts, which amounts to over $300,000. 4. That both the first, second and third defendants pay for damages for the loss of life and liberty of the seriously injured plaintiff as the remainder of the forced settlement monies is an inadequate sum as the first defendant had filed a memorandum of consent as to jurisdiction in the District Court and refused to honour it. 5. That the Honourable Court make orders that the first defendant pay all of the severely injured plaintiff's monies withheld and not paid by the first defendant, which includes her unpaid wages, Court of Appeal ... costs, and past, present and future medical needs as she urgently needs 5 surgeries and that the spinal surgeries are not covered by Medicare and that up till now the first defendant still refuses to pay." 3I enquired of the parties whether or not they wished to file any further evidence on these remaining issues and each declined. The transcript that follows describes what occurred before I reserved my decision upon the balance of the orders sought by Ms Cameron: "DICKER: If Miss Cameron wishes to proceed and obviously she would be aware from what has happened in other matters that if she does, there will be additional costs if she fails. Then there will have to be a formal hearing. Can I say to assist everyone, Miss Cameron did serve a few affidavits in support of this. I'm not saying whether they are in our view of any force. To the extent Miss Cameron wishes to proceed at risk to argue the motion it has to be formally dealt with. The costs of 22 June were reserved by your Honour. These two matters, which involve Mr Walker in his insured capacity and Qantas, are separate from Mr Catsanos' costs issues and the District Court and are separate again from our assessment that we are proceeding. It is a matter for your Honour and Miss Cameron, whether Miss Cameron wishes to proceed at risk of further costs orders. HIS HONOUR: You heard that. PLAINTIFF: Yes, your Honour. I feel a major injustice has been done. HIS HONOUR: Apart from that, do you want to proceed with the motion or not. PLAINTIFF: Yes, I do. HIS HONOUR: What are the affidavits that you rely on? DICKER: Does your Honour wish to deal with it now? HIS HONOUR: I have very important matters to deal with. DICKER: I give what assistance I can in relation to Miss Cameron without giving her any advice. As I understand it, Miss Cameron's affidavits she relies upon are sworn 15 February 2011, 13 April 2011 and 5 May 2011. Ours, I think they're the ones that deal with these issues. Ours is Mary Vitalone sworn 13 May 2011. HIS HONOUR: Can I proceed to deal with your application on the basis of those affidavits? PLAINTIFF: Yes, your Honour. HIS HONOUR: I will reserve my position on that as well." 4In giving reasons for my judgment on 22 June 2011 I had cause to make the following comments: "These proceedings have a long and unfortunate history in the District Court and in this Court. Ms Cameron was originally severely injured when employed by Qantas Airways when she was crushed by a forklift in the course of performing her work. In due course she commenced proceedings that came before Judge McLoughlin in the District Court who heard the proceedings for a number of days before they were settled. The terms of the settlement were, in very broad terms, ones that meant that Ms Cameron would receive something in the order of $970,000 odd inclusive of costs of the litigation. A dispute arose fomented by Ms Cameron's concern that the settlement was inadequate and that she had entered into it in circumstances of duress or pressure or at least as the result of a misunderstanding of what the terms meant. Since then in various ways Ms Cameron has sought to challenge the settlement, and maintains to this very day her view that it was inadequate and insufficient properly to compensate her for the events that occurred. The matter has proceeded in this court to be heard by her Honour Justice Schmidt and more recently her Honour Justice Latham. The matter had an outing as well in the Court of Appeal, to which Ms Cameron has referred during the course of discussions today. When the matter was before Justice Latham she struck out the then current statement of claim, which itself had been the subject of a grant of leave to amend when the proceedings were before Justice Schmidt. Justice Latham, however, declined to permit Ms Cameron to replead the matter. That is where it currently stands. Following the settlement many years ago Qantas Airways Limited effectively paid into court the amount of the settlement. In circumstances that are not entirely clear to me, Ms Cameron has declined to accept payment directly to her of the bulk of the money, but has either applied for or had the benefit of orders making interim payments either to or for her benefit over the years in respect of medical and other expenses she was required to meet. The original fund has, therefore, been depleted in various ways. Although nobody today is able precisely to tell me how much is left, a fair estimate, it seems, is that approximately $500,000 remains in court of the original sum paid pursuant to the settlement." 5Since the delivery of those reasons, the Court of Appeal has dealt with Ms Cameron's matter: see Cameron v Qantas Airways Ltd [2011] NSWCA 258. His Honour Macfarlan JA had this to say in the course of his judgment in that case: "[1] MACFARLAN JA : This is an application by Ms Rita Cameron for leave to appeal against the decision dated 25 February 2011 of Latham J, sitting in the Common Law Division of this Court ([2011] NSWSC 178). By that decision, her Honour ordered that an Amended Statement of Claim filed by Ms Cameron seeking damages and other relief from the present respondents be struck out. Her Honour declined to grant leave to Ms Cameron to replead. [2] The long history of these, and earlier related, proceedings is recounted in the judgment of Latham J and in the earlier judgments, including that of Schmidt J, dated 13 August 2010 ([2010] NSWSC 899) to which her Honour refers. It is sufficient for present purposes to note the following. [3] On 8 March 1999 Ms Cameron was injured in the course of her employment with the first respondent. Ms Cameron subsequently brought proceedings in the District Court against the first respondent claiming damages. After eight days of hearing before McLoughlin DCJ the proceedings were settled on terms that included a judgment in favour of Ms Cameron in the sum of $940,000 less certain deductions, with the parties to pay their own costs. Ms Cameron was at that time represented by the present second respondent, a solicitor, and by a barrister. [4] Ms Cameron subsequently filed notices of motion in the District Court seeking to have the settlement set aside. They were dismissed. She then filed in the Common Law Division of the Supreme Court the Statement of Claim that commenced the present proceedings against the respondents. The respondents applied to have it struck out as embarrassing and disclosing no cause of action. Schmidt J accepted that that was an appropriate description of this Statement of Claim but granted Ms Cameron leave to amend. In doing so, her Honour clearly identified the deficiencies in the Statement of Claim. [5] On 22 September 2010 Ms Cameron filed an Amended Statement of Claim. On the application of the respondents Latham J struck out that pleading and declined to give Ms Cameron leave to replead. In giving her reasons, her Honour said: '19 ... I am more than satisfied that the [amended] 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]. ... 21 ... [I]n 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.' [6] The submissions that Ms Cameron made to this Court in support of her application for leave to appeal from that judgment did not identify any rational basis for a conclusion that Latham J was in any respect in error. As a result, an appeal made in accordance with a grant of leave to appeal would not have any significant prospects of success. The views that Latham J expressed concerning the Amended Statement of Claim and the indulgences afforded to Ms Cameron appear to me to have been entirely apposite. [7] It is unnecessary in these circumstances to deal with the fact that the application for leave to appeal is long out of time and that the respondents assert that they have been prejudiced by Ms Cameron's delay. [8] For these reasons I propose that Ms Cameron's application for leave to appeal be dismissed with costs." 6The most distressing aspect of this long and protracted litigation is that it has dissipated a substantial fund to which Ms Cameron became entitled following the settlement of her claim, ultimately, it would seem, for no good purpose and for no legitimate reason. Ms Cameron's dissatisfaction with the District Court settlement has returned a result to her that is, on one fairly available view, wholly disproportionate to any concerns that she could possibly have had about its perceived inadequacy in the first place or the fulfilment of professional duties owed to her by legal representatives whom she then retained in the second place. Whatever complaint she may have had, or perceived that she was able to agitate, with respect to the outcome of her District Court litigation, has continued to obsess her. The end result of this is that a not inconsiderable fund that became available for Ms Cameron's own use and benefit from the settlement has now been largely swallowed up by adverse costs orders and similar avoidable outcomes. Notwithstanding all of this, Ms Cameron persists to tilt at understandably dispassionate and disinterested windmills that cannot be expected to deliver the resolution that she craves. 7The orders that Ms Cameron still seeks are clearly in respect of matters that were long ago subsumed in the original settlement. As unpalatable as it may be for Ms Cameron to accept, the case is over. It has been for some time. Ms Cameron must in my view sooner rather than later come to terms with this reality lest the balance of any monies that she can yet enjoy also disappears on whimsical projects with no real or meaningful prospect of a return. Ms Cameron unfortunately labours without the benefit of legal advice and shows no sign in those circumstances of coming to any realistic appreciation of the self-destructive course of her unremitting endeavours. 8I can see no basis for the making of any orders in her favour. Her notice of motion is hopeless and must be dismissed. It may be that her opponents will form the view that the costs of her ill-advised application are no longer worth pursuing. I will however obviously hear the parties on the costs of this application if called upon to do so.