Supreme Court New South Wales Medium Neutral Citation: Steele v Streeter-Smith [2012] NSWSC 1091 Hearing dates: 11/05/2012 Decision date: 13 September 2012 Jurisdiction: Common Law Before: Garling J Decision: (1) Summons dismissed. (2) Plaintiff to pay the defendant's costs. Catchwords: APPEAL - appeal from Local Court - magistrate dismissed statement of claim - whether error of law or error of mixed fact and law - no reasonable cause of action disclosed - proceedings an abuse of process Legislation Cited: Local Court Act 2007 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Category: Principal judgment Parties: Trevor Steele (P1) Estate of the late Doreen Steele (P2) Dr Guy Streeter-Smith (1D) Smith Street Medical Centre (2D) Representation: Counsel: T Steele (P) L Wilson (1D) S King (2D) Solicitors: Sparke Helmore Lawyers (1D) TressCox Lawyers (2D) File Number(s): 2011/177005 Judgment 1On 21 October 2011, Trevor Steele caused a summons commencing an appeal, and a summons seeking leave to appeal, to be filed in the Supreme Court of NSW. 2Mr Steele was then, and has been throughout these proceedings, acting and appearing for himself. 3The summons sought to challenge the decision of the Local Court sitting at Newcastle constituted by Buscombe LCM. That decision was made on 23 September 2011, after a hearing which occurred on 16 September 2011. 4There are two defendants in the proceedings in this Court, and in the Local Court. The first defendant is Dr Guy Streeter-Smith, who, so it was alleged, was a general practitioner who treated the late Mrs Doreen Steele. The second defendant, Smith Street Medical Centre, is the medical centre at which the first defendant conducted his practice. 5The orders which Mr Steele sought were: "1. Leave to appeal to from the whole of the decision below; 2. Appeal allowed; 3. The entire previous judgment put aside and the orders be made" 6The proceedings came before the Court for directions on a number of occasions and were finally heard on 11 May 2012. At the conclusion of the hearing on 11 May 2012, leave was granted to Mr Steele to supplement his submissions in writing. 7Further submissions were received. Parties 8Some preliminary, and brief, comments need to be made about the status of the parties in this Court. The plaintiffs were named as "Doreen Steele - deceased" and Trevor Steele. Mr Steele does not have, and does not propound, any personal claim. His presence as a plaintiff was said to be in the capacity of representing his mother. Ultimately, he became the executor of his late mother's estate. I have regarded his role as plaintiff as being a legitimate one, but only in his capacity as executor of his late mother's estate. I have regarded the named first plaintiff as the estate of the late Mrs Doreen Steele, although it was not formally named as such. I have adopted this approach as Mr Steele was appearing in person and it is preferable to deal with the merits of the matter. 9The second defendant was named as the Smith Street Medical Centre. Its legal status was unclear and unexplored in the evidence. I have taken the same approach to its presence as a party: that is, I have concentrated on the merits of the proceedings against it rather than the legal technicalities of its status. Probate 10At the time the Local Court proceedings were commenced, the late Doreen Steele was still alive. She was named as a plaintiff, as was Mr Trevor Steele. But he had no personal claim. He seemed to be a party so that he could represent his mother. 11Prior to the final hearing and disposition of the proceedings in the Local Court, Mrs Steele died on 3 June 2011. 12A few days before her death, on 30 May 2011, Mrs Steele executed her Last Will & Testament in which she appointed Mr Trevor Steele as her Executor and Trustee. 13On 19 July 2011, Mr Steele filed a summons in this Court seeking probate of the Will. It was accompanied by an affidavit of the Executor. The Court issued requisitions and ultimately, on 10 May 2012, which was many months after the conclusion of the Local Court proceedings, a Grant of Probate of the deceased's estate was made to Mr Steele as the Executor appointed under the deceased's Will. 14It follows that at all times whilst the Local Court proceedings were on foot, there was no grant of probate, and Mr Steele was not authorised to conduct the proceedings on behalf of his mother. In the absence of a grant of probate, his mother, in her name, or described as "the late Mrs Doreen Steele", was not a proper party. Her estate was the only proper party, and then only after probate was granted. Local Court decision 15On 16 September 2011, the Local Court heard argument in respect of an application brought by the defendants for the summary dismissal of the claim by Mr Trevor Steele and the late Mrs Steele in the Local Court upon the basis that no reasonable cause of action was disclosed, and that r 13.4(1) of the Uniform Civil Procedure Rules 2005 ("UCPR") was engaged. 16In his judgment, Buscombe LCM, having set out the procedural history and background to the proceedings, noted the terms of the application and further noted, correctly, the principles to be applied in determining whether or not the Statement of Claim in the proceedings should be summarily dismissed. 17He said of these principles at [6]: "They are to a significant degree, derived from General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125. The test has been phrased in terms where the alleged cause of action is 'so obviously untenable that it cannot possibly succeed' or is 'manifestly groundless', or 'so manifestly faulty that it does not admit of argument'. In applying the test the plaintiff's allegations must be taken at their highest." 18His Honour then went on to examine, with some care, the amended Statement of Claim. Of that Statement of Claim he made the following comments at [7]-[9]: (a)"The amended Statement of Claim is a difficult document to understand. It does contain a reference to 'fraud' but it is impossible to discern what is the nature of the fraud, or that what is alleged, could amount to fraud in the sense of actionable deceit"; (b)"It is not alleged in the amended Statement of Claim that the late Mrs Steele was not provided with the prescriptions that she paid for. ...There is no suggestion, as I read the amended statement of claim, that the late Mrs Steele did not receive from the first defendant what she paid for."; (c)"Apart from one of a number of paragraphs that contained statements which have no place in the statement of claim, it [paragraph 6] fails to make clear what breach of the first defendant's duty of care is said to be relied upon. The confused and incomprehensible nature of the claim is further shown by the reference in paragraph 8 to the first defendant 'breaching the "Duty of Care Act" '. It is trite to say there is no statute known as 'the Duty of Care Act'. There is also no claim for damages in the amended statement of claim." 19His Honour went on to express his conclusion in this way: "10. The amended statement of claim in my opinion does not disclose a reasonable cause of action against the first defendant. It does not contain allegations that if proved to the requisite standard, may result in disciplinary action being taken against the first defendant, and even possibly criminal proceedings. 11. The amended Statement of Claim contains no claim against the second defendant, and consequently discloses no reasonably cause of action against the second defendant." 20As consequence of these conclusions the Magistrate dismissed the Statement of Claim and order the plaintiff, Mr Trevor Steele, to pay the costs of the proceedings. 21Although there were manifest reasons for the dismissal of the proceedings on the basis of the incorrect joiner of Mr Steele as a plaintiff, and the lack of a regularised representation of the late Mrs Steele as a plaintiff, the Magistrate, in considering the application for dismissal, concentrated on the merits of the claim and the pleadings. 22In considering these proceedings, I will adopt a similar process. Amended Statement of Claim in the Local Court 23Since the decision in the Local Court dealt with the amended Statement of Claim which was before the Court, it is appropriate that the central provisions of that amended Statement of Claim be set out here. 24Paragraph 1 of the amended Statement of Claim refers to a statutory declaration by the late Mrs Steele. Clearly, this is inappropriate in such a pleading. 25Paragraphs 2 and 3 of the amended Statement of Claim seem to plead various facts. They are in the following form: "2. From the period January 2010 until March 2011, the Deceased Plaintiff, Doreen Steele Has given the First Defendant, Dr Guy Streeter-Smith $76,500.00 cash. Not in one lump sum. Different amounts of cash was given to the Defendant on consultation visits to his Surgery to obtain drugs, very addictive drugs to help relieve her pain. These numerous cash transactions were always given to the Defendant in his consultation room. The only reason why cash was given to the Defendant was to obtain scripts for pain relief tablets, 'morphine based'. These strong narcotics were very addictive. The Doctor knew this but he wanted cash money for these scripts, sometimes he would see the Plaintiff three times a week to obtain as much cash as possible. On each consultation the Plaintiff would receive her strong addictive pain killers the Defendant would receive his cash payment always. Always this occurred behind closed doors in his Consultation room. 3. The First Defendant Dr Guy Streeter-Smith has made admissions he took cash money besides his consultation fees on six occasions. These bribes slings for cash for scripts. He stated were only on six occasions at $250.00 each. He states this on his Medical Centre letterheads dated March 2011." 26Paragraph 4 refers to a statement made by the granddaughter of the late Mrs Steele. 27Paragraph 5 refers to a statement made by the defendant, Dr Guy Streeter-Smith, and asserts that it is "total lies and fraud". 28Paragraph 6 seems to raise the first suggestion of a cause of action. It is in the following terms: "The plaintiffs, the first defendant Dr Guy Streeter-Smith cannot be believed. He is corrupt, dishonest, greedy. He should be struck off the medical registrar for his greed for cash. His dishonest conduct, his deception, his lack of 'duty of care'. " 29Paragraph 7 refers further to a statement of Dr Guy Streeter-Smith and challenges its accuracy. 30Paragraph 8 again makes a suggestion of a cause of action in the following terms: "Dr Guy Streeter is a greedy cash hungry Medical Practitioner that took advantage of a frail 82 year old woman. When the plaintiff's cash ran out he refused any further consultations and told her he would transfer her to another General Practitioner. He had drained her of all her cash money, there for did not want to be her General Practitioner. Told her to find another doctor. Thereby breaching the 'Duty of Care Act'. " 31The balance of the amended Statement of Claim makes allegations about the source of monies which it said that the late Mrs Steele gave to Dr Guy Streeter-Smith, allegations that Dr Guy Streeter-Smith cannot be believed as to the accuracy of his statement of 25 March 2011, and finally, an allegation that various goods were given as gifts to Dr Guy Streeter-Smith. 32The Statement of Claim concludes as follows: "12. The plaintiffs want the money, THE CASH returned that the first defendant, Dr Guy Streeter-Smith took from Doreen Steele - $76,500.00 less $1500.00 that has already been returned. 13. Trevor Steele has reported Dr Guy Streeter-Smith to the Health Care Complaints Commission for obtaining money by deception, fraud and lack of duty of care. This investigation is in progress." 33It can be seen from this review of the amended Statement of Claim, that the Magistrate's summary of it was entirely accurate. 34The amended Statement of Claim contains a diffuse group of factual statements, legal argument, factual conclusions and vague allegations. 35It is of the essence of a pleading, even one in the Local Court, and particularly one in which allegations of fraud or potentially criminality are raised, that it contains: (a)a statement of the material facts, but not the evidence, upon which a plaintiff relies; (b)an articulation with clarity, of the causes of action upon which a plaintiff relies; and (c)a clear description of the relief sought having regard to the causes of action. 36As well, a pleading must comply with all of the requirements of the UCPR. 37A claim for relief in the nature of an order of the Local Court, that the defendant, a medical practitioner, should be struck off the Medical Register for his conduct, is simply not relief which the Local Court was entitled to grant. It had no place in this Statement of Claim. 38One apparent cause of action relied upon is the alleged breach by the defendant of the "Duty of Care Act". There is no such legislation. Any cause of action dependent upon it is a nonsense, and has no reasonable prospect of success. 39The third possible cause of action is that set out in paragraph 12 of the amended Statement of Claim, which appears, describing it generously, to be a claim for the return of money said to be taken by the first defendant from the late Mrs Steele. The pleading which precedes this claim, pleads that the money was paid for the prescription and dispensing of narcotics to the late Mrs Steele which she consumed. 40The Magistrate correctly described this cause of action as not being made out because the facts relied upon did not disclose any such cause of action. Nature of an appeal 41A party to proceedings in the Local Court does not have a general right of appeal to the Supreme Court. However, a party to proceedings in the Local Court who is dissatisfied with the judgment or order of the Court, may appeal to the Supreme Court, but only on a question of law: s 39(1) Local Court Act 2007. If the party wishes to appeal on a ground which involves a question of mixed law and fact, then leave of the Supreme Court is necessary: s 40(1) Local Court Act. There is no entitlement for a dissatisfied party to challenge a pure error of fact. 42Any appeal to the Supreme Court is by way of rehearing. On any such rehearing, the Court can receive further evidence, but only on special grounds: s 75A Supreme Court Act 1970. 43Further evidence was tendered by Mr Steele, which the Court received in order that it might consider whether it should be admitted. Additional evidence 44The additional material which was sought to be tendered on the hearing of the appeal, and which was described as Exhibit A, included: the post-mortem report and toxicology results relating to the death of the late Mrs Steele; hearsay assertions of fact by Mr Steele in statutory declaration form; a copy of the amended Statement of Claim handed up to the Magistrate and upon which he gave his ruling; an assertion as to the relevant facts by Mr Steele which is essentially in the form of a number of inferences, speculation and submission, accompanied by what appears to be a listing of prescription drugs from an unidentified source, a statement by Ms Crystal Kearnon, who is the granddaughter of the late Mrs Steele; and a copy of a letter from the State Library to Mr Steele to which is attached a series of photocopy authorities and extracts from legal texts or publications. 45None of this material is in admissible form. None of it is relevant to the issue before the Supreme Court as to whether there was an error of law or a mixed error of law and fact in the Local Court judgment. It does not fit the criteria fixed by s 75A of the Supreme Court Act 1970. The tender of it should be rejected. I have not had regard to it. Discernment 46The Magistrate analysed the Statement of Claim in a conventional way. He identified the relevant legal test of which he had to be satisfied. 47Having regard to the contents of the Statement of Claim and the evidence which was before him, such as it was, the finding by the Magistrate that the pleading disclosed no reasonable cause of action, and that the proceedings should be dismissed, was, to my mind, entirely correct. 48I can detect no error of law in the Magistrate's decision. I can detect no error of mixed fact and law in the Magistrate's decision. 49On the contrary, I am abundantly satisfied that the proceedings before the Magistrate did not disclose any reasonable cause of action. They contained an amorphous polyglot of vague allegations, assertions, references to future evidence and argument in a way which demonstrated, in my opinion, beyond rational argument, that the proceedings were an abuse of process as concerns the first defendant. 50So far as the second defendant is concerned, which was the clinic at which the first defendant operated, the pleading contained no allegation against the second defendant, and contained no cause of action pleaded against the second defendant. Indeed, other than identifying it as the physical location from which the first defendant operated, there was no other allegation at all which related to, or in any way involved, the second defendant. 51The Magistrate was absolutely correct to dismiss the proceedings against the second defendant, and his decision so to do involved no error of law. Conclusion 52I am satisfied that the judgment of the Local Court contained no error of law, contained no error of mixed fact and law, and was correct. 53It follows that the summons in this Court seeking to set it aside must be dismissed. Orders 54I make the following orders: (1)Summons dismissed. (2)Plaintiff to pay the defendant's costs. ********** 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. Decision last updated: 13 September 2012