Pedro Alfaro and Anor v Monti t/as Smith Monti and Costa Solicitors and Ors Matter No 20806/96 [1997] NSWSC 357 (1 September 1997)

Last Updated: 27 February 1998

Pedro Alfaro & Anor v Charles Joseph Monti T/as Smith Monti & Costa Solicitors & Ors

20806/96

1 September 1997

Graham AJ

The Supreme Court of New South Wales Common Law Division

20806/96 - PEDRO ALFARO & ANOR v CHARLES JOSEPH MONTI - T/AS SMITH MONTI & COSTA SOLICITORS & ORS

JUDGMENT

HIS HONOUR: In an unreported judgment of Samuels JA in Rajski v Sitec Corporation, NSW Court of Appeal 16 June 1986, his Honour said, amongst other things:

"An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the Rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent".

This passage from his Honour's Judgment was cited with approval by McLelland J as he then was in his Judgment in Tardy v The Secretary of the Department of Community Services and Health (unreported) 9 October 1990.

In these proceedings the plaintiffs, Pedro Alfaro and Silvia Gladys Alfaro, filed a Statement of Claim on 1 August 1996 in which Charles Joseph Monti and Placido Costa trading as Smith Monti & Costa Solicitors, were named as the first and second defendants and John Paul Meehan, trading as Meehan Solicitors, sometimes referred to as Meehans Solicitors, was named as the third defendant.

On 4 March 1997 the plaintiffs filed an amended Statement of Claim pursuant to leave granted on 26 February 1997. That Statement of Claim named as additional defendants Cecil Nieve Giandinoto and Sonia Giandinoto.

On 13 March 1997 the plaintiffs filed a further amended Statement of Claim pursuant to leave granted on 13 March 1997. The defendants, by motions, sought to strike out the last-mentioned Statement of Claim.

On Wednesday 7 May 1997, Master Greenwood made orders striking out the Statement of Claim. He also granted leave to the plaintiffs to file a further amended Statement of Claim on or before 13 June 1997. The Master ordered the plaintiffs to pay the defendants' costs of those motions.

On 10 June 1997 the plaintiffs filed a second further amended Statement of Claim pursuant to the leave granted by Master Greenwood to do so.

In his Reasons for Judgment of 7 May 1997, Master Greenwood said:

"I feel that the plaintiffs ought to be given one further opportunity to get their house in order. However, bearing in mind how far short of success this and the other two pleadings have fallen, I would recommend to the plaintiffs that at least for the purpose of drawing the initiating document they ought to seek legal advice."

By notices of motion filed 16 July 1997, each of the defendants sought relief in respect of the second further amended Statement of Claim, including orders that it be struck out pursuant to Part 15 Rule 26 of the Rules, although the Rule was not specifically referred to in two of the three motions.

Part 15 Rule 26 provides:

"26(1) where a pleading -

(a) discloses no reasonable cause of action...or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out.

(2) The Court may receive evidence on the hearing of an application for an order under subrule (1)".

The motions to strike out the second further amended Statement of Claim filed 10 June 1997 came before Master Malpass on 24 July 1997. At the outset, the plaintiffs made an application pursuant to Part 60 Rule 6 of the Rules for the hearing of the motions to be referred to a Judge. That application was refused.

Before the proceedings were disposed of before Master Malpass, the first plaintiff, Mr Alfaro, who presented the case for himself and his wife, said to the Master, "All right, no problem, you can do whatever you like. I'll see you". He then departed and took no further part in the hearing.

Master Malpass gave consideration to the second further amended Statement of Claim and concluded that there had been a failure to comply with the pleading Rules in many respects. He said, "It simply fails to allege the relevant material fact which would disclose a cause of action against any of the defendants". The learned Master proceeded to strike out the second further amended Statement of Claim and made appropriate orders for the payment by the plaintiffs of the defendants' costs.

A notice of appeal pursuant to Part 60 Rule 10 of the Rules has been filed by Mr and Mrs Alfaro against the orders of Master Malpass. The grounds specified include the following:

"2. The Plaintiffs' Statement of Claim filed on 10 June 1997 alleges the relevant material facts which discloses a cause of action against all the defendants.

3. There has not been three previous attempts to plead the claims as alleged by the Master."

The notice of appeal specifies the orders sought as

follows:

"4. The appellants seeks for Judgment and Orders that the Statement of Claim filed on 10 June 1997 discloses a cause of action against the defendants.

5. That the joining of the third fourth and fifth defendants is necessary pursuant to Part 8 rule 8 of the rules.

6. That the third defendant further verify his defence by affidavit.

7. That the fourth and fifth defendants file defence.

8. That the orders for costs of the Notice of Motion of 24 July 1997 and 6 May 1997 be dismissed or stayed until after the hearing of the proceedings."

I should mention that a Defence has been filed by the third defendant which has been purportedly verified by the third defendant's brother who practices with the third defendant as Meehans Solicitors. Were it necessary for further action to be taken in respect of the Defence, then plainly the Defence should be properly verified by the named defendant. However, for reasons which will shortly appear, that course of action will be unnecessary.

The Statement of Claim is difficult to comprehend. It would appear that the firm of solicitors known as Marsdens acted for the plaintiffs in proceedings against a Mr. Oscar Giandinoto, which had been instituted in the District Court of New South Wales at Campbelltown and were identified as proceedings number 330/85.

The Statement of Claim contends that the first and second defendants took over the conduct of that case on 1 December 1986, having received instructions to do so on or about 12 September 1986. They appear to have continued to act in the matter until 3 August 1990. Those proceedings appear to have related to a property known as 5 Knotwood Avenue, Macquarie Fields. The precise nature of the proceedings is unclear and no evidence has been tendered to establish what those proceedings were all about. In paragraph 1 of the second further amended Statement of Claim there is a suggestion that the proceedings were for an equitable interest of the plaintiffs in the property mentioned.

The second further amended Statement of Claim alleges that, following the first and second defendants' withdrawal from the matter as the plaintiffs' solicitors, the proceedings were listed for hearing at the District Court of New South Wales at Picton on 6 August 1990, whereupon they were struck out with an order for costs against the plaintiffs. No evidence has been provided to indicate what notice the plaintiffs had of the forthcoming listing of the matter in that way.

The Statement of Claim proceeds to refer to the institution of proceedings by the third, fourth and fifth defendants against the plaintiffs for Domestic Violence orders. The pleading also refers to the execution of certain documents by, so it would seem, the second plaintiff, Mrs Alfaro.

The pleading refers to a transfer purporting to have been signed by Mrs Alfaro in the presence of the third defendant, Mr Meehan. It also refers to Mr Meehan requesting Mrs Alfaro to sign a deed in relation to the equitable interest of the plaintiffs in the Knotwood Avenue property, in the absence of legal advice. Mr Meehan, the third defendant, apparently acted as the solicitor for the fourth and fifth defendants, Mr and Mrs Giandinoto and at no time acted for Mr or Mrs Alfaro.

In my opinion, the second further amended Statement of Claim discloses no reasonable cause of action against any of the defendants. Furthermore, it has a tendency to cause prejudice, embarrassment and delay.

The closest that I can see the pleading coming to one which might disclose a cause of action is by reference to the matter contained in paragraph 33, which provides as follows:

"33. The First and Second defendants have acted negligent as proceedings for the Equitable Interests of the Plaintiffs in the property situated at 5 Knotwood Avenue Macquarie Fields NSW 2564 should have been commenced in the Equity Division of the Supreme Court and not at the District Court".

The problem with this paragraph is that, when taken with paragraph number 4, it may be inferred that the proceedings were not commenced by the first and second defendants in the District Court but rather by the firm of Marsdens who apparently acted for the plaintiffs at the time of the institution of the proceedings. There is certainly no evidence to suggest that the first and second defendants or either of them, acted negligently in failing to cause the District Court proceedings to be transferred to the Supreme Court for consideration by the Equity Division of the court.

One allegation contained in the Statement of Claim is that the first and second defendants conspired with the third defendant to pervert the course of justice and prevent the plaintiffs from claiming the equitable interest in the property in question. When asked to particularize the conspiracy, the response given was that the facts were in the direct knowledge of the defendants. Plainly, the allegation of conspiracy to pervert the course of justice is, in the circumstances, embarrassing.

As against the fourth and fifth defendants, it is alleged that the proceedings for domestic violence orders against the plaintiffs caused them much anxiety and stress. There is no suggestion in the pleading that the proceedings were maliciously brought by the fourth and fifth defendants and indeed, by reference to an earlier pleading, it would appear that the fourth and fifth defendants were successful in securing relief against the plaintiffs in those proceedings.

It seems to me that the appeal against the decision of Master Malpass is without merit and should be dismissed and there is no proper basis for any of the other orders sought by the plaintiffs, as appellants, being made.

The order of the court will be, appeal dismissed. Order that the plaintiffs pay the costs of the defendants of the appeal. Order that those costs may be taxed forthwith and proceedings brought for their recovery at any time.

Mr Alfaro makes an application ore tenus for further leave to amend the second further amended Statement of Claim. Given the remarks of Master Greenwood and Master Malpass in respect of their consideration of earlier statements of claim and the observations which I have made about the pleading as considered by Master Malpass, I do not consider that it is fair in the interests of justice to allow the plaintiffs to have yet another opportunity to amend the Statement of Claim and the application is refused.