AustLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of New South Wales
You are here:  AustLII >> Databases >> Supreme Court of New South Wales >> 2023 >> [2023] NSWSC 39

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Context | No Context | Help

Jacups v Knaggs [2023] NSWSC 39 (3 February 2023)

Last Updated: 9 February 2023



Supreme Court
New South Wales

Case Name:
Jacups v Knaggs
Medium Neutral Citation:
Hearing Date(s):
3 February 2023
Date of Orders:
3 February 2023
Decision Date:
3 February 2023
Jurisdiction:
Common Law
Before:
Chen J
Decision:
(1) Direct the plaintiff, if so advised, to prepare and serve on the Law Society any further proposed statement of claim on or before 3 March 2023, 5pm.
(2) Order the plaintiff, if leave is sought to rely upon any further proposed statement of claim served in accordance with order 1, to file and serve any Notice of Motion seeking leave on or before 10 March 2023, 5pm.
(3) List the matter for directions before the Common Law Registrar on 10 March 2023.
(4) Direct that any Notice of Motion filed in accordance with order 2 to be listed for directions before the Common Law Registrar on 10 March 2023.
(5) Dismiss the plaintiff's Notice of Motion dated 3 October 2022.
(6) Order the plaintiff to pay the Law Society's costs of the Notice of Motion.
(7) Grant leave to the Law Society to apply, if so advised, for a gross sum costs order.
Catchwords:
CIVIL PROCEDURE — originating process —application to further amend statement of claim — whether grant of leave in accordance with the dictates of justice
Legislation Cited:
Cases Cited:
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55
Category:
Procedural rulings
Parties:
Graham Dudley Jacups (Plaintiff)
The Law Society of New South Wales (Respondent)
Representation:
Counsel:
Mr P King (Plaintiff)
Mr S J Maybury (Respondent)

Solicitors:
DLA Piper (Respondent)
File Number(s):
2018/393781
Publication Restriction:
Nil

JUDGMENT EX TEMPORE

Introduction

  1. By statement of claim filed 21 December 2018, Graham Jacups (‘the plaintiff”) commenced proceedings for damages against his former solicitor, Douglas Knaggs (‘the solicitor’).
  2. At the time those proceedings were commenced, the solicitor was deceased.
  3. The plaintiff seeks leave to file an amended statement of claim in the form that is annexure “A” to an affidavit sworn by the plaintiff on 3 October 2022. By that proposed amended pleading, the plaintiff seeks to join the Law Society of New South Wales (the ‘Law Society’).
  4. The application is opposed by the Law Society.

Background

  1. In view of the nature of the application that is made, the background facts can be lightly sketched. They are largely drawn from the statement of claim (‘the SOC’), and are as follows.
  2. In the late 1990s, the plaintiff was in a dispute with his former de facto partner. In 1997, they entered into consent orders, in this Court, relating to a property in Blackheath. It appears that orders for costs were made against the plaintiff, which he did not satisfy. In 2001, an order was made in the Family Court for payment of outstanding costs or, in default, the property in Blackheath was to be sold in payment of those costs: SOC, par 6.
  3. The plaintiff alleges that he retained the solicitor “from early March 2003”: SOC, par 1.
  4. On 13 March 2003, the plaintiff’s former de facto obtained an order for vacant possession of the property: SOC, par 8.
  5. It appears that, in order to discharge the liability that the plaintiff had to his former de facto, the plaintiff secured finance – following which the plaintiff was to discharge orders relating to costs made by the Family Court on 17 March 2003: SOC, pars 9 and 10.
  6. On 3 June 2003, the plaintiff secured the finance necessary to discharge the costs liability and made contact with the solicitor so as to enable the bank to transfer the money into the solicitor’s trust account: SOC, par 10. On that day the plaintiff alleges that two bank cheques were drawn by the solicitor, contrary to his instructions, and paid either to the solicitor or to the child support agency: SOC, pars 11 and 12.
  7. The plaintiff alleges that – I am putting this generally – the solicitor falsely represented to him that the money held in his trust account was to be held for the benefit of his former de facto, when that was not so: SOC, pars 13, 18 and 19. The plaintiff alleges that he did not become aware of these facts until 11 June 2009, following which the plaintiff made a complaint to the Law Society and the NSW police: SOC, pars 14 and 15.
  8. The plaintiff seeks recovery of money totalling $1,110,000.00 by way of damages or equitable compensation: SOC, pars 20, 21 and 22.

The procedural history

  1. The SOC was filed on 21 December 2018. The matter has not meaningfully progressed since its commencement.
  2. In 2020 an application was made by the plaintiff to amend his SOC, and to join additional defendants. That application was listed before Harrison J. At that time the plaintiff was legally represented. The plaintiff sought an adjournment of that hearing. Harrison J refused it. The plaintiff then terminated the retainer of his counsel. Thereafter, the plaintiff is reported to have left the Court. Harrison J adjourned the motion.
  3. On 27 April 2022, the plaintiff filed a Notice of Motion seeking to join the Law Society as a defendant. That motion was heard by Registrar Jones on 13 July 2022 and, by orders made on 29 August 2022, the Registrar “declined” to provide the leave that the plaintiff sought. The order was expressed in that way because, notwithstanding what transpired before Harrison J, the plaintiff filed a further version of his claim on 28 January 2020 – described as: “Draft Revised Amended Statement of Claim”. The effect of the order of the Registrar was clearly to confirm that the pleading that was filed, without leave, could not be relied upon.

The proposed amended statement of claim

  1. The plaintiff seeks an order granting leave to file an amended statement of claim (the ‘ASOC’).
  2. There are – broadly – amendments of three types contained in the ASOC: first, the plaintiff has substituted the Law Society for the solicitor – albeit that the basis for that substitution has not been pleaded; secondly, there are amendments to the claim made against the solicitor; and, thirdly, a claim is made by the plaintiff directly against the Law Society.
  3. It is unnecessary, in view of what transpired before me, to address further the detail of the claim that was sought to be made by the plaintiff against the Law Society. That is because Mr King, of counsel, who appeared for the plaintiff sought, in effect, to adjourn the application so as to enable him to prepare a further version of a pleading.
  4. Mr Maybury, who appeared for the Law Society, opposed the application to adjourn the Notice of Motion and, more broadly, opposed the grant of leave to file the ASOC.
  5. In relation to the opposition for leave to amend the statement of claim Mr Maybury raised three grounds: (a) the ASOC is defective in form; (b) each of the causes of action are time barred; and (c) none of the claims are reasonably arguable.
  6. The ASOC, which is annexed to the plaintiff's Notice of Motion, is not easy to follow. There are considerable amounts of extraneous material raised in it. Although separated into paragraphs, it is otherwise self-evidently non-compliant with the rules and principles that apply to pleadings in this Court. No doubt this has informed the position that Mr King has taken before me.
  7. The Law Society opposed the adjournment of the motion, pointing out a number of matters including delay, prejudice and the fact that costs may not be an adequate recompense, if indeed the Law Society's position is ultimately vindicated.
  8. In my view, there is substantial force in these submissions as put by Mr Maybury. Nevertheless, I consider that the plaintiff should be given a further opportunity to re-plead the claim. That said, bearing in mind the proceedings are yet to substantially progress, despite their commencement in 2018, and the timespan involved in the underlying conduct said to give rise to the claim, I consider it appropriate to require the plaintiff to take the required steps in a confined period.
  9. In making the orders that follow, the plaintiff should not be mistaken into thinking that necessarily leave would be granted; that would be a matter for the judge hearing any further application that is made. Further, it is important that it be recognised that the just, quick, and cheap resolution of the issues raised in the plaintiff's claim (s 56 of the Civil Procedure Act 2005 (NSW) (the ‘CPA’)) will require the timely and efficient conduct of the proceedings (s 57(1) of the CPA), including any further application that may be made to amend the pleading.
  10. I add, in making the orders that I propose to make, I do not consider the fact that one or indeed all of the claims may be met by a plea under the Limitation Act 1969 (NSW) is a ground to refuse the adjournment, or indeed the amendments in the form presently before me.
  11. There is a well-known reluctance for courts to embark upon a determination of whether a claim is time barred, other than at trial: Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533; [1992] HCA 55. Although this warning need not be applied generically, I am not prepared to hold, absent a final pleading, that this is inevitably a sufficiently clear-cut case to warrant determination of that issue on interlocutory basis – particularly on an application to amend.
  12. Furthermore, although the Law Society opposed the amendments and, perhaps more substantially, any adjournment on the basis that the ASOC failed to disclose a reasonable cause of action, I am not, as I indicated during argument, prepared to embark upon a consideration of whether a reasonable cause of action could possibly be disclosed absent of final pleading. It is to be remembered that the power to summarily terminate a claim is to be used sparingly, and with restraint.

Orders

  1. Accordingly, I make the following orders or directions:

**********

Amendments

03 February 2023 - Formating

09 February 2023 - Name and title of party

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2023/39.html