Wentworth v Graham & Anor

IPP JA: I agree with Brownie AJA.

BROWNIE AJA: The claimant seeks leave to appeal from the decision of Ireland J of 31 March 2000, dismissing proceedings in which the claimant was the plaintiff, and in which the opponents were the defendants. The decision was made under Part 13 rule 5, on the basis that no reasonable cause of action had been disclosed.

The facts pleaded in the amended statement of claim, summarised shortly, are that on 29 January 1977 the claimant was assaulted in various ways by her then husband, Mr Rogers; that the first opponent was then her solicitor; that the second opponent was her uncle; that on various occasions, and in various ways, she acquainted the opponents with the true position, as did Mr Rogers, so that each of the opponents knew that Mr Rogers had assaulted her, and that he had admitted having done so; that the first opponent, as the claimant’s solicitor, acted for her in various ways, consistent with his knowledge of the admissions of Mr Rogers; and that thereafter there were a series of curial proceedings, during the course of which the opponents either gave false evidence, or failed to give evidence at all, or failed to give truthful evidence, or made false statements in connection with the litigation, generally to the effect of favouring the case of Mr Rogers rather than favouring the case of the claimant, which was the true case. She pleaded that she had suffered damage of various kinds, and claimed both compensation and damages, including aggravated and exemplary damages.

The Court has granted leave to appeal, to the extent mentioned in paragraph 27 of the proposed notice of appeal (the document was filed on 17 April 2000 without leave; but the present application is apt to cure that difficulty), that is, asserting bias on the part of Ireland J. It seems sufficient to say now that the allegations, if made good, are serious, and that there is an arguable case that his Honour did not give sufficient reasons for dismissing the application that he stand aside.

One question debated has been whether the opponents owed the claimant a fiduciary duty, and whether they breached that duty. Ireland J regarded the amended statement of claim as pleading a claim for breach of fiduciary duty, and nothing more. The pleading certainly refers repeatedly (paragraphs 10, 13, 18, 22, and each of the paragraphs numbered 25) to a claim for breach of fiduciary duty, but does not refer explicitly anywhere to any other cause of action.

I do not consider that anything has been shown that would justify the granting of leave to appeal from so much of the judgment as held that there was (in the relevant sense) an arguable case of breach of fiduciary duty. As to the first opponent, all that has been shown is that he was a solicitor, working in the firm who were the claimant’s solicitors, in January and February 1977. By the time of the next relevant event, November 1981, he was employed by other solicitors. No doubt he had fiduciary obligations towards the claimant in early 1977, some of which remained in force thereafter, but nothing in the case made out now points to a conclusion that anything he did, or failed to do, in or after 1981, amounted to a breach of any such obligation. What he is said to have done, and to have failed to do, was done or not done, otherwise than as a fiduciary.

As to the second opponent, all that appears is that he was her uncle and that he, amongst others, assisted the claimant after the assaults, and that Mr Rogers made admissions to him, or in his presence. On the material before the Court now, it cannot be said that those circumstances gave rise to any relevant fiduciary obligation.

Ireland J also considered an argument that the amended statement of claim pleaded a claim in “fraud against the court”. His Honour said that he found this expression unfamiliar, but held that if certain fragments of the statement of claim, identified by the claimant, were intended to plead fraud, the pleading did not comply with the terms of Part 15 rule 13, which requires fraud to be specifically pleaded, and he held that this rule had not been complied with.

This seems to be plainly correct, so that his Honour was correct in holding that to this extent the pleading (as distinct from the action) should have been struck out. However, the claimant now submits that she should be given leave to appeal, so as to be permitted to claim damages in fraud.

I do not think that the amended statement of claim pleads the necessary elements to constitute a cause of action in fraud, nor do they appear elsewhere: there is no allegation that the opponents made an untrue representation, with the intention that it be relied upon by the claimant, or that the claimant relied upon such a representation, so as to suffer loss.

The claimant also submitted that she had sued for damages for malicious prosecution, and that his Honour did not deal with that claim. I do not think that on a fair reading of the pleading, this allegation was made there, but in any event, on the material now before the Court, such a claim would fail, because there is no allegation made that the opponents prosecuted any criminal proceedings against the claimant.

Next, the claimant submitted that the amended statement of claim had raised claims in negligence, and for abuse of process. The claims were expressed in various ways, but seemed to come down to these two causes of action. In each case it is difficult to know just what the claim intended to be made was: the pleading does not comply with the provisions of Part 15 rule 6(b), 7, 8 or 13. As well, each claim might suffer from the difficulties mentioned by Ireland J at [40], and the difficulties asserted by the respondents, that the claims are time barred.

The claimant has already made submissions about these matters, but on 13 May 2003 she said that she wanted to refer to further authorities. I propose that she be given leave to do this, provided that it is done by written submissions, lodged within 7 days from the publication of these reasons, and provided it is accompanied by a draft of a further amended statement of claim, formulated in accordance with these reasons for judgment. When that has been done we shall determine whether leave to appeal on any further ground (additional to that set out in para 27 of the proposed notice of appeal) should be granted. No further oral hearing shall take place.

Paragraphs 1 and 2 of the proposed notice of appeal speak of procedural unfairness, in that Ireland J had before him a motion concerning the original statement of claim, but during the course of the hearing permitted the opponents to move on the basis that his Honour consider the amended statement of claim. There was ample opportunity for the claimant to deal with this change, and there is no merit in this complaint. His Honour should have done what he did do, namely deal with the substance of the questions which were then to be resolved.