Vedda v Co-ordination Co-operative Ltd

Urshla Vedda (the plaintiff) commenced proceedings in the District Court at Lismore by filing a statement of claim on 2 July 2019. She sought damages in various amounts against Co-ordination Co-operative Ltd (the defendant). On 3 July 2020, she filed an amended statement of claim seeking damages, restitution and an injunction.

On 14 September 2020, the defendant filed a notice of motion seeking to have the proceedings dismissed or the amended statement of claim struck out.

The proceedings were subsequently transferred to this Court before the notice of motion was determined.

In the amended statement of claim, the plaintiff alleges as follows. She became a shareholder of the defendant on 3 February 2008. On 1 November 2009, a meeting of the defendant’s shareholders approved her right to occupy a portion of the defendant’s land which was formerly occupied by “Davo Bradford”. She entered into a licence agreement in April 2011.

On 24 January 2018 the plaintiff received a letter from the defendant’s secretary, alleging that she had erected a shed on land which was at least partly occupied by a neighbour and asking her not to occupy the shed.

The agenda for the defendant’s 2018 Annual General Meeting (AGM), which was scheduled to take place on 7 July 2018, contained an item to expel the plaintiff and Tom Johnston (the plaintiff’s partner) as members of the defendant. On 6 July 2018 the plaintiff agreed with the defendant that the agenda item would not be put to a vote at the meeting.

At the AGM, the plaintiff nominated herself for appointment as a director. Her nomination was not seconded.

On 27 September 2018 large earthmoving machines performed radical work near the access road to the portion of the defendant’s land occupied by the plaintiff. On 4 October 2018 representatives of the defendant demanded that the plaintiff move her vehicle away from the access road to prevent it being damaged by the earthworks. The earthworks destroyed the plaintiff’s access to her home on her portion of the defendant’s land.

On 5 February 2019, the defendant sent an email to the plaintiff to inform her that the defendant’s members had passed a motion that all chattels and building materials that remained on the plaintiff’s site would be taken by the defendant on 13 February 2019. At a subsequent meeting on 7 July 2019, the defendant purported to confiscate the plaintiff’s assets.

In the amended statement of claim, the plaintiff claimed the following relief:

The defendant relied on the affidavit of its solicitor, James Melvin, affirmed 14 September 2020, in support of the notice of motion. Mr Melvin set out a detailed procedural history of the matter. He deposed to the mediation which the parties had attempted and to the various requests for particulars which the defendant’s solicitors had sent to the plaintiff with a view to obtaining a better appreciation of her claim. It is not necessary to set out the detail of the procedural history. It is sufficient to set out the following extract from Mr Melvin’s affidavit, which was not challenged:

The plaintiff’s evidence in opposition to the notice of motion was in the form of a submission and was admitted as such.

In substance, the plaintiff contended that she had lost her home as a result of the defendant’s conduct and that she wanted damages and to have access to her home restored to her. She abandoned her claim for injunctive relief.

Mr Barnett, who appeared for the defendant, submitted that the plaintiff had not formulated her claim in a legally comprehensible way and that, accordingly, the proceedings ought be struck out. However, he submitted, in the alternative, that the Court should make an order for the plaintiff to receive pro bono assistance to help her formulate the pleading so that the defendant and the Court could understand the legal basis for her claim. The plaintiff said that she had previously been told that she would obtain legal assistance but had subsequently been told that none was available and that, accordingly, she was prepared to appear for herself. She submitted that the defendant knew full well what her claim was and that she felt as if she was speaking to someone who was “deaf, dumb and blind” because the defendant purported not to appreciate what she was claiming and why she was claiming it.

The defendant tendered an extract from the record of the District Court which indicated that a pro bono solicitor had been selected but had ultimately not been available to assist the plaintiff.

Pleadings form a significant function in litigation. A statement of claim puts a defendant and the Court on notice of the way in which a plaintiff puts his or her claim and the material facts on which the cause of action is based. A statement of claim must be sufficiently clear to enable the defendant to plead to it, thereby indicating what matters are in issue and which matters are admitted or not in dispute. The pleadings define the issues between the parties and are later used to determine the relevance of evidence for the purposes of determining admissibility: see generally, Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ); [1982] HCA 70; Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 (Mason CJ and Gaudron J); [1990] HCA 11. Where a pleading does not disclose a cause of action or is vexatious or embarrassing, the appropriate course is to strike it out. Where no cause of action is disclosed, it may also, in some cases, be appropriate to dismiss the proceedings.

No cause of action is evident from the current pleading. It is possible that the plaintiff alleges that the defendant breached the licence agreement to which she was a party or that there has been some oppression of her in her capacity as a member of the defendant. However, no conclusion can be drawn as to whether her claim is made on either of these bases or any other basis. The pleading is no more than a litany of complaints in the form of a narrative. Its current form is embarrassing. I am persuaded that the appropriate course is to strike it out pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 14.28(1)(a), (b). It discloses no reasonable cause of action; it has a tendency to cause prejudice (in the form of increased costs), embarrassment and delay.

In the present case, I am not satisfied that the plaintiff has no cause of action against the defendant. Indeed, the defendant’s solicitors in correspondence with the plaintiff fairly set out the deficiencies in the amended statement of claim and invited her to prepare a further pleading. I consider this to be the preferable course since to dismiss the proceedings before she has repleaded her causes of action would not necessarily advance the interests of justice.

The difficulty with dismissing the current pleading and directing the plaintiff to file a new pleading is that, unless the plaintiff obtains legal assistance, there is no basis for concluding that the new pleading will be an improvement on the current amended statement of claim. I understood the defendant to submit as much when it suggested an order pursuant to UCPR, r 7.36(1). It was not clear to me, when this possibility was raised in the course of argument, that the plaintiff would necessarily accept legal advice if it were given, although she said she would like a lawyer and has no means to pay for one. However, legal assistance would at least give the plaintiff an opportunity to put her case in a proper form. Whether a cause of action is ultimately disclosed is a question for another day.

The power conferred on me by UCPR r 7.36(1) to refer the matter to the Registrar for a referral to a barrister or solicitor for legal assistance arises if I am satisfied that it is in the interests of the administration of justice to do so. The matters which I may take into account are listed in UCPR, r 7.36(2). I propose to address these in turn.

The first relevant matter is the means of the litigant: UCPR, r 7.36(2)(a). The plaintiff described herself as homeless. She presently resides in emergency public housing in Lismore. Her income, which derives from social security benefits, is self-evidently insufficient to pay for legal services.

The second relevant matter is the capacity of the litigant to obtain legal assistance outside the scheme: UCPR, r 7.36(2)(b). It appears that the plaintiff was allocated to a solicitor for pro bono assistance but the solicitor became unavailable to help her. I accept that there is little prospect that the plaintiff would be able to obtain legal advice outside the scheme.

The third relevant matter is the nature and complexity of the proceedings: UCPR, r 7.36(2)(c). I do not have sufficient material to determine with any degree of precision the nature and complexity of the proceedings. The reason for this is that the current pleading is so inadequate as to prevent any determination of that matter. It does not appear to be particularly complex.

The other matter which I consider ought be taken into account in the exercise of my discretion is that the defendant has already spent $70,000 in legal costs. These costs have been incurred, in large measure, in an attempt to understand the plaintiff’s case.

There is no evidence that the litigant has obtained assistance under any previous referral at any time. Indeed, the circumstances of this case suggest that the plaintiff has not received assistance under any previous referral. Although some effort was made to obtain legal advice for the plaintiff, this did not eventuate.

Accordingly, for these reasons, I am satisfied that it is in the interests of the administration of justice that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

The defendant sought an order for the costs of the motion. The plaintiff resisted the order for costs since she did not accept that her pleading was inadequate. Further, she contended that such an order was inappropriate when she lacked the means to pay such costs. Whether a successful party chooses to enforce an order for costs is a separate matter. In the present case, I am not persuaded that there is any reason to depart from the general rule that costs follow the event: UCPR, r 42.1.

The plaintiff has, on more than one occasion, communicated directly with my Associate and has not copied her communication to the defendant. This is unacceptable. Parties may only communicate with the Court after consultation between them and with the consent of the other party. It is highly irregular for one party to communicate with the Court and not copy the communication to the other party. On each occasion when this has happened, my Associate has immediately forwarded the communication to the defendant’s legal representatives.

For the reasons given above, I make the following orders: