Seidler v Carroll & O’Dea

HER HONOUR: Kathryn Seidler claims damages and other relief from a firm of solicitors, Carroll & O’Dea, who acted for her in proceedings in the District Court in which she sued the University of New South Wales.

Ms Seidler represents herself in the claim against Carroll & O’Dea. The proceedings were commenced by statement of claim filed on 21 November 2011. That document reflects the difficulty a person who is not legally trained faces in pleading a legal claim. Ms Seidler has accepted (even embraced) the proposition that the existing pleading requires amendment.

At an early point in the proceedings, Garling J made an order under r 7.36 of the Uniform Civil Procedure Rules 2005 to have Ms Seidler referred to a barrister or solicitor on the pro bono panel for assistance in amending the pleading. Unfortunately, no legal assistance was forthcoming in response to that referral.

Failing the availability of any pro bono assistance, Ms Seidler drafted an amended statement of claim herself (marked “MFI 1”). The proposed amendment seeks to expand the claims against the existing defendant solicitors and to join a barrister, Mr Robert Harrington, as an additional defendant to the proceedings. This judgment determines Ms Seidler’s application for leave to file that document.

I have read the entire draft pleading. For the following reasons, I have concluded that Ms Seidler should not have leave to amend her claim in the terms of MFI 1 or any similarly drafted pleading. The basis for that conclusion is that the draft pleading, if filed, would be liable to be struck out under r 14.28(1) of the Uniform Civil Procedure Rules. That rule provides:

The principles relevant to the application of that rule were set out in a helpful summary (not intended to be exhaustive) in the written submissions for the solicitor defendants, as follows:

Ms Seidler’s proposed amended statement of claim is a difficult document, trespassing against many of those principles.

Since Ms Seidler represents herself in the proceedings, it may be assumed that she has had to draft the proposed amended pleading either without any, or any substantial, assistance from a lawyer. Views may differ as to the extent to which that is a relevant consideration in determining whether a pleading should be allowed to stand. Access to justice is a fundamental aspect of the administration of justice. The court should be vigilant to guard against the rigid application of principle at the expense of facilitating the just resolution of matters properly brought forward for judicial determination. To that end, a degree of flexibility and even indulgence might appropriately be afforded to a self-represented litigant in a proper case. So much is recognised in the remarks of Kirby J in Attorney-General, Re; Ex parte Skyring [1996] HCA 4; (1996) 135 ALR 29, where his Honour referred to the need for “vigilance, and not impatience” in the case of an applicant who is not legally represented.

The fundamental importance of facilitating equal access to justice warrants the giving of close consideration to the terms of a pleading in order to discern, with an open mind, whether there is a reasonable cause of action nestling within obscure or difficult language used by a self-represented litigant.

Conversely, however, a misconceived or poorly-pleaded claim imposes considerable stress on the due administration of justice and ought equally to be guarded against. The same vigilance must accordingly be exercised not to suffer the court to become a forum for the agitation of grievances which lack any juridical foundation.

Before turning to the individual grievances sought to be pleaded by Ms Seidler, it is appropriate to explain some of the difficulties with the language and structure of her proposed amended pleading.

As is now common with pleadings (at least in this Court), Ms Seidler’s draft pleading defines certain terms, ostensibly for ease of reference elsewhere in the document. For example, under the heading “pre-contract representations and the commencement of fiduciary duty”, the draft pleading refers to statements made on the Carroll & O’Dea website as to the skills and experience of one of the partners of the firm. Those statements are defined in the draft pleading as “the first representations”. Later in the pleading (at paragraph 106), Ms Seidler alleges that, in reliance upon “the first representations” (among other things), she did certain things.

This is only an illustration of the use of the device of defined terms, which is repeated many times throughout the draft pleading. Some of the defined terms are simple enough to be helpful. For example, the ergonomic workstation allegedly provided to Ms Seidler by the University of New South Wales is defined as “the workstation” (in paragraph 27). Many of the defined terms, however, comprehend a large collection of related but disparate concepts and allegations. For example, paragraph 51 of the draft pleading identifies, as a defined term, “the facts: the UNSW and AGSM history, HREOC and injury complaint”. Whilst the position is not entirely clear, it appears to be intended to comprehend within that defined term all of the matters pleaded in paragraphs 19 to 51, which range over a series of factual and legal contentions.

That defined term is one of many matters in reliance upon which Ms Seidler says (in paragraph 106) that she did certain things, including commencing proceedings in the Federal Magistrate’s Court. Paragraph 106 states:

Each of the other terms in bold is also a term defined earlier in the pleading, usually to denote a series of disparate allegations.

The effect is that, in order to understand the matters in reliance upon which Ms Seidler says she did the things listed in paragraph 106, including commencing her proceedings in the Federal Magistrate’s Court, the reader must go back to each of the sections of the pleading in which one of those terms is defined. Apart from being a frustrating and confusing exercise, doing so reveals that the contention in paragraph 106 makes no sense.

For example, “the missed and or damages failed to be claimed or rectified” appear to be the matters pleaded in paragraphs 52-76 of the draft pleading. In broad summary, those paragraphs allege failings on the part of the defendants in not amending the pleadings in the Federal Magistrate’s Court and the District Court to include certain claims, some of which Ms Seidler appears not to have discovered until 2010 and 2011, after the commencement of the proceedings in the Federal Magistrate’s Court. The effect is to assert that Ms Seidler commenced the proceedings in the Federal Magistrate’s Court in reliance upon opportunities not identified as having been missed until after the date of commencement of those proceedings. The purport of that allegation is incomprehensible, at least to me.

Upon close analysis, the use of defined terms thus serves in many instances only to confuse, whilst lending the pleading an air of legal succinctness. It is a device repeated throughout the pleading, the foregoing being only an example.

That structural difficulty of the draft pleading is compounded by Ms Seidler’s peculiar and unfamiliar use of familiar terms. Some are legal terms, used by Ms Seidler in a context that is obscure or unfamiliar to lawyers. Some are ordinary English terms not used in their ordinary English sense or usage.

Familiarity with Ms Seidler’s frequent written correspondence and her spoken language in court does breed an understanding of her peculiar use of some terms, which would otherwise be confusing. To the extent that curious terms can be understood upon a patient and careful reading of the draft pleading, obscurity of expression may not in itself warrant disallowing the pleading. For example, Ms Seidler uses the adjective “legal” as a noun, evidently referring to legal professionals or legal representatives. Similarly, she uses the adjective “medical” to refer to medical practitioners. From time to time, she uses the term “practitioners” to distinguish medical practitioners from “the legal” (to be understood to refer to legal practitioners). As already stated, those are features of the draft pleading that are capable of being understood, but they contribute to its obscurity.

The difficulty of the draft pleading is further compounded by the fact that many of Ms Seidler’s allegations contain suppressed or untested premises. For example, many paragraphs complain of a failure to advise, research or engage in relevant due diligence in circumstances where the source of any obligation to do so is not articulated (eg paragraphs 74, 76).

Those are matters going to the form or structure of the pleading and the complexity of its language. Turning to the substance of Ms Seidler’s allegations, in broad summary the claims against Carroll & O’Dea and the barrister arise from two earlier proceedings commenced by Ms Seidler. The two proceedings may broadly be described as discrimination proceedings in the Federal Magistrate’s Court and proceedings for personal injury in the District Court. The draft pleading provides a detailed but confused narrative of the circumstances surrounding the commencement of those earlier proceedings, the conduct of the proceedings and events after their conclusion. The narrative is mostly, but not consistently, in chronological order.

A critical failure of the draft pleading is that it is impossible to discern from those allegations whether (and if so the basis on which) Ms Seidler alleges that Carroll & O’Dea have any liability to her in respect of the discrimination proceedings in the Federal Magistrate’s Court. Paragraph 100 of the draft pleading states:

Mr Harrison is a partner of Carroll & O’Dea. However, it is unclear whether Ms Seidler intends to assert the existence of some duty of care owed by Carroll & O’Dea to her in respect of the proceedings in the Federal Magistrate’s Court. Paragraph 100 acknowledges that Ms Seidler commenced the proceedings as “an unrepresented self litigant” whilst at the same time asserting that she did so “as per Mr Howard Harrison’s directions”. Later parts of the draft pleading appear to suggest that Ms Seidler does intend to include in her claim against Carroll & O’Dea some allegation of breach of duty of care arising from the conduct of the discrimination proceedings, notwithstanding the fact that it is not asserted that Ms Seidler ever retained Carroll & O’Dea as her solicitor to represent her in those proceedings, or that Carroll & O’Dea ever assumed responsibility to act or advise in those proceedings.

The second set of proceedings were proceedings in the District Court. The draft pleading is at least clear in alleging that Carroll & O’Dea was retained to represent Ms Seidler in those proceedings (paragraphs 107 to 132 of the draft pleading) and that they retained the barrister to provide at least some services in those proceedings.

The allegations underlying the two earlier proceedings are set out principally in paragraphs 19 to 51 of the draft pleading. Doing the best I can, the following is a summary of my understanding of those underlying allegations.

In March 2005 Ms Seidler commenced an Honours Degree in Marketing at UNSW, to be undertaken at the Australian Graduate School of Management (the AGSM). Ms Seidler alleges that, in addition to being a student at that institution, she was also employed as a research assistant by one of her thesis supervisors.

Ms Seidler alleges that an ergonomic workstation was provided to her for the purpose of her work both as a student and as an employed research assistant. She further alleges that the workstation was unsuitable and that, as a result, she developed symptoms of a repetitive strain injury from about May 2005. Her claim against the University was evidently founded, in part, on the proposition that her complaints in respect of that injury were not properly addressed by the University and resulted in hostility, bullying, harassment and victimisation directed towards her.

In one of the more confusing passages of the draft pleading, Ms Seidler alleges that the University generated “a ‘red herring’ conflict and hostility about a vacation and injury break”, which was used to “cover up” the University’s failure properly to address the repetitive strain injury (paragraphs 30-31 of the draft pleading).

Separately, Ms Seidler alleges that, unbeknownst to her, the project on which she was working as an employed research assistant received a grant from the Australian Research Council. Ms Seidler alleges that the award of that grant ought to have generated further employment and educational opportunities for her but that, rather than being employed after the grant was awarded, her employment was terminated and she missed those opportunities.

Ms Seidler also complained of inappropriate questions asked of her by a professor at the University. She states that this was registered by the University as a “sex discrimination complaint” (paragraph 47 of the draft pleading).

The draft pleading reveals, without pleading the matter clearly, that Ms Seidler must have made a complaint against the University to the Australian Human Rights and Equal Opportunity Commission. At paragraphs 48 to 50, Ms Seidler states:

Regrettably, the pleading of the circumstances underlying the two earlier proceedings is interwoven with the allegations against Carroll & O’Dea and the barrister, which creates substantial confusion. Paragraph 1 of the draft pleading states:

Later, at paragraphs 19-21 of the draft pleading, Ms Seidler states:

Those parts of the draft pleading fail to identify with any clarity what injury Ms Seidler sought to have redressed, or what remedy pursued, at the time she first approached the solicitors. If it was intended to identify the retainer by reference to the allegation that a document (the HREOC complaint) was forwarded to Mr Harrison “for evaluation”, that is an insufficient pleading of the retainer. There is no attempt to identify the matters complained of by Ms Seidler as against the University or the remedies she sought. Ms Seidler expressly states that the only diagnosed physical symptoms reported by her at that point were the occupational overuse symptoms which emerged in May 2005. She further asserts that, until 2008, there was “no recognised psychological compensatable illness diagnosed but that symptoms had commenced” (paragraph 22 of the draft pleading).

In that context, it is difficult to understand the later complaint that claims other than the claim relating to the occupational overuse injury (the so-called “missed and or damages failed to be claimed or rectified” pleaded in paragraphs 52-76 of the draft pleading, referred to above) ought to have been included in the proceedings in the District Court.

Further, it is unclear whether Ms Seidler intends to assert that she retained Carroll & O’Dea to act for her from December 2006 or, rather, from some later date. At some points in the pleading, it appears to be asserted that Carroll & O’Dea fell under a duty of care from December 2006, when the firm was first approached. At other points, however, the suggestion appears to be that Carroll & O’Dea was not retained until February 2008, shortly before the commencement of both proceedings.

I have spent many hours endeavouring to understand what Ms Seidler alleges she retained Carroll & O’Dea to do and to identify the facts, matters and circumstances relied upon to support the existence of any express retainer or duty of care arising otherwise. The pleading is extremely confusing on that issue. In particular, it is not clear:

In my view, the confusion as to the formation and content of the solicitors’ retainer (which in turn infects the pleading of the proposed claim against the barrister) is sufficient warrant in itself for refusing leave to amend. The whole claim is necessarily informed by the content and scope of any alleged duty of care. The failure of the pleading to identify those matters in any comprehensible way causes embarrassment which infects the balance of the pleading.

Even if my analysis of that issue is wrong, in my view the balance of the draft pleading is incomprehensible, prolix and otherwise embarrassing. For the most part, whilst some individual allegations may be understood standing alone, they do not form part of any comprehensible legal claim. It would be futile for me to attempt to articulate all of Ms Seidler’s claims in rational terms. To do so would amount to speculation. Nonetheless, some further explanation should be given for my conclusion that the whole of the pleading would (if filed) be liable to be struck out.

Paragraphs 1 to 12 are introductory. Paragraphs 13 to 18 appear to be directed to a claim that Ms Seidler retained Carroll & O’Dea in reliance on representations made on their website as to the skill and competence of the firm. Those allegations are embarrassing in at least the following respects:

Paragraphs 153 to 155 similarly complain of “ongoing representations” in the media made by members of the firm. Paragraph 155 complains that the quotes from the defendants (which are not identified) are “still on the website despite their knowledge of my claims and experience”. Leaving aside the circularity of assuming the correctness of the claims made in these proceedings to support a separate complaint made in the same proceedings, those allegations are embarrassing for the same reasons as paragraphs 13 to 18.

I have already considered paragraphs 19 to 51 and, to some extent, paragraphs 52 to 76. Those latter paragraphs assert, in broad summary, that the defendants pleaded a “simplistic claim” on behalf of Ms Seidler and failed to amend or rectify the pleadings so as to claim damages for additional matters. They wholly fail to identify what instructions Ms Seidler allegedly gave as to those matters and when. It is simply impossible for the defendants to know the case they have to meet on those issues.

Further, it appears to be a suppressed premise of those paragraphs that the solicitors were under a duty to investigate, research or undertake “due diligence” of certain matters, whereas the pleading fails to articulate any basis on which such an obligation is alleged to have existed.

Paragraphs 77 to 99 contain a series of disparate and confused allegations broadly relating to the conduct of the solicitor defendants and the barrister leading up to Ms Seidler’s commencement of proceedings in the Federal Magistrate’s Court. Some complaints relate to the legal costs billed by the solicitors. There is an allegation that one of the solicitors generated “no deliverables other than the two medical reports” (paragraph 88). There is a suggestion that some failure or delay on the part of the solicitors in the preparation of a statement of claim for proceedings in the District Court prevented or obstructed the successful conciliation of the HREOC proceedings (although it does not appear to be alleged that the solicitor defendants were retained to act in that matter).

It is impossible to understand with any clarity how any of those complaints is relied upon as an element of or in support of any particular cause of action.

Paragraphs 97 to 99 introduce the claim against the barrister, Mr Harrington. It is impossible to understand from those paragraphs what cause of action is relied upon against him.

As already noted, paragraph 100 pleads the commencement of the proceedings in the Federal Magistrate’s Court in terms that create confusion as to whether it is alleged that the solicitor defendants were retained to act in those proceedings.

Paragraphs 101 to 105 refer to Ms Seidler’s attempts to suggest an ergonomist to be retained as an expert witness in her claim. It is tolerably clear from the pleading as a whole that Ms Seidler alleges that the defendant solicitors negligently failed (or failed in a timely fashion) to identify and retain an appropriate expert ergonomist to be a liability witness in the proceedings and that, the case thus being weak on the issue of liability, she was forced to compromise her claim for less than it was worth. At present, however, those allegations are pleaded in terms that are confused and embarrassing.

The balance of the pleading recites, at great length, the retainer of the solicitor defendants on 18 February 2008 to act in the personal injury claim in the District Court (paragraphs 107 to 125) and the conduct of that litigation. There is detailed narrative of a series of grievances and complaints Ms Seidler has in respect of the conduct of that litigation. However, many of the allegations are factually confusing or reveal misconceptions as to the law.

Paragraphs 126 to 132 assert that Ms Seidler signed the authority to commence proceedings under duress and was required to backdate that document. However, there is no suggestion that she did not in fact authorise the commencement of the proceedings. On the contrary, the alleged failure properly to prosecute that claim appears to lie at the heart of her claim in these proceedings.

Paragraph 131 is a further example (like paragraph 106) of the confusing use of defined terms, asserting that Ms Seidler signed the authority to commence proceedings and “continued under the fiduciary duty relationship with the defendants” in reliance upon a series of matters which, upon analysis of the definition of the relevant terms, make no coherent allegation against the defendants. For example, it is alleged that one of the matters Ms Seidler relied on in signing the authority to commence proceedings and continuing the relationship with the defendants was “the facts: the UNSW and AGSM history, HREOC and injury complaint”, indicating that she authorised the commencement of proceedings against UNSW in reliance upon all of the matters she asserts gave rise to causes of action against UNSW. It is unclear whether that is grievance or mere narrative.

Paragraphs 133 to 135 are directed to the proposed claim against the barrister. Those paragraphs reveal that, from early March 2008, Ms Seidler was aware that the barrister was advising that it was more probable than not that she would be unsuccessful in the claim. She alleges that she was not made aware of that advice until after the statement of claim had been filed. It is not clear from the pleading whether the statement of claim had been served by that date. The significance Ms Seidler attributes to the barrister’s advice is unclear. It is not suggested that the advice was negligent. It may accordingly be relied upon only to sustain some aspect of the claim against the solicitors (for allegedly not informing her of the advice until after the statement of claim had been filed). The confusion in that respect is apt to cause embarrassment to both the solicitor defendants and the barrister.

As already noted, many of the allegations in the balance of the pleading consist of detailed but incoherent narrative of the conduct of the proceedings ranging from alleged inadequacies in the pleadings and the evidence gathered by the defendants to a litany of disputes concerning subpoenas, discovery, disclosure of confidential information and costs. I have not found it possible to lend a coherent articulation to many of those complaints. Their incomprehensibility and prolixity completely obscure any proper claim Ms Seidler may have against any of the defendants.

For example, paragraph 156 states:

Leaving aside those general difficulties and without intending to be exhaustive, some particular issues may be noted concerning the complaints about the defendants’ conduct of the District Court proceedings.

Some of the complaints appear to proceed on the premise, for which no reasonable foundation is pleaded, that Ms Seidler either was, or ought to have been, in a relationship of employment with the defendants or that they owed her a duty of care akin owed to that owed by an employer to an employee (see for example paragraphs 156, 493). Those allegations are plainly untenable in their present form.

Some of the allegations appear to confuse the notion of a duty of care with a duty to care for someone, complaining of various alleged failures on the part of the defendants to intervene to protect Ms Seidler from the trespasses of others (see for example paragraph 156-170, 363-373).

A number of the allegations relate to the defendants’ alleged failure to address complaints made or instructions given by Ms Seidler during the course of the litigation in the District Court. Many of those allegations are pleaded in terms which fail to identify with any clarity the content of the complaints or instructions relied upon. The reader is left unable to discern in any comprehensible terms what Ms Seidler alleges ought to have been done (or not done).

For example, paragraph 183 states:

In some instances there are complaints about delay but the pleading does not allow the reader to understand the basis on which it is (implicitly) contended that the relevant steps could or should have been undertaken earlier. In some instances the instructions are pleaded with clarity (for example at paragraph 180) but it is impossible to discern whether such instructions ought reasonably have been followed in the circumstances or what is said to flow from the alleged failure to follow them.

One further aspect of the claim that is evidently extremely important to Ms Seidler should be mentioned. It concerns the treatment of a document referred to in the draft pleading as the “protected confidence” letter. As I understand the position, in defining the letter in those terms, Ms Seidler intends to characterise it as a communication falling within the definition of a protected confidence in s 126A of the Evidence Act 1995.

Ms Seidler alleges that, in breach of various duties or prohibitions, the defendants served the protected confidence letter as a medical report in the proceedings: see paragraph 185 of the draft pleading.

Ms Seidler’s concerns or perceptions as to that event appear to lie at the heart of the present claims and to have caused great stress to Ms Seidler. These proceedings first came before me as duty judge during the vacation of summer 2012, when Ms Seidler sought urgent interlocutory relief to secure the return of medical information concerning her and to restrain the release of that information to any other person, including for the purpose of these proceedings. As I understand the position, the primary focus of the claim for interlocutory relief was the “protected confidence” letter. Ms Seidler has emphasised on many occasions the importance to her of having a range of protections of that information in place before she proceeds to prosecute the present claim.

I disposed of the urgent interlocutory application by securing the consent of the defendants to an order (without admissions) that they not publish or disclose the contents of any medical report, medical record or clinical note pertaining to the plaintiff held or previously held by the defendant firm: see T10.3 of 20 January 2012. On 10 February 2012 the barrister gave an undertaking to the court in similar terms, notwithstanding the fact that he is not a party to the present proceedings. The undertaking was qualified to the extent that disclosure of such material is required for the purpose of informing insurers and lawyers in relation to these proceedings or any other action or claim brought against the barrister by Ms Seidler.

My purpose in mentioning that background is to explain that Ms Seidler has not pleaded, and is anxious not to plead, the content of the “protected confidence” letter. Indeed, as I understand her position, it is that, if she were required to disclose the contents of that letter in open court, she would prefer not to prosecute the present claim at all. That presents something of a paradox in that, absent any articulation of the contents of the letter, the pleading fails to disclose any adequate foundation for the contention that its disclosure by the defendants amounted to a breach of any legal duty or prohibition binding on them.

The proposed claims against the barrister suffer from a number of vices. As submitted in the barrister’s written submissions some of the causes of action sought to be pleaded against him contain patently misconceived allegations that he owed Ms Seidler duties under the solicitors’ retainer, provisions of the Civil Liability Act 2002, the Civil Procedure Act 2005, the Uniform Civil Procedure Rules and the Evidence Act 1995 and a duty of care under the general law to avoid or prevent personal injury to the plaintiff. Those allegations are plainly misconceived.

The barrister acknowledges that the pleading contains occasional references to duties capable of being imposed on a barrister but submits, correctly in my view, that the draft pleading fails to identify any facts to support the existence of such duties.

At the conclusion of the hearing, I granted leave to Ms Seidler to provide written submissions addressing any matters she felt she had not been able to address orally. The written submissions provided do not advance the matters identified in the defendants’ submissions any further. The document evinces an intention to make further extensive amendments without identifying the content of the amendments. It is in other respects difficult to comprehend and has not assisted me to understand the draft pleading.

For the reasons already explained, I have not attempted to articulate and analyse each of the contentions sought to be made by the draft pleading. The document is so confused, incomprehensible and prolix as to cause embarrassment in the conduct of the proceedings, even allowing some latitude for the position of a self-represented litigant.

For those reasons, I order that leave to amend the statement of claim in the terms of MFI 1 be refused.