Wilcox v Chapple (No 2)

The matter before the Court is a notice of motion filed by the first defendant on 15 October 2021, which seeks an order pursuant to rule 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the proceeding be dismissed, as well as an order pursuant to rule 12.7(2) that the amended statement of claim filed on 21 October 2019 be struck out.

UCPR r 12.7 provides:

As r 12.7(2) is concerned with a want of due despatch by the defendant, it is not relevant to any application that may be made by the first defendant.

The proceedings were commenced by the filing of the plaintiff’s statement of claim on 29 April 2019. The primary relief sought by the plaintiff was damages against the first defendant, as the legal personal representative of the late Patricia Anne Wilcox (the deceased), for breach of contract by the deceased to make and not change a will providing bequests to the plaintiff. The plaintiff also sought an order that the first defendant be removed as executor or trustee of the deceased’s estate and an order that an account be taken.

The second defendant has not joined in the application to dismiss the proceedings and it is not necessary to consider the plaintiff’s claim against him. My understanding of the second defendant’s position is, however, that he has been represented at hearings concerning the notice of motion and has proceeded upon the basis that, if the proceedings are dismissed at the suit of the first defendant, it should be dismissed for all purposes.

The plaintiff filed a notice of motion on 7 June 2019 seeking an order that the first defendant pay to the plaintiff a sum of money that the plaintiff alleged the first defendant had admitted the plaintiff was entitled to be paid out of the deceased’s estate. The plaintiff also sought a further order that the defendants be restrained from dealing with specified properties in the estate of the deceased.

On 22 July 2019, the second defendant filed a written undertaking to the Court not to deal with the properties specified in the plaintiff’s notice of motion without first providing the plaintiff with 14 clear days’ notice in writing of his intention to do so.

On 30 July 2019, the first defendant filed a notice of motion seeking an order that specified paragraphs of the statement of claim be struck out pursuant to UCPR r 14.28, or in the alternative that the plaintiff provide further and better particulars of the matters pleaded in certain specified paragraphs.

The first defendant then filed a notice of motion on 26 August 2019 seeking orders that certain subpoenas issued by the plaintiff be set aside.

On 4 October 2019, a hearing took place before Kunc J. The plaintiff was represented by senior and junior counsel.

As to the plaintiff’s 7 June 2019 notice of motion, his Honour noted that it had been partly resolved between the parties, dismissed the balance of the motion and ordered the plaintiff to pay the first defendant’s costs.

In respect of the first defendant’s notice of motion filed on 30 July 2019, his Honour ordered the plaintiff to file an amended statement of claim on or before 18 October 2019. An order was made that the plaintiff’s and the first defendant’s costs of the notice of motion be costs in the cause.

Certain orders were made on the notice of motion filed on 26 August 2019 concerning the setting aside of subpoenas and access to documents produced, and the plaintiff was ordered to pay the first defendant’s costs of the motion.

On 21 October 2019, the plaintiff filed an amended statement of claim. The prayers for relief were in the same terms as the original statement of claim but substantial amendments were made to the allegations of fact.

The first defendant filed a defence to the amended statement of claim on 6 December 2019.

Case management orders were made by the Registrar on 2 December 2019 and the first defendant was ordered to pay the plaintiff’s costs of the day.

On 11 May 2020, the first defendant filed a notice of motion seeking orders setting aside a notice to produce served by the plaintiff on 27 April 2020.

Orders were made by the Registrar on 26 June 2020 in response to the 11 May 2020 motion setting aside the notice to produce in part. The costs of the motion were ordered to be costs in the cause.

On 16 October 2020, the first defendant filed a notice of motion seeking advice under s 63 of the Trustee Act 1925 (NSW) as to whether he was justified in defending the claim made by the plaintiff and in having recourse to the property of the estate of the deceased to pay his reasonable costs.

In a judgment published on 16 December 2020, Rees J gave the first defendant the advice that he had sought confirming that he was justified in defending the claim and paying his costs from the estate: Wilcox v Chapple [2020] NSWSC 1859.

The plaintiff’s most recent solicitor filed a notice that she had been appointed to act as the plaintiff’s solicitor in these proceedings on 27 January 2021.

On 30 April 2021, the plaintiff filed a notice of motion in which he sought the Court’s leave to file and serve a further amended statement of claim in the form annexed to the notice of motion.

I heard the plaintiff’s notice of motion on 1 July 2021 and published my judgment on 15 July 2021: Wilcox v Chapple [2021] NSWSC 860. I stated the following conclusions at the end of the judgment:

As the application before me was the second application for leave to amend made by the plaintiff, I explored in the judgment the application of a number of relevant principles of law that, as it appeared to me, may not have been sufficiently taken into account by the plaintiff’s legal representatives in the preparation of the draft further amended statement of claim. The Court had been informed that the first defendant, as the executor of the deceased’s estate, only retained limited funds that were available to pay the costs of the proceedings. The parties had obviously already incurred considerable costs. I was concerned to ensure that, if the proceedings were to continue, they would do so on a sound basis of principle.

When I delivered the judgment, I expected that the plaintiff’s legal representatives would consider the reasons and that there may be some additional amendments to the draft before the further amended statement of claim was filed.

The plaintiff’s solicitor filed a notice of ceasing to act on 6 August 2021.

On 18 August 2021, a directions hearing occurred at which the plaintiff appeared for himself. I made an order standing the proceedings over to 17 September 2021 for directions and directed the plaintiff to inform the defendants by 13 September 2021 what orders the plaintiff would seek at the directions hearing.

On 17 September 2021, I noted that there was no appearance for the plaintiff at the telephone directions hearing on that day. I noted that the plaintiff had not complied with the direction made on 18 August 2021 that he inform the defendants of what orders he would seek. I made orders that included the following:

The first defendant filed the notice of motion that is now before the Court on 15 October 2021.

The plaintiff did not comply with order 3 made on 17 September 2021. The plaintiff was self-represented at the directions hearing on 18 October 2021. I made an order extending order 3 made on 17 September 2021 to 27 October 2021. I stood the first defendant’s notice of motion over to 12 November 2021.

On the morning of 12 November 2021, the first defendant’s solicitor forwarded to my Associate an email that she had received from the plaintiff that morning. The email said:

Later that morning, before the hearing, the first defendant’s solicitor forwarded to my Associate a further email received from the plaintiff that was in the following terms:

On one view of matters, this email constituted an election by the plaintiff to proceed with the draft further amended statement of claim that was the subject of my judgment, rather than to seek to further amend it to accommodate the comments that I had made.

There was no appearance for the plaintiff on 12 November 2021. I made the following orders:

Order 2 refers to the Duty Judge because I knew that I would be sitting in the Duty List on that day.

The plaintiff represented himself at the hearing of the first defendant’s notice of motion that took place on 16 November 2021.

At the hearing, counsel for the first defendant made the following submissions (based on written submissions dated 12 November 2021), after addressing the relevant legal principles:

In his oral submissions in reply, the plaintiff was able to do little more than to apologise and to say that he was facing personal difficulties that were preventing him from prosecuting his claim with expedition. The plaintiff has said to the Court on various occasions that he had not been able to engage a new legal representative, that he had been thrown out of home by his girlfriend, that he was homeless, and that he did not have effective access to email communications. At the hearing on 16 November 2021, the plaintiff threw himself at the mercy of the Court and asked for a further chance (T 13.29).

The principles to be applied to an application by a defendant for an order dismissing a plaintiff’s claim for want of due despatch are set out in Ritchie’s Uniform Civil Procedure NSW as follows at [12.7.5]:

There is some strength in each of the submissions made on the first defendant’s behalf as to why the Court should dismiss the plaintiff’s claim for want of due despatch. However, the plaintiff prosecuted his claim with some vigour up until the Court published its judgment on 15 July 2021. That is so even though the plaintiff made a number of applications to amend, which may well have resulted from different lawyers taking different views as to the way his case should be formulated. It appears that my expectation that the commentary in my judgment would focus the parties’ attention on what I considered to be the real issues was misplaced.

It is true that the plaintiff has not prosecuted his claim with adequate despatch since 15 July 2021, but although a six-month delay in the efficient conduct of the case is significant, it is not protracted. I am prepared to accept the plaintiff’s claim that he has fallen on hard times, although the plaintiff has not been sufficiently experienced to provide proper evidence to the Court to prove his current circumstances. The plaintiff has been polite to the Court during the telephone hearings. I formed a strong sense that the plaintiff is bewildered by the terms of my judgment and the consequences for his proceedings.

The first defendant has not established that the continuation of the proceedings is causing him any positive prejudice, save to the extent that the costs that the first defendant is incurring are steadily depleting a limited fund that he retains in his capacity as the executor of the estate of the deceased.

Although I am satisfied that the plaintiff’s conduct in not efficiently prosecuting his claim is not in any way delinquent, it is a simple fact that, if he cannot put his house in order and prosecute his claim efficiently, there will be no alternative available to the Court than to dismiss the claim for want of due despatch. Whatever the plaintiff’s present circumstances may be, he has to face the fact that he has commenced proceedings in this Court against the defendants, he has caused them to incur what is no doubt considerable costs, and the defendants have a right to require the plaintiff to prosecute his case with proper expedition, and if he does not do so, for the proceedings to be dismissed. The time has come when the plaintiff must consider his real circumstances and decide whether he is able to prosecute his case or not.

In these circumstances, I do not think it would be just for the Court to dismiss the plaintiff’s claim for want of due despatch now. That course would not prevent the plaintiff from recommencing proceedings, subject to the possible lapse of relevant limitation periods, but would subject him to the obligation to pay the defendants’ costs.

On the other hand, the plaintiff’s conduct of his claim has been so unsatisfactory that it would not be just to the defendants for the Court simply to make an order that the plaintiff take some appropriate step in the continuation of the proceedings by a stated date. The plaintiff has not proved himself to be sufficiently reliable for that course to be appropriate. Instead, I propose to make an order that the plaintiff’s claim will be dismissed on an appropriate date in the future, with an order that the plaintiff pay the defendants’ costs of the proceedings, unless before that date arrives the plaintiff has made an application for and obtained an order from the Court setting aside the order for dismissal of the proceedings. The Court is only likely to make such an order if it is satisfied that the plaintiff has remedied his defaults and is in a position to serve a further amended statement of claim on the defendants that pleads in a proper way an arguable case for relief. The plaintiff should in any event be ordered to pay the first defendant’s costs of the notice of motion, given that the course that I will follow essentially confers on the plaintiff the mercy of the Court that he sought.

It is proper for the Court to observe that the issues raised by the plaintiff in his pleadings are of such legal and practical technicality and complexity that it would not be realistic for the plaintiff to think that he can prosecute his claim without the assistance of proper legal representation. However, that does not mean that the Court requires the plaintiff to retain legal representation.

The Court’s orders are: