Skelton v Foggo (No 3)

The notice of motion for me today is dated 9 January 2023. It seeks the following orders, adopting the wording in the motion:

Mr Michael Evers is the third defendant because in the proceedings as originally filed there were six defendants of which Mr Evers was the third.

The proceedings against the first defendant (Robert Foggo) were dismissed by Harrison AsJ on 28 September 2021 (Skelton v Foggo [2021] NSWSC 1228).

On 27 September 2022 Dhanji J struck out the statement of claim (filed on 17 March 2021) as against the third defendant (Skelton v Foggo (No 2) [2022] NSWSC 1289).

Dhanji J’s reasons provide a comprehensive and very useful history of the proceedings. The allegations against the respondent seem to be that the applicant consulted the respondent about bringing a case against a financial adviser when he had lacked the mental capacity to instruct the adviser. The respondent consulted senior counsel who concluded that there was insufficient evidence of a lack of mental capacity. The applicant’s complaint is that, in giving instructions to the senior counsel, the respondent “lied” both in his description of the plaintiff’s mental capacity and in a failure to provide senior counsel with all of the relevant documentation.

I think it important to set out the whole of the orders made by Dhanji J:

A statement of claim dated 26 October 2022 and the notice of motion of 9 January 2023 seem to be the applicant’s attempted compliance with the above orders. There is also an affidavit of the applicant, although neither sworn nor affirmed, filed on 29 November 2022.

The new statement of claim is perhaps even more difficult to understand than the pleading that was considered by Dhanji J. The “Pleadings and Particulars” are limited to the following:

There is more detail in the description of the “Type of Claim” but certainly not enough to be described as a description of a cause of action against the respondent.

The affidavit makes some specific allegations against the respondent and ends with this emphasis:

The applicant also provided me with the 1988 judgment of Enderby J concerning the motor vehicle accident which began the “legal story” leading to the present time (Skelton v The Nominal Defendant, (Supreme Court (NSW), Enderby J, 20 April 1988, unrep). He also provided me with a counsel’s advice, dated 2 September 2005, and a number of medical reports. In addition, there is a very comprehensive “Brief to Counsel / Legal Aid” which is undated, but post-dates the above advice from counsel.

Dhanji J said this, at [45], about the statement of claim he was considering:

The applicant confirmed today that the current notice of motion is intended to comply with Order 3 made by Dhanji J. It does not, for the following reasons:

The applicant did his best to explain to me the difficulties that he has and his lack of ability to draft a proper pleading. I explained to him that it was necessary for him to do so and that he should, if possible, obtain assistance.

I also expressed my concern about his mental capacity to undertake the task and to generally run the proceedings. I have nevertheless decided that he should have another chance to construct an acceptable statement of claim.

The respondent did not oppose such an order but requested that any timetable I imposed should not extend over a lengthy period.

I make the following orders: