Stanley Stergiou and Others v Citibank Savings Limited [1998] ACTSC 164 (12 March 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ

  

  

   PRACTICE AND PROCEDURE
- application by litigant in person to further amend
statement of claim - whether further amendments clarify claim - whether one
of
several plaintiffs should represent other plaintiffs - costs of amendments.

  

   Supreme Court Rules, Order 8 sub-rule (1)(3)

   ACT General Cleaning Company Pty Ltd v. Naoum (1996) 67 FCR 361

  

   Individual Homes Pty Limited
v. Commonwealth Bank of Australia (1994) 50
FCR 372

  

  

   CANBERRA, 27 February 1997 (hearing), 12 March 1998 (decision)


  #DATE 12:03:1998

  

   Appearances

   Counsel for the Plaintiffs: Mr. S. Stergiou in person

  

   Counsel for the Defendant:
Ms. M. Reid

   Instructing Solicitors: Phelps Reid

  

  

  

   1. The plaintiffs have leave to file the further amended statement
of claim
dated 23 February 1998. I direct the Registrar to detach it from the notice of
motion of that date and to endorse it as
if it were filed this day. I direct
the Registrar also to do likewise with the amended statement of claim dated 3
November 1997 and
endorse it as if it were filed on 21 November 1997.

  

   2. The defendant file any further amended defence within 21 days.

 


  

  

   MILES CJ 1. By notice of motion dated 23 February 1998 the plaintiffs seek
leave to file an amended statement of claim
which bears the same date and is
annexed to the notice of motion. The document in question is in truth a copy
of a proposed further
amended statement of claim. The claim, as it is sought
to be further amended, may be summarised as follows: (i) The first and second
plaintiffs (Mr and Mrs Stergiou) mortgaged their interest in land at Hackett
(Mr Stergiou says it was the family home) to the defendant
(Citibank).

   (ii) Citibank wrongfully debited withdrawings and interest to an account
(which presumably Mr and Mrs Stergiou had
with Citibank).

   (iii) On 23 March 1992 Citibank commenced proceedings for possession of the
land "in relation to the moneys wrongfully
debited" and was granted leave to
enter judgment for recovery of possession of the land.

   (iv) On 28 April 1993 Citibank "purporting
to act pursuant to clause 16
contained in the Mortgage" entered on the land and excluded the plaintiffs
therefrom without any breach
of the conditions of the mortgage on the part of
Mr and Mrs Stergiou.

   (v) Mr and Mrs Stergiou seek a declaration that by reason
of the wrongful
debiting of the account, they are entitled to treat the mortgage as
discharged. On behalf of themselves and the other
plaintiffs they seek
damages, particulars of which range from mental anguish to loss of profits and
legal expenses.

  

   2. The
previous (amended) statement of claim (which the further amended
statement of claim dated 23 February 1998 seeks to replace) appears
to be
dated 3 November 1997 and is annexed to a previous notice of motion bearing
the same date. On that motion the Master made an
order on 21 November 1997
granting leave to the plaintiffs to file "an amended statement of claim". I
presume that the amended statement
of claim for which leave to file was
granted is that dated 3 November 1997.

  

   3. On 4 December 1997 the defendant filed a further
amended defence
expressed to be in response to the amended statement of claim.

  

   4. The plaintiffs, other than Mr Stergiou,
were represented at the hearing
before me by the first plaintiff, Mr Stergiou, who of course had the right to
appear for himself.
No leave to appear for the other plaintiffs was sought at
the hearing and none was granted by me.

   5. Mr Stergiou was not able
to respond to my invitation to indicate how the
further amended statement of claim dated 23 February 1998 differs from its
predecessors.
In fact he said that his eyesight is such that he cannot read
it. He said that it was drafted by him and typed by his son. He was
also
unable to advance any reason to support the proposed further amendments. He
said that all he wants is justice. I am obliged
to say that I do not accept
that the terms of the document were drafted by Mr Stergiou. It is obvious that
somebody else is responsible
for the drafting of the document.

  

   6. Making the comparison for myself between the further amended statement
of claim dated
23 February 1998 and that of 3 November 1997, the following
amendments appear to be incorporated into the later document.

  

 


   * Para. 6: States more fully the entitlement of the defendant under the
mortgage.

  

   * Para. 7: Asserts wrongful debiting
by the defendant of an account.

   * Para. 8: Asserts serving by the defendant of notice for payment of
interest wrongfully debited.

   * Para. 9: Asserts leave granted by Master for defendant to enter judgment
for possession.

   * Para. 11: Appears to withdraw
the allegation in previous para. 9 of
breach by defendant of clause 16 of the mortgage and asserts consequential
damage to plaintiffs.

   * Para 12: Alleges negligence and loss and entitlement to treat the
mortgage as discharged.

  

   7. These new allegations
are clearly and on Mr Stergiou's own admission not
his work and he does not appear to know what they mean. It is obvious that, if
the plaintiffs' case were being conducted by a legal practitioner, it would
attract the strong censure of the Court and that if the
further amendments
were granted, the plaintiffs' legal representatives would be ordered to pay
costs personally.

  

   8. However,
because Mr Stergiou appears in person, leniency must be
extended and tolerance applied to what would otherwise be regarded as the
irresponsible conduct of litigation and a cavalier attitude to the opposing
party and to the Court.

  

   9. Furthermore, the various
companies which are named as plaintiffs should,
if represented, be represented by a solicitor with an address for service.
They are
presumably companies in which Mr Stergiou holds a controlling
interest but there is no evidence to that effect. In view of the decision
of
the Full Court of the Federal Court of Australia in ACT General Cleaning
Company Pty Ltd v. Naoum (1996) 67 FCR 361, I will ignore
the requirements of
Order 8 sub-rule (1)(3) of the Supreme Court Rules that the companies proceed
in the Court by a solicitor: cf. Individual Homes Pty Limited v. Commonwealth
Bank of Australia (1994)
50 FCR 372.

  

   10. The further amendments appear to cast the plaintiffs claim more
precisely.

  

   11. The opposition to
leave being granted is that the defendant, not for
the first time, will be put to further and unnecessary cost in filing a
defence
to the further amended statement of claim. That is no doubt true.
However, it is in the interests of all parties that the plaintiffs'
claim be
put as precisely as possible. The further amendments appear to go some way
towards that.

  

   12. However, I doubt whether
Mr Stergiou should be permitted to continue to
represent the other plaintiffs. If he continues to be unable to put any
submissions
to assist them or to assist the Court, then they should appear for
themselves. In any event there appears to be no reason why Mr.
Stergiou should
continue to represent the second, third, fourth and fifth plaintiffs. I will
hear Mr Stergiou on this aspect and
on costs.

  

   13. Otherwise I order that the plaintiff have leave to file the further
amended statement of claim dated 23 February
1998. I direct the Registrar to
detach it from the notice of motion of that date and to endorse it as if it
were filed this day.
I direct the Registrar also to do likewise with the
amended statement of claim dated 3 November 1997 and endorse it as if it were
filed on 21 November 1997.

  

   14 The defendant is to file any further amended defence within 21 days.