Martin v NRMA Insurance Ltd [1999] FCA 140 (22 February 1999)

Last Updated: 1 March 1999

CATEGORY: NO QUESTION OF PRINCIPLE

FEDERAL COURT OF AUSTRALIA

Martin v NRMA Insurance Ltd [1999] FCA 140

ANTHONY GILBERT MARTIN v NRMA INSURANCE LIMITED

AG53 of 1998

WILCOX, TAMBERLIN and KATZ JJ

22 FEBRUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	AG53 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANTHONY GILBERT MARTIN Applicant
AND:	NRMA INSURANCE LIMITED Respondent

JUDGES:	WILCOX, TAMBERLIN AND KATZ JJ
DATE:	22 FEBRUARY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 THE COURT: This is an application for leave to appeal against a decision of Crispin J sitting in the Australian Capital Territory Supreme Court. The matter involves a question of practice and procedure. That is an area, as the applicant understands, in which the Full Court is always reluctant to overrule the view of a Judge, particularly, as in this case, where the Judge has upheld the view of a Master. Notwithstanding that, we have listened carefully to the matters put to us by the applicant, Mr Martin. Essentially, it seems, there are three questions which have arisen, or which Mr Martin seeks to ventilate in the appeal.

2 First, there is a question about the causes of action advanced in the Amended Statement of Claim filed by Mr Martin in September 1997, which was the subject of the hearing before the Master. The Amended Statement of Claim was obviously drafted by Mr Martin himself. We understand he is not a lawyer. We make no unnecessary criticisms in saying it does not follow the usual principles of pleading and it is not easy to discern the causes of actions relied upon. However, with the benefit of discussion with Mr Martin, it seems he intended to raise four causes of action.

3 The first cause of action is an allegation of breach of duty by the respondent, as mortgagee of a property owned by Individual Homes Pty Limited, a company of which Mr Martin, and perhaps members of his family, were shareholders and directors. The relevant cause of action can be described as an action for breach of duty as mortgagee in connection with the sale of the mortgage property. There is no problem about this cause of action going to trial. It was a cause of action pleaded in proceedings instituted by the company itself back in 1988, before any limitation period arose.

4 The other causes of action which may be discerned, with some assistance, from the Amended Statement of Claim appear to be a defamation claim, a claim under the Trade Practices Act 1974 (Cth) and a claim under the Fair Trading Act 1992 (ACT). Mr Martin agrees each of these claims was made for the first time in the Amended Statement of Claim and were thus made at a time when they could not be litigated in a separate action. The effect of the rule in Weldon v Neal (1887) 19 QBD 394, as he appreciates, is that a Court would ordinarily not allow an amendment which allowed such causes of action to be prosecuted.

5 The argument about these causes of action effectively disappeared from the case during the course of discussion with us. Mr Martin accepted it was proper to confine himself to his claim of breach of duty as mortgagee.

6 The second matter is that the Master refused an application by Mr Martin for summary judgment, pursuant to Order 15 of the Rules of the Australian Capital Territory Supreme Court. In our view, this was an almost inevitable result, given that the pleading in respect of which Mr Martin sought summary judgment was the Amended Statement of Claim. This had not only been filed without leave, that apparently being necessary; more importantly, it contained causes of action now conceded to be unavailable.

7 The Amended Statement of Claim also included a considerable amount of material which is, at best, irrelevant and, at worst, embarrassing. It seems to us entirely understandable that the Master felt he ought to allow the defendant an opportunity of pleading to the Amended Statement of Claim after it had, in effect, been sorted out at the hearing before him.

8 The third matter is that Mr Martin complains the strike-out order was unduly broad, that some paragraphs were struck out which ought not to have been struck out and this might impede the prosecution of the cause of action that is allowed to him. We asked him to take us through the Amended Statement of Claim to demonstrate this proposition but we are unconvinced it is so.

9 In any event, it is worth observing that both the Master and Crispin J emphasised that the strike out orders were not necessarily the end of the matter, that it would be open to Mr Martin to reorganise his allegations and then seek to further amend the Statement of Claim, so as to put it in a better form. We have suggested to Mr Martin he now take this course. The Court has not closed the door to an expression of the applicant's case in the manner most conducive to its successful prosecution.

10 In our view, this is not a case for leave to be given to appeal against the decision of the Judge. We dismiss the application.

[There was discussion about costs.]

11 WILCOX J: An order for costs should be made. The order of the Court will be that the application be dismissed and the applicant pay the respondent's costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Tamberlin and Katz.

Associate:

Dated: 22 February 1999

The Applicant in person
Counsel for the Respondent:	S White
Solicitor for the Respondent:	Abbot Tout Harper & Blain
Date of Hearing:	22 February 1999
Date of Judgment:	22 February 1999