Cameron v Qantas Airways Ltd and Anor [2010] NSWSC 899 (13 August 2010)

Last Updated: 16 August 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Cameron v Qantas Airways Ltd and Anor [2010] NSWSC 899


JURISDICTION:


FILE NUMBER(S):
2010/118941

HEARING DATE(S):
6 August 2010

JUDGMENT DATE:
13 August 2010

PARTIES:
Rita Cameron - Plaintiff
Qantas Airways Ltd - First Defendant
Walker Legal - Second Defendant

JUDGMENT OF:
Schmidt J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
First Defendant - Mr J Catsanos
Second Defendant - Mr M Dicker

SOLICITORS:
Plaintiff - Ms Cameron, unrepresented
First Defendant - HWL Ebsworth
Second Defendant - Yeldham Price O'Brien Lusk


CATCHWORDS:
PROCEDURE - Supreme Court procedure - New South Wales - application under Part 14.28 of Uniform Civil Procedure Rules to strike out statement of claim - leave sought to further amend pleading - leave granted - costs

LEGISLATION CITED:
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY:
Procedural and other rulings

CASES CITED:
Gunns Limited v Marr [2005] VSC 251
Kirby v Sanderson Motors Pty Limited [2001] NSWCA 44; (2001) 54 NSWLR 135
Cameron v Qantas Airways Limited [2008] NSWCA 275
Cameron v Qantas Airways Ltd [2009] NSWCA 339

TEXTS CITED:


DECISION:
Plaintiff granted leave to amend her statement of claim.
Plaintiff to bear the defendants’ costs of their motions and the hearing, as agreed or assessed.



JUDGMENT:

- 8 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SCHMIDT J

FRIDAY, 13 AUGUST 2010

2010/118941 RITA CAMERON v QANTAS AIRWAYS LTD AND ANOR

JUDGMENT

1 HER HONOUR: These proceedings were commenced by statement of claim filed in May 2010. There the plaintiff, Ms Cameron, sought orders for $8 million from the first defendant, Qantas Airways Ltd ('Qantas') and $2 million from the second defendant, Walker Legal, her former solicitors. The basis on which those orders were sought is not readily apparent. Ms Cameron later filed a notice of motion and an amended statement of claim. The defendants have yet to put on any defences.

2 The defendants filed motions in May and July 2010, seeking orders pursuant to Part 14.28 of the Uniform Civil Procedure Rules 2005, striking out the statement of claim as an abuse of process; disclosing no reasonable cause of action; and causing prejudice and embarrassment.

3 At the hearing the parties directed their cases to the amended statement of claim. After hearing the defendants’ submissions, Ms Cameron sought leave to further amend her statement of claim. From Ms Cameron's own explanation of the case which she really wishes to bring in this Court, it became apparent that her pleadings require substantial amendment.

4 The defendants did not oppose that leave being granted, on the basis that Ms Cameron be ordered to bear the costs of their motions and costs thrown away in meeting the existing pleadings. Ms Cameron opposed such an order being made

Leave to amend granted

5 At the hearing, I indicated that the leave sought by Ms Cameron would be granted, being satisfied that was what justice required in the circumstances.

6 There is a protracted history to the bringing of these proceedings. Ms Cameron was injured in a fork lift accident in March 1999 at the Qantas jet base, where she was employed by the first defendant Qantas. In 2001 she brought proceedings in the District Court in relation to the accident. Liability was accepted by Qantas, but quantum was in issue.

7 Ms Cameron was represented at the District Court hearing on 1 February 2008 by Walker Legal and Mr Moffett, of counsel. There had previously been a number of other firms of solicitors which had represented her in her pursuit of her claims.

8 The matter was part heard, listed for one day for final submissions. The prospect of settlement was then raised by McLoughlin DCJ. The transcript of the proceedings reveals that his Honour explained to Ms Cameron that he raised the prospect of settlement because there was a complex medical situation and conflicting medical opinions to be resolved. The risks of litigation might make a compromise an attractive way forward for the parties, given what they each risked in the litigation. His Honour adjourned to enable the parties to consider what he had raised. A settlement was later announced and consent orders were made.

9 His Honour then permitted Ms Cameron to address him. She told his Honour that she was very disheartened by the process and the decision which she had reached, without having had the chance herself to speak her mind. She said that her solicitors and barrister had been really good, but she was not happy. His Honour observed that one of the benefits of a compromise was that it took away the stressors of litigation, which he hoped would occur for her. He also observed that the figure agreed appeared to him to be a proper one, reflecting concessions on both sides. He observed that money could not make all that had occurred better, but the settlement removed the risk of appeals and further litigation, once a decision had been given.

10 Ms Cameron soon sought to resile from the settlement. Walker Legal’s retainer was terminated and it had no further involvement in the matter. It later sought payment of its costs.

11 On 6 June 2008, Qantas was granted relief by interpleader, permitting it to pay the balance of the settlement moneys into court. There were disputes in respect of those moneys between Ms Cameron and her former legal representatives. Some of the settlement moneys remain with the District Court, some have been paid to Ms Cameron's former legal advisers and some to Ms Cameron herself.

12 Ms Cameron sought leave to appeal from the Court of Appeal (see Cameron v Qantas Airways Limited [2008] NSWCA 275). That leave was refused. Ms Cameron then pursued a motion in the District Court, seeking to have the consent orders set aside. That motion was dismissed after a hearing on the merits, in which she and the defendants led evidence. Ms Cameron again appealed to the Court of Appeal. Leave to appeal was granted and the matter remitted to the District Court (see Cameron V Qantas Airways Ltd [2009] NSWCA 339).

13 Ms Cameron then filed a further motion in the District Court. On 28 January 2010, Johnstone DCJ dismissed the motion, Ms Cameron accepting that it was incompetent. There has been no application for leave to appeal from that decision. At that hearing Ms Cameron announced her intention to bring her application to the Supreme Court.

14 At the hearing of the defendants’ motions, Ms Cameron confirmed that what she sought to achieve by her application to this Court, was to have the consent orders made in the District Court set aside. She also wishes to pursue a new hearing of her damages claim in this Court. Ms Cameron explained that she proposes to make an application to have the District Court proceedings transferred to this Court and is taking steps to that end.

15 From the existing pleadings, it is apparent that Ms Cameron has serious complaints, particularly about the alleged conduct of Mr Walker, in relation to the settlement, amongst other things. Whether she wishes to pursue those complaints in these proceedings, or merely seeks to rely on those matters to pursue her application to have the consent orders set aside, is not clear.

16 Nevertheless, in the circumstances, as they developed, I was satisfied that justice demanded that Ms Cameron, an unrepresented litigant, be given an opportunity to replead the case which she actually wishes to advance. Those amended pleadings must conform to the requirements of the Uniform Civil Procedure Rules.

17 Those Rules are intended to ensure that both the defendants and the Court are given a clear indication, from the outset, of the claims which are made by Ms Cameron; the factual basis upon which those claims are advanced; and the orders which are sought. The parties’ pleadings have important functions to perform in relation to the conduct and eventual hearing of the case, particularly in relation to the identification of the legal and factual issues lying between the parties and the evidence which is relevant to their determination.

18 Ms Cameron's current pleadings are embarrassing, in the sense that is discussed in the authorities, namely that they are unintelligible, imprecise and ambiguous, depriving the defendants of a proper opportunity of understanding what actual allegations comprise the substance of her claims. They do not provide material facts to support the serious allegations made (see Kirby v Sanderson Motors Pty Limited [2001] NSWCA 44; (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) at 142-143). In Gunns Limited v Marr [2005] VSC 251, Bongiorno J observed that:

"57 It is not the function of the Court to draw or settle a

party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent, and intelligible statement of its case. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r.23.02. Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent and detailed form."

19 These are apt observations in this case.

20 Due consideration must be given to the fact that Ms Cameron is unrepresented. Nevertheless, the requirements of the Rules must be observed by all litigants, including those who are unrepresented. Here allegations of the most serious kind have been made against the defendants, including matters such as fraud, undue influence, breach of duty of care, perjury, breach of court orders, collusion, perversion of the course of justice, duress, discrimination, stalking; and acting under false pretences. No factual foundation for these allegations has been provided. Which defendant they are pressed against and how they relate to any relief sought and even what relief is sought, is not readily apparent.

21 That the amended statement of claim was unclear, confusing and contradictory, had to be accepted, as Ms Cameron herself eventually did at the hearing.

Costs

22 It is in that context that the question of costs must be determined. The Court’s discretion must be exercised in accordance with the requirements of the Civil Procedure Act 2005. Relevantly they include s 56, which provides that the Act has as its overriding purpose the ‘just, quick and cheap resolution of the real issues in the proceedings’. It also imposes a duty on the parties to assist the Court to further that overriding purpose, to participate in the processes of the Court and to comply with directions and orders of the Court. Section 57 requires that the Court manage the proceedings by paying regard to how the parties have fulfilled their obligations in the proceedings, including in relation to any lack of expedition and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties. Section 58 requires that the Court act in accordance with the dictates of justice, and that consideration be given to the degree of expedition with which the respective parties have approached the proceedings, and the degree to which they have been timely in their interlocutory activities and the degree of injustice that would be suffered by the respective parties, as a consequence of any order or direction made.

23 The usual order made under Part 42.1 of the Rules is that costs follow the event. That would result in an order in favour of the defendants, Ms Cameron having accepted the case advanced against her. Ms Cameron argued against the making of any costs order, on the basis that she would not be before the Court, but for the actions of the defendants, who had still not paid outstanding money to her.

24 The Court has a discretion to depart from the usual order, but there must be a proper basis established upon which that discretion may be exercised, as a matter of justice between the parties.

25 Ms Cameron’s passionate pursuit of her claims and her belief in their merits may be accepted, but that is not a basis upon which it may be justly concluded that there may be departure from the usual order as to costs in relation to the defendants’ motions.

26 Had Ms Cameron complied from the outset with her obligations under the Rules, the defendants would not have been put to the cost of bringing and pursuing their motions, to which Ms Cameron acceded at the hearing. She then herself sought relief to which the defendants consented. I am satisfied in those circumstances that justice demands that she bear the costs incurred by the defendants in their pursuit of their motions.

27 The defendants also sought costs in relation to their responses to the original and amended pleadings. Given that they have not filed any defences and instead pursued their motions, I take the view that justice does not require that further order.

Further proceedings

28 Finally, I note that the matter is before the Registrar for further directions on 18 August. Ms Cameron proposes to seek advice in relation to the amendment of her pleadings. She should make sure that she is in a position to ensure that the Registrar may give further directions for the orderly preparation of the matter for hearing on that occasion.

Order

29 For the reasons given, I order that Ms Cameron be granted leave to amend her statement of claim and that she bear the defendants’ costs of their motions and the hearing, as agreed or assessed.

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LAST UPDATED:
13 August 2010