Coronis v Jilt Pty. Ltd.[2009] QDC 314

DISTRICT COURT OF QUEENSLAND

1. [1]
   Ms Coronis once owned commercial premises in Cairns where she conducted a beauty salon and school. She leased part of the building to a real estate agency. In December 2002 she sold the building to Jilt Pty Ltd, of which Mr Williams is a director. After the sale Ms Coronis remained in occupation of her part of the premises for some time pursuant to an agreement, or arrangement, about which the parties now disagree.

2. [2]
   The disagreement became complicated. In June 2004, Jilt Pty Ltd served a notice requiring Ms Coronis to deliver up possession of the shop she continued to occupy in the building, for unpaid rent. In September 2004 she began these proceedings seeking both specific performance of the tenancy agreement which she said existed, and damages. She nevertheless vacated the shop in November 2004 and, at the time, allegedly removed property owned by Jilt Pty Ltd. Mr Williams complained about that to the police. Ms Coronis was charged with stealing and committed for trial in this court, but the charge was later withdrawn^[1].

3. [3]
   Ms Coronis has now attempted to plead in this action on six occasions but has been met, again, with an application by her legally represented opponents to strike out her ‘final, amended’ statement of claim based upon what are said to be continuing serious defects in its form and content, and her belated attempt to add Mr Williams (who has not previously been named as a defendant) as a party.

4. [4]
   On any view her action has proceeded very slowly, and in a less than satisfactory way. There are circumstances which, however, help to explain that. She has some other difficulties, including mental health problems from which she says she is making a good recovery. She is married to a man who practiced at the Bar in Cairns for many years but who has had trouble himself in recent times arising, in substantial part, from events connected to this case^[2].  She says she has been unable to obtain legal assistance^[3] or legal aid^[4] and is an invalid pensioner without the necessary means to afford legal representation.

5. [5]
   On 16 March 2009 it was ordered that Ms Coronis file and serve an amended claim and statement of claim by 20 April; that Jilt Pty Ltd file and serve its amended defence by 20 April; and, that subsequent pleadings including disclosure occur under a timetable which would have lead to a hearing in sittings in Cairns commencing on 15 June 2009^[5].  New pleadings were exchanged; Ms Coronis’ amended claim purported to add a new defendant, Mr Williams.  Both Jilt Pty Ltd and Mr Williams then applied to strike out the new pleading and Mr Williams sought orders declaring that he had not been properly served, and that the new claim against him should be set aside. 

6. [6]
   Ms Coronis then cross-applied to add him. Confusingly, she appears to have done this previously^[6] but the application was not adjudicated when the matter came before the court on 16 March 2009.  In any event, when the case came before me on 19 June the parties sensibly chose to treat the proceeding as an interlocutory matter addressing:

• Ms Coronis’ application to join Mr Williams;
• Jilt Pty Ltd’s application to strike out Ms Coronis ‘Final, amended statement of claim’ filed on 7 April 2009^[7]
• Mr Williams’ application to set aside or strike out the originating process against him.

7. [7]
   The plaintiff’s original claim delivered in September 2004 sought ‘Specific Performance in damages in the sum of $250,000 for breach of contract’.  The statement of claim with it refers to an oral agreement on the lines mentioned earlier, and seeks specific performance of it, ‘…if necessary with compensation.’  Damages are particularised to include loss of ‘benefit rent for a year, loss of profits, loss of income from students’, and ‘loss of reputation $150,000’.

8. [8]
   The most recent pleading seeks relief for breach of contract; unconscionable conduct; breach of the Trade Practices Act; malicious prosecution; and, abuse of process.  Mr Williams has been unilaterally added as a second defendant, without benefit of an order to that effect.  It was argued for both Jilt Pty Ltd and Mr Williams that this sixth pleading has serious flaws, said to be fatal. 

9. [9]
   The sheer number of pleadings to date makes it plain Ms Coronis has always (even with, it may safely be inferred from affidavits he has filed, the assistance of her husband) encountered considerable difficulty in framing her case. As a later analysis of her most recent attempt shows, the present pleading still contains superfluous and irrelevant material, and pursues causes which appear to be unsustainable.

10. [10]
    That is not to infer that her difficulties reflect any inherent weakness in her case: as the analysis reveals, her claims have always contained the perceptible germ of a sustainable cause of action. Rather what, in reality, is a relatively straightforward cause of action based upon a confined factual matrix (which will ultimately be determined on the credit of the principal parties) has been overloaded and overstretched by her attempts to frame additional or alternative causes of action – presumably, to strengthen her case or widen its arc of fire. That is not, of course, something alien to the professional pleader’s art but in the hands of a lay pleader it has meant that her statement of claim has become steadily more removed from the apparent realities of her case.

11. [11]
    For reasons exposed by those who have made a study of the difficulties which can confront non-lawyers attempting to conduct their own cases, problems of this kind are not uncommon. It has been said, by eminent lawyers, that the court system and its procedures are to a marked degree inaccessible and incomprehensible to ordinary people^[8].  A particular problem, for the layperson, is properly presenting a claim in the form the courts require – of pleading a set of factual allegations in a way which attracts legal remedies^[9]. 

12. [12]
    As one commentator has said, a plaintiff must frame the facts in a way which includes all legally relevant allegations, and is not obscured by extraneous material. Thus, in most civil claims, matters such as motive will be wholly irrelevant. This is counter intuitive: from a lay person’s perspective, the task of the court is to do justice. From such a viewpoint the malicious motives of a contract breaker seem highly relevant – much more so, the layperson might unsurprisingly think, than the things contained in the pleas that lawyers often raise (eg, that the breach is tenuously justified by a contractual force majeure term, or that the plaintiff first breached the contract by failing to deliver on time due to unavoidable external matters). 

13. [13]
    This sifting of facts is an unnatural task, arguably unique to the justice process. It is, to a large degree, a skill which is taught at law school and which takes many years for students to absorb. The same task of sifting and abstraction must also be engaged in by the self-represented defendant^[10].  It is plain, intending no disrespect, that the task has proved to be quite beyond Ms Coronis.

14. [14]
    Her difficulties with pleading are so obvious, persistent and deep-seated that they must attract the kind of obligation, on the part of the court to whom they are presented, which was mentioned by the High Court in Neil v Nott (1994) 121 ALR 148 at 150: ‘A frequent consequence of self representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy…’^[11].

15. [15]
    The notion that judges have a positive obligation to help self represented litigants has since been confirmed on a number of occasions, and extends to cases involving interlocutory proceedings like applications to strike out pleadings. The helpful judgment of Bell J in Tomasevic v Travaglini (2007) 17 VR 100 collects several examples. 

16. [16]
    In Panagiotopoulos v Rajendram [2005] NSWCA 58 Pearlman AJA (with whom Mason P and Hodgson JA agreed) remarked^[12]  ‘… there is no doubt that the appellant was profoundly ignorant of the rules of evidence and procedure.  He seems to have understood his cause of action, but to have had little idea about how to overcome his evidentiary and procedural difficulties.  This put him at a disadvantage, and entitled him to at least some limited advice and assistance (Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438).

17. [17]
    In Awan v Minister for Immigration (2002) 120 FCR 1 North J also referred to the decision in Minogue when he said, at p 17, that the court is bound to protect the rights of the unrepresented litigant (but, at the same time, also bound to ensure that it does not prejudice the impartial function which it must fulfil in adjudicating between the parties).

18. [18]
    In Tobin v Dodd [2004] WASCA 288 the self-represented plaintiff commenced proceedings against solicitors claiming damages for their alleged breaches of duties owed to him as a client.  The lawyers applied to strike out the statement of claim and after some interlocutory skirmishing involving further attempts at pleading, the action itself was dismissed.  On appeal, Heenan J emphasised the importance of ensuring that a plaintiff is not improperly deprived of the opportunity to have the case tried^[13] and, in the case of litigants in person, to ensure that in a poorly expressed or unstructured statement of claim there is not in truth a viable cause of action which, with appropriate amendment or permissible assistance from the court, could be put into proper form.^[14]

19. [19]
    Heenan J said, at p 6:

[16] In these circumstances it is necessary to examine with some care the claim which the appellant wishes to litigate in this court and to determine whether, notwithstanding some idiosyncratic features in the proposed pleading, it nevertheless alleges a series of facts which, if proved, would entitle the appellant to the remedy of damages or to other relief which the court may grant.  In this respect it is essential to bear in mind that the appellant need only plead facts which, if established, would justify the court in granting relief and that he is not obliged to plead or assert the legal significance which he contends attaches to the alleged facts or any conclusions of law to be drawn from those facts. (emphasis added)

20. [20]
    The circumstances here warrant a similar approach. Contracts have played a major role in our legal system. It is tolerably clear that some contractual transactions may have occurred here, involving the named parties, which have their genesis in an admitted contract and involve allegations of subsequent dealings which are not inherently implausible and which will hinge, it presently appears, on relatively simple questions of credit: in short, what Ms Coronis alleges versus Mr Williams’ contrary assertions. 

21. [21]
    It is appropriate, then, to review the current pleading in an attempt to discern what, if any, causes of action might be available to Ms Coronis; to identify the proper parties; to determine whether the current pleading is satisfactory for its purposes and to see what, if anything, needs to be done to make it an appropriate platform for an eventual trial.

22. [22]
    The review process is slightly complicated by the fact that two ‘final amended statement of claim’ documents were filed – on 6 April, and again on 7 April 2009.  They appear to be identical save that the second corrects a paragraph numbering error in the first,^[15] and has page numbering, making references to it a little easier.  For that reason, and because it is the later in time, it should be preferred.  Jilt Pty Ltd filed a further amended defence and counterclaim on 27 April 2009^[16].

23. [23]
    The first claim in the plaintiff’s pleading relates to her sale of premises to the defendant and claims damages for the breach of a collateral agreement, allegedly reached after representations from Mr Williams, to the effect that the plaintiff could occupy the premises rent free for 12 months with an option for her to re-purchase them within 3 years at the amount ‘he paid and his outlays’; and, for an implied condition as to quiet enjoyment.

24. [24]
    The defence admits that Mr Williams was a director of the defendant and also admits the plaintiff’s sale of the premises to Jilt Pty Ltd for $170,000. The defence also admits an agreement that Ms Coronis could occupy the shop for 12 months rent free but alleges that, thereafter, she was to occupy it on a month to month basis for a rent of $830.00 per month; agrees that there was a term reflecting the plaintiff’s quiet possession of the shop for the period of the tenancy; but, denies there was any other oral agreement.

25. [25]
    The statement of claim also makes some allegations about a real estate agent and commission paid to him (in paragraph 5) and some further allegations about the sale price (in paragraph 15) which do not appear to relate to any of the apparent causes of action pleaded in this part – either breach of the collateral contract, or breach of the condition of quiet enjoyment, or a claim of damages for ‘unconscionable conduct’ to which I shall return in a moment. In paragraph 17 the damages claimed are $60,000 for general damages, and $60,000 for exemplary damages.

26. [26]
    The defendants’ first criticism of this part of the pleading is that, while a claim under a collateral contract is a recognised cause of action, there is no pleading of the main contract. The assertion involves, however, an unduly constrained reading of paragraphs 4 and 6 of the pleading: the first plainly refers to the contract of sale for the premises between the plaintiff and Jilt Pty Ltd, relying on representations from Mr Williams; the second, to the collateral oral agreement about the right to occupy the premises, quiet enjoyment, and the option to re-purchase. It is tolerably clear, I think, that the latter is said to be collateral to the contract for sale of the premises which, it may safely assume, contains writing satisfying the Statute of Frauds.

27. [27]
    The claim based on unconscionable conduct seems to rest in the common law remedy and, as pleaded, appears to be of the kind discussed in cases like Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447.  It is alleged that Mr Williams is a wealthy businessman who promised the plaintiff quiet enjoyment of her premises in circumstances where he subsequently denied that, and arranged for workmen to be on the premises ‘ … on a nearly daily basis’.  Moreover, he is now alleged to unconscionably deny any representation or promise about quiet enjoyment; and his conduct is said to have been ‘… intended to prejudice the tranquillity and a peaceful environment fundamental to the plaintiff’s business’.  It is also alleged that the conduct was ‘… unconscientious in his misrepresentations and conduct using workmen to disrupt the plaintiff’s business’.  The personal pronoun indicates a reference to Mr Williams and it is apparent that this cause of action is brought against him personally.

28. [28]
    An action based on what is now more commonly called ‘unconscientious dealing’ involves a position of significant weakness for one party, known to and unconscionably preyed upon by another^[17].  Certainly the pleading is not, in this respect, well drawn.  That said, the case the plaintiff says that she can make out can be discerned.  Paragraph 7 alleges Mr Williams was a ‘wealthy businessman’.  Other paragraphs imply the plaintiff was anxious to remain in occupation and carry on her business, and he knew that and permitted her to stay but then, allegedly, made it impossible for her to do so. 

29. [29]
    It does not, relevantly, appear that the plaintiff is trying to set aside the major contract for the sale of the premises to Jilt Pty Ltd. Rather, she is alleging a breach of the collateral contract, occurring against a background which made the breach unconscionable. It is intended, I think, to be another facet of the alleged contractual breach (and, if the allegations surrounding it had been advanced in that context, they would be unexceptionable). On its face the claim cannot be described as strong but it is not unknown to law, and Mr Williams can see the allegations he must meet.

30. [30]
    It can also be said that the process of determining whether or not the alleged representations upon which the plaintiff relies were actually made; who made them; whether they were made by Mr Williams on behalf of Jilt Pty Ltd, or on his own behalf, and whether or not, in addition to a remedy which might arise in collateral contract, they might also give rise to relief in common law for alleged conduct which may have been unconscionable, are matters which could be determined without, it might be thought, too much difficulty by a court at trial. This is an aspect of the case where, I think, despite the poor quality of pleading Mr Williams can comprehend the nature of the claim against him and answer it without any special difficulty.

31. [31]
    Paragraph 5 should, nevertheless, be struck out: it is impossible to discern how it might have any relation to either of the causes of action. The same comment applies to paragraph 10: it appears to relate to circumstances indicating the plaintiff was a person in a position of special vulnerability, but it refers to a time many years after the relevant transaction.

32. [32]
    These conclusions mean it is necessary to focus, immediately, upon the plaintiff’s application to join Mr Williams. As observed earlier, she has already added him to her action, and pleading, without any application to, or order from the court. Mr Williams has filed a conditional notice of intention to defend and seeks relief under UCPR r 16 on the grounds that no order has been obtained; that the new claim and statement of claim have never been served upon him; and, that the pleading fails to disclose any reasonable cause of action against him.  The latter contention is not sustainable in light of the conclusions just reached.  It is true that the proceedings which brought him before the court were irregular, but Counsel appeared for him and it is plain that he has always been, and remains, entirely familiar with almost everything that has occurred in this long saga.    In those circumstances it is appropriate to grant the plaintiff’s application, and add him as a defendant.

33. [33]
    The next part of the pleading appears under the heading ‘Trade Practices’ (paragraphs 18 – 21). The claim is brought specifically against Jilt Pty Ltd as a corporation and refers to alleged representations and statements ‘by the defendants’ that the plaintiff could re-purchase the building within 3 years and occupy the premises for 12 months, with quiet enjoyment.  It can safely be assumed the representations and statements are the same as those relied upon in the cause of action relating to the alleged oral collateral agreement. 

34. [34]
    They are now, as counsel for the defendant points out, statute barred: Commonwealth Trade Practices Act 1974, s 82; Queensland Fair Trading Act 1989, s 99.  There is no application to extend time and in light of the fact the plaintiff’s primary remedy, if she has one, rests on conversations she had with the second defendant (either on his own behalf, or in his position as a director of the first defendant) and, if a remedy exists it will lie in her claim to establish an enforceable collateral contract, it seems improbable there is any material disadvantage to her if time is not extended.  For these reasons, paragraphs 18 – 21 inclusive should be struck out.

35. [35]
    The next claim is in ‘malicious prosecution’. It is a little difficult to follow but recites briefly, in four one line paragraphs (numbered 22 – 25) that after the plaintiff commenced her action on 20 September 2004 there was a complaint to the police about stealing from the premises in November of that year, followed by committal in July 2005 on charges arising from that complaint, and discontinuance of the criminal proceedings in February 2006. Paragraph 26 alleges that ‘the defendants’’ (plural) malicious representations are relied upon to found a cause of action of this kind, but the particulars make it very clear the reference is, throughout, to alleged conduct on the part of Mr Williams.

36. [36]
    Malicious prosecution is a cause of action in tort requiring proof the defendant was actively instrumental or instituting or continuing proceedings, which were later terminated in favour of the person against whom they were brought; that the proceedings were brought without reasonable and probable cause; that in bringing them the defendant was motivated by malice; and, that damage was caused to the plaintiff. Damages must be proportionate to the injury suffered, but may include aggravated damages for mental distress.

37. [37]
    The particulars set out with reasonable clarity the circumstances leading to the police charge against the plaintiff and, although a little diffuse, appear to contain the elements of the cause of action. While paragraphs 26(b) and (c) appear to relate to a separate complaint against the plaintiff’s husband which was the eventual subject of the Court of Appeal proceedings mentioned earlier and, at first blush, seem to have no direct connection with the plaintiff’s own action they may, on further reflection, be fairly described as part of the relevant, surrounding factual matrix.

38. [38]
    The damages claimed are $150,000 for exemplary damages, which can be awarded where there has been a contumelious disregard of the plaintiff’s rights.^[18]

39. [39]
    This cause of action is plainly directed to Mr Williams and, although not pleaded with the art of an experienced legal drafter, has sufficient information for him to understand the case brought against him. Some comfort for that conclusion can be taken from paragraph 25 of the most recent defence filed for Jilt Pty Ltd, which admits that in December 2004 he, as a director of that company, made a complaint to police about the removal of the fittings and fixtures, but denies that step involved anything resembling a malicious prosecution because there was ‘ … reasonable and probable cause to prosecute the plaintiff’ and ‘ … the defendant reasonably believed the plaintiff to be guilty of the offence of stealing and the defendant was not actuated by malice’.

40. [40]
    The next claim appears under the heading ‘Abuse of Process’ (paragraphs 28, 29 and 30). This, again, is a tort which may be established where the predominant purpose of legal process is to achieve some ulterior and improper end, outside the ambit of the legal claim, and damage is caused by that process – which, again, may include special damages.^[19] 

41. [41]
    The claim is really brought here, I think, as an attempted alternative to the action for damages for malicious prosecution but the picture is badly clouded by the claim, in paragraph 30 for ‘… exemplary damages in the sum of $150,000 for the misuse of the police, the courts, the Legal Services Commission and the Bar’.  The reference to the Legal Services Commission and the Bar strongly suggests the allegations sought to be relied upon, and the cause of action if it is available, are particular to the plaintiff’s husband and his difficulties with, at least, the Commission.  It is not at all apparent how those events could be related to Ms Coronis’ claims here, or found an action attracting a remedy in damages for her.  Paragraphs 28 – 30 inclusive should be struck out.

42. [42]
    It is also said that the total damages reflected in the pleading exceed the jurisdiction of this court. The sum of $120,000 claimed in paragraph 17, plus the claim for $150,000 in paragraph 27 exceeds the present monetary jurisdiction here. The other difficulty, throughout, is that the plaintiff has failed to properly particularise her claims for damages, as required by r 155. Particulars will be ordered and, it is to be hoped, the process of particularisation will either refine the figures to a total within the jurisdiction of the court or lead to an express abandonment of any excess.

43. [43]
    Additional matters are raised on the defendants’ behalf. The first is that the entire pleading should be struck out because it fails to meet the requirements of r 5. It is also said that parts of the pleading offend r 171. For reasons already explored, that is true of some parts of the pleading but not of others which should, I think, survive.

44. [44]
    Relevantly to that question, after this application was heard the issues it raises were touched upon in the majority judgment of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 in which it was said that while a ‘just resolution of proceedings remains the paramount purpose’ of court rules like r 5, the question of a just resolution is to be ‘… understood in light of the purposes and objectives stated’^[20]. 

45. [45]
    In particular for present purposes, the High Court observed that while parties should have a ‘ … proper opportunity … to plead their case’ the rule suggests ‘ … that limits may be placed upon re-pleading, when delay and cost and taken into account’.  These remarks are germane to the question whether Ms Coronis’ pleading should be struck out. 

46. [46]
    Certainly, the history of her attempts at pleading has been unsatisfactory but as the preceding analysis shows her case has always had, at its kernel, a fairly straightforward claim based upon an agreement allegedly reached about the time she entered into a contract to sell her premises. There is, despite the long delay and difficulty with her pleadings, no real impediment to taking that issue to trial, and determining it. The fact that a ‘just resolution’ of that kind remains available tells against any more draconian steps.

47. [47]
    It will be ordered as follows:

1Paragraphs 5, 10, 15, 18 – 21 inclusive, and 28 – 30 inclusive of the further amended statement of claim filed by the plaintiff on 7 April 2009 are struck out;

2The plaintiff is ordered to deliver particulars of her claims for damages in compliance with r 155 within 14 days;

3The second defendant is added as a party to the action, with liberty to deliver a defence within 21 days after delivery of the plaintiff’s further particulars of damages;

4The first defendant also has liberty to deliver a further amended defence within 21 days after delivery of the plaintiff’s further particulars of damages.

48. [48]
    The defendants also claim costs. There can be no doubt the matter has primarily come before the court because Ms Coronis’ pleading, despite many previous attempts, still contains defects; and, technically speaking, wrongly added Mr Williams. It is also material, however, that she had applied to add Mr Williams as a defendant before she delivered her most recent pleading but, for reasons which are unclear, that was not dealt with when the matter came before the court in March.

49. [49]
    The defendants’ attack upon the new pleading has been partially successful, but their attempts to strike out the claim and pleading so far as it relates to Mr Williams were, it can be seen, adventurous and inappropriate. These various factors touching the discretion about costs can be fairly reflected in an order that two-thirds of the defendants’ costs of and incidental to the hearing of the cross-applications, assessed on the standard basis, be their costs in the cause.