Bodycorp Repairers Pty Ltd and Murdaca v Maisano
[2017] VCC 631
•29 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-03922
| Bodycorp Repairers Pty Ltd and Antonio Murdaca | Plaintiff |
| v | |
| Anuniziato Enzo Maisano and Ors | Defendant |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February, 1 and 15 March and 26 April 2017 | |
DATE OF RULING: | 26 and 29 May 2017 | |
CASE MAY BE CITED AS: | Bodycorp Repairers Pty Ltd and Murdaca v Maisano & Ors | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 631 | |
REASONS FOR RULING
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Subject:Defendants’ application for summary judgment; application to set aside judgment on the basis of fraud; witness immunity; advocates immunity; conspiracy to give and procure false evidence
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Levine | Templeton Fox Rothschild |
| For the 3rd , 9th and 10th Defendants For the 4th,5th, 7th,and 8th Defendants For the 6th Defendant | Mr N De Young Mr C Madder Mr D Aghion | Minter Ellison Moray & Agnew Clyde & Co |
HER HONOUR:
1 The plaintiffs in this proceeding (the present proceeding), Bodycorp Repairers Pty Ltd (Bodycorp) and Antonio Murdaca (Murdaca) seek orders setting aside the judgment of His Honour Judge Hanlon given 16 October 2002 (Hanlon J’s judgment) in proceeding No. 7955 of 2000 (the earlier proceeding) and damages.
2 The first defendant, Anuniziato Enzo Maisano (also known as Michael Maisano and Michael Mason) (Maisano) and the second defendant Rodney Attard (Attard) were the plaintiffs in the earlier proceeding.
3 The third defendant, Oakley Thompson & Co Pty Ltd (Oakley Thompson), acted as the solicitor for Maisano in the earlier proceeding. The ninth defendant, Timothy Davies (Davies) and the tenth defendant Jeremy Broadbent (Broadbent), were employees of Oakley Thompson who assisted in the conduct of the earlier proceeding on behalf of the plaintiffs.
4 The fifth defendant Barry Martin (Martin), the eighth defendant Philip Oswald (Oswald) and the seventh defendant Robert Belleville (Belleville) were employees of the fourth defendant, Australian Associated Motor Insurer (AAMI). The plaintiffs subpoenaed Martin to give evidence in the earlier proceeding. Oswald was subpoenaed to give evidence and produce documents (the Oswald subpoena). The plaintiffs also issued a subpoena duces tecum to AAMI to produce certain documents (the AAMI subpoena).
5 The sixth defendant, Ken Adams (Adams), was a partner at Freehill Hollingdale & Page and was (but has not been for many years) the solicitor for AAMI.
6 In a statement of claim dated 31 August 2016 (the SOC) the plaintiffs seek orders against each of the defendants that the earlier proceeding be set aside, damages and costs.
7 By summons dated 19 December 2016, Oakley Thompson and Broadbent seek summary dismissal of the claims made against them in the present proceeding pursuant to r 23.01 of the County Court Civil Procedure Rules 2008 (the Rules) and/or s 63 of the Civil Procedure Act 2010 (the Act). Alternatively they seek an order that the statement of claim be struck out pursuant to r 23.02 of the Rules.
8 By summons dated 10 January 2017 Davies seeks the same relief. Oakley Thompson, Davies and Broadbent are together referred to as the Oakley Thompson defendants.
9 By summons dated 17 January 2017 AAMI, Martin, Belleville and Oswald (together referred to as the AAMI parties) seek summary dismissal of the claims made against them in the present proceeding pursuant to r 23.01 of the Rules, s 63 of the Act and/or the Court’s inherent jurisdiction. Alternatively they seek an order that the statement of claim be struck out pursuant to r 23.02 of the Rules.
10 By summons dated 17 January 2017 Adams also seeks summary dismissal of the claims made against him in the present proceeding pursuant to r 23.01 of the Rules and/or s 63 of the Act. Alternatively he seeks an order that the statement of claim be struck out pursuant to r 23.02 of the Rules.
Procedural History
11 The events the subject of the earlier proceeding date back to 1997. The earlier proceeding was commenced by Maisano and Attard. In the earlier proceeding, Maisano and Attard alleged that:
(a) in or about October 1997, the parties were in discussions about Maisano and Attard taking over conduct of an automotive repair and panel beating business conducted at 1439 Malvern Road, Glen Iris, Victoria (the Malvern business);[1]
[1] Statement of Claim dated 18 June 2002 (ASOC earlier proceeding), [6].
(b) Bodycorp and Murdaca made certain representations to them, including that Bodycorp would secure for them as operators of the Malvern business “insurance company repair work” and “insurance company recommendations” from AAMI and a sign stating that the Malvern business was an accredited AAMI repairer (the representations);[2]
[2] ASOC earlier proceeding [7(c)].
(c) induced by, and in reliance upon, the alleged representations, Maisano and Attard incurred expenses in renovating and improving the Malvern premises. Renovations of the Malvern premises commenced on 29 October 1997 and concluded on 14 March 1998;[3]
[3] ASOC earlier proceeding [12].
(d) On 1 December 1997 the plaintiffs commenced occupying the Malvern premises as tenants and paid rent of $20,826.[4] On 1 December 1997 the plaintiffs began conducting the Malvern business;[5]
[4] ASOC earlier proceeding [13] and [14].
[5] ASOC earlier proceeding [15].
(e) the representations were misleading or deceptive in contravention of s52 of the Trade Practices Act 1974 (Cth) and s 11 of the Fair Trading Act (Vic) in that Bodycorp failed to ensure that the operators of the Malvern business had the benefit of “insurance company recommendations” and failed to secure for the plaintiffs a sign stating that the Malvern business was an accredited AAMI repairer. Bodycorp did not have reasonable grounds for making the representation;[6]
(f) by reason of the plaintiffs’ misleading or deceptive conduct, Maisano and Attard have suffered loss and damage.[7]
[6] ASOC earlier proceeding [18] and [19].
[7] ASOC earlier proceeding, [20].
12 The trial of the earlier proceeding occurred over a number of days in October 2002 before Hanlon J. On 16 October 2002 Hanlon J found in favour of Maisano and Attard.[8] Hanlon J found that the representations had been made and relied upon,[9] that the representations were misleading[10] and that Maisano and Attard were entitled to damages of $79,083.42.[11]
[8]Maisano and Anor v Murdaca and Anor, unreported, 16 October 2002 (Trial Reasons).
[9] Trial Reasons pp 297-298.
[10] Trial Reasons pp 298- 303.
[11] Trial Reasons p 304.
13 Bodycorp and Murdaca unsuccessfully appealed to the Court of Appeal[12] against Hanlon J’s judgment. In dismissing the appeal, Nettle JA held:
[12]Murdaca & Anor v Maisano & Anor [2004] VSCA 123 (Appeal Reasons).
(a) there was evidence before the trial judge that the representation was made;[13]
[13] Appeal Reasons [22] and [23].
(b) there was also evidence that the representation was misleading, in the sense that it was not until some three weeks after making the representation in October 1997 that Bodycorp made an application to AAMI on 7 November 1997 for accreditation of the Malvern business.[14] There was also evidence before the trial judge that at the time of making the representation the plaintiffs knew that the Malvern business had lost its AAMI approved repairer accreditation and that, if there was any cause of optimism, it rose not higher than ‘the repairer liaison manager’ at AAMI who told Murdaco that “he might reconsider allocating work to the Malvern business (note, not appoint the business as an accredited repairer) if the shop were brought up to standard.”[15]
[14] Appeal Reasons [24].
[15] Appeal Reasons [28].
(c) the trial judge was entitled to conclude that Murcaca’s evidence should not be relied on unless corroborated, and it was not corroborated in respect of making the representation or the existence of reasonable grounds for its making;[16]
(d) the plaintiffs had the burden of establishing that there had been reasonable grounds for making the representation, and the state of the evidence was such that the only conclusion to which the trial judge could properly have come to was that the existence of reasonable grounds were not made out (even if one puts to one side the doubts expressed by the trial judge about Murdaca’s credibility).[17]
[16] Appeal Reasons, [32].
[17] Appeal Reasons, [34].
14 Bodycorp also appealed Judge Hanlon’s award of damages and succeeded in having the award reduced by $20,558 to $58,525.42.
15 By summons dated 13 February 2017 the plaintiffs made an application to amend the Statement of Claim in the present proceeding. The proposed Amended Statement of Claim is dated 13 February 2017 (PASOC) and seeks to make the following amendments:
(1) The addition of the words “the evidence contained in the exhibits” to paragraph 18(a) and an amendment to the collective reference to the “documents not available to the plaintiffs” to “undisclosed” documents.
(2) The addition of an allegation in paragraph 19 that “the undisclosed documents were in the possession of the Defendants and the Defendants deliberately failed to disclose the undisclosed documents at the original Hearing of the matter.”
(3) The addition of a further and/or alternative claim for exemplary damages against each of the defendants in paragraphs 45, 45(4) and paragraph D in the claim for relief.
(4) The addition of a claim for the “judgment sum plus costs and interest that were awarded” to paragraph (3) of the particulars to paragraph 45.
(5) The addition of the claim to interest in paragraph E of the prayer for relief.
16 The third to tenth defendants in the present proceeding opposed the plaintiffs’ application to amend the statement of claim on the grounds that the proposed cause of action is bad in law and has no real prospect of success. However the defendants were content for the application for summary judgment to be determined on the basis of the claim as outlined in the proposed amended statement of claim. Depending on the outcome, I should then determine the plaintiffs’ application to amend the Statement of Claim.
The plaintiffs’ allegations in the proposed amended statement of claim
17 In the present proceeding the plaintiffs claim that Maisano,[18] Attard,[19] Martin,[20] Belleville[21] and Oswald[22] gave false evidence in the earlier proceeding (the false evidence claim).[23]
[18] PASOC paragraph 14(a).
[19] PASOC paragraph 14(b).
[20] PASOC paragraph 14(c).
[21] PASOC paragraph 14(d).
[22] PASOC paragraph 14(e).
[23] PASOC paragraph 14.
18 The plaintiffs allege that when Maisano, Attard, Martin, Belleville and Oswald gave the false evidence each of the Oakley Thompson defendants were aware that the evidence was false[24] but took no steps to correct the false evidence and incited the witnesses to give the false evidence.[25]
[24] PASOC paragraph 15.
[25] PASOC paragraph 16.
19 The plaintiffs allege that since judgment was handed down in the proceeding, Murdaca and Bodycorp have obtained copies of the following documents (collectively named “the undisclosed documents”) which were not available to them during the trial:
(a) The evidence contained in the exhibits in an affidavit sworn by Maisano on 17 November 2014;
(b) a statutory declaration sworn by Maisano on 1 September 1998;
(c) a file note made by Barry Martin on 25 June 1999;
(d) a facsimile transmission from Davies to Maisano dated 29 July 1998; and
(e) a file note by Martin dated 26 August 1998.[26]
[26] PASOC paragraph 18.
20 The plaintiffs allege that the undisclosed documents were in the possession of the defendants and the defendants deliberately failed to disclose the undisclosed documents at the earlier proceeding.[27]
[27] PASOC paragraph 19.
21 The plaintiffs allege that there was a conspiracy between AAMI and Maisano, acting through their legal representatives, to injure Bodycorp and Murdaca in their business with a view to enabling AAMI and Maisano to repudiate their respective agreements with Bodycorp.[28] The plaintiffs allege that the conspiracy was executed by the following acts:
[28] PASOC paragraph 33.
(a) Maisano and Attard gave false evidence for the purpose of the conspiracy;[29]
[29] PASOC paragraph 33(a).
(b) AAMI, through its employees, servants and agents, Martin, Belleville and Oswald, procured and gave false evidence for the purpose of the conspiracy;[30]
[30] PASOC paragraph 33(b).
(c) AAMI, through its solicitor, Adams, procured false evidence for the purpose of the conspiracy;[31]
[31] PASOC paragraph 33(c).
(d) Maisano and Attard’s solicitors, Oakley Thompson, and its employees, Davies and Broadbent, procured false evidence for the purpose of the conspiracy;[32] and
(e) Maisano procured false evidence for the purpose of the conspiracy.[33]
[32] PASOC paragraph 33(d).
[33] PASOC paragraph 33(e).
22 The plaintiffs allege that at no time did the parties to the conspiracy take any steps to correct the false evidence given by Maisano, Attard, Martin, Belleville and Oswald.[34]
[34] PASOC paragraph 36.
23 The plaintiffs allege that knowledge of the matters set out in the undisclosed documents would have influenced the decision of the trial Judge as to whether any pleaded representations were made or relied upon.[35]
[35] PASOC paragraph 38.
24 At paragraph 39 of PASOC it is alleged that Oakley Thompson and Davies had a duty to disclose the undisclosed documents and that the AAMI parties had a duty to disclose those documents pursuant to the subpoena that had been issued to them in February 2002.[36] The plaintiffs allege that Hanlon J’s judgment was obtained by the deliberate non-disclosure of relevant documents.[37]
[36] PASOC paragraph 39.
[37] PASOC paragraph 42(1)
Principles relating to setting aside a judgment for fraud
25 In Wentworth v Rogers (No 5)[38] Kirby P referred to the following principles to be applied on applications to set aside a judgment on the ground of fraud:
[38] (1986) 6 NSWLR 534, 538-539; these principles were adopted by the Victorian Court of Appeal in Karam v Palmone Shoes Pty Ltd [2014] VSCA 146, [39]; see Bodycorp Repairers Pty Ltd v Maisano (No 11) [2016] VSC 645.
First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires.
Secondly, it must be shown by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment. This rule has an ancient lineage. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be permitted, if they move on nothing more than the evidence upon which they have previously failed.
Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief. The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts.
Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment. The other requirements must be fulfilled…
Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment.
Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of the witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.
26 Riordan J identified the essential elements of the cause of action as follows:
(a) Fresh facts: It must be shown that there are facts (“the fresh facts”) which were:
(i) not considered by the original trial court; and
(ii) not known to the applicant until after the conclusion of the trial.
(b) Responsibility: It must be established that it was the fraud of the party, who was successful at the original trial (“the successful party”) that was responsible for the fresh facts not being known by the applicant or considered by the court, such that it would be inequitable for the successful party to retain the benefit of the judgment.
(c) Causation: It must be established that the fresh facts are so material such as to make it [reasonably] probable that, if proven, the plaintiffs’ case will succeed. [39]
[39] See Bodycorp Repairers Pty Ltd v Maisano (No 11) [2016] VSC 645, [48].
Principles on application of summary judgment
27 The applications for summary dismissal by the Oakley Thompson defendants, the AAMI parties and Adams are made pursuant to r 23.01 of the Rules s 63 of the Act. Rule 23.01(1) provides:
(1)Where a proceeding generally or any claim in a proceeding –
(a)is scandalous, frivolous or vexatious; or
(b)is an abuse of the process of the Court –
The Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
28 Sections 62 and 63(1) of the Act provide:
62A defendant in a civil proceeding may apply to the court for summary judgment in a proceeding on the ground that a plaintiff’s claim or part of that claim has no real prospect of success.
63(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
29 In Bodycorp Repairers Pty Ltd v Maisano (No 11)[40] Riordan J referred to Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd[41] and stated that although an application to dismiss a proceeding may still be made under r 23.01 of the Rules, the most appropriate basis of an application for summary dismissal on the ground of no real prospect of success is pursuant to s 62 of the Act.
[40] [2016] VSC 645, [57].
[41] (2011) 35 VR 1, 8-9 [18] (Dixon J).
30 In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [42] the Court of Appeal explained the test to be applied when determining whether to give summary judgment as follows:
[42] (2013) 42 VR 27, 40 [35] (Warren CJ and Nettle JA).
(a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
31 If the Court finds that the proceeding has no real prospect of success, it has a broad residual discretion, to be exercised consistently with the overarching purposes of the Act,[43] to nonetheless refuse the application because –
(a)it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.[44]
[43] (2013) 42 VR 27, 42 [42] (Neave JA).
[44]Civil Procedure Act 2010 s 64.
32 I will now consider the basis of the plaintiffs’ claim that there is a real prospect of obtaining damages against the third to tenth defendants in the present proceeding, who were not parties to the earlier proceeding.
The claim against the non-party defendants to set aside Hanlon J’s judgment
33 The plaintiffs claim that the judgment given in favour of Maisano and Attard was obtained by fraud and that the judgment should be set aside.[45]
[45] PASOC paragraph 44.
34 The Oakley Thompson defendants, the AAMI parties and Adams (the non-party defendants) were not parties to the earlier proceeding in which the judgment was given and do not have the benefit of the judgment. As stated by Kirby P in Wentworth v Rogers (No 5)[46] the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment allegedly affected by fraud lies on the party impugning the judgment and that the opposing party who took advantage of the judgment is shown to “have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.” (emphasis added).
[46] (1986) 6 NSWLR 534, 539.
35 The non-party defendants are not proper or necessary parties to the cause of action to set aside Hanlon J’s judgment on the grounds of fraud. Any such cause of action lies against Maisano and Attard who were parties to the earlier proceeding.[47]
[47]Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 538-539.
36 Accordingly the plaintiffs do not have a real prospect of success against the non-party defendants to set aside Hanlon J’s judgment.
The claim for damages
The false evidence claim
37 The plaintiffs claim that they have suffered damages and that each of the defendants is liable to compensate the plaintiffs for damages and exemplary damages.[48]
[48] PASOC paragraph 45.
38 In Cabassi v Vila (Cabassi)[49] the High Court held that the plaintiffs’ only remedy is an equitable proceeding to set aside the judgment.[50] Each of Martin, Belleville and Oswald are covered by the absolute immunity from suit given as a result of giving evidence. In D’Orta-Ekenaike v Victorian Legal Aid[51] (D’Orta- Ekenaike) Gleeson CJ, Gummow, Hayne and Heydon JJ expressed the principle of witness immunity in the following terms (emphasis added, footnotes omitted):
Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party’s favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others – the judge, the witnesses, advocates – anyone other than the party whose case has been rejected.
This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the 16th and 17th centuries.
From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done or is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps....
[49] (1940) 64 CLR 130,138,139.
[50] (1940) 64 CLR 130,139 (Rich J).
[51] (2005) 223 CLR 1, [37] – [39].
39 The witness immunity from suit continues to apply even after the judgment has been set aside. In Cabassi[52] Williams J stated:
I am also of opinion that the alleged third cause of action [damages for the alleged conspiracy to give false evidence at trial] is bad in law, and the statement of claim would be demurrable even if the judgment had been set aside. It is clear law that a witness cannot be sued in a civil action in respect of anything which he has said in the course of his examination in the witness box.
[52] (1940) 64 CLR 130, 149.
40 In my view an action does not lie against AAMI and each of the AAMI defendants for the giving of false evidence as alleged in paragraph 14(c) (Martin), 14(d) (Belleville) and 14(e) (Oswald).
The conspiracy claim
41 The witness immunity extends to a conspiracy to the giving of false evidence.
42 Counsel for the Oakley Thompson defendants, Mr De Young, submitted that the plaintiffs’ claim against the defendants seeking damages for conspiracy is bad at law because the execution of the conspiracy was allegedly the giving of false evidence in a judicial proceeding. He referred to Cabassi.[53]
[53] (1940) 64 CLR 130.
43 In Cabassi the plaintiff commenced proceedings in the Queensland Magistrates’ Court alleging an unlawful assault by Ferrando and seeking damages against Vila. At the trial the defendant Vila and others gave evidence that Ferrando did not assault the plaintiff but that her injuries were caused by jumping from a window. The plaintiff commenced a proceeding in the Supreme Court against Vila and the other witnesses who gave evidence at the trial in the Magistrates’ Court alleging that the defendant and the witnesses had conspired against her to cheat and defraud her, and to deceive and fraudulently mislead the Magistrates’ Court. It was alleged that they had agreed together to give, adduce and procure false evidence.
44 The High Court held that no action lies in respect of evidence given by witnesses “in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts.”[54]
[54] (1940) 64 CLR 139, 140.
45 In Cabassi Rich ACJ explained that reasons of public policy forbid the attacking and impeachment of a judgment in this way.
An action by the defeated party cannot, for equally good reasons, be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness’ testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits and lead to interminable litigation.[55]
[55] (1940) 64 CLR 139.
46 Counsel for the plaintiffs, Mr Levine, referred to a passage in Patrick Stevedores Operations No 2 Proprietary Limited and Ors v Maritime Union of Australia and Ors[56] and submitted that all parties to a conspiracy are liable as concurrent tortfeasors even where it is only necessary for one of the conspirators to have performed the act.
[56] [1998] 195 CLR 1.
47 An action for conspiracy against witnesses who have conspired together to give false evidence was considered by McTiernan J in Cabassi.[57]
But, even if a conspiracy to commit a criminal act could add to or change the tortious quality of the act and in that way provide ground for an action other than that which may lie for the act itself, such an action would not lie if the execution of the conspiracy consisted in the giving of evidence by a witness in the course of a judicial proceeding. It is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action. (emphasis added).
[57] (1940) 64 CLR 139, 144.
48 Mr Levine submitted that the defendants have overstated the scope of the doctrine of witness immunity. In an action that is based upon the unlawful conduct of incitement, obstruction of justice and/or attempting to pervert the course of justice, the evidence in a trial is irrelevant, and thus the doctrine of witness immunity has no application. I do not accept Mr Levine’s submission. Mr Levine referred to DPP v Aydogan & Anor[58]. That case concerned the prosecution of defendants by the Director of Public Prosecutions pursuant to s 317 of the Crimes Act 1900 (NSW), the statutory equivalent of attempt to pervert the course of justice.
[58] (2006) NSWSC 558, [25].
49 Mr Levine also referred to the following elements of the tort of conspiracy to injure identified by Bond J in Lee v Abedian & Ors [59].
(a) there was a combination or agreement between two or more persons to engage in conduct amounting to unlawful means;
(b) a purpose of that combination or agreement was to injure the plaintiff;
(c) the combination or agreement was carried into effect by the commission of the agreed unlawful acts; and
(d) those unlawful acts caused damage to the plaintiff.
[59] [2016] QSC 92, [70].
50 The facts in this case are different from the facts in Lee v Abedian.[60] Mr Lee was an employee of a government body in the United Arab Emirates which developed land for sale in Dubai. A private developer based in Australia by the name of “Sunland” purchased land from an entity controlled by that government body. There was a falling out between the government body and Sunland. Mr Lee was arrested and interrogated in connection with an alleged bribe. He was the subject of a criminal prosecution that ran for four years and involved 46 hearings. He was ultimately acquitted and was only then able to leave the United Arab Emirates. Mr Lee brought an action in the Queensland Supreme Court against the directors of Sunland. Mr Lee said that they had instigated the prosecution against him. One of the directors was a partner in the law firm DLA Phillips Fox.
[60] 2016] QSC 92.
51 In that case it was argued that the provision of a legal report to prosecution authorities in Dubai was subject to immunity from suit. Lee v Abedian is distinguishable because it concerned the provision of a report to a prosecutor to assist the prosecutor to decide whether or not to prosecute. Although the legal report was provided with a view to persuading the prosecution authorities to prosecute the plaintiff, it was neither an expert report nor a witness statement.
52 In this case the plaintiffs allege that the defendants were part of a conspiracy to give and procure false evidence for the purpose of the conspiracy. As stated by Salmon J in Marrinan v Vibart[61] (emphasis added, citations omitted).
The main contention on behalf of the plaintiff is that the gist of this action is not the defamatory statements made to the Director of Public prosecutions, nor their repetition in evidence, but the antecedent combination or agreement to defame. It is argued that there is no authority for extending any immunity to such an agreement or combination. If, contrary to my judgment, the contention were correct that the gist of the tort of conspiracy is the conspiratorial agreement alone, it may be that the plaintiff would be entitled to succeed on this preliminary issue. In my view, however, this contention is plainly wrong; the gist of the tort of conspiracy is not the conspiratorial agreement alone, but that agreement plus the overt act causing damage. It is true that the crime of conspiracy is the very agreement of two or more persons to effect an unlawful purpose, and any overt acts done in pursuance of the agreement are merely evidence to prove the fact of the agreement. The tort of conspiracy, however, is complete only if the agreement is carried into effect so as to damage the plaintiff. Accordingly, the acts done in pursuance of the agreement are an integral part of the tort: Crofter Hand Woven Harris Tweed Co. Ltd. v Veitch.
[61] [1963] 1 QB 234, 238-239.
53 In Cabassi Starke J stated:
But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared (Watson v McEwan), given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice (Seaman v Netherclift; Goffin v Donnelly). The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court: See Watson v McEwan. (citations omitted, emphasis added). [62]
[62] (1940) 64 CLR 139, 140-141.
54 In Cabassi McTiernan J held that a civil action does not lie against a witness for damages for perjury.[63] McTiernan J referred to the judgment of Crompton J in Henderson v Broomhead[64] which was quoted and approved of by the Master of the Rolls:
The attempts to obtain redress for defamation having failed, an effort was made in Revis v Smith to sustain an action analogous to an action for malicious prosecution. That seems to have been done in despair. No action will lie for words spoken or written in the course of any judicial proceeding. In spite of all that can be said against it, we find the rule acted upon from the earliest times. The mischief would be immense if the person aggrieved, instead of preferring an indictment for perjury, could turn his complaint into a civil action. By universal assent it appears that in this country no such action lies. (citations omitted).
[63] (1940) 64 CLR 139, 144-145.
[64] (1859) 4 H & N, 579.
55 McTiernan J held:
It is clear then, that this rule under which witnesses are exempt from the liability to be sued is of general application to all actions. The reasons for the rule require that it should extend to an action on the case, if there could in principle be such an action, brought to recover compensation for damage alleged to have been caused by any evidence given in the course of a trial in pursuance of a criminal conspiracy to give such evidence. The existence of this rule is sufficient to dispose of the plaintiff’s claim for damages.[65] (emphasis added)
[65] (1940) 64 CLR 139, 145.
56 In Marrinan v Vibart[66] Salmon J stated:
In Hargreaves v Bretherton, an unsuccessful attempt was made to evade the immunity to which I have referred [that witnesses should be immune from civil actions] by suing for damages for perjury.[67] Counsel for the plaintiff attempted to distinguish that case on the ground that an action for damages for perjury is unknown to the law, whereas an action for damages for conspiracy is of respectable lineage. As far as it goes, the distinction is a sound one. It does not, however, affect the point that Hargraeves v Bretherton demonstrates that the immunity to which I have referred is not only an immunity to be sued for damages in libel or slander. The immunity, in my judgment, is an immunity from any form of civil action. (Citations omitted, emphasis added).
[66] [1963] 1 QB 234, 238.
[67] See discussion at p 237.
57 On appeal,[68] Diplock L.J. stated:
Mr. Lewis has sought to persuade this court that that rule of public policy, for reasons which it is impossible to explain, applies only to actions for defamation and that, if you are sufficiently ingenious to discover some other way of bringing an action against a witness for evidence which he has given in a court, then the rule of public policy does not apply to that, although all the evils of the action are precisely the same as if it were a direct action for defamation. It seems to me quite plain on the authorities – and on the English authorities as well as the Australian authority [Cabassi v Vila] directly in point – that that argument is without foundation.
An attempt very similar to that in this case was made in 1856, in Revis v Smith. There, instead of bringing an action for defamation, an attempt was made to bring a special action on the case, analogous to malicious prosecution. As Crompton J said in Henderson v Broomhead, “That seems to have been done in despair” – words which in my view are appropriate to this attempt in 1962. (citations omitted)
[68] [1963] 1 QB 528, 538.
58 The immunity extends to an action for conspiracy to pervert the course of justice. In Fatimi Pty Ltd v Bryant[69] Campbell J held:
There are some circumstances where, notwithstanding that there might have been concerted action to harm someone by breaching a statute, public policy prevents an action for conspiracy from being brought. Thus, even if there were to be a conspiracy to pervert the course of justice by giving false evidence in court, the principle that no liability can attach to a person for the evidence that person gave in court prevents an action for conspiracy from succeeding: Cabasi v Vila.
[69] [2002] NSWSC 750, [196].
59 In Cabassi Williams J stated that a client often discusses his evidence with his solicitor before the trial and that the immunity would be destroyed if a party could simply allege that the solicitor was a party to a conspiracy to give false evidence.
A joint action can be brought against two or more persons for conspiracy to slander as well as against them severally. (Thomas v Moore (2)). If the appellant is right the immunity of a witness who made a slanderous statement in the course of his evidence would be destroyed by alleging that he had conspired to do so with another person. A witness usually discusses his evidence with the solicitor for the party on whose behalf he is going to give evidence, and often with that party himself, so it would be simple to allege the conspiracy to give false evidence or to utter a slander in order to found the action. The value of the immunity of witnesses would be substantially diminished and in fact almost destroyed if such an action could be brought because, even if it failed, as pointed out by Lord Penzance in Dawkins v Lord Rokeby (3), “the witness may be cleared by the jury of the imputation, and may yet have to encounter the expenses and distress of a harassing litigation. With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands.”[70] (citations omitted, emphasis added)
[70] (1940) 64 CLR 139, 151.
Advocate’s immunity
60 Mr Levine submitted that the doctrine of witness immunity does not encompass legal practitioners in respect of unlawful conduct during the course of legal proceedings because legal practitioners have a duty to the court that would otherwise be negated. He referred to Forster v Legal Services Board.[71] However the duty of legal practitioners is a duty owed to the court and does not give rise to an action for damages in respect of the evidence given by a witness. The duty of legal practitioners to the court does not negate the witness immunity and the advocate’s immunity.
[71] (1023) 40 VR 587, [161].
61 The Oakleigh Thompson defendants and Adams are also covered by the advocate’s immunity. In D’Orta-Ekenaike[72] McHugh J held that the advocate’s immunity extends to any work by a barrister or solicitor which would require the impugning of a final decision of a court or the relitigation of matters already finally determined by a court. The plurality (Gleeson CJ, Gummow, Hayne and Heydon JJ) referred to the rationale of the advocate’s immunity:
Rather, the central justification for the advocate’s immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of relitigation would arise. There would be relitigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be relitigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the relitigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the reopening of controversies would exist, but one of an inefficient and anomalous kind.
A justification based on finality has as much force today as it did when Giannarelli was decided. Given this, what changes have occurred since the decision in Giannarelli which would necessitate a reconsideration of that decision?[73]
[72] (2005) 223 CLR 1, [168].
[73] (2005)223 CLR 1, [45]-[46].
62 More recently, in Attwells v Jackson Lalic Lawyers Pty Ltd[74] (Attwells), the High Court rejected a submission that the advocate’s immunity should be abolished. A majority of the High Court held that the advocate’s immunity does not extend to negligent advice given by a lawyer which leads to settlement of a case.
[74] [2016] HCA 16.
63 Similarly in Kendirjian v Lepore[75] (Kendirjian) the High Court held that advocate’s immunity did not extend to the advice given in relation to the settlement offer because the advice did not affect the judicial determination of the case. The High Court affirmed and refused to distinguish the decision in Attwells. Edelman J stated:
The joint reasons of the majority in Attwells explained the rationale for the immunity when declining to extend it to compromises. Since the immunity attaches by the “participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power”, it followed that the immunity did not extend to advice that leads to a settlement between the parties. Advice leading to a compromise of a dispute cannot lead to the possibility of collateral attack upon a non-existent exercise of judicial power to quell disputes. For this reason, the expression of the test concerning work done out of court which “leads to a decision affecting the conduct of the case in court”, or which is “intimately connected with” work in court, is not engaged merely by “any plausible historical connection” between an advocate’s work and a client’s loss. The test requires that the work bear upon the court’s determination of the case. There must be a “functional connection” between the work of the advocate and the determination of the case. (citations omitted, emphasis added).[76]
[75] [2017] HCA 13.
[76] [2017] HCA 13, [31].
64 In this case there is a functional connection between the work of the Oakley Thompson defendants and the determination of the case. Paragraph 33(d) of the amended statement of claim alleges that Maisano and Attard’s solicitors, the Oakley Thompson defendants, procured false evidence. In paragraph 43 of PASOC the plaintiffs allege that Hanlon J was misled by the deliberate calling of and the inducement to give the false evidence. The plaintiffs allege that Hanlon J had regard to the “false evidence” when determining the case.
65 In this case there is also a functional connection between the work of Adams and the determination of the case. Paragraph 33(c) of PASOC alleges that AAMI, through its solicitor, Adams, procured false evidence. In paragraph 43 of PASOC the plaintiffs allege that Hanlon J was misled by the deliberate calling and the inducement to give the false evidence. The plaintiffs allege that Hanlon J had regard to the “false evidence” when determining the case.
66 The facts in this case are different from the facts in Attwells and Kendirjian. The pleaded case is that the conspiracy between AAMI and Maisano and Attard, acting through their legal representatives, led to false evidence being given in the earlier proceeding and led to a judgment which would need to be reopened.
The undisclosed documents
67 I now propose to deal with the undisclosed documents referred to in paragraph 18 of PASOC. In paragraph 19 of PASOC the plaintiffs allege that the undisclosed documents were in the possession of the defendants and the defendants deliberately failed to disclose the undisclosed documents at the hearing of the earlier proceeding. The plaintiffs allege that the non-disclosure of the content of the undisclosed documents caused the evidence given in the course of the trial to be misleading inasmuch as the content of those documents indicates that:
(a) Maisano and Attard had not relied on any representations by Murdaca and Bodycorp;
(b) Murdaca and Bodycorp had not made any misleading or deceptive representations;
(c) Maisano and Attard had been reimbursed by a third party for the cost of renovations after valid deductions had been made;
(d) AAMI did treat the Malvern Business and its successor Bodycorp Malvern as being an AAMI recommended retailer or on trial to become one during 1997 and 1998, but did not disclose that to the court.
68 The plaintiffs allege that the undisclosed documents save for the Maisano affidavit were documents which Oakley Thompson had a duty to disclose under their obligations to provide discovery in the proceeding and that AAMI, Belleville, Martin and Oswald had a duty to disclose pursuant to the subpoena that had been issued to them in or about February 2002 under the Rules.[77]
[77] PASOC paragraph 39.
69 The subpoena issued to Belleville was a subpoena to give evidence. The subpoena issued to Oswald was a subpoena to give evidence and produce “letters and copy letters passing between AAMI Insurance and Bodycorp Repairers Pty Ltd regarding the accreditation of the premises known as Central Malvern Accident Repair Centre situate at Malvern Road, as an accredited AAMI Repairer.” The plaintiffs did not rely upon or produce a subpoena issued to Martin.
70 The plaintiffs do not allege that Adams had a duty to discover the undisclosed documents.
18(a) The evidence contained in the exhibits in an affidavit sworn by Maisano on 17 November 2014 (Maisano’s affidavit)
71 The affidavit by Maisano was not sworn until 17 November 2014 which was 12 years after the earlier proceeding. Paragraph 19 of PASOC alleges that the undisclosed documents were in the possession of the defendants. The affidavit sworn by Maisano on 17 November 2014 cannot be an undisclosed document at the trial of the earlier proceeding because it was sworn 12 years after the trial.
72 Turning then to the exhibits to Maisano’s affidavit:
(a) Exhibit MM1 is the same document as referred to in paragraph 18(d) of PASOC.
(b) Exhibit MM2 is the same document as referred to in paragraph 18(b) of PASOC.
(c) Exhibit MM3 - File note dated 7 October 1998 prepared by Barry Martin (the 1998 Martin file note).
73 In that file note Martin stated:
Background
Mick Mason purchased the shop in 1997 and owned it up to 28 May 98 when it was sold to Debbie Holtzer. While Mick owned the shop we had made the decision not to provide quoting opportunities. This decision was made as a result of the relationship issues we were experiencing with Bodycorp at the time. For the period Jan-May ’98 a total of 34 jobs were quoted.
Shortly after Debbie bought the business we were having general discussions about repairer numbers for all Centres. In this particular case it was agreed that I talk with Mick Mason and explain to him that we may need to direct some quotes to this shop as we were short of numbers in the area and we needed to find other shops. I did visit him and have the discussion.
74 The file note then states that Debbie Holzer was provided with overflow opportunities from Blackburn and Moorabbin. In summary Martin concluded that “this shop falls in our Moorabbin zone and Debbie has never been told that they are on trial to become a preferred or Recommended repairer.” The email indicates that AAMI did not treat the Malvern Business and its successor Bodycorp Malvern as being on trial to become an AAMI Recommended retailer.
75 The AAMI parties were not parties to the earlier proceeding and accordingly the AAMI parties and/or Adams did not have a duty to discover the file note.
76 The file note was not a letter or copy letter and was outside the scope of the Oswald subpoena.
77 The AAMI subpoena was addressed to the proper officer of AAMI and required AAMI to produce:
All documents, notes, letters, memorandums and writings concerning requests by Bocycorp Repairers Pty Ltd or its associates for accreditation as an AAMI Authorised Repairer of the premises situated at Corner Tooronga Road and Malvern Road, Malvern and known as Bodycorp Malvern Accident Repair Centre in and about the period from January 1997 to December 1998.
78 In Penn-Texas Corporation v Murat Anstalt and others (No 2)[78] Lord Denning held that a person the subject of a subpoena to produce documents should properly be regarded as a witness. I accept Mr Madder’s submission that the witness immunity applies to AAMI and that an action does not lie against AAMI for failing to produce the file note.
[78] [1964] QBD 647.
79 Further I reject the plaintiffs’ submission that knowledge of the 1998 Martin file note would have influenced the decision of Hanlon J as to whether the representations were made or relied upon or whether the plaintiffs had reasonable grounds to make the representations. The substance of the information referred to in the file note is not inconsistent with the plaintiffs’ case in the earlier proceeding. The file note is consistent with documents that AAMI produced on subpoena to which Hanlon J refers in his reasons for judgment. In his judgment Hanlon J referred to a letter dated 14 November 1997 which reads as follows:
Addressed to Mr Ian Rogers, general manager, Bodycorp Repairers Ltd, Thompson Street, South Melbourne. Dear Ian, re Bodycorp Malvern Accident Repair Centre; thank you for your letter of 7 November 1997 advising that Bodycorp now owns the business which was formerly known as Malvern Body Works. For reasons recently explained to you by Robert Belleville AAMI will not be adding repairers to our existing recommended repairer panel until further notice. However, we appreciate your interest in requesting that Malvern Accident Repair Centre becomes an AAMI recommended repairer. Yours sincerely, Phillip Oswald, state manager, Victoria.[79]
[79] Trial Reasons p 300.
80 I reject the plaintiffs’ submission that the matters contained in the 1998 Martin file note are so material such as to make it reasonably probable that, if proven , the plaintiffs’ defence in the earlier proceeding will succeed.
(d)Exhibit MM4 – Notes that Michael Maisano alleges he was given for the purpose of giving evidence in the earlier proceedings.
81 The documents were created by Maisano’s solicitors Oakley Thompson. The notes are privileged and neither Maisano nor the Oakley Thompson defendants had a duty to discover the notes in the earlier proceeding.
82 The notes were not created by AAMI and were not documents in the possession of the AAMI parties or Adams. The AAMI parties did not have a duty to disclose the notes pursuant to the AAMI subpoena and/or the Oswald subpoena.
18(b) A statutory declaration sworn by Maisano on 1 September 1998
83 Paragraph 28 of PASOC alleges that the contents of the statutory declaration prepared and solicited by Adams for and on behalf of AAMI were not disclosed to the Court during the proceeding. Nor was it disclosed to Murdaca and Bodycorp prior to the determination of the proceeding.
84 The letter from Freehill Hollindale & Page dated 10 August 1998 and addressed to Oakley Thompson & Co encloses a draft statutory declaration for completion by Maisano. The subject header is “AAMI v Moorabbin Automotive” and relates to a different matter and a different franchise. The letter states “We confirm that we are retained to advise AAMI in respect of anticipated litigation with Bodycorp.” The letter then states that “We enclose a draft statutory declaration for completion by Mr Mason.” The next document which is exhibited MM2 to Maisano’s affidavit does not appear to be the document that was enclosed with the letter dated 10 August 1998.
85 In the letter dated 10 August 1998 Mr Adams said “Please let us have any comments you have so that the statutory declaration can be finalised. AAMI will not disclose the draft or final statutory declaration to any person unless ordered by a court to do so or unless Mr Mason agrees to the disclosure.” At the time this document was prepared, Adams was making a claim for litigation privilege over the document.
86 Counsel for Adams, Mr Aghion, submitted that insofar as there is a complaint about an undisclosed document authored by Adams, the complaint is of a failure to disclose a draft of a statutory declaration. Mr Aghion submitted that the plaintiffs are not able to claim that Adams deliberately withheld that document from the plaintiffs in circumstances where Adams’ client has instructed him to claim litigation privilege over both of those documents and where the allegation is that he forwarded a draft statutory declaration.
87 That was the situation in 1998 and the situation had not changed in 2002. Maisano has subsequently withdrawn or permitted the document to be disclosed but the situation in 2002 was that the privilege was claimed by both parties.
88 In Bodycorp Repairers Pty Ltd v Maisano (No 11)[80] Riordan J referred to the same documents and stated:
25The letter from Freehill Hollingdale & Page to Oakley Thompson dated 10 August 1998, together with the draft statutory declaration, were inadvertently made available during an inspection conducted by Bodycorp’s solicitors at Oakley Thompson’s offices on or about 20 June 2012. Bodycorp’s solicitors photographed the document and called for Oakley Thompson to produce a copy. Production was refused on the basis that the document was privileged and had been discovered in error.
26A subpoena was subsequently served on Ken Adams, the partner at Freehill Hollingdale & Page acting on behalf of AAMI, to produce documents including the signed statutory declaration. Adams produced the subpoenaed documents to the Court but objected to inspection on the ground of privilege.
27On 9 May 2013, Daly AsJ upheld the claim of privilege with respect to the documents produced by Adams and rejected Bodycorp’s submission that the privilege had been lost, pursuant to s 125 Evidence Act 2008, by reason of misconduct.
[80] [2016] VSC 645, [25]-[27].
89 Riordan J asked rhetorically “Although Bodycorp was restrained by the order of Daly AsJ from referring to the contents of the statutory declaration, it was not explained how [AAMI’s] reliance on privilege over the statutory declaration could constitute a fraud for the purposes of this cause of action.”[81] In this case the statutory declaration was a document over which privilege was claimed. Although the privilege was subsequently waived, it had not been waived at the time of the trial of the earlier proceeding in 2002.
[81]Bodycorp Repairers Pty Ltd v Masano [2016] VSC 645, [63(b)].
90 In this case Adams was acting for AAMI who was not a party to the proceeding. He held a draft statutory declaration over which his client had claimed privilege in respect of a dispute with Bodycorp. In these circumstances the allegation in paragraph 19 of PASOC that Adams “deliberately failed to disclose the affidavit” cannot apply to Adams. Adams did not disclose the affidavit because he did not have an obligation to disclose it. Furthermore Adams could not disclose the affidavit because of the litigation privilege that his client had claimed.
The AAMI parties
91 The plaintiffs relied on the AAMI subpoena. Aside from the matters referred in the above paragraphs 77 and 78, the letter dated 10 August 1998 by Freehill Hollingdale & Page to Oakley Thompson & Co enclosing a draft statutory declaration does not fall within the scope of the subpoena because it is not a document that AAMI would have in its possession. In any event it was not relevant to the proceeding and did not fall within the scope of the subpoenas.
92 Furthermore I reject the plaintiffs’ submission that knowledge of the matters set out in the statutory declaration sworn by Maisano on 1 September 1998 including the circumstances surrounding the preparation of the statutory declaration would have influenced Hanlon J’s decision as to whether the representations were made or relied upon. Judge Hanlon’s decision was based on the evidence of Maisano and Attard which was unchallenged at the trial of the earlier proceeding. Judge Hanlon also found that the plaintiffs had failed to establish that they had reasonable grounds for making that representation. The Court of Appeal affirmed that those factual findings were open to the trial Judge and refused to set aside the decision on appeal. The matters contained in the statutory declaration dated 1 September 1998 support Hanlon J’s judgment. The matters set out in the statutory declaration sworn by Maisano on 1 September 1998 including the circumstances surrounding the preparation of the statutory declaration are not such as to make it reasonably probable that the plaintiffs’ defence in the earlier proceeding would succeed.
18(c) -The 1999 Martin file note
93 In a file note dated 25 June 1999 Martin (the 1999 Martin file note) stated that “Centres are being instructed not to use any B/C shops and to wind back Malvern. I will continue to push for the same attitude with Tottenham.” This occurred more than a year after Maisano vacated the Malvern premises.
94 This is an internal file note by Martin who was an employee of AAMI. There is no allegation that that document was ever in the possession of Adams.
95 The file note was made by Martin on 25 June 1999 and does not fall within the scope of the subpoena as it postdates the documents that AAMI was to produce under the subpoena. The temporal limitation was January 1997 to December 1998.
96 The document was not a letter or copy letter and outside the scope of the Oswald subpoena.
97 In any event the substance of information conveyed is consistent with documents AAMI produced on subpoena and referred to in Hanlon J’s judgment. The matters contained in the 1999 Martin file note are not such as to make it reasonably probable that the plaintiffs’ defence in the earlier proceeding would succeed.
18(d) - facsimile transmission from Davies to Maisano dated 29 July 1998 (the Davies fax)
98 By fax to Maisano dated 29 July 1998 Davies of Oakley Thompson attached a letter from Adams for and on behalf of AAMI confirming that AAMI had withdrawn the termination of the Recommended Repairer Agreement and Davies stated “I guess we will have to wait and see what happens next with AAMI, it is probably time to think about suing Bodycorp.”
99 Insofar as the Davies fax is concerned, this is a document passing between a solicitor and their own client giving legal advice. Accordingly it cannot be said that it would be wrong to withhold it from a third party. The document is clearly privileged on an advice basis. Also the Davies fax refers to Moorabbin, a different franchise.
100 After Davies had given that privileged advice to his client, Maisano, he then annexed a letter. The letter dated 29 July 1998 is from Adams at Freehill Hollingdale & Page to Davies at Oakley Thompson. The letter does not appear to be relevant to the earlier proceeding. The heading of the letter is “AAMI v Moorabbin Automotive” and has nothing to do with the earlier proceeding which concerned Malvern. The letter states that “We are instructed on behalf of AAMI to withdraw the Notice of Intention to Terminate the Recommended Repairer Agreement dated 17 July 1998.”
101 Furthermore, the letter dated 29 July 1998 states “Copy to: Holding Redlich (solicitors for Bodycorp Repairers Pty Ltd)” beneath the signature block of Mr Adams in the letter dated 29 July 1998. This was not an undisclosed document. The letter was disclosed on 29 July 1998. The letter indicates that the allegation that Adams withheld this correspondence from Bodycorp is not correct. The allegation in paragraph 32 of PASOC that “at no time prior to the day on which judgment was handed down did the plaintiffs know the content of any of the Undisclosed Documents” appears to be incorrect.
102 Davies is a solicitor at Oakley Thompson. He is Maisano’s solicitor. Neither AAMI nor Oswald would have possession of the facsimile transmission from Davies to Maisano dated 29 July 1998 and it would not be produced under subpoena.
18(e) - A file note by Martin dated 26 August 1998
103 This file note does not refer to Malvern. It related to the Berwick franchise. At the time this file note was written, Maisano had left the Malvern premises. The matters referred to in the file note were not relevant to the issues determined by Hanlon J in the earlier proceeding.
The claim against Adams
104 Paragraph 19 of PASOC alleges that the undisclosed documents were in the possession of the defendants. Of the 6 documents described as undisclosed documents, only two are alleged to have been in the possession of Adams at the time of the trial of the earlier proceeding. They are:
(i) the statutory declaration sworn by Maisano on 1 September 1998 being the document described at paragraph 18(b) and 21-28 of PASOC; and
(ii) a letter from Adams to Oakley Thompson dated 29 July 1998 which formed part of the Davies fax being the document described at paragraphs 18(d) and 30 of PASOC.
105 As stated in the above paragraph 84, Bodycorp relies on a draft statutory declaration. The draft statutory declaration was subject to litigation privilege.
106 Adams could not have disclosed the draft statutory declaration because at all material times it was a document which was subject to litigation privilege and litigation privilege was claimed over it.
107 As to the letter from Adams forming part of the Davies Fax, an inspection of that letter shows that it was copied to Holding Redlich, the former solicitors to Bodycorp, at the time it was sent.
108 The allegation at paragraph 19 of PASOC that Adams deliberately failed to disclose this letter to Bodycorp is incorrect. So is the allegation at paragraph 32 of PASOC that “At no time prior to the day on which judgment was handed down in the proceeding did the plaintiffs know the content of any of the Undisclosed Documents”.
109 Paragraph 33 of PASOC sets out the allegation of conspiracy. It says that “AAMI, through its solicitor, Adams, procured false evidence for the purpose of the conspiracy”.
110 Mr Levine submitted that the doctrine of witness immunity should not be extended to the conduct of a lawyer acting for a witness. Adams was neither a witness nor a legal practitioner involved in the earlier proceeding. He referred to paragraph 96 of the judgment of Bond J in Lee v Abedian & Ors [82] that “the circumstances giving rise to witness immunity should not be extended, unless it is necessary to do so”.
[82] [2016] QSC 92, [96].
111 I reject Mr Levine’s submission. In this case the allegation against Adams is that he procured false evidence for the purpose of the conspiracy. The basis for the witness immunity is to avoid relitigation of matters that have already been determined.[83] The plaintiffs’ claim against Adams has no real prospect of success.
[83]D’Orta-Ekenaike (2005) 223 CLR 1, [45].
Conclusion
The Oakley Thompson Defendants
112 For the reasons I have stated, the plaintiffs’ claims against each of the Oakley Thompson defendants have no real prospect of success. I propose to order that judgment be entered for each of Oakley Thompson, Davies and Broadbent against the plaintiffs.
The AAMI parties
113 For the reasons I have stated, the plaintiffs’ claims against each of the AAMI parties have no real prospect of success. I propose to order that judgment be entered for each of AAMI, Martin, Oswald and Belleville against the plaintiffs.
Adams
114 For the reasons I have stated, the plaintiffs’ claim against Adams has no real prospect of success. I propose to order that judgment be entered for Adams against the plaintiffs.
Plaintiffs’ application to amend its statement of claim
115 By summons dated 13 February 2017 the plaintiffs issued a summons seeking an order that it be allowed to amend the Statement of Claim. The proposed amended statement of claim was exhibited to an affidavit made by Niren Raj on 13 February 2017.
116 In Mandie v Memart Nominees Pty Ltd[84] the Court of Appeal stated:
The CP Act [the Civil Procedure Act 2010] has changed the litigation landscape. One of the main purposes of that legislation is to reform practice and procedure in civil proceedings, including by reforming the law relating to summary judgment. More than ever, the focus is now pointedly on efficiency and cost-effectiveness, albeit that they are not the only, nor the predominant, considerations. One consequence is that amendments that might have been permitted previously may no longer be allowed. As such, the older authorities that preceded the CP Act which set out when a pleading amendment will be allowed must be approached with caution.
The power conferred on the court by s 63(1) of the CP Act to dispose of claims before a trial facilitates one of the stated purposes of the Act. Subject to limited exceptions, if a claim or defence has no real prospect of success, then summary judgment may be given. It must follow that a proposed pleading amendment raising a claim or defence of that type should not be permitted. To grant leave in that circumstance would be futile as the claim or defence would be susceptible to a summary judgment application. … (citations omitted).
[84] [2016] VSCA 4, [42].
117 As I have determined that the plaintiffs’ claims against the non-party defendants have no real prospect of success, I refuse the plaintiffs’ application to amend the Statement of Claim.
118 I will hear further from counsel as to the appropriate form of the orders, including on the issue of costs.
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