Carlose v Australian Government Solicitor - [2000] WADC 273

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CARLOSE -v- AUSTRALIAN GOVERNMENT SOLICITOR & ANOR [2000] WADC 273

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 22 SEPTEMBER 2000

DELIVERED : 30 OCTOBER 2000

FILE NO/S: CIV 1733 of 2000

BETWEEN: EAPON CARLOSE
Plaintiff
AND
AUSTRALIAN GOVERNMENT SOLICITOR
First Defendant
GRAEME WINDSOR
Second Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to strike statement of claim and dismiss action - O 20 r 19(1) - Claim based upon inducement of breach of contract and interference with economic relations

Legislation:

Rules of the Supreme Court of Western Australia

Result:

Pleading struck out

Representation:

Counsel:

Plaintiff:     In Person
First Defendant             :     Mr S R Edwards
Second Defendant         :     Mr S R Edwards

Solicitors:

Plaintiff:     Not Applicable
First Defendant             :     Edwards Wallace
Second Defendant         :     Edwards Wallace

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Allstate Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 130 ALR 469
Brekkes v Cattel [1972] 1 Ch 105
Davies v Nyland (1975) 10 SASR 76
Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 545
Emerald Construction Co Limited v Lowthian [1966] 1 WLR 691
Labrador Park Shopping Centre Pty Ltd v Esbas Pty Ltd (1984) Aust Torts Reports 80-694
McKernan v Fraser (1931) 46 CLR 343
Midland Cold Storage Co Limited v Steer [1972] 1 Ch 630
Northern Territory v Mengel (1995) 185 CLR 307
Sanders v Snell (1998) 157 ALR 491

DEPUTY REGISTRAR HARMAN: By their application filed 24 July 2000, the defendants seek an order that the statement of claim be struck out under O 20 r 19(1) of the Rules of the Supreme Court of Western Australia. They also seek judgment.
The exercise of discretion to strike a pleading on the ground that it does not disclose a cause of action depends upon a finding that the allegations in the pleading would not establish a cause of action. For the purposes of the application it is appropriate to consider that allegations of material fact are unassailable. The onus is on the applicants.
The plaintiff seeks damages on the basis of either inducement of breach of contract or interference with economic relations.
The pleading could be related in the following terms. The plaintiff is a legal practitioner formerly employed by the first defendant. Australian Customs Services’ Regional Office in Western Australia ("ACSWA") was its client. It had instructed that defendant to act in relation to discrete matters. In the course of his employment the plaintiff was engaged in the provision of services to the client in relation to those matters. At or about the time of the termination of the plaintiff’s employment, that defendant’s director, the second defendant was informed and instructed by the client that subsequent to that termination it wanted the plaintiff to act as counsel. ACSWA and the plaintiff entered into an agreement to that effect. The second defendant consented to that agreement. Subsequently the second defendant interfered in that agreement. Particulars of that interference are as follows:
(a)He sought to persuade ACSWA not to perform the agreement and to exclude the plaintiff from further involvement in the matters.
(b)Similar to (a) and in addition, he represented to ACSWA that the plaintiff did not wish to perform the agreement.
(c)He induced ACSWA to engage the first defendant to provide the relevant services in relation to the matters.
The plaintiff also gives particulars of the malice of the second defendant as follows:
(f)That he was motivated by the first defendant’s loss of income and ongoing work.
(g)There was an inconsistency that may have been apparent to his superiors. That inconsistency would arise in the termination of the plaintiff’s employment yet the maintenance of a professional relationship for the purposes of facilitating the agreement.
(h)The interference was inconsistent with the expressed wishes of ACSWA and his employer’s (the first defendant’s) policy and goals.
(i)The interference was without justification.
(j)The interference commenced on the day that the plaintiff’s resignation took effect and not before.
(k)An offer made by him to the plaintiff for the first defendant to re-engage the plaintiff at a reduced rate which offer the plaintiff rejected.
An essential element of the tort of interference with economic relations is an unlawful act.
The relevant part of the pleading is that the second defendant’s unlawful interference with the agreement between the plaintiff and ACSWA caused the plaintiff loss. It would appear that the pleading is structured such that the plea that the interference was unlawful is supported by the particulars of malice. The term "malice" is described in Shroud’s Judicial Dictionary as qualifying a wrongful act by it having been committed intentionally without just cause or excuse. A wrongful act is probably an unlawful act for the purpose of the cause of action. An unlawful act is one that infringes rights. It is my opinion that none of the particulars of malice provided in the pleading countenance any unlawful act.
Based on that analysis it is my opinion that the allegation of unlawful conduct is not supported by any material fact or particular. It is a bare allegation.
It is my opinion that the particulars of malice do not necessarily engage or relate to the particulars of interference. The particulars of malice appear to be no more than details of circumstantial evidence concerning an allegation that has not been pleaded. Particulars of malice are inappropriate in a case that does not depend upon any such finding. It is fair to assume that if the plaintiff was aware of any unlawful element of the conduct that constitutes the alleged interference, he would have pleaded it. In my opinion there is no cause of action for interference with economic relations.
The cause of action for inducement of breach of contract depends upon the existence of a contractual relationship.
The pleading identifies the relevant relationship as being established by an agreement. The difficulty in dealing with the application lies in the pleading. It is impossible to determine with any certainty what was agreed, by whom and whether whatever was agreed would constitute a sufficient relationship for the purposes of the cause of action. The pleading fails to convey any consistent case or cases.
A significant feature of the pleading is that it allows for an historical analysis that may have a bearing upon the relationship between some or all of the parties at the material time.
The first defendant employed the plaintiff and ACSWA was a client of the first defendant. Yet it is also pleaded that on the instructions of the client the plaintiff would have the conduct of the relevant matters. I imagine that would be on behalf of the defendant. It is not pleaded whether the client was entitled to give such an instruction and if so, to whom. In my opinion that allegation and what may be implicit in it may have a significant impact upon what the terms "employment" and "client" may mean.
The next complicating feature is that the pleading would suggest that the plaintiff might otherwise have had conduct of the matters as a consequence of his status as In-House Counsel. That pleading would appear to have nothing to do with any solicitor and client relationship but rather the employment relationship. If that is so it is irrelevant. If it is intended to convey some impact upon the solicitor and client relationship, I do not know what that impact may be.
The plaintiff also pleads that during the period of his employment he had the conduct of the relevant matters as both solicitor and as counsel. It is in that context that he introduces the agreement that is expressed to be between himself and ACSWA. That agreement was that the plaintiff would continue to have conduct, care and control of the matters as counsel. Yet that pleading is contradicted by the statement that the plaintiff would continue performing the tasks previously undertaken which include as solicitor.
For the plaintiff to be engaged as counsel would require either ACSWA to enter into an arrangement with the plaintiff exclusive of the first defendant or for the first defendant to engage the plaintiff as counsel. Arguably the reference to the fact that the plaintiff had acted as solicitor and the reference to the agreement comprehending that the plaintiff would continue to perform the tasks and providing the services he had provided as an employee would connote that the first defendant was excluded.
However in that event the reference to ACSWA’s wishes that it wanted the plaintiff to be counsel (if not also have the conduct, care and control of the matters) and that it so instructed the second defendant would be irrelevant. Similarly so for the second defendant’s consent. The pleading of the instruction may be considered to be telling. It allows for a perception that the first defendant would be required to brief the plaintiff. There are features of the particulars that confirm that view. At (a) and (b) it is implicit that the first defendant had an ongoing role. At (c), the services comprehended are implicitly those provided by the plaintiff as the first defendant’s employee. It is patently obvious at (g) and (h) that those particulars would be meaningless in the absence of an ongoing relationship between ACSWA and the first defendant. Further, throughout the pleading the plaintiff refers to the matters as "Briefs".
It is my opinion that the pleading is no more than the salient points from an inconclusive proof. The function of pleadings is to inform. It is appropriate that the pleading party clearly states its case. Either the defendant had a role to play in the relationship sought to be constructed at the conclusion of the plaintiff’s employment or it did not. It is only when the plaintiff asserts its case or cases that consideration can be given to the existence of a cause or causes of action.
Understandably in light of that fertile ground presented by the pleading the defendants are confused. Until the confusion is resolved the defendants’ application is not amenable to determination.
The pleading ought to be struck out.