Crisp - v - RSM Bird Cameron Partners
[2013] VCC 489
•3 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted |
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-12-05914
| GLENN ANTHONY CRISP | Plaintiff |
| – v – | |
| RSM BIRD CAMERON PARTNERS (A FIRM) & Ors (according to attached Schedule) | Defendants |
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JUDGE: | HER HONOUR JUDGE KENNEDY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2013 | |
DATE OF JUDGMENT: | 3 May 2013 | |
CASE MAY BE CITED AS: | Crisp – v – RSM Bird Cameron Partners | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 489 | |
REASONS FOR JUDGMENT
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Catchwords: Practice and Procedure – Application under R 32.03 and/or 32.04 of the County Court Civil Procedure Rules 2008 against Bird Cameron partners to identify a defendant alleged to have leaked statement of claim to the Age newspaper – application refused in circumstances where Bird Cameron was already a defendant in another proceeding – discretionary considerations warrant refusal in any event.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. K. Wilson QC with Mr D. P. Gilbertson | Rothwell Lawyers |
| For the Defendant | Mr R. Peters | Lander & Rogers |
HER HONOUR:
Background
1 This is the return of an Originating Motion and Summons dated 30 November 2012 whereby the plaintiff seeks orders pursuant to Rule 32.03 and/or Rule 32.04 of the County Court Civil Procedure Rules 2008 that various individuals be orally examined in relation to the description of the person or persons who provided the Age newspaper and/or its journalist, Adele Ferguson, with a copy of a document entitled ‘Statement of Claim’ in another County Court proceeding, CI‑12‑05408 (the first proceeding).
2 The plaintiff also seeks an order for discovery of all documents which are or have been in these persons’ possession relating to the description of the person referred to.
3 The Originating Motion and Summons were in identical terms and were framed against ‘the defendants’ to the originating motion which were RSM Bird Cameron Partners (a firm) (RSMBC); Lander & Rogers (a firm) and Andrew Beck, a partner of RSMBC.
4 However, in the result, Senior Counsel for the plaintiff, Mr Wilson QC, only pursued an order against 4 partners of RSMBC (the relevant partners ) as follows:
·Andrew Beck;
·Robert Miano;
·Kim Hutchinson; and
·Jean-Marc Imbert
5 In relation to Lander & Rogers, there was affidavit material filed on behalf of the relevant lawyers at Lander & Rogers which suggested that no-one at Landers emailed or gave a copy of the Statement of Claim to the Age or Ms Ferguson and that, further, they had no knowledge of how the Age obtained a copy of it, nor did they have any documents which might disclose how she obtained it.[1]
[1] Affidavit of Mr Rakoczy of 12.12.12 paras [15] – [16]; Affidavit of Mr McKenzie of 12.12.12 paras [13] – [14].
6 The plaintiff accepted the statements on oath from representatives of Lander & Rogers, but subject to the qualification that the plaintiff might wish to pursue Landers in the event that some positive evidence came out of the examination process that pointed that way.
7 However, notwithstanding affidavit evidence from various partners at RSMBC, the plaintiff pursued his application against the relevant partners. The plaintiff emphasised that the relations between Crisp and his former partners were acrimonious. In these circumstances, the plaintiff suggested that RSMBC was really the source of the leak which must have occurred between 16 and 20 November. Further that, despite extensive inquiries, the defendants had not told the plaintiff the name of the partner concerned.
8 The plaintiff relied on a detailed chronology. Although some of the matters may be of questionable relevance to the instant application, the general background to this application will be summarised, below.
Background
9 Mr Crisp is a chartered accountant and official liquidator. He was formerly an equity partner of RSMBC from 2002. He retired from RSMBC on 16 August 2012 in circumstances which he says were ‘not amicable’. There was a confidential deed of settlement between the parties at that time.
10 Mr Crisp has since been a partner of a rival insolvency practice.
Statement of claim in the first proceeding
11 Mr Rakoczy, senior associate of Lander & Rogers, signed a Statement of Claim in the name of RSMBC against Mr Crisp in the first proceeding on the afternoon of Friday 16 November, 2012.
12 That Statement of Claim contains serious allegations of breach of duties against Mr Crisp regarding his role as liquidator of Foodlife Inventory Holdings Pty Ltd. It alleges that Mr Crisp breached his fiduciary duties to RSMBC by appropriating for his personal use and benefit liquidation fees properly owed to RSMBC under the partnership agreement. It alleges that Mr Crisp paid the money into his personal bank account and to meet personal debts, fraudulently concealing the payments from RSMBC. The misappropriated amount is alleged to be $514,313.
13 The original statement of claim was filed at the County Court registry by Mr Rakoczy’s personal assistant, Ms Walker, with 3 further copies stamped with the date and time of “November 16 2012 15:45.”
14 Mr Rakoczy states that 3 ‘sealed’ copies were returned to Landers whereupon another personal assistant, Ms Oreto, placed 2 of the 3 into an envelope to send to the process server (although it appears that the process server did not receive the documents until the morning of 20 November).
15 At 5.51 pm on Friday 16 November, Ms Walker emailed Mr Rakoczy a PDF copy of the remaining Statement of Claim. He then emailed this copy to Mr Marsden of RSMBC, Sydney office; copied to Mr Hutchinson of RSMBC and Mr Touyz (RSMBC’s Western Australian solicitors) as well as Mr McKenzie and Mr Humphrey-Smith of Landers at 5.54 pm.
16 On Friday 16 November Mr Crisp became aware that proceedings may have been issued against him in the County Court, although he had not yet been served (he was not formally served until 22 November, subsequent to attempted service).
17 A print out from Court Connect showed that a Statement of Claim was filed on 16 November. However, the Statement of Claim was not physically on the file as of 19 November at which time it was searched by an employee of Rothwells (solicitors for the plaintiff). It further appears that it did not physically reach the file until 20 November when it was again the subject of a search by a Rothwells employee.
18 At approximately 4.41 pm on 20 November Mr Crisp received an email from Adele Ferguson, a reporter from the Age newspaper, stating that she had a copy of the Statement of Claim filed by RSMBC.
Supreme Court proceedings
19 Mr Crisp then issued proceedings in the Supreme Court seeking an interlocutory injunction against Fairfax Media Ltd from publishing the allegations contained in the Statement of Claim.
20 On 20 November Mr Crisp brought an urgent injunction before Justice Sifris which was adjourned until 26 November with Fairfax undertaking not to publish the allegations contained in the Statement of Claim until 26 November.
21 On 26 November the Chief Justice heard the application and reserved her decision with the undertaking extended pending judgment. During the hearing it was accepted by the Age that the Statement of Claim had been handed to Ms Ferguson by an unnamed source and was not received via a search of the County Court file.
22 By decision of 19 December Chief Justice Warren refused to grant the interlocutory injunction and also refused an application for Fairfax to disclose the identity of the source of the statement of claim pursuant to Rule 32.04.[2]
[2]Crisp v Fairfax Media Pty Ltd & Ors [2012] VSC 615.
23 On 20 December, articles were then published in the Age concerning Mr Crisp.
County Court proceedings
24 By originating motion and summons dated 30 November, Mr Crisp, as plaintiff, sought orders against RSMBC, Lander & Rogers, and Mr Beck, pursuant to Rule 32.03 in this proceeding (CI-12-05914). The matter was adjourned over until 24 April.
25 On 8 April, 2013 Mr Crisp filed a Defence and Counterclaim in proceeding CI-12-05408.
26 By his Counterclaim, he alleges that between about 16 November 2012 and 20 November 2012 a person or persons presently unknown to the defendant and acting on behalf of the first plaintiff (RSMBC) provided to Adele Ferguson a copy of the Statement of Claim in this proceeding. Further, that the Statement of Claim was published maliciously for the purposes of procuring its republication in the public press and damaging the defendant’s business and reputation (the injurious falsehood claim).
27 The Counterclaim provides particulars of the alleged state of mind of RSMBC which include the acrimonious relationship between Mr Crisp and partners of RSMBC, particularly Mr Beck and Mr Miano (the managing partner of the Melbourne office).
28 The Counterclaim then seeks damages against RSMBC, including exemplary damages.
Other evidence
Affidavits from RSMBC
29 Mr Beck has sworn that, although he knew that RSMBC had filed a Statement of Claim, during the period 15 to 21 November, 2012, he did not have or receive an original or a copy of the Statement of Claim; he did not email or give the pleading to any third party; and to the best of his knowledge, no other partner or employee emailed or gave a copy of the Statement of Claim to the Age. Further, he does not know who gave the pleading to the Age and has no documents which show who did.[3]
[3] Affidavit of Mr Beck of 11.12.12 paras [5] – [6].
30 Mr Marsden has also sworn that he did not give the pleading to any third party and did not request anyone to do so; does not know how Ms Ferguson obtained it; and has no documents showing how it occurred; also that Mr Hutchison has informed Mr Marsden to the same effect.[4]
Oral evidence
[4] Affidavit of Mr Marsden of 12.12.12 paras [5] – [7].
31 Oral evidence was also called on the application from a Mr Timothy Holden, who is a chartered accountant. He gave evidence that on 24 November he ran into Ms Tracey Rothwell, solicitor for Mr Crisp, at a party. He advised her that at an accountants’ function on 21 November he had run into a representative of RSMBC, a Jean-Marc Imbert, whom he believed to be a partner of the firm. The name of Mr Crisp was raised and the evidence of Mr Holden was that Mr Imbert said words to the effect of “watch this space, there will be something in the media next week.” More particularly, that he was told to watch for an article in the Age newspaper in the Monday or Tuesday of the week following.
Objections
32 The defendants made a number of objections to the affidavit material.
33 I accept that the plaintiff’s affidavit material appeared to include conclusory statements, as well as material of only marginal relevance. However, I have generally allowed such evidence in, while giving it appropriate weight.
Rules
34 Order 32 is concerned with “Preliminary Discovery and Discovery from a Non-Party.” The heading to Order 32.03 reads “Discovery to identify a defendant.”
35 Pursuant to Rule 32.03(1), the Court may make an order under paragraph (2) where:
(a) an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this Rule called the person concerned); and
(b) it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had in that person's possession any document or thing, tending to assist in such ascertainment (emphasis added).
36 Order 32.03(2) then makes provision for the Court to order the person to attend for oral examination in relation to the description of the person concerned and to make discovery relating to the description of the person concerned.
37 The “description” of the person is defined as including the name, place of residence, place of business, occupation and sex of the person against whom the applicant desires to bring a proceeding and whether that person is an individual or a corporation (Rule 32.01).
38 Rule 32.04 makes provision for the application of Rule 32.03 where the applicant is already a party and provides that:
Rule 32.03, with any necessary modification, shall apply where the applicant is a party to a proceeding and wishes to make in the proceeding against a person who is not a party a claim which the applicant could properly have made in the proceeding had the person been a party (emphasis added).
39 Rule 32.03 as modified by Rule 32.04, appears to contain the following requirements:
·there must be a cause of action;[5]
·the plaintiff must actually have a genuinely held and objectively based desire to commence a proceeding;[6] or, pursuant to Order 32.04, must wish to make a claim in the proceeding against a person who is not a party;
·the plaintiff must be unable to ascertain the description of the person sufficiently for the purpose of commencing a proceeding, or (pursuant to Order 32.04) in order to make a claim against a non-party in an existing proceeding;
·the plaintiff must have made reasonable inquiries to ascertain the description; and
·it must appear to the Court that each of the persons has or is likely to have knowledge, or has/is likely to have, or has/is likely to have had, documents tending to assist in the ascertainment.
[5] Lynx Engineering Consultants Pty Ltd v ANI Corporation Ltd & Ors (No 2) (2007) 163 FCR 372 [26].
[6] Roads and Traffic Authority of New South Wales v Care Park Pty Ltd [2012] NSWCA 35 [105] – [106].
40 The rule provides for a discretion such that the Court “may” or “may not” make the order even if the prescribed criteria are satisfied.[7]
[7] Crisp v Fairfax Media Pty Ltd & Ors [2012] VSC 615 [38]; Breschi & Son Pty Ltd v AFT Ltd & Ors [1988] VR 109, 114.
Application of Rules to present case
Cause of action and reasonable inquiries
41 Although there was a suggestion of defamation in written submissions the application was run, consistent with the Counterclaim filed, on the basis that the plaintiff wished to pursue an injurious falsehood claim.
42 There may be room for debate as to the strength of the plaintiff’s claim for injurious falsehood, particularly since the pleading was publicly available on the file on the same day that Ms Ferguson contacted Mr Crisp.
43 However, the defendant accepted that the plaintiff has a cause of action for the purposes of this application in that he has already counterclaimed against RSMBC (and hence Beck) for injurious falsehood.
44 The materials also suggest that Rothwells have made reasonable inquiries, and the defendant did not contend otherwise.
Desire
45 A difficulty with the application is that both Orders 32.03 and 32.04 provide for an examination to occur to identify the description of a defendant where that identity is unknown and that person is not already a defendant in a proceeding.
46 Thus, Order 32.03 is concerned with identifying a defendant for the purpose of commencing a proceeding, while Order 32.04 is concerned with identifying a person who is not already a party.
47 Seen in this light, this application appears misconceived. Thus, the plaintiff alleges that the only people with access to the Statement of Claim were Lander & Rogers or RSMBC. He further accepts the oath of the Landers solicitors but alleges that someone at RSMBC must be the responsible source, either directly or through a third party. He therefore seeks to utilise Order 32.04 to ascertain the particular partner concerned, highlighting the animosity of the partners (particularly Mr Beck and Mr Miano).
48 The difficulty is that the partners of RSMBC are already defendants in the first proceeding. Thus, the defendant to the Counterclaim is RSM Bird Cameron. However, a partnership firm has no legal existence as such since the name of the firm is only an expression and not a legal entity. A proceeding against the firm name is therefore a proceeding against each of the partners individually.[8]
[8]See cases referred to Williams, Civil Procedure in Victoria, at [17.01.10].
49 The result is that the plaintiff has already identified the partners, and/or someone acting on behalf of the partners, as the appropriate defendants to any claim. There is therefore no desire or wish to bring a proceeding against a non-party because the persons named are already defendants.
50 The plaintiff suggested that the individual may have acted without authority. However, the Counterclaim is brought against each individual partner regardless of authority.
51 The particulars to the “malicious” intention at paragraph 51 of the Counterclaim also suggest that the only persons likely to be responsible for the provision of the pleading were members of the partnership (including Mr Beck and Mr Miano).
52 There is nothing in the evidence adduced to suggest that the appropriate defendant would be someone other than a partner or a person acting on behalf of a partner. This is also consistent with the identity of the persons sought to be examined (who are all partners).
53 The court will not make an order under Order 32.04 so that a party may ascertain a speculative proceeding.[9] I am unable to be satisfied, in these circumstances, that the plaintiff has a cause of action in the proceeding against a person “who is not already a party”.
Unable to ascertain
[9]Crisp v Fairfax Media Pty Ltd & Ors [2012] VSC 615 [38].
54 Mr Crisp also cannot suggest that he is unable to ascertain the description of the defendants since he has already identified the partners of RSMBC as the appropriate defendants.
55 The plaintiff submitted that it was important to identify the particular individual concerned so as to claim vexatious damages against the particular individual.
56 However, again, each individual member of the partnership is already a defendant to the Counterclaim. What the plaintiff appears to be, in reality, seeking is to determine which partner was individually responsible. However, rule 32.03/04 cannot be used to determine which particular individual was responsible.[10]
[10]Breschi & Son Pty Ltd v AFT Ltd & Ors [1988] VR 109, 113.
57 Given these findings, the plaintiff’s application must be refused and it is unnecessary to consider any other elements. However, some brief observations will be made as to the knowledge element.
Knowledge or documents
58 In order to establish this element, the plaintiff would have to convince the court to reject the sworn affidavit evidence of Mr Beck and, indirectly, of Mr Hutchinson.
59 There is no sworn evidence from Mr Miano, but there is, equally, no direct evidence that the pleading was sent to him by Landers. Moreover, although Mr Miano appears to have been aware of the existence of the pleading,[11] this does not mean that Mr Miano was the Age source and/or is likely to be aware of the identity of any source.
[11] See letter from Landers of 18 December, 2012 which states that Mr Beck became aware of the Statement of Claim being filed when he was told of that fact by Mr Miano on 20 November (at Exhibit TPR10 to the affidavit of Ms Rothwell of 19 December 2012).
60 In terms of Mr Imbert, it is true that the evidence from Mr Holden may suggest that Mr Imbert could be the source and/or might know something about the identity of the source. This is because his apparent knowledge about the Age involvement (on 21 November) occurs very soon after the document was provided to the Age.
61 No affidavit evidence has been obtained from Mr Imbert. However, this is readily explicable given the way this evidence was led (in the closing stages of the application from a witness on subpoena).
62 In any event, given my findings on the other elements, it is unnecessary to determine the knowledge element further. Instead, the relevant evidence will potentially warrant further consideration in the first proceeding itself.
63 The evidence of Mr Holden does, however, highlight the potential for any examination to expand and continue which will be considered further, below, on the issue of discretion.
Discretion
64 Even if the criteria were met for the exercise of discretion, it appears impossible to predict the course any examination could take.
65 The plaintiff continues to “reserve his rights” to examine other parties. This potentially covers some 85 RSMBC partners as well as some 55 partners of Lander & Rogers and confirms that there is a significant risk of a protracted examination.
66 The fact that the plaintiff appears to be wishing to challenge evidence already on oath also suggests a risk of a trial within a trial, which is not in the interests of justice.
67 Given the existence of the first proceeding, Mr Crisp’s interests can be adequately protected by the court’s usual powers within this proceeding. This may include the ordering of an affidavit from Mr Imbert (and I will hear from the parties prior to making such an order).
68 Given the risk of a protracted examination process, I would therefore not be prepared to make the orders sought as a matter of discretion even if, contrary to my earlier findings, the plaintiff had satisfied the relevant criteria.
Conclusion
69 The originating motion should be dismissed as against RSMBC (including Mr Beck).
70 The sworn evidence from the solicitors at Landers suggests they do not have any requisite “knowledge” and the plaintiff accepted this subject to anything coming out of an examination. Given no examination is to take place, it is appropriate that the originating motion should also be dismissed against Landers.
71 The proceeding will therefore be dismissed.
72 I will hear from the parties on the question of costs.
SCHEDULE
GLENN ANTHONY CRISPPLAINTIFF
– v –
RSM BIRD CAMERON PARTNERS (A Firm) FIRST DEFENDANT
– and –
LANDER & ROGERS (A Firm) SECOND DEFENDANT
– and –
ANDREW BECK THIRD DEFENDANT
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