Jafari v Alderuccio
[2015] VSC 684
•2 DECEMBER 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2011 01274
| KOUROSH JAFARI AND ANOTHER | Plaintiffs |
| v | |
| JOHN ALDERUCCIO AND BRUNO ALDERUCCIO (TRADING AS ALDERUCCIO SOLICITORS) | Defendants |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 20 NOVEMBER 2015 |
DATE OF JUDGMENT: | 2 DECEMBER 2015 |
CASE MAY BE CITED AS: | JAFARI v ALDERUCCIO |
MEDIUM NEUTRAL CITATION: | [2015] VSC 684 |
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PRACTICE AND PROCEDURE – application for joinder – allegations against proposed joined parties disclose no cause of action – allegations against proposed joined parties not related to the existing claim – self-represented litigant – application dismissed – Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 9.02 and 9.06.
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APPEARANCES: | Counsel | Solicitors |
| For the First Plaintiff | In Person | |
| For the Second Plaintiff | Mr M Lhuede | Piper Alderman |
| For the Defendants and the Legal Practitioners’ Liability Committee (proposed defendant) | Ms S Josephs | Minter Ellison |
| For Richard Kendall and Stephen Palmer (proposed defendants) | Mr L Virgona | K & L Gates |
| For Harry Klonis and Stephen Wartski (proposed defendants) | Mr M Saw | Collin Biggers & Paisley |
HIS HONOUR:
A. Introduction
The first plaintiff, Kourosh Jafari (“Jafari”) seeks to join various persons as defendants to this proceeding. By summons filed 10 July 2014 (which has been adjourned on numerous occasions), application is made to join the following persons:
(1) Richard Kendall, Queen’s counsel (“Kendall”).
(2) Stephen Palmer, barrister (“Palmer”).
(3) Harry Klonis, solicitor (“Klonis”).
(4) Stephen Wartski, barrister (“Wartski”).
(5)The Legal Practitioners’ Liability Committee (“the Liability Committee”),
(together, “the Proposed Defendants”).
The second plaintiff, 63 Buckley Street Pty Ltd (in liquidation) (“63 Buckley Street”) is separately represented. 63 Buckley Street does not consent to or oppose Jafari’s application. 63 Buckley Street presently has an application on foot to be removed as a plaintiff and added as a defendant. That application has been adjourned at the request of 63 Buckley Street, for reasons it is unnecessary to refer to here.
The allegations in this proceeding arise out of an earlier proceeding (“the Earlier Proceeding”). Jafari was a party to the Earlier Proceeding, which concerned conduct that was the subject of a trial and determination by this court, as recorded in Bloomingdale Holdings Pty Ltd v 63 Buckley Street Pty Ltd (“the Principal Judgment”).[1]
[1][2008] VSC 168 (Hargrave J).
B. The proposed pleading
On 20 August 2014, Jafari provisionally filed a document entitled “Draft Amended Statement of Claim of Kourosh Jafari”, pursuant to orders made by an associate judge on 15 July 2014 (“the Proposed Statement of Claim”).
Leave has not been granted to Jafari to formally file the Proposed Statement of Claim. Rather, the document has been provided to indicate the basis of Jafari’s claims against the Proposed Defendants.
Although in a different form, the Proposed Statement of Claim reiterates some claims already on foot against John Alderuccio and Bruno Alderuccio, solicitors (“the Existing Defendants”). Jafari’s allegations in relation to the Existing Defendants may be summarised as follows:
(1)Jafari and 63 Buckley Street owned a number of properties located in Buckley Street, Seddon (“the Properties”).[2]
[2]Proposed Statement of Claim, par 1.
(2)From at least May 2003, the Existing Defendants acted for Antonio Gangemi (“Gangemi”) and Bloomingdale Holdings Pty Ltd (“Bloomingdale”) in respect of a dispute regarding the ownership and control of certain of the Properties (“the Dispute”).[3]
[3]Ibid, par 11.
(3)The Existing Defendants drafted a heads of agreement (the final version of which was executed in September 2003) by which the Dispute was purported to be resolved (“the Heads of Agreement”), a result of which was that Bloomingdale and Gangemi relinquished all claims over the Properties.[4]
[4]Ibid, pars 14 and 15.
(4)On or about 17 August 2005, the Existing Defendants lodged a caveat over 1 of the Properties on behalf of Bloomingdale (“the Second Caveat”).[5]
[5]Ibid, par 5. I refer to this caveat as the Second Caveat as an earlier caveat was lodged over 1 of the Properties. I have not referred to the earlier caveat as it is not the subject of Jafari’s claims.
(5)On or about 18 January 2006, the Existing Defendants lodged a caveat over another of the Properties on behalf of Bloomingdale (“the Third Caveat”).[6]
[6]Proposed Statement of Claim, par 6.
(6)The Existing Defendants:
(a)knew or ought to have known that Bloomingdale had no caveatable interest in the Properties;[7]
[7]Ibid, pars 19 and 20.
(b)lodged the Second Caveat and the Third Caveat without reasonable cause or an honest belief that Bloomingdale had a caveatable interest in the Properties;[8]
[8]Ibid, pars 21 and 22.
(c)knowingly, actively and willingly behaved unethically and fraudulently;[9]
[9]Ibid.
(d) engaged in high handed and unmeritorious conduct;[10]
(e)violated sections ”497”, 4.4.3, 4.4.4 and 4.4.6 of the Legal Profession Act 2004 (Vic).[11]
(7)As a result of this conduct, Jafari suffered loss, damage, pain and suffering, including as a result of the fact that he could not utilise a planning permit obtained in relation to the Properties.[12]
[10]Ibid, pars 29 and 38.
[11]Ibid, par 39.
[12]Ibid, pars 25, 26 and 28.
Insofar as the Proposed Statement of Claim foreshadows claims against the Proposed Defendants, the following paragraphs are relevant:
29.In lodging the second and third caveats, the Defendants as solicitors and their barrister – Stephen Palmer – and their QC – Richard Kendall, have engaged in high handed and unmeritorious conduct and are liable to pay costs on an indemnity basis to the First Plaintiff, as these caveats relied on a ‘Deed of Trust’ in writing dated 1 February 2003 between ‘BH’ and ‘63BS’ as registered proprietor. Which this ‘Deed of trust’ was totally a false document and is/was a violation of Sec 83A of the Crimes Act 1958 (Falsification of documents).
…
STEPHEN PALMER AND RICHARD KENDALL
40.Stephen Palmer is and was at all material times Australian Legal Practitioners within the meaning of the Legal Profession Act 2004 and/or then current practitioners within the meaning of the Legal Practice Act 1996 practicing as a barrister at Room 0807 Owen Dixon Chambers West 525 Lonsdale Street Melbourne.
41.Richard Kendall QC, is and was at all material times Australian Legal Practitioners within the meaning of the Legal Profession Act 2004 and/or then current practitioners within the meaning of the Legal Practice Act 1996 practicing as a barrister at Room 3204 Aickin Chambers 200 Queen Street Melbourne.
42.In September 2003, ‘Heads Of Agreement’ (H.O.A.’) was prepared by Ganjemi’s Lawyers, John Alderuccio and their Barrister Stephen Palmer with the help of Lanciana’s Lawyers, Peter Johnston and Brendon Blott.
Particulars
The First Plaintiff refers to paragraphs 240, 244, 254, 255 of the Honourable Justice Hargrave’s decision.
43.The ‘BH proceeding’ started in 2006, due to two unlawful caveats that were put on Jafari’s properties in Buckley Street (61, 63-67 Buckley Street) by Alderuccios solicitors.
44.Stephen Palmer and Richard Kendall, as a junior barrister and a senior barrister failed to act according to their ‘paramount duty’ to the court to further the administration of justice and in fact abused their role as officers of the court by relying on materials and allegations that they knew to be unreliable and false and deliberately and recklessly mislead and misrepresented to the court – from 2005-2009 – in an attempt to further the interest of their clients and their own, furthermore, to put pressure on Jafari as he was self-represented (mostly in critical time of the proceeding).
45.Mr Palmer and Mr Kendall did not act in accordance with the general principles of professional conduct for barristers in order to further the administration of justice and violated their ‘Paramount Duty’ to the court and their ‘Overarching Obligations’ by making claims that were frivolous, vexatious, abuse of process and violated s 118 of the Transfer of Land Act 1958 (Vic), they also by providing a false document (‘Deed of trust’) to the court violated section 83A of the Crimes Act 1958 (Falsification of documents) and section 326 of the Crimes Act 1958 (concealing offences for benefit) and section 181 of the Crimes Act 1958 (Aiding and abetting offences within or outside Victoria).
46.Further, Palmer and Kendall violated sections 497, 4.4.3, 4.4.4, 4.4.6 of the Legal Profession Act 2004.
HARRY KLONIS AND STEPHEN WARTSKI
47.Harry Klonis is and was at all material times Australian Legal Practitioners within the meaning of the Legal Profession Act 2004 and/or then current practitioners within the meaning of the Legal Practice act 1996 practicing as a firm Klonis Kirby & Co, at 600 Lonsdale Street, Melbourne in the State of Victoria.
48.Stephen Wartski is and was at all material times Australian Legal Practitioners within the meaning of the Legal Profession Act 2004 and/or then current practitioners within the meaning of the Legal Practice Act 1996 practicing as a barrister at Room 0313, Owen Dixon Chambers West, 525 Lonsdale Street Melbourne in the State of Victoria.
49.In 2007, Jafari met with Mr Klonis and Mr Wartski (barrister) and as they were preparing the ‘BH proceeding’, Jafari instructed them to:
a)Join John Alderuccio, Bruno Alderuccio and Stephen Palmer (barrister) to the ‘BH proceeding’, as they in September 2003 prepared the ‘H.O.A.’, and that their claims in the ‘BH proceeding’ were that the ‘H.O.A.’ were not valid and they were procured by duress. Wartski said to Jafari: “Oh, no I can’t do that, we barristers do not do that against each other, it is not ethical”.
b)To put an application for security of costs, because their claims are based on lies, Wartski refused to do so and said to Jafari: “You people think this is Hollywood and you get things done that easy, we are going to loose the application”.
c)Furthermore, in 2006, Klonis had placed a Caveat on lot 17 Hoddle Street Richmond, which was owned by Ganjemi, to secure Jafari’s losses and counter-claim against Ganjemi and his lawyers unlawful caveats and claims on the properties at Buckley Street, however, Klonis and Wartski failed to appear in the Supreme Court on the hearing day and the caveat was removed immediately that day. If Klonis and Wartski had appeared in court that day, Jafari would have had a chance to recover some of his losses against Ganjemi and his lawyers, as this property was worth over $700,000.
50.Klonis and Wartski failed to do as Jafari instructed them as their ‘Statutory and Common Law Duty of Care’ towards Jafari, bound them.
51.If Wartski and Klonis did as they were instructed by Jafari and bound by law, the ‘BH proceeding’ would not have continued to December 2009. Wartski and Klonis ought to know the ‘BH proceeding’ had no merits and it was ‘bound to fail’.
52.As the result of Wartski and Klonis misconduct and negligence, Jafari suffered losses, damages arising from misconduct, negligence and breach of duty owed to Jafari by Wartski and Klonis.
53.Klonis and Wartski did not act in accordance with the general principles of professional conduct for barristers and solicitors and they violated their ‘Paramount Duty’ to the court and their ‘Overarching Obligations’, to further the administration of justice, they also violated sections 497, 4.4.3, 4.4.4, 4.4.6 of the Legal Profession Act 2004 (Professional misconduct).
THE LEGAL PRACTITIONERS LIABILITY COMMITTEE
54.The Legal Practitioners Liability Committee (the ‘LPLC’) is and was at all material times a Victorian Government agency and a ‘Model Litigant’, their office is at Level 31, 570 Bourke Street Melbourne.
55.The LPLC’s obligations are in conjunction with the provisions of the Civil Procedure Act 2010 (the Act) and, in particular, the paramount duty and overarching obligations imposed by Chapter 2 of the Act and the Victorian Model Litigant Guidelines.
56.Although negligence by all the legal practitioners and their clients are clarified and the liabilities have been established in both decisions made by the Honourable Justice Hargrave (22. May. 2008) in the Supreme Court and the Honourable Justices Nettle, Mandie, Harper in the Appeal Court (15. Dec. 2009), ‘the LPLC’ failed to deal with Jafari’s claims promptly, fairly according to its obligations under both the Act and the guidelines.
Particulars
The First Plaintiff refers to paragraphs 478, 479 of the Honourable Justice Hargrave’s decisions.
57.‘The LPLC’ by knowing that Jafari has been suffering financially, emotionally, physically, instead of settling his legitimate claims and avoiding litigations, took advantage of his hardship and by delaying the process since 2010 and by using an unlicensed solicitor (Gary Ronald Needham who was Jafari’s solicitor) in Jafari’s detriment in order that Jafari accepts the lowest offer made by the LPLC, which is not in compliance with the LPLC’s obligations under the Act and the Guidelines as a ‘Model Litigant’.
58.Further, the LPLC has taken advantage of Jafari being a self represented litigant without any legal education, which is not in compliance with the LPLC’s obligations under the Act and the Guidelines as a ‘Model Litigant’.
59.In the event of the LPLC acted according to its obligations under the Act and the Guidelines as a ‘Model Litigant’ and settled Jafari’s lawful claims promptly, Jafari could have continued with his life and business and recovered his losses of life and financials.
60.The LPLC by not acting according to its obligations under the Act and the Guidelines, is in violation of the Section 8 (Recognition and equality before the law), Section 9 Right to life, 13 Privacy and reputation, 18 Taking part in public life, 20 Property rights, 24 Fair hearing of the Charter of Human Rights and Responsibilities Act 2006, PART 2 – HUMAN RIGHTS.
Particulars of loss and damage
The First Plaintiff was unable to build developments on 59-67 Buckley Street Seddon, and was unable to utilise the equity in the said properties as security for borrowings on 69-79 Buckley Street Seddon. As a result the projects were lost.
Full particulars of loss and damage will be provided prior to trial, but will include the following:
(a)59-67 Buckley St, Seddon project; 83 apartments, 2 retail shops and 35 parking spaces; valued in excess of $17.5 million. There has been a loss of approximately $7 million profit.
(b)69-79 Buckley Street, Seddon project which was built and furnished; 66 apartments, 2 retail shops and 31 parking spaces the valuation was $15.3 million. There has been a loss of approximately $5 million profit. The said land was owned by Faars Pty Ltd, a company of which Jafari was sole shareholder and director, and which was used as a vehicle for his projects.
(Original emphasis.)
As a threshold requirement, the allegations set out above must disclose material facts which arguably give rise to a cause of action. As stated by Hargrave J in Atkins v Interprac and Crole (No 2):[13]
On an application such as this, the defendants need only establish that the proposed pleadings contain factual allegations which, if established at trial, could arguably found one or more of the causes of action alleged. If the Court is satisfied that such an arguable case has been put forward, joinder should be allowed.
[13][2008] VSC 99, [12].
As explained below, the claims made by Jafari against the Proposed Defendants fail to satisfy this requirement.
C. The proposed joinder of Kendall and Palmer
Paragraph 29 of the Proposed Statement of Claim appears to impliedly allege that Kendall and Palmer were involved in the lodgement of the Second Caveat and Third Caveat. Such an allegation may be inconsistent with earlier allegations in the Proposed Statement of Claim to the effect that it was the Existing Defendants that lodged the caveats on behalf of Bloomingale. As the allegation is not pleaded in the alternative, it may not comply with r 13.09 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
As to paragraph 29 itself, it is a stand alone allegation and does not form part of any other allegations made against Kendall or Palmer; it amounts to no more than a bald assertion of a “violation” of a provision of the Crimes Act 1958 (Vic), and that Kendall and Palmer engaged in “high handed” and “unmeritorious” conduct. It does not disclose a cause of action.
For completeness, I note there is nothing in the Principal Judgment, no evidence before the court on this application nor any particulars of the allegation which suggest that Kendall or Palmer had any involvement in the lodgement of the Second Caveat and Third Caveat.
There is no dispute that Kendall and Palmer were at all material times Australian legal practitioners. Accordingly, paragraphs 40 and 41 of the Proposed Statement of Claim are, of themselves, unobjectionable.
Paragraph 42 alleges that Palmer, together with others, prepared the Heads of Agreement. This allegation is particularised by reference to the Principal Judgment, at paragraphs 240, 244, 254 and 255. None of those paragraphs supports the material facts alleged against Palmer in paragraph 42 of the Proposed Statement of Claim.
For completeness, I refer to paragraph 240 of the Principal Judgment in which Hargrave J referred to Palmer attending the “second meeting” on 1 August 2003. The Principal Judgment records that, at that meeting, the Heads of Agreement was not in existence. Further, the Principal Judgment sets out events following the second meeting up to and including the “third meeting” on 9 September 2003. It was at the third meeting that the Heads of Agreement, in draft, was presented. Palmer did not attend this meeting.
Further, in paragraphs 241 to 255 of the Principal Judgment there is repeated reference to drafts of the Heads of Agreement being prepared by 1 of the Existing Defendants. There is no suggestion that Palmer had any involvement in any draft of the Heads of Agreement.[14]
[14]As noted by Hargrave J, at [244], Palmer appeared as counsel during the trial of the Earlier Proceeding.
In any event, it is not clear how allegations concerning the Heads of Agreement gives rise to any cause of action against Kendall or Palmer. It does not appear to be connected to any other allegation in the Proposed Statement of Claim.
Turning to the next allegation, consistent with earlier allegations in the Proposed Statement of Claim as to who filed the caveats in question, paragraph 43 alleges that the caveats were “put on … by Alderuccios solicitors” (that is, the Existing Defendants).
Paragraph 44 makes very serious allegations against each of Kendall and Palmer, without any particulars, in asserting that each of them breached his “paramount duty” to the court. The existence of such a duty is to be found in s 16 of the Civil Procedure Act 2010 (Vic). However, the allegations the subject of paragraph 44 are confined to the years 2005 to 2009. The Civil Procedure Act did not come into operation until 1 January 2011.[15] Accordingly, the basis of the allegations is misconceived. Jafari did not seek to identify any other basis upon which it was said that a paramount duty was owed.
[15]Civil Procedure Act, s 2.
By paragraph 45, allegations by reference to the “paramount duty” are again referred to, this time also with reference to the “overarching obligations”. The observations in the previous paragraph are repeated. Further, paragraph 45 alleges that “by making claims that were frivolous, vexatious, abuse of process and violated s 118 of the Transfer of Land Act 1958 (Vic)” such duties and obligations were breached. In addition to the preceding comments, Jafari does not specify which “claims” are the subject of this allegation. Finally, there is an attempt to make allegations based on the Crimes Act1958 (Vic) to found a civil cause of action. Such an attempt is also misconceived. Further, no particulars are provided of any of these serious allegations. In the circumstances, they should not be the subject of any leave.
Paragraph 46 alleges contravention of various sections of the Legal Profession Act. It is entirely unclear upon what conduct Jafari relies in order to make these allegations. Again, no particulars are provided.
Further, there is no s 497 to the Legal Profession Act. In relation to the other sections pleaded, they are concerned with professional misconduct and disciplinary complaints. A cause of action is not established by simply pleading each of those sections.
Accordingly, there is no cause of action against Kendall and Palmer pleaded in the Proposed Statement of Claim. In these circumstances, leave to join them as defendants must be refused.
D. The proposed joinder of Klonis and Wartski
Paragraphs 47 and 48 of the Proposed Statement of Claim plead the non-contentious facts that Klonis and Wartski were Australian legal practitioners.
Paragraph 49(a) concerns instructions with respect to the Existing Defendants and Palmer. Dealing with the latter first, for the reasons set out in paragraphs 10 to 23 above, no claim against Palmer has been disclosed in the Proposed Statement of Claim, or by evidence, of Palmer being involved in the preparation of the Heads of Agreement. Accordingly, any claim based on an alleged failure to act upon instructions to join him to the Earlier Proceeding is without foundation.
As to the allegations in paragraph 49(a) concerning the Existing Defendants, the fact that it was being alleged in the Earlier Proceeding that the Heads of Agreement was not valid and that such a document was executed in circumstances involving duress says nothing about whether or not there would be a cause of action against the Existing Defendants at the time the alleged instructions were given in 2007. The Proposed Statement of Claim does not suggest that the Existing Defendants were involved in any alleged circumstances said to give rise to the duress. Further, it is simply unclear on what basis the alleged instructions were given. In any event, such allegations do not provide a basis for the joinder of either Klonis or Wartski.
Paragraph 49(b) of the Proposed Statement of Claim demonstrates a misunderstanding as to the basis upon which an application for security for costs in a proceeding might properly be made. This allegation does not address factors determinative of such an application, such as the financial position of the party against whom security is sought and whether that party has the ability to meet an order for costs in the future.[16] Rather, paragraph 49(b) alleges that Jafari gave instructions to Klonis and Wartski to make a security for costs application because “their claims” were untruthful.
[16]See for example, Corporations Act 2001 (Cth), s 1335(1); Supreme Court Rules, r 62.02(1)(b).
This allegation, together with the alleged response of Klonis and Wartski, do not disclose a cause of action. There is no allegation as to the financial position of Bloomingdale, if, indeed, that is the party against whom Jafari alleges the application should have been made. Further, a reference to “their claims” appears to be a reference to the other plaintiff in the Earlier Proceeding, who is a natural person. In such circumstances, security for costs may be far more difficult to obtain.[17]
[17]See, for example, Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621, 625.8 (Ormiston J).
In short, there is no basis to conclude that, if an application had been made for security for costs against Bloomingdale, it would have had any prospects of success. In such circumstances, leave ought not be granted with respect to an alleged failure to make such an application.
Paragraph 49(c) is extremely vague and unclear. Its difficulties include the following:
(1)There is no allegation that Klonis or Wartski were actually instructed to appear in the Supreme Court to resist the application to remove the caveat in question.
(2)The date on which it is alleged the hearing took place is not stated.
(3)The chapeau to paragraph 49 concerns Jafari instructing each of Klonis and Wartski in relation to preparing for the Earlier Proceeding. The allegations in paragraph 49(c) are concerned with a different proceeding, and it is not alleged that Klonis or Wartski were retained by Jafari in relation to any proceeding other than the Earlier Proceeding.
(4)The allegations are a mere assertion that if an appearance had been announced, Jafari would have had a chance to recover some of his losses. Implicitly, this appears to be a reference to the fact that the caveat was removed, but there is no allegation as to the basis upon which the removal of the caveat might have been opposed. Early in the subparagraph it is simply stated that the caveat was lodged “to secure Jafari’s losses and counterclaim”. On its face, such a basis for the lodging of a caveat must be considered to be questionable, at best.
Accordingly, paragraph 49(c) will not be the subject of leave.
Paragraph 50 does not identify the instructions the subject of the allegation. If it is a reference to those in paragraph 49, the matters referred to above are repeated. If it is a reference to other instructions, it is so vague and unspecified that it is embarrassing and ought not be the subject of leave. Similar observations may be made in relation to paragraph 51 of the Proposed Statement of Claim.
In addition, Jafari complains that the Earlier Proceeding continued until December 2009. The Principal Judgment discloses that each of Klonis and Wartski ceased to act for Jafari on 29 January 2008.[18] There is therefore no basis for alleging that delay in the Earlier Proceeding after 29 January 2008 was by reason of any conduct of Klonis or Wartski.
[18]As the trial was on foot, this could only have been done with the leave of the court: Supreme Court Rules, r 20.03(3)(b).
Paragraph 52 of the Proposed Statement of Claim does not specify the “misconduct and negligence” relied upon. To the extent that it refers to the earlier paragraphs, that has been addressed. If it goes beyond those allegations, it cannot be the subject of leave in circumstances where such allegations are entirely unparticularised. Equally, the loss claimed is not the subject of any particulars.
Finally, the allegations in paragraph 53 concerning “paramount duty”, “overarching obligations” and the provisions of the Legal Profession Act have already been addressed above.[19]
[19]See pars 19 and 20 above.
Accordingly, there are no causes of action pleaded against Klonis and Wartski in the Proposed Statement of Claim. It follows that leave to join them as defendants must be refused.
E. The proposed joinder of the Liability Committee
Paragraph 54 of the Proposed Statement of Claim alleges that the Liability Committee is a government agency and is required to act as a model litigant. During the course of the hearing of this application, I informed Jafari that I was willing to assume such allegations were correct for the purposes of this application.
To the extent that paragraph 55 makes allegations concerning model litigant guidelines, the same assumption will be made. However, a reference in that paragraph to the Civil Procedure Act is ill-founded to the extent that any of the allegations in the Proposed Statement of Claim are alleged to have occurred before 1 January 2011.[20]
[20]See par 19 above.
Paragraph 56 of the Proposed Statement of Claim is patently objectionable. “All the legal practitioners and their clients” are not identified. Even assuming that this is a reference to every single practitioner and client involved in the Earlier Proceeding, a bald assertion that “Jafari’s claims” have not been dealt with promptly or fairly does not give rise to a cause of action. Moreover, what constitutes Jafari’s claims is not identified. Reference in the particulars is made to paragraphs 478 and 479 of the Principal Judgment. Those paragraphs refer to claims of Jafari and 63 Buckley Street against Bloomingdale. In short, it is simply unclear what claims are being referred to, let alone their nature or ambit.
Paragraph 57 of the Proposed Statement of Claim alleges that the Liability Committee was “delaying the process since 2010”. To what process this refers is unclear. Further, it is suggested that the Liability Committee was “using an unlicensed solicitor”, however what conduct is said to give rise to this characterisation of the Liability Committee’s conduct is not pleaded. On the face of the pleading, there is nothing to suggest that the person referred to was engaged by the Liability Committee in any way at all.
During the course of submissions, Jafari relied upon a settlement agreement dated 4 September 2013. Both Jafari and 63 Buckley Street were referred to by reference to “c/- Melbourne Legal Partners Pty Ltd”, which, at the hearing, Jafari suggested was Mr Needham’s firm. Jafari also referred to a proceeding in the Victorian Civil and Administrative Tribunal under which the solicitor in question undertook to the Tribunal not to apply for a practitioner’s certificate until 1 July 2015. Reasons were given by the Victorian Civil and Administrative Tribunal in that proceeding, which included a statement that the solicitor in question had not practised since 30 June 2013.[21]
[21]Legal Services Commissioner v Needham [2014] VCAT 305, [57] (Senior Member Smithers).
From the facts set out in the previous paragraph and the allegations in paragraph 57 of the Proposed Statement of Claim, it appears that Jafari’s allegation relates to a person that he believed he retained as a solicitor who did not actually have a practising certificate at the time he purported to act with respect to the negotiation and execution of the settlement agreement. Even if all of these allegations were correct, it does not follow from this that the Liability Committee was “using” the unlicensed solicitor.
Paragraph 58 alleges that the Liability Committee has taken advantage of Jafari. Save for the comments referred to above, it is not necessary to say anything further. The allegation is entirely unparticularised. The mere fact that Jafari finds himself in difficult circumstances does not give rise to a cause of action.
Paragraph 59 of the Proposed Statement of Claim is unsatisfactorily broad and vague. The “obligations under the Act” are not identified. The same observation may be made in relation to “Jafari’s lawful claims”. Accordingly, it is unnecessary to consider what might be encompassed by the words “losses of life and financials”.
Paragraph 60 makes sweeping allegations by reference to the Charter of Human Rights and Responsibilities Act 2006 (Vic). It is entirely unclear as to the basis upon which such allegations are made. No submissions were made by Jafari on the application by reference to these provisions. Accordingly, I will say nothing further about them.
F. Relevance to the existing claim
As is set out above, the majority of Jafari’s claims against Kendall, Palmer, Klonis and Wartski relate to their professional conduct in, or in relation to, the Earlier Proceeding.[22]
[22]Proposed Amended Statement of Claim, pars 43–53.
Jafari’s application is made pursuant to r 9.06 of the Supreme Court Rules. An alternative provision under which Jafari could seek joinder, being r 9.02 of the Supreme Court Rules, requires that “all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions”. As the proceeding currently relates to the wrongful lodgement of the Second Caveat and Third Caveat, and Jafari’s allegations against these Proposed Defendants relate to their conduct as legal practitioners in the Earlier Proceeding, it cannot be the case that the relief claimed is in respect of, or arises out of, the same transaction.
Rule 9.06(b)(ii) of the Supreme Court Rules provides:
At any stage of a proceeding the Court may order that:
…
(b)any of the following persons be added as a party, namely—
(ii)a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding.
While the Earlier Proceeding certainly relates, at least in part, to the same factual scenario the subject of this proceeding, the conduct of the legal practitioners in either prosecuting or defending the Earlier Proceeding raises substantially different questions of fact and law. In my opinion, it would not be just or convenient to determine the lawfulness of the conduct of these legal practitioners, and any consequent liability to Jafari, in this proceeding.
Therefore, even if it were not the case that the proposed claims in relation to the Earlier Proceeding contained in the Proposed Statement of Claim suffered from the deficiencies set out above, they would not properly be the subject of leave.
The same observations may be made in relation to the allegations made against the Liability Committee.
G. Conclusion
It is often difficult for a litigant in person to properly formulate a claim identifying a cause of action, in accordance with the Supreme Court Rules or otherwise. Depending on the complexity of the matter, some of the principles and rules may be difficult to grasp without formal legal training. Accordingly, the court takes on some responsibility for ensuring that a litigant in person is able to fairly ventilate the real issues notwithstanding any such difficulties.[23] However, it is also important that parties or proposed parties are not faced with allegations that are irrelevant or scandalous. When serious misconduct is alleged, material facts need to be clearly identified, which in turn need to constitute a cause of action known to the law.[24] This position is adopted by the court not only in fairness to the opposing party or proposed party. It is also a matter of fairness to the litigant in person that she or he is not given false hope or expectation in relation to claims that are plainly hopeless.
[23]Cf Trkulja v Markovic [2015] VSCA 298, [35]-[39], [41] (Kyrou and Kaye JJA and Ginnane AJA).
[24]Gao v Zhang [2002] VSC 173, [13] (Ashley J).
To be clear, “[a] frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”.[25] In this case, I have been unable to ascertain any rights of Jafari that give rise to a cause of action against any of the Proposed Defendants, obfuscated or otherwise.
[25]Neil v Nott (1994) 121 ALR 148, 150.4 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
For the reasons stated, the Proposed Statement of Claim does not disclose any cause of action, or any basis upon which a cause of action might be pleaded, against any of the Proposed Defendants. In those circumstances, the application for leave to join the Proposed Defendants shall be dismissed.
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