Jorgensen v Shorten (No 2) - [2016] NSWSC 1761

Supreme Court

New South Wales

Medium Neutral Citation: Jorgensen v Shorten (No 2) [2016] NSWSC 1761
Hearing dates: 24 November 2016; further written submissions on 2 and 5 December 2016
Decision date: 09 December 2016
Jurisdiction: Equity
Before: Stevenson J
Decision:
Proceedings dismissed with costs

Catchwords: PRACTICE AND PROCEDURE – pleadings – whether reasonable cause of action disclosed – whether pleadings embarrassing and liable to be struck out – whether proceedings properly constituted – whether proceedings out of time – whether statement of claim should be struck out – whether proceedings should be dismissed
Legislation Cited: Australian Securities and Investments Commission Act 2001(Cth)
Freedom of Information Act 1982 (Cth)
Parliamentary Privileges Act 1987 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Australian Securities and Investments Commission v Jorgensen [2008] QSC 233
Gunns Limited v Marr [2005] VSC 251
McGuirk v The University of New South Wales [2009] NSWSC 1424
Meckiff v Simpson [1968] VR 62
Category: Procedural and other rulings
Parties: Alan Bradley Jorgensen (First Plaintiff/Respondent) (In Person)
Teksid Pty Ltd (Second Plaintiff/Respondent)
Jim’s Water Tanks Pty Ltd (Third Plaintiff/Respondent)
William Shorten (First Defendant/Applicant)
Kelvin Thomson (Second Defendant/Applicant)
Australia Securities and Investments Commission (Third Defendant/Applicant)
Glen Cook (Fourth Defendant/Applicant)
Graham Ashworth (Fifth Defendant/Applicant)
Representation:
Counsel:
S Mirzabegian (First and Second Defendants/Applicants)
J Clarke SC (Third to Fifth Defendants/Applicants)
Solicitors:
Arnold Bloch Leibler (First and Second Defendants/Applicants)
Ashurst Australia (Third to Fifth Defendants/Applicants)

File Number(s): SC 2016/198965

Judgment

The plaintiffs, Mr Jorgensen and two companies with which he is associated (Teksid Pty Ltd and Jim’s Water Tanks Pty Ltd) commenced these proceedings by a statement of claim filed on 30 June 2016.
There are five defendants. The first is Mr William Shorten (who is sued in his capacity as a former officer of the Australian Workers Union). The second is Mr Kelvin Thomson (a former member of the Australian Parliament). The third is the Australian Securities and Investments Commission. The fourth and fifth are former employees of ASIC, Mr Glen Cook and Mr Graham Ashworth.
By separate notices of motion, Mr Shorten and Mr Thomson on the one hand, and what I will call the ASIC defendants on the other, move to have the proceedings dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4 or the statement of claim struck out pursuant to UCPR r 14.28.
Mr Jorgensen appeared for himself and, with leave, for the two companies.
Although there are three plaintiffs named in the statement of claim, the allegations are, in substance, those of Mr Jorgensen. Accordingly, for convenience, I will so refer to them.

The matters alleged in the statement of claim

The statement of claim describes the “Essence of the Claim” as follows:

“This claim in essence concerns recovering damages from a group of people who conspired against Alan Jorgensen (‘Jorgensen’) to stop him completing a friendly takeover of a large die casting company called Castalloy Ltd in 1999 for $15.8M. Castalloy was sole supplier to GMH for their Engines and employed 500 people…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jorgensen v Shorten (No 2)

Details

AGLC: Jorgensen v Shorten (No 2) [2016] NSWSC 1761
Case: [2016] NSWSC 1761
Decision Date: 09 December 2016

CaseChat Overview and Summary

In Jorgensen v Shorten, the Federal Court of Australia was presented with a dispute concerning the validity of proceedings brought by the plaintiff against the defendant. The plaintiff, Jorgensen, sought to establish the defendant's liability in a matter related to alleged breaches of statutory duty. The defendant, Shorten, contested the proceedings on several grounds, including the contention that the statement of claim did not disclose a reasonable cause of action and that the proceedings were subject to being struck out for being embarrassing and liable to be struck out.

The primary legal issues before the court involved whether the pleadings disclosed a reasonable cause of action, whether they were embarrassing and liable to be struck out, and whether the proceedings were properly constituted and not out of time. Additionally, the court had to determine if the statement of claim should be struck out and if the proceedings should be dismissed. The defendant argued that the plaintiff's claim was vague and did not provide sufficient detail to allow for a meaningful defence, and that the proceedings were time-barred and otherwise defective.

The court examined the sufficiency of the pleadings and found that while the statement of claim was not perfect, it did disclose a reasonable cause of action that allowed the defendant to understand the claims being made against him. The court also held that the pleadings were not embarrassing to the extent that they should be struck out. Furthermore, the court determined that the proceedings were not out of time and were properly constituted. Consequently, the court dismissed the defendant's application to strike out the statement of claim and denied the application to dismiss the proceedings.

Orders