Jovanovic v Law Society of Tasmania (No 3)
[2005] TASSC 104
•13 October 2005
[2005] TASSC 104
CITATION: Jovanovic v Law Society of Tasmania (No 3) [2005] TASSC 104
PARTIES: JOVANOVIC, Jon
v
LAW SOCIETY OF TASMANIA
AUSTRALIAN SECURITIES AND
INVESTMENTS COMMISSION
PURDON, Scott
MARTIN, Janine Marcia
GUNSON, David John (SC)
WOODS, John William
NULINE MARKETING TASMANIA PTY LTD
McMULLEN, Max
TASMANIAN PERPETUAL TRUSTEES LIMITED
BARRY, Hugh
ADAMS, Harold John
JACKSON, Judith Louise (The Honourable)
PATMORE, Peter James (The Honourable)
BURK, Stephen Maxwell
ASHWOOD, Michael Aaron
GRANT, Michael Wallace
McCREADIE, Richard
ELLIS, Timothy James (SC)
CROSS, Byron
LEGAL AID COMMISSION OF TASMANIA
BROWN, Bruce
JACKSON, Phillip
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 727/2002
DELIVERED ON: 13 October 2005
DELIVERED AT: Hobart
HEARING DATE: 13 October 2005
JUDGMENT OF: Underwood CJ
Edited reasons for judgment given orally
CATCHWORDS:
Procedure - Supreme Court Procedure - Tasmania - Practice under the Rules of Court - Proceedings in lieu of demurrer - Application to strike out statement of claim on grounds that it discloses no reasonable cause of action.
Jovanovic v Law Society & Ors [2004] TASSC 124, applied.
Aust Dig Procedure [274]
REPRESENTATION:
Counsel:
Plaintiff: In Person
Twentieth Defendant: A J Abbott
Solicitors:
Plaintiff: In Person
Defendant: Australian Government Solicitor
Judgment Number: [2005] TASSC 104
Number of paragraphs: 8
Serial No 104/2005
File No 727/2002
JON JOVANOVIC v LAW SOCIETY OF TASMANIA,
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION,
SCOTT PURDON, JANINE MARCIA MARTIN, DAVID JOHN GUNSON SC,
JOHN WILLIAM WOODS, NULINE MARKETING TASMANIA PTY LTD,
MAX McMULLEN, TASMANIAN PERPETUAL TRUSTEES LIMITED,
HUGH BARRY, HAROLD JOHN ADAMS,
THE HONOURABLE JUDITH LOUISE JACKSON,
THE HONOURABLE PETER JAMES PATMORE,
STEPHEN MAXWELL BURK, MICHAEL AARON ASHWOOD,
MICHAEL WALLACE GRANT, RICHARD McCREADIE,
TIMOTHY JAMES ELLIS SC, BYRON CROSS,
LEGAL AID COMMISSION OF TASMANIA,
BRUCE BROWN, PHILLIP JACKSON (NO 3)
REASONS FOR JUDGMENT UNDERWOOD CJ
(DELIVERED ORALLY) 13 October 2005
By an interlocutory application dated 1 August 2003, the twentieth defendant in Action No 727/2002, seeks orders (inter alia) that the statement of claim brought against him be struck out and that judgment be entered in his favour against the plaintiff.
The convoluted and confusing statement of claim appears to plead the plaintiff's case against the second defendant, the Australian Securities and Investments Commission ("the Commission"), upon the basis that:
(1)the twentieth defendant was an employee of the Commission;
(2)the twentieth defendant gave advice to the plaintiff, and that advice was given negligently, in breach of good faith and in breach of statutory duty;
(3)in result, the plaintiff suffered the loss and damage pleaded in par214 of the statement of claim and subsequent paragraphs;
(4)the Commission is vicariously liable for the torts of the twentieth defendant.
The issues raised by this interlocutory application have been previously argued in this Court. They were argued upon an application by the Commission for exactly the same orders with respect to it, as the twentieth defendant now seeks with respect to him. The application was heard by the learned former Chief Justice, and for reasons published on 1 August 2003, ([2003] TASSC 65), his Honour struck out the statement of claim against the Commission and entered judgment for it against the plaintiff.
The twentieth defendant was not a party to that application. I have been told that this was because he had not been served with the writ and the statement of claim when the interlocutory application was taken out on behalf of the Commission. The material on this application before me is the same as the material that was before the learned former Chief Justice on the application by the Commission.
The plaintiff appealed to the Full Court against, amongst other things, the orders made against him and in favour of the Commission. The Full Court dismissed that appeal on 8 November 2004 ([2004] TASSC 124).
In his reasons for judgment on that appeal, Crawford J said, at par72:
"I add my full agreement with what the learned judge [at first instance] finally said. It was that the statement of claim and the proposed amendments to it were misconceived; that the documents not only offended the rules of pleading, in the sense that they did not set out clearly the material facts upon which the appellant claimed relief, and they included prolix and confusing statements which were argumentative or, at best, evidential in character, but it was impossible to discern from them any viable cause of action against the respondents presently before this Court; [I interpolate that includes ASIC] that it was incurable; that the only appropriate course was to strike out the statement of claim and the proposed amended statement of claim insofar as they related to the present respondents".
I was a member of that Court and agreed with those reasons for judgment. The applicant's case before me, simply stated, is that I am bound by the decision of the Full Court. The issues before me are the same because if there was no viable case against the Commission on the sole basis of vicarious liability, there could be no viable case against the alleged employee. When this argument was put to Mr Jovanovic, he accepted that the Full Court was, to use his words, "a huge hurdle to overcome." It is not only huge, it is impossible to overcome as I am bound in law to follow that decision.
Accordingly, the application succeeds. The statement of claim as against the twentieth defendant is struck out, and I order that judgment be entered against the plaintiff in favour of the twentieth defendant, together with costs to be taxed. Having regard to the complexity this seems to have achieved during it torturous life to date, it is proper to certify for the attendance of counsel.
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