Jovanovic v The Law Society of Tasmania
[2004] TASSC 124
•8 November 2004
[2004] TASSC 124
CITATION: Jovanovic v The Law Society of Tasmania [2004] TASSC 124
PARTIES: JOVANOVIC, Jon
v
LAW SOCIETY OF TASMANIA (THE)
AUSTRALIAN SECURITIES AND INVESTMENTS
COMMISSION
PURDON, Scott
MARTIN, Janine Marcia
GUNSON, David John
McMULLEN, Max
TASMANIAN PERPETUAL TRUSTEES LTD
ATTORNEY-GENERAL (THE)
(The Honourable Judith Louise Jackson)
BURK, Stephen Maxwell
ASHWOOD, Michael Aaron
GRANT, Michael Wallace
COMMISSIONER OF POLICE (THE)
(Mr Richard McCreadie)
DIRECTOR OF PUBLIC PROSECUTIONS (THE)
(Mr Timothy James Ellis, (SC))
CROSS, Byron
TASMANIAN LEGAL AID COMMISSION
BROWN, Bruce
JACKSON, Phillip
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 74/2003
DELIVERED ON: 8 November 2004
DELIVERED AT: Hobart
HEARING DATE/S: 9 June 2004
JUDGMENT OF: Underwood, Crawford and Slicer JJ
CATCHWORDS:
Procedure - Supreme Court procedure - Tasmania - Practice under rules of court - Pleadings - Application to strike out amended statement of claim - Whether amended statement of claim complies with the rules of court - Whether amended statement of claim discloses any viable cause of action.
Aust Dig Procedure [272]
REPRESENTATION:
Counsel:
Appellant: In person
First & Fourth Respondents: N R Readett
Second & Third Respondents: A J Abbott
Fifth, Sixth, Seventh & Seventeenth Respondents: A R McKee
Ninth, Tenth & Eleventh Respondents: P Turner
Solicitors:
Appellant: In person
First & Fourth Respondents: Clerk Walker
Second & Third Respondents: Australian Government Solicitor
Fifth, Sixth & Seventeenth Respondents: Gunson Williams
Seventh Respondent: Shields Heritage
Ninth, Tenth & Eleventh Respondents: Director of Public Prosecutions
Judgment ID Number: [2004] TASSC 124
Number of paragraphs: 78
Serial No 124/2004
File No FCA 74/2003
JON JOVANOVIC v THE LAW SOCIETY OF TASMANIA,
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION,
SCOTT PURDON, JANINE MARCIA MARTIN, DAVID JOHN GUNSON,
MAX McMULLEN, TASMANIAN PERPETUAL TRUSTEES LIMITED,
THE ATTORNEY-GENERAL (The Honourable Judith Louise Jackson),
STEPHEN MAXWELL BURK, MICHAEL AARON ASHWOOD,
MICHAEL WALLACE GRANT, THE COMMISSIONER OF POLICE
(Mr Richard McCreadie), THE DIRECTOR OF PROSECUTIONS
(Mr Timothy James Ellis, (SC)), BYRON CROSS, TASMANIAN LEGAL AID
COMMISSION, BRUCE BROWN, PHILLIP JACKSON
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
CRAWFORD J
SLICER J
8 November 2004
Orders of the Court
Appeal against the first to seventh, ninth to eleventh, and seventeenth respondents dismissed.
Serial No 124/2004
File No FCA 74/2003
JON JOVANOVIC v THE LAW SOCIETY OF TASMANIA,
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION,
SCOTT PURDON, JANINE MARCIA MARTIN, DAVID JOHN GUNSON,
MAX McMULLEN, TASMANIAN PERPETUAL TRUSTEES LIMITED,
THE ATTORNEY-GENERAL (The Honourable Judith Louise Jackson),
STEPHEN MAXWELL BURK, MICHAEL AARON ASHWOOD,
MICHAEL WALLACE GRANT, THE COMMISSIONER OF POLICE
(Mr Richard McCreadie), THE DIRECTOR OF PROSECUTIONS
(Mr Timothy James Ellis, (SC)), BYRON CROSS, TASMANIAN LEGAL AID
COMMISSION, BRUCE BROWN, PHILLIP JACKSON
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
8 November 2004
I agree with the reasons for judgment of Crawford J and with his conclusion that the appeal should be dismissed.
File No FCA 74/2003
JON JOVANOVIC v THE LAW SOCIETY OF TASMANIA,
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION,
SCOTT PURDON, JANINE MARCIA MARTIN, DAVID JOHN GUNSON,
MAX McMULLEN, TASMANIAN PERPETUAL TRUSTEES LIMITED,
THE ATTORNEY-GENERAL (The Honourable Judith Louise Jackson),
STEPHEN MAXWELL BURK, MICHAEL AARON ASHWOOD,
MICHAEL WALLACE GRANT, THE COMMISSIONER OF POLICE
(Mr Richard McCreadie), THE DIRECTOR OF PROSECUTIONS
(Mr Timothy James Ellis, (SC)), BYRON CROSS, TASMANIAN LEGAL AID
COMMISSION, BRUCE BROWN, PHILLIP JACKSON
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
8 November 2004
According to the heading to the reasons for judgment from which the appeal has been brought, there were 21 defendants. According to the cover sheet to those reasons, there were 22 defendants, because instead of the name of the Attorney‑General, there appeared the names of the Honourable Judith Louise Jackson and the Honourable Peter Patmore. As typed, the notice of appeal named 21 respondents, but four of those had been crossed out by hand at the time of filing, so that 17 were named as respondents. Their names appear at the commencement of these reasons.
On the notice of appeal under the typewritten identification of the eighth respondent as the Attorney‑General, the names of both the Honourable Peter James Patmore and the Honourable Judith Jackson were handwritten. I have omitted reference to Mr Patmore, because the appellant and counsel for the Attorney‑General had previously advised that Mr Patmore had at no time been served with the writ or the notice of appeal. See Jovanovic v Law Society of Tasmania [2003] TASSC 116 at par1.
On 13 December 2002, the appellant commenced an action against the 21 defendants when he filed a writ. Most of the defendants objected to the statement of claim, and also to an amended statement of claim on which the appellant wished to rely in substitution for it. Many of the defendants applied to strike out the statement of claim because it did not disclose a cause of action, it was frivolous or vexatious, and it was an abuse of process and embarrassing. They sought judgment against the appellant as a consequence. The appellant applied for leave to replace the original statement of claim with the amended one. The applications were heard by a judge on 1 and 2 July 2003. As the appellant wished to rely on his proposed amended statement of claim, rather than the original statement of claim, the applications were dealt with on the basis of the statement of claim with the proposed amendments.
On 1 August 2003, the learned judge published lengthy reasons for judgment. His Honour's conclusion was that the statement of claim and the proposed amendments to it were misconceived. He ruled that the documents 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. It was also held that it was impossible to discern from the documents any viable cause of action against any of the defendants who were then before the learned judge, and that the defects were incurable. The only course that appeared to the learned judge to be appropriate was to strike out the statement of claim and the proposed amended statement of claim against each of 16 defendants and to enter judgment for them against the appellant. Judgments were entered accordingly. Those 16 defendants are the 17 respondents to this appeal, other than the sixteenth respondent, Bruce Brown. I presume that he was erroneously named by the appellant as a respondent to the appeal.
From those orders, the appellant appealed to this Court by the notice of appeal filed on 7 August 2003. However, subsequently he discontinued the appeal against the eighth, fourteenth and fifteenth respondents, that is against the Attorney-General, Byron Cross and the Legal Aid Commission. On 6 November 2003, it was ordered that within 28 days the appellant provide security for the costs of the appeal in the sum of $1,000 for each of the twelfth and thirteenth respondents, the Commissioner of Police and the Director of Public Prosecutions, and that until such sum was deposited, the appeal was to be stayed as against the respective respondent. Liberty was reserved to those two respondents to apply for an order that as against them, the appeal be struck out, in the event that the security for costs was not provided in accordance with those orders.
At the hearing of the appeal, this Court ordered, without opposition from the appellant, that the appeal against the twelfth respondent, the Commissioner of Police, be struck out. It noted with respect to the appeal, so far as it related to the Director of Public Prosecutions, that the order staying it was still in operation and the Court announced that it would not entertain submissions that concerned the Director.
Accordingly, these reasons for judgment concern the appeal as it relates to the respondents named as the first (Law Society of Tasmania), second (Australian Securities and Investments Commission), third (Scott Purdon), fourth (Janine Marcia Martin), fifth (David John Gunson), sixth (Max McMullen), seventh (Tasmanian Perpetual Trustees Limited), ninth (Stephen Maxwell Burk), tenth (Michael Aaron Ashwood), eleventh (Michael Wallace Grant) and seventeenth (Phillip Jackson).
The hearing of the appeal against those respondents on 9 June 2004 was relatively brief. On the previous day, the appellant filed lengthy written submissions. He supplemented them with short oral submissions. The Court adjourned the hearing to enable counsel for the respondents to file written submissions by 30 June. They did so. The Court allowed the appellant until 31 July to file further written submissions in reply, if he wished to do so. He did not. The Court indicated that if no party applied to make further oral submissions, it would consider its decision.
Ground 1
The first ground of the appeal is in these terms:
"1His Honour erred in law and fact when realizing the effect the Respondent's tortitious [sic] behaviour had had on the Appellant causing the Appellant to seek psychiatric treatment, failed to take that into account, when he said about the Appellant's Amended Statement of Claim at p 2 para 4 confirming the deleterious effects of the tortitious [sic] behaviour of the Respondents had had on the Appellant, and acknowledging the same in the course of the 1st named Respondents [sic] submissions on 1st July 2003 implying that any defect in the Amended Statement of Claim may be easily rectified by inter alia Further and Better Particulars 'It is convoluted, in many places ungrammatical, repetitious and at times meaningless. In addition it is studded with hyperbole and contains many paragraphs which, at best, assert facts which may ultimately constitute evidence of allegedly material facts.' which traversed the same material as in Supreme Court matter No 94 of 1999 where his Honour held that the 2nd, 3rd and 6th named Respondent directly and the 20th named Respondent by implication had a case to answer in negligence and negligent misstatement at p 7 para 21 Jovanovic & Others v Woods & Others [1999] TASSC 106."
The ground is difficult to understand, largely because it is ungrammatical. Central to it appears to be what was said by the learned judge in his reasons for judgment, par4:
"The plaintiff is self-represented and the amended statement of claim is lengthy. It contains 443 paragraphs on 67 pages of A4 paper printed with the lines so close together, in contravention of the Supreme Court Rules 2000, r78, as to render it impossible to read without the greatest of difficulty. Fortunately counsel were able to magnify it and reproduce it on A3 sized paper so as to make it reasonably legible. It is convoluted, in many places ungrammatical, repetitious and at times meaningless. In addition, it is studded with hyperbole and contains many paragraphs which, at best, assert facts which may ultimately constitute evidence of allegedly material facts."
What was stated there by the learned judge was a preliminary comment about, and description of, the amended statement of claim. It was not itself determinative of the outcome of the proceedings. There was no error of fact in it. The description of the amended statement of claim was an appropriate one. No error of law is apparent in what the learned judge stated. The ground appears to suggest that his Honour's statement was in some way contrary, as a matter of law, to what his Honour said in his reasons for judgment in Jovanovic v Woods [1999] TASSC 106. In the earlier case, the appellant and Ian Maxwell Tapping sued John William Woods, the second and third respondents to this appeal, David Carrigg and Davies Brothers Ltd for damages, principally for negligence and/or negligent mis-statement and/or defamation. The learned judge had heard an application by the defendants for summary judgment and, in the alternative, for an order that an amended statement of claim be struck out. The learned judge gave a general description of the pleading in the following terms:
"Unfortunately, neither of the plaintiffs is represented by a legal practitioner and the statement of claim upon which they rely has been inexpertly drawn. It is prolix, argumentative and confusing. Instead of confining itself to stating the facts upon which the causes of action against the defendants are based, it contains a great deal of material which is or may constitute evidence by which the plaintiffs hope to prove their cases. It has been difficult to disentangle the mixture of allegations made and to ascertain with any precision what causes of action they have.
His Honour then considered in detail what the plaintiffs were purporting to claim in that action and concluded that he was not satisfied that the plaintiffs' case was so completely hopeless that it ought to be dismissed on an application for summary judgment. His Honour acknowledged the inelegance of the drafting of the statement of claim, but nevertheless concluded that it should not be struck out. His Honour considered that notwithstanding that much of it was inappropriate, it nevertheless contained sufficient to found actions for negligence, negligent mis-statement and defamation.
The two actions are separate from each other and the amended statements of claim have not been demonstrated to be the same, nor are the parties the same, in the main. There was nothing in the conclusions reached by the learned judge in the first action that in some way bound him, as a matter of law, to determine the applications in the second action in a particular way.
For these reasons the first ground of appeal fails.
Grounds 2, 4 and 5
The second, fourth and fifth grounds of appeal are:
"2His Honour erred in law and fact when he held, that there was no cause of action against the 8th, 9th and 10th named Respondents whose negligent acts, failure to act in good faith, failure to act reasonably in the Wednesbury sense, and or omissions caused the Appellant damage, and which the 13th, 14th, 15th, 16th, and 17th named Respondents determined constituted crimes, with which the Appellant was charged and which he implied may if there were any defects in the Pleadings be easily rectified by inter alia Further and Better Particulars, because he knew and or he ought have known that the Appellant was not involved in day to day running of the D W & I M Tapping Pty Ltd mortgage fund, and hence did not and could not have committed the acts and omissions attributed to him, pursuant to his Honour's ruling in the ASIC v Jovanovic [2001] 6 at inter alia, p6 para 9 & 10 which were committed by the 8th, 9th and 10th named Respondents when his Honour acknowledged the Appellants conduct.
4His Honour erred in law and fact when he held that the Appellant had no cause of action against the 8th, 9th, and 10th named Respondent who committed acts and omissions deemed to be crimes, by the 13th, 14th, 15th, 16th, and 17th named Respondents. In other words acts and or omissions when committed by person or persons of Anglo Saxon ethnicity, are exempt from civil liability, let alone being considered crimes, but are nevertheless capable of being deemed to be committed by a person of the Slav ethnicity, by virtue of the fact, that that persons holds a position under the Corporations Law, namely, a non-executive director, notwithstanding sec 189 of the Corporations Law.
5His Honour erred in law and fact when he held that the Appellant was not owed a duty of care by the 8th, 9th, and 10th named Respondent who committed acts and omissions deemed to be crimes, by the 13th, 14th, 15th, 16th, and 17th named Respondents. In other words there is no duty of care owed for acts and or omissions when committed by person or persons of Anglo Saxon ethnicity, and hence those acts and or omissions are exempt from being considered crimes, but the same acts and or omissions may be deemed to be committed by a person of the Slav ethnicity, and hence labeled [sic] crimes, by virtue of that person holding a position under the Corporations Law, namely, a non-executive director, notwithstanding sec 189 of the Corporations Law."
In the notice of appeal, the references to the eighth, ninth and tenth respondents are to Max McMullen, Tasmanian Perpetual Trustees Limited and Hugh Barry respectively. The numbering in the notice of appeal does not coincide with the order of the names of the respondents at the outset of these reasons, and accordingly, to their numbering for the purpose of these reasons. That is because the appellant, in the notice of appeal, typed the names of 21 respondents, numbered them from one to 21, and then crossed out the names of four of them, but allowed the various paragraphs in the notice to continue to refer to the respective respondents by the original numbering. As the name of Hugh Barry as one of the respondents was crossed from the names of the respondents in the notice of appeal, he is not in fact a respondent to the appeal. Therefore, these grounds need only be considered in relation to Mr McMullen and Tasmanian Perpetual Trustees Limited. The references in the grounds to the thirteenth, fourteenth, fifteenth, sixteenth and seventeenth respondents are to three police officers, Stephen Maxwell Burk, Michael Aaron Ashwood and Michael Wallace Grant, and to the Commissioner of Police and the Director of Public Prosecutions respectively.
I note that the appellant compounded the confusion he created after filing the notice of appeal. In the copy of the notice of appeal in the appeal book prepared for the Court, he also crossed out the name of Bruce Brown as a respondent. Earlier in these reasons I stated that I presumed that Mr Brown was erroneously named by the appellant as a respondent to the appeal.
Ground 2 is difficult to understand. It appears to complain that the learned judge erred in law and in fact when he held that there was no cause of action that was pleaded against Mr McMullen and Tasmanian Perpetual Trustees Limited, because his Honour failed to take into account that the appellant was not involved in the day to day running of the D W & I M Tapping Pty Ltd mortgage fund, and therefore, that he could not have committed certain acts and omissions that had been attributed to him. A finding to the effect that he was ignorant of the day to day operations of the company was made by the same judge in Jovanovic v Australian Securities and Investment Commission [2001] TASSC 6 at par9. That was an appeal by the appellant from a conviction by a magistrate for failing to submit a report as to the affairs of the company to its liquidator, contrary to the Corporations Law, s475(9). The ground of appeal demonstrates a failure on the part of the appellant to understand that the present case concerns the adequacy of his statement of claim and not whether there is evidence available to sustain it.
In the proposed amended statement of claim, pars9 and 10, the appellant identified Mr McMullen as having been sued as a member of the Law Society of Tasmania, who represented Tasmanian Perpetual Trustees Limited, and contemporaneously represented the company to which he referred as the company of the eleventh defendant, Harold John Adams, which the learned judge concluded was a reference to Coal River Processing Pty Ltd, and D W & I M Tapping Pty Ltd. The appellant identified Tasmanian Perpetual Trustees Limited as a trustee company operating under the Trustee Act.
By par214 of the proposed amended statement of claim, which referred to Mr McMullen as the eighth defendant and Tasmanian Perpetual Trustees Limited as the ninth defendant, the appellant pleaded:
"The 2nd named Defendant, the 3rd named Defendant, the 8th named Defendant, the 9th named Defendant, the 10th named Defendant, the 11th named Defendant and the 20th named Defendant by their negligent acts and omissions, loss of opportunity, failure to act in good faith, breaches of fiduciary duty, breaches of duty of care, undue influence, economic duress, negligent advice, breach of undertaking, conflict of interest, fraud, deceit and statutory breaches caused the Plaintiff personal injuries and financial loss ... ."
The balance of the paragraph is irrelevant for the purposes of the appeal. It continues at great length to explain more about the personal injuries and financial loss claimed to have been suffered by the appellant.
The pleading returned to Mr McMullen and Tasmanian Perpetual Trustees Limited in par234:
"In addition, acts and omissions of the 8th named Defendant, the 9th named Defendant, the 10th named Defendant and the 11th named Defendant contributed to the loss and damage suffered by the Plaintiff resulting from the negligence, failure to act in good faith and breach of statutory duty of the 2nd named Defendant and its employees."
The learned judge noted that pars235 – 254, so far as they applied to Mr McMullen and Tasmanian Perpetual Trustees Limited, in summary, pleaded as follows. The eleventh defendant, Adams, who appeared to have been the person in control of Coal River Processing Pty Ltd ("CRP"), sought a loan of $100,000 from D W & I M Tapping Pty Ltd ("DIT") (of which the appellant was a director), to be secured on premises at Glenorchy which were already subject to a first mortgage in favour of Tasmanian Perpetual Trustees Limited. (It was not in the pleading, but the appellant told the learned judge from the bar table that the first mortgage was for $900,000.) DIT agreed to advance the loan of $100,000, but required a first mortgage security. It was agreed between all concerned, including Tasmanian Perpetual Trustees Limited, that a fresh security by way of first mortgage would secure the existing secured loan of $900,000, the advance of DIT of $100,000 and the sum of $50,000 advanced by a third party, which was the subject of an unregistered second mortgage that was protected by a priority notice. Mr McMullen undertook not to disburse the extra $100,000 until the first mortgage security covering the aggregate of $1,050,000 was prepared, executed and registered (presumably that would have required the removal of the priority notice by the second mortgagee). Mr McMullen broke his undertaking by advancing the $100,000 before the documents were finalised. The learned judge noted that by that stage, CRP was in receivership and the result seemed to be that the $100,000 was never repaid by CRP.
The learned judge further noted that pars255 – 268 contained a rolled-up plea that Tasmanian Perpetual Trustees Limited was a party to the loss because it "secured the funds on second mortgage", it fraudulently misappropriated the funds by securing them on second mortgage and it negligently advanced the funds to CRP without the agreed security. It was also noted by the learned judge that pars269 – 288 of the proposed amended statement of claim asserted that Tasmanian Perpetual Trustees Limited was negligent, acted in bad faith, broke undertakings, breached fiduciary duties and deceived the directors of DIT, namely the appellant and Mr Tapping, and as a result the appellant lost the opportunity to enjoy the security of an income from the funds invested with Tasmanian Perpetual Trustees Limited. Paragraph 289 asserted that Tasmanian Perpetual Trustees Limited exerted undue influence to get Mr Tapping and the plaintiff (vicariously) to relinquish their rights against Tasmanian Perpetual Trustees Limited with respect to the invested funds.
The learned judge referred to pars214 – 310 as "chaotic in the extreme". An attempt to read them shows that to be the case.
Paragraphs 333 – 378 of the proposed amended statement of claim were pleaded under a heading that referred to the first to tenth defendants and to the eleventh, twentieth and twenty-first defendants. The learned judge described them as recasting the claims against those defendants. So far as they related to Mr McMullen and Tasmanian Perpetual Trustees Limited, the learned judge summarised them as stating that Mr McMullen was negligent in failing to secure the funds advanced by DIT and Tasmanian Perpetual Trustees Limited was negligent in instructing its agent, Mr McMullen, to breach "their or his" undertaking and failing to procure proper security for the monies advanced.
The grounds of appeal do not attack the learned judge's summary of the paragraphs of the pleading. In two paragraphs of his Honour's reasons which commenced with a consideration of the appellant's case against the second respondent and ended in a conclusion that the proposed amended statement of claim failed to show any cause of action for the benefit of the appellant, as opposed to the company, DIT, of which he was a director, against either Mr McMullen ("eighth named defendant") or Tasmanian Perpetual Trustees Limited ("ninth named defendant"), his Honour said:
"The claim that unidentified ASIC officers accessed confidential information about CRP, a company with which DIT was proposing to deal by way of loan, were negligent in failing to prevent the information being given to other persons, is completely lacking in particularity. There is no basis alleged for any duty of care to the plaintiff, as opposed to the company of which he was a director, for the causation of any damage to the plaintiff nor of foreseeability by the second named defendant of harm to the plaintiff. The allegedly negligent release of the confidential information at best caused damage to CRP directly and to DIT indirectly. The plaintiff has not established that he has any cause of action against the second named defendant from the circumstances pleaded.
For the same reason, the convoluted pleadings in respect of the mortgage dealings likewise fail to show any cause of action in the plaintiff for the allegedly tortious conduct of the eighth named defendant and ninth named defendant in concluding the advances from DIT to CRP without the necessary security having been procured before the demise of CRP. ... ."
In the context of the paragraphs of the statement of claim to which I have referred, and the conclusion of the learned judge that no cause of action in favour of the appellant, as opposed to DIT, had been pleaded, I have found it impossible to understand the alleged errors to which ground 2 of the appeal is directed. The appellant's lengthy written submissions do not address the ground. In his oral submissions, he stated, somewhat mysteriously, that the speech of Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580, where his Lordship addressed "who is my neighbour" and discussed the basis upon which a duty of care may arise, was the nub of his case against Mr McMullen and Tasmanian Perpetual Trustees Limited.
A point made by the learned judge, but perhaps it has not been understood by the appellant, was that his pleading did not reveal a proper basis for a cause of action against Mr McMullen or the trustee company in favour of the appellant himself, arising out of the mortgage transaction. It might have suggested a cause of action in favour of DIT, but that was of no consequence, because DIT was not a plaintiff. The appellant was only a director of DIT. The funds were allegedly advanced by DIT, not by the appellant. Mr McMullen was acting for DIT, not for the appellant. That the appellant may not have been involved in the day to day running of DIT's mortgage fund, as asserted in ground 2, is consistent with any relevant duty being owed to DIT and not to him.
It is impossible to understand the essence of what is complained of in grounds 4 and 5 from a consideration of the pleading. However, an assertion of fact in the appellant's written submissions assists an understanding. It is that, "as a consequence of ... the wrongdoing of 8th named Defendant and 9th named Defendant the Plaintiff and Mr Tapping have, been charged under the Criminal Code for offences committed and advice given by the above mentioned". Even if their so‑called wrongdoing was a cause of the appellant being charged with offences, that does not establish a basis for the appellant to have a cause of action against them.
There seems to be a suggestion in grounds 4 and 5 that the learned judge held that the acts and omissions of Anglo Saxons are exempt from criminal and civil liability, but the acts and omissions of Slavs are not so exempt. The learned judge did not hold that, expressly or by inference.
There is no merit in grounds 2, 4 and 5.
Grounds 3 and 6
Because these grounds relate to the appellant's case against the first and fourth respondents, the Law Society of Tasmania and its executive director at the relevant time, Janine Marcia Martin, I will deal with them together. Ground 6 also relates to the seventeenth respondent, Phillip Jackson, who was the twenty-first defendant. By the proposed amended statement of claim, he was described as a member of the Law Society and at some time its President.
The grounds are:
"3His Honour erred in law and fact when he held that the Appellant had no cause of action against the 4th named Respondent who swore an [sic] misleading affidavit.
The factually false statements in the 4th named Defendant's affidavit dated 11th September 2001 are as follows:
1 Item 4 of the 4th named Defendant's affidavit is incorrect. There is no evidence presented by the 4th named Defendant of a mortgage in the sum of $39,000 given by the Plaintiff to secure a loan from D W & I M Tapping Pty Ltd
2 Item 13 of the 4th named Defendant's affidavit is incorrect. The Plaintiff clearly indicated at p 16 of the transcript of interview dated 6th September 2001, that he had only inspected files relating to mortgages prepared on behalf of D W & I M Tapping Pty Ltd. By Jeanette Jovanovic
3 Item 15 of the 4th named Defendant's office is incorrect. There is no evidence presented by the 4th named Defendant that the Plaintiff has unimpeded access to the offices of J Jovanovic & Associates on the 1st floor of 95 Elizabeth St at the time of the swearing of the 4th named Defendant's affidavit
4 The 4th named Defendant misled the court by omission when she failed to advise the court that this incident occurred on or about August 1996, and by omission led the court to believe that the incident had only just taken place.
5 The client took a mortgage prepared on behalf of D W & I M Tapping Pty Ltd in respect of its client McDonald and made alterations to reflect the transaction.
Notwithstanding the fact that as a consequence of that falsely sworn affidavit a Court Order was obtained which barred, and continues to bar the Appellant from the offices of J Jovanovic & Associates causing great embarrassment and humiliation and continuing damages.
6His Honour erred in law and fact when he held that the Appellant had no cause of action against the 1st, 4th, and 21st named Defendant, who breached their duty of care, were negligent, failed to act in good faith, failed to act reasonably in the Wednesburry [sic] sense, to the Appellant by discriminating against the Appellant on the basis of his ethnicity and failed to apply the same standards in respect of the complaint lodged by the Appellant, as they did in respect of a complaint lodged by and [sic] Anglo Saxon complainant namely the 5th named respondent who lodged a patently trivial complaint against the Appellant's spouse, but who failed to investigate the Appellant's complaint against the 8th, 9th, and 10th named Respondent who committed acts and omissions deemed to be crimes, by the 13th, 14th, 15th, 16th, and 17th named Respondents. In other words acts and or omissions when committed by person or persons of Anglo Saxon ethnicity are exempt from being considered crimes, (a fact independently corroborated by his His [sic] Honour Justice Underwood who demonstrated his bias and prejudice against the Appellant and by implication supported the discrimination inflicted upon the Appellant and his family when on 10th April 2001 Transcript of Proceedings p 24 para 655, p 26 para 688 and p 52 para 1515, he indicated that the mere fact that the Appellant had brought to the attention of the court by way of affidavit material, the perverse treatment to which his family in general and his spouse in particular were subjected to, notwithstanding the effect upon them and the pain an [sic] suffering they had endured as a result and the manner in which it impeded upon their ability to earn an income,) but may be deemed to be committed by a person of the Slav ethnicity, and hence labeled [sic] as crimes, by virtue of that persons holding a position under the Corporations Law, namely, a non-executive director, notwithstanding sec 189 of the Corporations Law."
Ground 3 is confined to the conclusion of the learned judge that the appellant had no cause of action against Ms Martin arising out of her alleged swearing of a misleading affidavit. Between pars175 and 196 of the proposed amended statement of claim, the appellant asserted that on 6 September 2001, he was (inter alia) arrested and interviewed by police; that a record of the interview was forwarded to the Law Society and Ms Martin; and that Ms Martin negligently and in breach of a statutory duty of care, swore an affidavit containing false and misleading information about what he had said to the police, in support of an application by the Society to appoint Raymond Allan Brown as manager of the legal practice of the appellant's wife. The appellant asserted that what he told the police was that he had accessed a DIT file in his wife's office in or about August 1996, because as a director of DIT, he had a right to such access, but Ms Martin failed to state in her affidavit that he had claimed to have that right of access. He further asserted that as a result he suffered loss and damage, and that on 11 September 2001, Raymond Allan Brown entered his wife's premises and ordered off the premises the appellant, his wife and their "concerned friends", all of whom were having a cup of tea. A little more detail of the contents of the relevant paragraphs of the proposed statement of claim is to be found in the reasons for judgment of the learned judge, but they do not advance the matter materially.
His Honour concluded that no facts were pleaded which would establish any breach of duty owed to the appellant by Ms Martin in respect of the alleged contents of her affidavit. His Honour was plainly correct and no understanding of the nature of any error by his Honour, complained of by the appellant, can be gained from a consideration of his submissions to this Court, for he did not address the ground. On the pleaded facts, no basis can be discerned for a cause of action against Ms Martin in favour of the appellant by reason of her alleged omission from her affidavit, sworn in support of an application, pursuant to the Society's disciplinary and protective powers and functions, for the appointment of a manager of his wife's practice. It was not pleaded that the appellant was a party to the application. If an omission of the kind pleaded was made, it was a matter for the appellant's wife to see that it was corrected, if it was in her own interests to do so. No basis for a relevant duty owed by Ms Martin to the appellant was pleaded and ground 3 must fail. I note that none of the other allegedly false statements, as particularised in the ground, were in fact pleaded in the proposed amended statement of claim.
Ground 6 is extremely difficult to understand but should, I think, simply be regarded as a complaint that the learned judge erred when he held that the appellant had pleaded no cause of action against the Law Society, Ms Martin and Mr Jackson.
Paragraphs 23 – 171 of the proposed amended statement of claim were directed at the Law Society, and pars23 – 56 were also directed at Ms Martin and Mr Jackson. In summary, the appellant made the following allegations. On 19 November 1999, he lodged with the Society a complaint of professional misconduct on the part of the tenth defendant, Hugh Barry, which included giving negligent advice and practising without holding a Tasmanian practising certificate. He pleaded that the Society advised him that "no investigation of the plaintiff's complaint against the tenth named defendant was undertaken", but also pleaded that the Society had accepted the tenth defendant's explanation in respect "of the plethora of allegations raised by and corroborated by detailed documentation". He alleged that the Society was negligent in failing to investigate his complaint and that in consequence, he lost the opportunity to obtain compensation and the return of professional fees from the tenth defendant "without having to institute proceeding". He variously categorised his causes of action against the Society as breach of duty, breach of statutory duty, failure to act reasonably, failure to act in good faith, failure to accord the plaintiff natural justice and bias against him.
There were some differences, but the appellant pleaded substantially similar claims against the Society arising out of other complaints he asserted were not properly investigated by it. He referred to a complaint made by his fellow director of DIT, Mr Tapping, on 6 April 2000, concerning the misconduct of the eighth defendant, who is the sixth respondent to the appeal, Mr McMullen. The misconduct alleged was that, contrary to instructions, Mr McMullen dispersed mortgage funds without appropriate security documents having been executed and registered. The appellant also pleaded that the Society failed to properly investigate a complaint he made to it against Ms Martin and Mr Jackson for misleading a Senate Select Committee. The learned judge noted that the appellant did not claim that any interest of his was affected by what they had done.
The appellant claimed that the failure of the Society to properly investigate the complaints led to him suffering loss and he made a plea to the Court to "exercise its disciplinary powers and compensate the Plaintiff". He also referred to the Society's dealings with a complaint made to it by the fifth defendant, who is also the fifth respondent in the appeal, Mr Gunson, against the appellant's wife, that resulted in the Society commencing proceedings against her.
It is unnecessary to deal further with the various paragraphs of the proposed amended statement of claim. In his reasons for judgment, the learned judge noted that the appellant's claims against the Society arose out of the Society's alleged failure to investigate complaints against various members or officers of it, and alleged vicarious liability on the part of the Society for the misconduct of its members and officers, and allegedly unwarranted and racially motivated prosecutions or investigations of his wife. A plea was made to the Court to discipline the Society. As to the failure to investigate, the learned judge noted that the only loss to the appellant that was alleged to have flowed from the Society's failure to do so, was said to be a loss of the opportunity to recover summarily the losses occasioned by the misconduct of any member subject to the Society's jurisdiction, without having to sue the member in a civil action. That appeared to be a reference to the power of the Council of the Society in the Legal Profession Act 1993 ("the Act"), s61(2)(c), or the Disciplinary Tribunal set up under the Act (s76(1)(i)), or the Supreme Court (s81(b)), to order a practitioner to pay compensation of a specified amount to a specified person. However, by virtue of ss61(4) and 76(3), that power can only be exercised with the consent of the parties, including the practitioner to whom the complaint relates (see s56).
The statutory functions of the Society, under s6(1), are to regulate, promote and represent the legal profession, to promote law reform, and any other functions which promote the objects of the Society. By s15(1), the Council of the Society is authorised to institute prosecutions and other proceedings in the name of the Society. Section 57(1) empowers any person to make a complaint of professional misconduct or unprofessional conduct against a practitioner. By subs(2), a complaint is to be lodged with the Executive Director of the Society.
The appellant particularly relies on s58(1), which states that the Council "must" investigate a complaint made under s57, and upon s57(3), which states that "the Executive Director is to take all reasonable steps to ensure that a person who wishes to make a complaint is given such assistance as is necessary to enable that person to make the complaint". As to subs(3), the appellant submitted that the obligation placed on the Executive Director is mandatory, because of the expression "the Executive Director is to take", etcetera. That submission would be contrary to the Acts Interpretation Act 1931, s10A(1), if it applied to s57(3), but it does not because of s10A(2). Nevertheless, the appellant's grievance is not that he could not make a complaint, but that the complaints that were made were not properly investigated by the Society.
The learned judge observed that it was not clear from the pleadings upon which the appellant's claim must be treated as being based, that is, the statement of claim and the proposed amended statement of claim, whether the Society's alleged failures to investigate the complaints consisted of a complete failure to investigate, a failure to make a proper assessment of the evidence resulting in the wrongful dismissal of the complaints, or a failure to reach a determination satisfactory to the appellant. His Honour thought that whatever was alleged by the appellant, his grievance was one that might be grounded in administrative law, but not as the basis of an action for damages in tort. I have no doubt that the learned judge was correct, and that he was also correct to say that even if an action for damages might sound, in some cases, for breach of the obligation to investigate, there would need to be shown that some damage had been caused to the appellant by that breach. The only damage pleaded by the appellant was loss of the opportunity to obtain a determination that the practitioners complained against pay compensation to him, but such a determination could not be made unless the wrongful conduct of the practitioners was proved, the extent of the loss was proved, and the practitioners in question consented to an order for compensation being made. Further, a discretion would have to be exercised to award the compensation. The appellant, if he is entitled to compensation from the practitioners, could sue them independently. In the circumstances, the learned judge rejected the claim to have lost the opportunity to recover any loss suffered by the appellant by reason of the misconduct of the practitioners. His Honour was correct in his conclusion that the pleaded claim against the Society disclosed no cause of action.
In his submissions, the appellant maintained that if the complaints had been properly investigated, he would not have been charged with certain criminal offences. Whether that is so or not, no basis for a duty of care owed by the Society to him for breach of which he was entitled to sue the Society, was pleaded by him. Contrary to his submission, the Wrongs Act 1954 is not the basis for such a cause of action. It deals only with the making of claims against, and contributions between, persons committing wrongful acts and the law relating to contributory negligence. It does not create rights of action of the kind sought to be maintained by the appellant.
He also sought to rely on the Civil Liability Act 2002, s40, but it cannot assist him because it was not in force when any possible cause of action relied upon by him arose, it does not create liabilities but instead limits them, and in any event, it does not apply to the Society, which does not come within the definition of a "public or other authority" in s37.
Notwithstanding the obligation of the Society to investigate complaints that is to be found in the Legal Profession Act, s58(1), there is nothing in the Act from which it may be inferred that an actionable duty, sounding in damages, arises in favour of a complainant, or anyone else, for breach of that obligation. The Act provides for what may result from a complaint that is lodged with the Executive Director of the Society. The purpose of the Act is the investigation and, if appropriate, the taking of disciplinary proceedings against practitioners and the disciplining of practitioners when the substance of complaints is proved. The protection of the public from practitioners who fail to meet appropriate standards is the ultimate aim of the Act, but it makes no provision for, and does not give rise to, actions for damages. No error was made by the learned judge. Nor was there any error in his Honour's conclusion that the Law Society itself cannot be made the subject of the Court's disciplinary powers. In appropriate cases, it may discipline practitioners, but not the Society.
The learned judge was also correct when he held with respect to the claims based on vicarious liability for the actions of the Society's members, that no facts were pleaded upon which such liability could be established.
The learned judge was correct when he held that the appellant had no cause of action against the Society arising out of the disciplinary proceedings it took against his wife. Any grievance she may have had was a matter for her to seek redress, not him.
No cause of action against the fourth respondent, Ms Martin, was pleaded. She had no statutory duty to investigate complaints in any event. Her only relevant obligation under the Legal Profession Act, s54(3), was to assist complainants to make their complaints. It was her duty to pass them on to the Society for investigation by it and to furnish a copy of the complaints to the Legal Ombudsman.
No cause of action was pleaded against the seventeenth respondent, Mr Jackson. It was pleaded in pars43 and 44 of the proposed amended statement of claim that he misled a Senate Select Committee, but the appellant did not claim that any interest of his was affected. Mr Jackson had no statutory duty, personal to him, to investigate complaints that the Society was obliged to investigate.
For those reasons, there is no merit in ground 6.
Ground 7
The seventh ground of appeal is:
"7His Honour erred in law and fact when he held that the Appellant had no cause of action against the 12th, 13th, 14th, 15th, 16th, and 17th named Respondents, for their negligent acts and or omissions, failure to act in good faith, failure to act reasonably, who inter alia charged the Appellant under the Criminal Code for act [sic] and or omissions committed by the 8th, 9th, and 10th named Respondent [sic], when in the course of being arrested the Appellant was assaulted (required to remove his clothes) and discriminated again [sic] because in the course of the ensuing strip search he was obliged to expose his hemorrhoids [sic] and bend over whilst his Anglo Saxon fellow director was permitted to remain in his underpants. In other words acts and or omissions when committed by person or persons of Anglo Saxon ethnicity are exempt from being considered crimes, but when deemed to be committed by a person of the Slav ethnicity, they are labeled [sic] as crimes, by virtue of that persons [sic] holding a position under the Corporations Law, namely, a non-executive director, notwithstanding sec 189 of the Corporations Law."
The reference in the ground to the twelfth respondent is to the Attorney-General, against whom the appeal has been discontinued. The reference to the sixteenth respondent is to the Commissioner of Police, against whom the appeal has been struck out. The reference to the seventeenth respondent is to the Director of Public Prosecutions, in respect of whom the appeal is currently stayed. The respondents to whom the ground relates and who remain, are the thirteenth, fourteenth and fifteenth respondents, all of whom are the police officers named Stephen Maxwell Burk, Michael Aaron Ashwood and Michael Wallace Grant ("the three police officers").
Once again, the ground is difficult to understand. Insofar as it (and other grounds) suggest error by the learned judge arising out of allegations of racial prejudice against the respective respondents, it is sufficient to say that racial prejudice does not form, and is not part of, the basis of any cause of action with respect to which the Supreme Court has jurisdiction. The ground should be interpreted as complaining that the learned judge erred when he held that the appellant had no cause of action against the three police officers "for their negligent acts and or omissions, failure to act in good faith, failure to act reasonably".
The relevant paragraphs of the proposed amended statement of claim are to be found in pars371 – 443. They are preceded by a column of headings that refer to negligence, breach of duty of care, failure to act in good faith, wrongful arrest, malicious prosecution, breach of statutory duty, failure to act reasonably, bias, loss of opportunity, failure to accord natural justice, failure to accord due process, racial discrimination, failure to return documents and failure to provide documents. Many of those headings do not represent causes of action for which the appellant would be entitled to sue the three police officers for damages. Some of the headings do represent such a cause of action. In that last regard, I refer to negligence in conjunction with breach of duty of care, wrongful arrest, malicious prosecution and breach of statutory duty. However, merely describing torts by their names is insufficient for a pleading. In addition there are required to be pleaded the basic facts upon which the claim is made and which are essential for the respective causes of action to be made out. It is unnecessary to consider the adequacy of the pleading in relation to all of the above, for ground 7 only complains that the learned judge erred when he held that there was no cause of action for "negligent acts and omissions, failure to act in good faith, failure to act reasonably".
Insofar as pars379 – 443 referred to the three police officers, they pleaded as follows. By par387, the fifteenth defendant, who is the eleventh respondent, Michael Wallace Grant, was said to be negligent by failing to investigate all relevant matters prior to instituting criminal proceedings against the appellant and causing him to suffer loss and damage. Each of pars388, 389 and 390 repeated par387, except that instead of labelling what the eleventh respondent did as negligent, it was labelled as breach of a duty of care (par388), a failure to act in good faith (par389) and a failure to act reasonably (par390). Paragraph 391 pleaded that the eleventh respondent owed a statutory duty of care to so investigate, but it did not identify the statutory provision under which the duty was claimed and it did not plead a breach of the statutory duty.
The next paragraph to make reference to the three police officers was par402. It was oppressively long, containing between 700 and 800 words without a full stop. It breached many of the rules of pleadings in the Supreme Court Rules 2000, r227, and it should be struck out for that reason and for its oppressiveness. It contained a rolled-up plea against (inter alios) the three police officers of failure to act in good faith, negligence, breach of statutory duty and breach of duty of care, with consequential loss to the appellant.
As noted by the learned judge, pars403 – 411 were argumentative in that they complained of a more rigid form of strip search having been endured by the appellant, compared with Mr Tapping and asserted that the reason for it was racial discrimination. Paragraph 412 repeated the claim for failure to act in good faith, negligence, breach of statutory duty and breach of duty of care against (inter alios) the three police officers, based on a failure to check certain sworn declarations and a failure to make proper disclosure of documents of assistance to the appellant.
Paragraphs 422 – 428 asserted that the thirteenth defendant, that is the ninth respondent, Stephen Maxwell Burk, was negligent (par422), breached his duty of care (par423), breached his statutory duty (par424), failed to act in good faith (par425), failed to act reasonably (par426), failed to act without bias (par427) and failed to afford the appellant due process (par428) when he witnessed the signatures of 24 persons on "Tasmania Police Statutory Declaration which contained false information and which the [ninth respondent] knew, or ought to have known, contained false information".
Paragraphs 436 – 443 made claims against (inter alios) the three police officers of negligence (par436), breach of duty of care (par437), breach of statutory duty (par438), failure to act in good faith (par439), failure to act reasonably (par440), failure to afford natural justice (par441), failure to afford due process (par422) and failure to act without bias (par443) for allegedly failing to properly investigate the appellant's role within DIT. The learned judge noted that they were argumentative, gave instances which at best might be relevant as evidence of what was being asserted, and did not contain any material facts constituting a cause of action.
The learned judge held that the claims against (inter alios) "the three police officers who investigated certain allegations against [the appellant] which he claims led to still pending criminal proceedings against him ... are unsustainable". His Honour continued: "As a matter of public policy the police and those responsible for the prosecution of crimes are immune from such actions. See Hill v Chief Constable of West Yorkshire [1989] AC 53, Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335, Osman v Ferguson [1993] 4 All ER 344. Malicious prosecution is not available to the plaintiff as the proceedings against him have not resulted in an acquittal. The allegations fail to reveal any cause of action against the abovenamed defendants".
It is apparent from the appellant's written submissions to this Court, that he wishes to maintain a claim against the three police officers for malicious prosecution, but he made no submissions in support of the ground itself, which complains only of error by the learned judge by holding that no cause of action was pleaded for "negligent acts and or omissions, failure to act in good faith, failure to act reasonably". The cases referred to by the learned judge are authority for the proposition that as a matter of public policy, police officers are immune from actions for negligence in respect of their activities in the investigation and suppression of crime. Further, a failure by police officers to act in good faith and a failure by them to act reasonably do not found recognised causes of actions against them. The provision in the Police Regulation Act 1898, s52(1), that a police officer shall not incur any civil liability for an act or omission done or made in good faith in the exercise of any powers, functions, duties or responsibilities, limits the liability of police officers but does not extend it, and in particular, it does not create an actionable wrong based only on a failure to act in good faith. For those reasons, ground 7 must fail.
Malicious prosecution was not pleaded by the appellant as a cause of action upon which he relied. He did place it in a column of headings, but that alone was insufficient. The learned judge may have been in error when he observed that malicious prosecution was not available to the appellant as the proceedings against him had not resulted in an acquittal. Dismissal or acquittal are not necessary. Discontinuance of proceedings is sufficient.
Nevertheless, as I said, the appellant did not plead malicious prosecution as a cause of action and his grounds of appeal do not assert that he did. Further, I observe from the written submissions of the three police officers that they assert as a fact that no charges against the appellant have yet resulted in dismissal or acquittal and that although with respect to three charges on two complaints the appellant was discharged from further proceedings, that event did not occur until 5 May 2003. The appellant has not sought to challenge those facts. If they are correct, the present action was instituted by the appellant on 13 December 2002, at a time when malicious prosecution could not have accrued as a cause of action upon the basis of which he was entitled to sue. An essential ingredient of the tort was absent.
Ground 8
This ground is directed to Byron Cross and the Tasmanian Legal Aid Commission, against whom the appellant discontinued the appeal.
Ground 9
This ground is as follows:
"9His Honour erred in law and fact when he held that the Appellant had no cause of action, and failed to utilize the courts [sic] disciplinary powers against the 5th named Respondent who acted unprofessionally engaged in blatant discrimination inter alia referring to the Appellant's spouse a fellow legal practitioner, in derogatory terms particularly derogatory and pretty disgusting terms referring to her by racist nick names making defamatory and degrading comments under privilege used his power and influence to persecute the Appellant's spouse, used his power to influence the 1st named Respondent to prosecute the Appellant's spouse causing the Appellant personal injury by way of nervous shock."
The ground relates to David John Gunson. The proposed amended statement of claim stated that he was sued as a member of the first respondent, the Law Society. The learned judge noted that by par57, the appellant sought to have the Court exercise its disciplinary powers against Mr Gunson. He alleged in par58 that in June 1988, Mr Gunson lodged with the Law Society the first of a number of complaints against the appellant's wife, and the Society commenced proceedings against her. In par85 it was alleged that Mr Gunson advised an associate of the appellant to cease contact with the appellant. In following paragraphs he alleged that his wife was taken by police officers to headquarters and interrogated about whether she had committed perjury at a taxation conference at the Supreme Court, to which conference Mr Gunson was privy. Between pars127 and 139 it was alleged, concerning Mr Gunson, that he had claimed that the appellant's wife had told the Registrar of the Workers Compensation Tribunal that a certificate of readiness had been settled; that although she had been erroneous in saying that, it arose from a misunderstanding she had; and that Mr Gunson "insisted" on the Law Society prosecuting her and the Society did so. The result of the prosecution was not pleaded. In pars172 and 173, the appellant alleged that on 8 April 1998, Mr Gunson admitted under oath in unidentified proceedings that he had used racial nicknames concerning the appellant's wife and spoke of her in derogatory terms. In par174 of the proposed amended statement of claim, the appellant alleged that on 27 March 2003 (after the commencement of the present action) Mr Gunson, when giving evidence in unidentified proceedings, hid behind "Court privilege" and asserted that the appellant was a discredited witness, because he had instituted legal proceedings against a number of people.
The learned judge noted that the claims against Mr Gunson arose out of his alleged actions in lodging complaints against the appellant's wife, of having advised an associate of the appellant (presumably Mr Tapping) to cease contact with the appellant, and of having given evidence critical of the appellant's wife (and I note the appellant) in unidentified proceedings. The appellant asked the Court to exercise its disciplinary powers in respect of Mr Gunson. His Honour held that the proposed amended statement of claim did not disclose a cause of action against Mr Gunson; that no basis was asserted upon which a breach of a duty of care to the appellant, with consequential loss on his part, could be found; and that even if Mr Gunson's complaints against the appellant's wife were without foundation and his comments were unfair and vindictive, the appellant had no cause of action against him. His Honour further held that the Legal Profession Act, s80, laid down the procedure for applications to the Supreme Court to hear and determine a complaint of unprofessional conduct or professional misconduct, and that the nature and purpose of, and procedure for, such proceedings are so different from an action for damages in tort that the inclusion of a request that the Court hear and determine such a matter in the present action was entirely inappropriate.
The ground of appeal does not specify what his Honour's error or errors were. The appellant's submissions do not refer to the ground. I cannot detect any error on the part of the learned judge. There is no merit in the ground.
Conclusion
With respect to the respondents who are before the Court on the present appeal, I conclude that there is no merit in any of the grounds of appeal and that the appeal should be dismissed.
I add my full agreement with what the learned judge 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; 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.
At the hearing of the appeal, the appellant presented yet another proposed amended statement of claim in the event that his appeal, based as it is on the previous edition, failed. The Court should not have regard to the recent document. Its task is to determine whether or not the judge at first instance erred in striking out the appellant's pleading and entering judgment for the respondents. The appellant has failed to establish that his Honour did err and for that reason, he has no entitlement to have another pleading considered in the course of the appeal process.
File No FCA 74/2003
JON JOVANOVIC v THE LAW SOCIETY OF TASMANIA,
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION,
SCOTT PURDON, JANINE MARCIA MARTIN, DAVID JOHN GUNSON,
MAX McMULLEN, TASMANIAN PERPETUAL TRUSTEES LIMITED,
THE ATTORNEY-GENERAL (The Honourable Judith Louise Jackson),
STEPHEN MAXWELL BURK, MICHAEL AARON ASHWOOD,
MICHAEL WALLACE GRANT, THE COMMISSIONER OF POLICE
(Mr Richard McCreadie), THE DIRECTOR OF PROSECUTIONS
(Mr Timothy James Ellis, (SC)), BYRON CROSS, TASMANIAN LEGAL AID
COMMISSION, BRUCE BROWN, PHILLIP JACKSON
REASONS FOR JUDGMENT FULL COURT
SLICER J
8 November 2004
I have had the advantage of reading in draft form the reasons for decision of Crawford J. I agree with his comprehensive summation and analysis of the issues raised on this appeal.
However, in respect of a number of grounds affecting some of the respondents, I do not share his conclusion.
The statement of claim as a whole was tortuous, prolix and contained a mixture of assertions, gratuitous and offensive commentary and was linguistically convoluted. It is an example of the problems raised by the initiation and presentation of causes by unrepresented litigants (see Mentyn v Law Society of Tasmania [2004] TASSC 24). The terms of the notice of appeal themselves illustrate the difficulty.
My departure from the conclusion reached by Crawford J is that of outcome. The orders appealed were those of the striking out of the statement of claim and the entry of judgment. A similar problem arose in Jovanovic v Woods [1999] TASSC 106. There, the court considered that although the pleading was "inelegant", the action itself should not be dismissed. Here, in some limited respect, it is possible to discern within the pleading a cause of action. The pleading requires detailed analysis by one experienced in the substance and nuances of the law. In his reasons for judgment, the learned primary judge identified issues stated in the pleadings, which were capable of grounding an action. Those issues have been referred to in the draft reasons of Crawford J. An issue which involves legal principle is whether the appellant is entitled to personal benefit, as distinct from that potentially possessed by the company. It might be a matter decided against the appellant at trial but, in my respectful opinion, ought not be determined adverse to a party by summary judgment or by strict application of the pleading. The allegation that some respondents are liable for the "loss of security" by way of mortgage is another issue identifiable on the pleadings. The pleading in relation to the arrest and detention of the appellant likewise identifies matters which might give rise to the maintenance of an action or the obtaining of remedy. The word "malice" does appear in the pleading, although as a sidenote or heading and would have been susceptible to amendment. Actions against police officers raise complex questions (Webster and Anor v Lampard (1993) 177 CLR 598).
I would uphold grounds 2 and 7 of the notice of appeal and dismiss the remaining grounds. Given the conclusion reached by the other members of this Court, it is not necessary to give detailed reasons for my approach to the above grounds 2 and 7, and the basis for my formulation of proposed orders in relation to disposition.
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