Jovanovic v The Law Society of Tasmania (No 2)
[2003] TASSC 65
•1 August 2003
[2003] TASSC 65
CITATION: Jovanovic v The Law Society of Tasmania & Ors (No 2) [2003] TASSC 65
PARTIES: JOVANOVIC, Jon
v
LAW SOCIETY OF TASMANIA (THE)
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, BruceJACKSON, Phillip
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 727/2002
DELIVERED ON: 1 August 2003
DELIVERED AT: Hobart
HEARING DATE: 1 - 2 July 2003
JUDGMENT OF: Cox CJ
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:
Plaintiff:In person
1st and 4thDefendants: N R Readett
2nd and 3rd Defendants: A J Abbott
12th, 13th, 14th, 15th, 16th,
17th, 18th and 19th Defendants: P Turner
9th Defendant: M Chambers
5th, 8th and 21st Defendants: A R McKee
Solicitors:
Plaintiff: In person
1st and 4th Defendants: Clerk Walker & Stops
2nd and 3rd Defendants: Australian Government Solicitor
12th, 13th, 14th, 15th, 16th,
17th, 18th and 19th Defendants: Director of Public Prosecutions
9th Defendant: Shields Heritage
5th, 8th and 21st Defendants: Gunson Williams
Judgment Number: [2003] TASSC 65
Number of paragraphs: 126
Serial No 65/2003
File No 727/2002
JON JOVANOVIC v THE LAW SOCIETY OF TASMANIA,
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION,
SCOTT PURDON, JANINE MARCIA MARTIN, DAVID JOHN GUNSON,
JOHN WILLIAM WOODS, NULINE MARKETING TASMANIA PTY LTD,
MAX McMULLEN, TASMANIAN PERPETUAL TRUSTEES LIMITED,
HUGH BARRY, HAROLD JOHN ADAMS, THE ATTORNEY-GENERAL, STEPHEN MAXWELL BURK, MICHAEL AARON ASHWOOD,
MICHAEL WALLACE GRANT, THE COMMISSIONER OF POLICE,
DIRECTOR OF PROSECUTIONS, BYRON CROSS, TASMANIAN LEGAL AID
COMMISSION, BRUCE BROWN, PHILLIP JACKSON
REASONS FOR JUDGMENT COX CJ
1 August 2003
Background
The plaintiff has sued 21 named defendants for damages for personal injury and loss arising out of a number of disparate complaints of wrongdoing by them individually or vicariously. The twelfth named defendant was originally entitled the Attorney-General, but as matters presently stand, there are now two twelfth named defendants, viz, the present incumbent of the Office, the Honourable Judith Louise Jackson, and her predecessor, the Honourable Peter James Patmore. An earlier holder of the office, the Honourable John Miles Bennett, is mentioned in the pleadings as a person against whom complaint is made, but he has not yet been joined in the action by name. For convenience I shall continue to refer to the twelfth named defendant, sixteenth named defendant and seventeenth named defendant (originally named as the Attorney-General, the Commissioner of Police and the Director of Public Prosecutions) by their office.
The plaintiff delivered a statement of claim in December 2002 which prompted applications by most of the defendants seeking that the action as against them be dismissed as not disclosing a cause of action, being frivolous or vexatious, an abuse of the Court's process and embarrassing.
No such application was made by the sixth named defendant, tenth named defendant or the twentieth named defendant. Nor has such application been made by the Honourable P J Patmore. I understand that neither of the last two have been served. The seventh named defendant made a similar application which was heard in March and, as a result, judgment was entered in its favour and it is no longer involved in the litigation. In April 2003, the plaintiff delivered to most of the parties an amended statement of claim and at the commencement of the hearing of the defendants' applications, the plaintiff (as he needed to do) sought leave to amend in accordance with that document. The sixth named defendant and twentieth named defendant not being before me and neither having notice of such application, nor being applicants for relief themselves, I can make no orders which will directly affect them. The position taken by the defendants before me, other than the eleventh named defendant, is as follows: on the basis that the plaintiff abandons his original statement of claim and seeks to substitute the amended statement of claim, the objections taken to the former should now be taken to relate to the latter document which should likewise be struck out and judgment entered against the plaintiff. Alternatively, the application to deliver the amended statement of claim should be refused as an exercise in futility and judgment entered against the plaintiff. If judgment is not entered, the statement of claim should be struck out, leaving the plaintiff to re-plead his case in proper form. The eleventh named defendant does not oppose the delivery of the amended statement of claim, but seeks an order that the plaintiff pay any costs thrown away.
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.
I now set out, as best I can discern them (for oral argument by the plaintiff did little to illuminate the basic nature of his concerns) the allegations of wrongdoing by each of the defendants.
The parties
Paragraphs 1 – 22 of the amended statement of claim set out the nature and the identity of the parties.
The plaintiff is said to be a disability pensioner and former company director of D W & I M Tapping Pty Ltd (DIT) and is the spouse of a legal practitioner who is a member of the first named defendant. That defendant is the Law Society of Tasmania, which is said to be "a statutory authority with the conflicting responsibilities of representing the interests of the members of the legal profession in the State of Tasmania whilst contemporaneously policing its members for the purposes of maintaining standards of professional behaviour by investigating, prosecuting and sitting in judgment on its errant members".
The second named defendant is the Australian Securities and Investment Commission (ASIC).
The third named defendant is a staff member of ASIC, while the fourth named defendant is said to be an employee of the first named defendant. It emerges that she was the Executive Director of the Law Society of Tasmania.
The fifth named defendant, Mr Gunson, is sued as "a member of the first named defendant".
The sixth named defendant, Mr Woods, is said to be an employee of the second named defendant, ASIC.
The seventh named defendant is a company, but no further reference need be made to it as judgment has been entered in its favour against the plaintiff.
The eighth named defendant, Mr McMullen, is also sued as a member of the Law Society of Tasmania who contemporaneously represented the ninth named defendant (the Tasmanian Perpetual Trustees Ltd) and the company of the eleventh named defendant, Mr Adams (this appears to be a reference to a company called Coal River Processing Pty Ltd or CRP), and DIT (in liquidation).
The tenth named defendant is said to be "a legal practitioner who held himself out to be qualified to practice law in the State of Tasmania and who contemporaneously took instructions from and billed the eleventh named defendant and DIT before that company went into liquidation".
The eleventh named defendant was a director of CRP.
The twelfth named defendant, the Attorney-General, is said to be "an office of the Crown which has statutory responsibility for the first named defendant".
The thirteenth, fourteenth and fifteenth named defendants are police officers said to be employees of the sixteenth named defendant, the Commissioner of Police. He is said to have "statutory responsibility for upholding the law and preventing injustice irrespective of race, gender or ethnicity".
The seventeenth named defendant is the Director of Public Prosecutions who is said to have "statutory responsibility prosecuting perpetrators of injustice irrespective of race, gender or ethnicity".
The eighteenth named defendant, Mr Cross, is an employee of the nineteenth named defendant, the Legal Aid Commission of Tasmania, a statutory authority "established to provide the means to facilitate access to justice for all citizens of Tasmania irrespective of race, gender or ethnicity".
The twentieth named defendant, Mr Brown, is an employee of the second named defendant, ASIC.
The twenty-first named defendant, Mr Jackson, is said to be a member of the Law Society of Tasmania. It emerges later in the statement of claim that he was at some time the President of the Society.
The claim against the Law Society
Paragraph 23 contains a rolled up claim against the first named, fourth named and twenty-first named defendants. It is in the following terms:
"23The 1st named Defendant, the 4th named Defendant and the 21st named Defendant, by their negligent acts and omissions, failure to act in good faith, breaches of fiduciary duty, breaches of duty of care and statutory breaches, caused the Plaintiff personal injuries and financial loss including inter alia, nervous shock, stress, psychological damage including post traumatic stress disorder and hypertension, loss of opportunity, loss of opportunity and loss of' chance to earn an income and avoid suffering financial loss and avoid criminal prosecution, legal abuse syndrome and litigation stress syndrome arising from Court of Petty Sessions Complaint No 99/92802, Federal Court matter No TG 3017 of 1998, Supreme Court matter No 94 of' 1999, Supreme Court matter LCA No 29 of 2000, Supreme Court matter No 105 of 2000, Supreme Court Matter No 153 of 2000, Supreme Court matter FCA No 14 of 2001, Supreme Court matter No 278 of' 2001, Supreme Court matter No 12435 of' 2001, Supreme Court matter No 92639 of 2001, and Supreme Court matter No 1465 of' 2001, discombobulation, trauma, depression, development of heteroclitical obsessions, including incessant obsessive behaviour, development of feelings of worthlessness, paranoia and development of feelings of persecution, loss of' business, economic loss, financial loss, and loss of future earnings and or which prevented and or hindered the Plaintiff from earning a living, and the plaintiff did suffer personal injuries and financial loss including inter alia, and loss legal abuse syndrome, and litigation stress syndrome arising from Court of Petty Sessions Complaint No 99/92802, Federal Court matter No TG 3017 of' 1998, Supreme Court matter No 94 of 1999, Supreme Court matter LCA No 29 of 2000, Supreme Court matter No 105 of 2000, Supreme Court matter No. 153 of 2000, Supreme Court matter FCA No 14 of 2001, Supreme Court matter No 278 of 2001, Supreme Court matter No 12435 of 2001, Supreme Court matter No 92639 of 2001, and Supreme Court matter No 1465 of 2001, nervous shock, stress, depression, psychological damage including post traumatic stress disorder and hypertension, discombobulation, trauma, development of heteroclitical obsessions, including incessant obsessive behaviour, development of feelings of worthlessness, paranoia and development of feelings of persecution, loss of business, economic loss, financial loss."
Paragraph 24
alleges that on 19 November 1999 the plaintiff lodged a complaint with the Law Society for professional misconduct on the part of the tenth named defendant which included giving negligent advice and practising without holding a Tasmanian practising certificate.
Paragraph 25
The Society advised the plaintiff that "no investigation of the plaintiff's complaint against the tenth named defendant was undertaken", but it goes on to say that the first named defendant had accepted the tenth named defendant's explanation in respect "of the plethora of allegations raised by and corroborated by detailed documentation".
Paragraph 26
alleges that the Law Society was negligent in failing to investigate that complaint and that in consequence the plaintiff lost the opportunity to obtain compensation and the return of professional fees from the tenth named defendant "without having to institute proceedings".
Paragraphs 27 – 32
repeat the complaint, but variously categorise it as a 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 as being biased against him.
Paragraph 33
alleges that on 6 April 2000, Mr Tapping, a fellow director of the plaintiff (they both being directors of DIT) "directly" and the plaintiff "vicariously" lodged a complaint with the Law Society in respect of Mr McMullen, the eighth named defendant, for misconduct as a solicitor.
Paragraph 35
The Law Society, in breach of its statutory duty, failed to investigate the complaint, resulting in the loss of the plaintiff's opportunity to gain compensation for loss caused by the eighth named defendant to the plaintiff. The misconduct alleged was that, contrary to instructions, Mr McMullen had disbursed mortgage funds without the appropriate security documents having been executed and registered.
Paragraphs 36 – 42
repeat the same complaint, but categorise it variously as negligence, breach of duty, failure to exercise good faith, failure to act reasonably, failure to accord natural justice and due process and being biased.
Paragraphs 43 and 44
The plaintiff complained to the Society against the fourth and twenty-first named defendants for misleading a Senate Select Committee. It is to be noted that the plaintiff does not claim that any interest of his was affected by this allegedly misleading statement. The twenty-first named defendant advised that the complaint had been dismissed by the Law Society as vexatious.
Paragraph 45
alleges that the Law Society was negligent in failing to investigate this complaint properly "following which the Plaintiff was arrested twice, strip searched, fingerprinted, forced to give a DNA sample" and was interrogated about allegations made by the twenty-first named defendant. It is said that this led to a criminal prosecution and that he suffered loss and damage.
Paragraphs 46 – 51
again repeat the substance of this allegation, categorising it in the same way as negligence, breach of duty of care, etc.
Paragraphs 52 and 53
allege contact with the Legal Ombudsman, but no allegation is made against any party and at best this is evidentiary material only.
Paragraph 54
Again this is a rolled-up plea against the first named, fourth named and twenty-first named defendants of failing to investigate the various complaints made against the fourth named, eighth named, tenth named and twenty-first named defendants.
Paragraph 55
asserts that the Law Society's failure to investigate these complaints led to loss by the plaintiff and a plea is made to the Court to "exercise its disciplinary powers and compensate the Plaintiff".
Paragraph 56
again requests the Court to exercise its disciplinary powers and investigate the conduct of the first named, fourth named, eighth named, tenth named and twenty-first named defendants.
Paragraph 57
seeks that the Court discipline the first named defendant, the Law Society, and the fifth named defendant, Mr Gunson.
Paragraph 58
says that in June 1988, Mr Gunson lodged complaints against the plaintiff's practitioner wife and that the first named defendant commenced proceedings against her.
Paragraphs 59 and 60
are at best evidentiary in character only, being anecdotal references to various conversations by other members of the Law Society.
Paragraph 61
alleges that the plaintiff's wife was taken by police officers to headquarters where she was interrogated. No specific consequence is alleged.
Paragraph 62
alleges that the then Attorney-General, Mr Bennett, made certain statements which at best are evidentiary in character only.
Paragraph 63
states that the allegation (which had led to the plaintiff's wife's interrogation) was to the effect that she had committed perjury at a taxation conference at the Supreme Court.
Paragraph 64
says that the fifth named defendant was one of three persons who would have been privy to that conference.
Paragraph 65
The making of the last mentioned allegation had occurred at the same time as the Law Society were examining other alleged professional misconduct by the plaintiff's wife.
Paragraph 66
Her then representative resigned from the Law Council in protest at the actions of the first named defendant.
Paragraph 67
The first named defendant condoned the conduct of the unknown member of the Society who had made the allegation to the police.
Paragraph 68
Attorney-General Bennett also condoned this conduct.
Paragraphs 70 – 76
These paragraphs are at best evidentiary in nature, asserting that the Law Society turned a blind eye to breaches by other practitioners and misused its discretion by directing the plaintiff's wife to have her accounts audited at unnecessary expense and continued with other unjustified prosecutions of his wife by different members of the Law Society with the intention of causing harm to her and to the plaintiff.
Paragraph 77
is a plea that the Law Society knew or ought to have known that by the manner in which it carried out the prosecution it caused him harm.
Paragraphs 78 – 92
These paragraphs are argumentative and at best relate to matters of evidence. They allege that various people were advised not to have dealings with the plaintiff and/or his wife.
Paragraphs 93 - 100
A similar comment can be made about these paragraphs which inter alia allege that the twenty-first named defendant prosecuted the plaintiff's wife, notwithstanding the fact that he had originally been responsible for her training as a solicitor.
Paragraphs 101 – 112
These paragraphs refer to the hiring by the plaintiff of a private enquiry agent and certain uncomplimentary comments made by another member of the Law Society, Mr Ware, concerning the plaintiff's wife.
Paragraph 113
is a general plea against the first named defendant directly and the Attorney-General "vicariously" on the basis that they had sought to cause the plaintiff and his wife personal injury and loss by failing to regulate the behaviour of various members of the Law Society.
Paragraph 114
alleges that in 1996 some unnamed member of the Law Society had sought to cause the plaintiff harm when his son was insulted at school by the child of another member who repeated his parent's defamatory comments.
Paragraph 115
The Law Society is said to have been negligent for not stopping the plaintiff and his wife from being injured.
Paragraph 116
contains a general allegation of breach of statutory duty causing harm by reason of the Society's failure to regulate its members.
Paragraph 117
claims that the first named defendant colluded with its Executive Director who telephoned other members of the Society warning them that the plaintiff was monitoring their activities with a private investigator.
Paragraph 118
The Law Society commenced further investigations of the plaintiff's wife.
Paragraphs 119 - 124
are concerned with purely evidentiary matters in which, for example, it is asserted that the plaintiff's house was ransacked by an unknown person and he received a death threat by telephone from another unknown person.
Paragraph 125
claims that the Society prosecuted his wife in respect of matters reported by the eighteenth named and nineteenth named defendants.
Paragraph 126
is a general allegation of wrongdoing leading to loss consequent upon the first named defendant's failure to regulate the professional behaviour of its members.
Paragraphs 127 - 148
The substance of these paragraphs is that the fifth named defendant, Mr Gunson, claimed that the plaintiff's wife had told the Registrar of the Workers Compensation Tribunal that a certificate of readiness had been settled, presumably in certain associated common law proceedings. She was in error in saying this, but it arose out of a misunderstanding on her part and was, the plaintiff says, immaterial in any event and did not have any consequences. The fifth named defendant would not accept this and "insisted" on a prosecution to which the first named defendant agreed. Another solicitor, Mr Worsley, filed an affidavit in the proceedings which likewise contained an error and the first named defendant refused to call the Registrar to give evidence, although his affidavit showed that he was not sure of what Mrs Jovanovic had actually said. Mr Procter, who prosecuted Mrs Jovanovic before the Tribunal, categorised Mr Worsley's error as a mistake, but that of Mrs Jovanovic as a deliberate falsehood warranting disciplinary action. It does not appear from the pleading whether the Tribunal made any finding, but the Law Society did not prosecute Mr Worsley. It is not pleaded what the result of the prosecution of Mrs Jovanovic was. In essence, the complaint appears to be that the first named defendant adopts double standards. There is also a complaint of statements made on oath before the Tribunal by the fifth named defendant critical of Mrs Jovanovic.
Paragraph 149 and following
These paragraphs complain of a second prosecution as the result of a complaint by the eighteenth named defendant, Mr Cross, of an unlawful fee charge by Mrs Jovanovic and an alleged failure by her to urge her client to obtain independent advice before settling a workers compensation claim. It is alleged that the Society decided to prosecute her without proper investigation and that this led to loss on her part and on the plaintiff's part. By way of particulars it is alleged that Mrs Jovanovic had overcharged a legally aided client who had been given restricted legal aid. When that aid was exhausted, the client determined to resolve his claim by settling for the best offer which Mrs Jovanovic could procure from the person sued and it was agreed by the client that her costs would be deducted from the settlement money. The pleadings claim that eventually Mr Cross and his employer, the Legal Aid Commission, accepted that Mrs Jovanovic had not transgressed any ethical guidelines. The essence of the complaint appears to be that the complaint against Mrs Jovanovic was without substance and would not have been brought if it had been properly investigated.
The complaint against the fifth named defendant
Paragraph 57
I have already adverted to this request by the plaintiff for the Court to exercise its disciplinary powers as against the fifth named defendant, Mr Gunson.
Paragraph 58
The plaintiff alleges that Mr Gunson lodged a complaint against his wife (with whom is not clear).
Paragraph 61
This led to Mrs Jovanovic being interviewed by police in respect of a complaint of perjury by her at a taxation conference.
Paragraph 64
Mr Gunson was one of only three persons who were privy to what had happened at the taxation conference.
Paragraph 85
He advised an associate of the plaintiff (presumably Mr Tapping) to cease contact with the plaintiff.
Paragraph 172
He acted dishonourably on 8 August 1998 and admitted while under oath to having used racial nicknames concerning Mrs Jovanovic during the course of unidentified proceedings, and generally gave evidence which was critical of her.
Paragraph 174
The complaint is made that whilst giving evidence in unidentified proceedings, the fifth named defendant hid behind Court privilege and asserted that Mrs Jovanovic was a discredited witness because she took action against a number of different people.
The complaint against the fourth named defendant and twenty-first named defendant
Paragraphs 175 – 196
In this section of the amended statement of claim which makes complaint of "negligence, negligence by omission, breach of statutory duty, failure to act in good faith, negligent advice", the plaintiff asserts that on 6 September 2001, he was arrested and taken to police headquarters where he was strip searched in a particularly humiliating manner. In the course of being interrogated by the thirteenth named defendant, the latter "implied that the plaintiff had placed threatening notes on the twenty-first named defendant's white Porsche, that the plaintiff was the author of threatening notes to the twenty-first named defendant and that the plaintiff had sought to intimidate the twenty-first named defendant". His associate, Mr Tapping, was likewise strip searched, but not subjected to the same humiliations as the plaintiff was, the difference between them being their "ethnicity". A record of the interview was sent by the police to the fourth named defendant, who thereupon negligently swore an affidavit in support of court proceedings which were being brought to restrain the plaintiff from entering his wife's office. The plaintiff admits that he told the police that he had looked at a DIT file in his wife's office, but says that the fourth named defendant was negligent in swearing an affidavit by failing to mention that the plaintiff was accessing a file to which he claimed he was entitled to have access. As the result of the complaint of the fourth named defendant, some form of injunction was procured against the plaintiff and a manager was placed in charge of Mrs Jovanovic's premises and her practice. On the return of the plaintiff and his wife to her premises after they had yet again been interviewed by police, the manager ordered them to leave the premises in front of some of their friends.
The claim against the eighteenth named defendant and nineteenth named defendant
Paragraphs 197 – 213
The plaintiff claims that the eighteenth named defendant and nineteenth named defendant breached their statutory responsibility when they negligently misled the plaintiff regarding the reasons for rejecting his request for legal aid without any attempt to ascertain the merits of his defence. It appears that the plaintiff has been charged with certain criminal offences arising out of dealings in relation to DIT. The complaint is that Mr Cross summarily rejected the plaintiff's application for Legal Aid in respect of the conduct of committal proceedings because he claimed to have been advised by the plaintiff's solicitor that the plaintiff's defence to the action was very weak; whereas the plaintiff's solicitor, so he says, claims he had no such conversation with Mr Cross. In a series of paragraphs, the rejection of the plaintiff's request for Legal Aid is categorised as deceitful, lacking in good faith or reasonableness, negligent, in breach of statutory duty with the consequence that the plaintiff was denied natural justice and due process and was the victim of bias by those defendants.
The claim against the second named defendant, third named defendant, eighth named defendant, ninth named defendant, tenth named defendant, eleventh named defendant and twentieth named defendant
Paragraph 214
The claim against the abovenamed defendants is put in this way:
"214The 2nd named Defendant, the 3rd named Defendant, the 8th named Defendant, the 9th named Defendant, the 10th named Defendant, the IIth 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 including inter alia, legal abuse syndrome, litigation stress syndrome arising from Court of Petty Sessions Complaint No 99/92802, Federal Court matter No TG 3017 of 1998, Supreme Court matter No 94 of 1999, Supreme Court matter LCA No 29 of 2000, Supreme Court matter No 105 of 2000, Supreme Court matter No 153 of 2000, Supreme Court matter FCA No 14 of 2001, Supreme Court matter No 278 of 2001, Supreme Court matter No 12435 of 2001, Supreme Court matter No 92639 of 2001, and Supreme Court matter No 1465 of 2001, nervous shock, depression, stress, psychological damage including post traumatic stress disorder and hypertension, discombobulation, trauma, development of heteroclitical obsessions, including incessant obsessive behaviour, development of feelings of worthlessness, paranoia and development of feelings of persecution, loss of business, economic loss, financial loss, and loss of future earnings and or which prevented and or hindered the Plaintiff from earning a living, and the plaintiff did suffer personal injuries and financial loss including inter alia, legal abuse syndrome, litigation stress syndrome arising from Court of Petty Sessions Complaint No 99/92802, Federal Court matter No TG 3017 of 1998, Supreme Court matter No 94 of 1999, Supreme Court matter LCA No 29 of 2000, Supreme Court matter No 105 of 2000, Supreme Court matter No 153 of 2000, Supreme Court matter FCA No 14 of 2001, Supreme Court matter No 278 of 2001, Supreme Court matter No 12435 of 2001, Supreme Court matter No 92639 of 2001, and Supreme Court matter No 1465 of 2001, nervous shock, stress, depression, psychological damage including post traumatic stress disorder and hypertension, discombobulation, trauma, development of heteroclitical obsessions, including incessant obsessive behaviour, development of feelings of worthlessness, paranoia and development of feelings of persecution, loss of business, economic loss, financial loss."
Paragraph 215
On 17 August 1993, Mr Brown directly and ASIC vicariously, advised the plaintiff that the mortgage fund run by DIT complied with Corporations Law.
Paragraph 216
Mr Brown knew that the plaintiff would rely on this advice.
Paragraph 217
The plaintiff did rely on this advice and was thereby caused damage.
Paragraph 218 and following
These paragraphs contain conclusions of negligence, bad faith, etc. At best they are references to evidence from which the conclusion sought to be established is that Mr Brown's advice had been wrong and sprang from a failure to properly investigate the fund in 1993.
Paragraph 221
The plaintiff, in reliance on Mr Brown's advice, advised Mr Tapping that the fund was in compliance with the Corporations Law.
Paragraph 222
The plaintiff, in reliance on that advice, agreed to become a director of DIT and would not otherwise have done so. In consequence he suffered loss.
Paragraph 224
The second named defendant was negligent in December 1995 and January 1996 in that some of its officers (unidentified) accessed confidential information on the Australian Federal Police database concerning the company CRP and was negligent in failing to prevent this information being given to other persons.
Paragraph 228
At about this time, DIT was considering a loan to CRP.
Paragraph 229
In disseminating this confidential information, the second named defendant ensured that CRP was placed in jeopardy.
Paragraph 230
Unaware of the dissemination of this confidential information, the plaintiff took no action to prevent DIT going ahead with a loan.
Paragraphs 231 – 232
repeat the complaint and allege bad faith and negligence on the part of ASIC.
Paragraph 233
ASIC knew or ought to have known that the release of the information would be harmful to CRP and to DIT and the plaintiff because they were going to deal with CRP.
Paragraph 234
"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."
Paragraph 235 and following
These paragraphs contain a lengthy and convoluted account of certain mortgage dealings. The eleventh named defendant, who appears to have been the person having control of CRP, sought a loan of $100,000 from DIT on premises at Glenorchy which were already subject to a first mortgage in favour of the ninth named defendant for (I was told by the plaintiff from the Bar table) $900,000. DIT agreed to advance the money, but required security by way of first mortgage. It was agreed between all concerned, including the ninth named defendant, that a fresh security by way of first mortgage would secure the initial loan of $900,000, the advance by DIT of a further $100,000 and the sum of $50,000 advanced by a third party which was the subject at that time of an executed second mortgage which was not then registered but which was protected by a priority notice. The eighth named defendant (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 this would require the removal of the priority notice by the second mortgagee). The eighth named defendant broke his undertaking by advancing the $100,000 (whether directly to CRP or to the ninth named defendant, who in turn passed it on to CRP is not clear) before the documents were finalised. By this stage CRP was in receivership and the result seems to be that the $100,000 was never repaid by CRP.
Paragraph 255 and following
This is a rolled up plea that the ninth named defendant was a party to this loss because it "secured the funds on second mortgage". There is a further plea that the ninth named defendant fraudulently misappropriated the funds by securing them on second mortgage and that it was negligent in advancing the funds to CRP without the agreed security.
Paragraph 269 and following
It is asserted that the ninth named defendant was negligent, acted in bad faith, broke undertakings, breached fiduciary duties, deceived Mr Tapping and the plaintiff as directors of DIT and that as a result the plaintiff lost the opportunity to enjoy the security of an income from the funds invested with the ninth named defendant.
Paragraph 289 and following
focus on the tenth named defendant, asserting that DIT, through Mr Tapping, instructed the tenth named defendant to act for DIT and to recover the $100,000 from the ninth named defendant, who had refused to repay it. The tenth named defendant agreed to do so, but said that DIT's interests were in conflict with those of the eleventh named defendant. Nonetheless, he agreed to act for DIT and said that he would not act for the eleventh named defendant. He demanded the money from the ninth named defendant and advised Mr Tapping on 1 October 1996 that the entire mortgage sum and any expenses incurred were recoverable from the ninth named defendant and wrote on Mr Tapping's instructions to the liquidator of CRP claiming that Tapping and the plaintiff ("vicariously") were the joint first mortgagees. He instructed the liquidator not to deal with any property on the premises. Notwithstanding his earlier advice to Mr Tapping, he then asserted to Mr Tapping that it had been wrong and negligently advised Mr Tapping that the best way to get the money back was to help the eleventh named defendant to recover the mortgaged property. It is then asserted that the eleventh named defendant fraudulently deceived Mr Tapping by getting a firm of solicitors, Dennis & Co, to write a letter offering to buy the mortgage from the ninth named defendant and to pay out Tapping and the plaintiff. Without authority, the tenth named defendant and eleventh named defendant represented to the ninth named defendant that Tapping would forego the claim for the funds. The ninth named defendant took advantage of Tapping's compromised situation and exerted undue influence to get Mr Tapping and the plaintiff ("vicariously") to relinquish their rights in respect of the refund and this resulted in loss.
The claim against the second named defendant, third named defendant and sixth named defendant
The plaintiff mounts an attack upon ASIC additionally by reason of the demise of DIT.
Paragraph 311 and following
allege that the third named defendant commenced an investigation of the DIT mortgage fund, the consequence of which was a run on the fund. In October 1997, he advised the plaintiff that, contrary to the advice of the twentieth named defendant, Mr Brown, given some four years earlier, the fund did not comply with Corporations Law. In consequence, it is claimed that the plaintiff suffered loss because of Mr Brown's negligence as the servant of ASIC. Furthermore, the plaintiff and Mr Tapping agreed to the appointment of an administrator in September 1998. Notwithstanding that this was a sound appointment which had the consent of all creditors of DIT, ASIC negligently commenced proceedings in the Federal Court on 1 December 1998 seeking the appointment of a provisional liquidator and relying upon what the plaintiff says was a negligently prepared report by the sixth named defendant, Mr Woods, the proposed provisional liquidator. This is alleged to be a breach of statutory duty by ASIC leading to the loss of a sum of $169,720. The claim is put on the basis that ASIC was negligent, acted in bad faith, was biased, acted unreasonably, negligently and in breach of statutory duty.
Paragraph 322
It is then claimed that the Federal Court in the person of Marshall J was led into error in holding that there was a loan of between $514,000 and $710,000 to a company G W Stanton & Associates Pty Ltd of which Mr Tapping and the plaintiff were likewise the sole directors. It is alleged that Mr Woods was negligent in failing to examine all the books of DIT before making his report, which led to ASIC instituting the proceedings which culminated in the appointment of Mr Woods as provisional liquidator. Bad faith and the other bases outlined above were repeated in relation to this allegation. Mr Woods' negligence led to the judge's incorrect finding of the size of the debt owed by the Stanton company.
Claim against the first named defendant, second named defendant, third named defendant, fourth named defendant, fifth named defendant, sixth named defendant, eighth named defendant, ninth named defendant, tenth named defendant, eleventh named defendant, twentieth named defendant and twenty-first named defendant
Paragraphs 333 – 377
These paragraphs recast the claims against the abovenamed defendants. The first paragraph alleges that, between October 1988 and the present date, the first named defendant and fourth named defendant were negligent in failing to regulate members of the Law Society. Then it is said that the twentieth named defendant gave negligent advice about the fund in August 1993 and that but for this advice, the plaintiff "may not have become a director" of DIT. The eighth named defendant was negligent in failing to secure the funds advanced by DIT and the ninth named defendant was negligent in instructing its agent, the eighth named defendant, to breach "their or his" undertaking and failing to procure proper security for the moneys advanced. There are further pleadings against the tenth named defendant, but I need not deal with them because he is not before me, and the eleventh named defendant does not seek any orders. The second named defendant is said to have been negligent in failing to prevent the dissemination of the confidential information concerning CRP, and the third named defendant (Mr Purdon) and the second named defendant (ASIC) vicariously were negligent in failing to give the sixth named defendant, Mr Woods, proper instructions before launching proceedings in the Federal Court. The second named defendant and third named defendant are said to be negligent in continuing with the application and in failing to take notice of the wishes of investors and the administrator's advice.
Paragraph 378
is completely unintelligible. It reads as follows:
"378When in the mean time, relying on negligent advice, given by the 20th named Defendant directly and the 2nd named Defendant, that the D W & 1 M Tapping Pty Ltd mortgage fund operated within the provisions of the Corporations Law and unaware that, as a result of the 2nd named Defendant's negligence and breach of statutory duty, that classified information obtained from the Federal Police Intel data base by the 2nd named Defendant's officers was being unlawfully disseminated from the 2nd named Defendant's Hobart Office, but for which the Plaintiff would have taken steps to prevent the Company of which he was a director, D W & I M Tapping Pty Ltd from making an advance to Coal River Processing (Tas) Pty Ltd and would have not been deprived of the opportunity to continue earning income and would have avoided losses sustained and would have avoided facing criminal charges."
The claim against the twelfth named defendant, thirteenth named defendant, fourteenth named defendant, fifteenth named defendant, sixteenth named defendant and seventeenth named defendant
This claim is said to involve "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, failure to provide documents".
Paragraphs 371 - 381
The first three paragraphs are pure argumentation, with no specific allegation raised against any of the abovenamed defendants.
Paragraph 382
This alleges that the Attorney-General was negligent in failing to investigate all relevant matters prior to instituting criminal proceedings against the plaintiff. But for that failure, it is said the plaintiff would have had the opportunity to avoid the criminal charges and other commercial losses he has sustained.
Paragraph 387
The fifteenth named defendant is said to be negligent by failing to properly investigate all relevant matters.
Paragraphs 392 – 396
The same allegations are made in respect of the sixteenth named defendant.
Paragraphs 397 – 401
The same allegations are made against the seventeenth named defendant.
Paragraph 402
This is a rolled-up plea against the 13 – 17 named defendants of negligence and breach of statutory duty in failing to properly investigate, with consequential loss to the plaintiff.
Paragraph 403
Is argumentative in that it complains of a more rigid form of strip search having been endured by the plaintiff compared with Mr Tapping and the conclusion is asserted that the reason for this is racial discrimination.
Paragraph 412 and following
repeat the claim for negligence and breach of statutory duty in that these defendants failed to check certain sworn declarations and failed to make proper discovery of documents of assistance to the plaintiff.
Paragraphs 422 – 428
assert that the thirteenth named defendant was negligent when he witnessed various signatures to statutory declarations which the plaintiff claims contained falsehoods of which the thirteenth named defendant was aware or ought to have been aware.
Paragraphs 430 – 435
These paragraphs complain of prolonged harassment by the second named defendant of the plaintiff, insisting that he, as an officer of the company, provide a report on DIT's affairs when the necessary documentation was not in the plaintiff's possession. The facts pleaded do not disclose a cause of action.
Paragraphs 436 – 443
Again repeat the claim of negligence by the fourteenth named defendant, fifteenth named defendant, sixteenth named defendant and seventeenth named defendant for allegedly failing to investigate the plaintiff's role within DIT. They are argumentative and give instances which at best might be relevant as evidence of what is being asserted. They do not contain any material facts constituting a cause of action.
The merits of the claims as grouped in the amended statement of claim
(a) As against the first named defendant
The plaintiff's claims against the Law Society arise out of the Society's alleged failure to investigate complaints made by the plaintiff against various members or officers of the Society, an alleged vicarious liability on the part of the Law Society for the misconduct of its members or officers, and allegedly unwarranted and racially motivated prosecutions or investigations of his wife. There is also a plea to the Court to discipline the Society. As to the failure to investigate, the only loss to the plaintiff alleged to have flowed from the Society's negligence or breach of statutory duty is 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 suing the practitioner in a civil action. This appears to be a reference to the power to order a practitioner to pay compensation of a specified amount to a specified person which is reposed in the Council of the Law Society (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)). That power can only be exercised, however, with the consent of the parties to the complaint (ss61(4) and 76(3)) which term is defined as including the practitioner to whom the complaint relates (the Act, s56).
The statutory functions of the Law Society are set out in the Act, s6(1), which is in these terms:
"6 (1) The Society has the following functions:
(a) the regulation, promotion and representation of the legal profession;
(b) the promotion of law reform;
(c) any other functions which promote the objects of the Society."
The Council of the Law Society is established by s7, and s15(1) authorises the council to institute prosecutions and other proceedings in the name of the Society. The Act, Pt 8, deals with disciplinary proceedings. It defines "complaint" in s56 as:
"'complaint' means a complaint against a practitioner relating to the professional misconduct or unprofessional conduct of that practitioner."
Both "professional misconduct" and "unprofessional conduct" are defined, the latter being less serious than the former. Section 57 empowers any person to make a complaint against a practitioner. Section 58(1) states "The Council must investigate a complaint made under section 57", while subs(3) thereof provides:
"(3) If, in the course of an investigation, the Council considers a complaint to be frivolous, vexatious or lacking in substance, it must dismiss the complaint."
Section 60 provides, in effect, that if as a result of an investigation the Council is of the opinion that any matter the subject of the investigation amounts to unprofessional conduct, the Council is to deal with it, but there is power to refer to the Disciplinary Tribunal, established by s66, matters which may amount to both unprofessional conduct and professional misconduct, or which constitute a course of conduct which ought to be referred to the Tribunal established by s66. If in the course of an investigation the Council is of the opinion that professional misconduct is involved, it must refer the complaint to the Disciplinary Tribunal or to the Supreme Court. Notice of any determination by the Council must be given to the parties to the complaint and a party dissatisfied may within 21 days of receiving notice apply to have the matter reheard by the Tribunal or by the Supreme Court. As I have already noted, the Council, by s61(2)(c), has power to make a determination requiring the payment of compensation by a practitioner to a specified person, but only with the consent of the parties.
It is not clear from the pleadings whether the Society's alleged failure to investigate the complaints consisted of a complete failure to do anything, 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 plaintiff (see par25 of the amended statement of claim cited above). In any event, his grievance sounds in administrative law, not in an action for damages in tort. Indeed, many of his pleadings are couched in the language of administrative law, such as his allegations of lack of due process, of denial of natural justice and of failing to act reasonably. Whether the Law Society is under a duty of care at common law to the plaintiff or is subject to a statutory obligation to investigate complaints, a breach of that duty or obligation does not sound in damages unless it can be shown at the very least that some damage has been caused to the plaintiff by that breach. The only damage on which the plaintiff relies is a loss of the opportunity to obtain a determination by the Council (or, if the matter is one which should have been referred to the Disciplinary Tribunal or the Supreme Court, as amounting to more than unprofessional conduct, by those entities) that the practitioners complained against pay compensation to him. He has not lost such rights as he may have to recover loss from the practitioners themselves by reason of the Law Society's alleged failure to investigate his complaints. Before he could have recovered such compensation, the wrongful conduct of the practitioners would have had to be proven, as would the extent of the loss. Furthermore, the practitioners in question would have had to consent to an order for compensation being made and the Council (Tribunal or Supreme Court, as the case may be) exercised a discretion to make it. I am at a loss to see how in these circumstances it could be said that he could have suffered damage by reason of the Council's alleged breach of statutory duty in depriving him of the opportunity to recover any loss at the hands of the practitioners by way of compensation rather than by way of damages in a civil action against them. In my view the claims against the Law Society on this basis cannot constitute a cause of action against it.
With respect to the claims based on vicarious liability for the actions of the Society's members, both named and unidentified, no facts are pleaded upon which such liability could be established. The function of regulating the profession reposed in it by the Act, s6(1), cannot be interpreted as imposing a blanket liability for any wrongdoing by an individual member of the Society. The fourth named defendant, who is the Society's Executive Director, is in a different position from that of members, for she is a servant of the Society, but the Society's vicarious liability for her acts only arise if they are capable of being tortious. I shall deal with the case pleaded against her later.
As to the prosecutions of the plaintiff's wife, the plaintiff has no cause of action against the Society. The plaintiff's wife had remedies by way of judicial review or appeal by way of rehearing. There is no basis pleaded for a claim for damages by the plaintiff himself against the Law Society for any allegedly unjust treatment of his wife. The same can be said for any wrongful discrimination against her, hurtful and unwarranted as it is alleged to have been.
The plaintiff seeks the intervention of the Court to discipline the Law Society. The short answer to this claim is that although individual practitioners are subject to the disciplinary powers of the court when those powers are properly invoked, the Law Society is not a practitioner. The Act, s80(1) provides:
"80 (1) Any person may make an application to the Supreme Court to hear and determine a complaint."
It will be remembered that "complaint" is defined in s56 as "a complaint against a practitioner relating to the professional misconduct or unprofessional conduct of that practitioner". "Practitioner", too, is defined in s56. It does not include the Law Society.
(b) As against the fifth named defendant
These claims arise out of the alleged actions of Mr Gunson in lodging complaints against the plaintiff's wife, of advising an associate of the plaintiff (presumably Mr Tapping) to cease contact with the plaintiff, and of having given evidence critical of the plaintiff's wife in unidentified proceedings. The plaintiff further asks the Court to exercise its disciplinary powers in respect of the fifth named defendant. In my view, the amended statement of claim does not establish a cause of action against Mr Gunson. No basis is asserted upon which breach of a duty of care to the plaintiff with consequential loss on his part could be found. Even if the fifth named defendant's complaints against the plaintiff's wife were without foundation or his comments unfair and vindictive, the plaintiff has no cause of action against him. As to the plaintiff's request that this Court discipline the fifth named defendant, the Act, s80, lays down a procedure for applications to the Supreme Court to hear and determine a complaint of unprofessional conduct or of professional misconduct. Subsection (2) provides that unless the Supreme Court otherwise orders, such an application is to be heard in open court and in accordance with the Rules of the Supreme Court 1965 (now Supreme Court Rules 2000, which by r90, par(zl) requires that an application to strike a legal practitioner off the Roll or to suspend, or otherwise discipline, a legal practitioner, is to be commenced by application to a judge in Chambers). The nature and purpose of, and the procedure for, such proceedings are so different from an action for damages in tort that the inclusion of such a request in this action is entirely inappropriate.
(c) As against the fourth named defendant and twenty-first named defendant
The claims against the fourth named defendant, who was the Executive Director of the Law Society, spring partly from an allegation that she negligently failed to investigate complaints made by the plaintiff (eg, par54) and partly for negligently swearing an affidavit in court proceedings to restrain the plaintiff from entering his wife's office, the negligence lying in her failure to state that the plaintiff was accessing a DIT file, access to which he was entitled. No proper basis is laid in the pleading for any breach of a duty of care or of a statutory duty in the first allegation. A perusal of the Act reveals that the Council is charged with the duty of investigating a complaint made to the Society under s57 (see s58), while it lays no such obligation on the Executive Director (see ss14 and 57(3) and (4)). In respect of the second allegation, no facts are pleaded which would establish any breach of duty by the fourth named defendant in respect of the contents of the affidavit she allegedly swore.
As to the twenty-first named defendant, no claims are made against him in relation to the plaintiff's interrogation by police in September 2001. Passing reference is made to suggestions by the police that the plaintiff had put threatening notes on the twenty-first named defendant's car and had sought to intimidate him, but no cause of action is established in pars175 – 196 of the amended statement of claim. The only claims against the twenty-first named defendant appear to be firstly of misleading a Senate Select Committee (pars43 and 44, but as the plaintiff does not claim that any interest of his was affected by this statement, no cause of action is shown), and secondly of failing to properly investigate the plaintiff's complaints. However, the Council had the statutory duty of investigating complaints and no basis is shown for any action against the twenty-first named defendant in respect of this matter. As I have already said, references to the twenty-first named defendant having been responsible for the plaintiff's wife's legal training are merely argumentative.
(d) As against the eighteenth named defendant and nineteenth named defendant
If the complaint of the unwarranted rejection of the plaintiff's request for legal aid has any merit, it should be the subject of an application for judicial review. It is not a matter which gives rise to an action for damages in tort.
(e)As against the second named defendant, third named defendant, eighth named defendant, ninth named defendant, tenth named defendant, eleventh named defendant and twentieth named defendant
Paragraphs 214 – 310 of the amended statement of claim are chaotic in the extreme. They commence with an assertion that the twentieth named defendant negligently advised the plaintiff in August 1993 that the mortgage fund run by DIT complied with Corporations Law and that the second named defendant is vicariously liable for his negligence. In reliance on the advice, the plaintiff is said to have agreed to become a director of that company and by doing so he suffered loss. How the allegedly negligent advice led to loss by the plaintiff is not stated. All that is pleaded is that it led to his decision to become a director of the company. There are insufficient facts even if a duty exists in the paucity of circumstances pleaded to demonstrate how the omission was causative of loss or that loss was foreseeable. I conclude that no cause of action is established and no basis is even hinted at which, in my view, would justify the granting of leave to recast the pleading against the second named defendant by dint of vicarious liability for the acts and omissions of the twentieth defendant.
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. It is unnecessary to comment on the position of the tenth named defendant and eleventh named defendant because the former is not before me and the latter does not oppose the grant of leave to amend as against him. The twentieth named defendant is also not before me.
(e) As against the second named defendant, third named defendant and sixth named defendant
The claims in negligence and breach of statutory duty against ASIC, a corporation with statutory functions and obligations, must first pass the test of the existence of a duty of care to the plaintiff. As Kirby J said in Graham Barclay Oysters Pty Ltd & Anor v Ryan & Ors (2002) 194 ALR 337 at 393, referring to the intermediate appeal court's analysis of the previous decisions on the duty of care in the exercise of statutory powers:
"Only one unarguable principle emerges from the earlier decisions, reflected in the Federal Court's analysis. It is the self-evident one that any duty of a public authority at common law must be compatible with the legislative powers conferred, and duties imposed, on that authority. It must conform to the apparent purpose of the legislature relating to the authority carrying out its duties according to statute."
The second named defendant was established as a body corporate by the Australian Securities and Investment Commission Act 1989, s7. At all relevant times the aims of that Act and of the Australian Securities and Investment Commission Act 2001 which replaced it were set out in s1(2) which provided that:
"1(2) In performing its functions and exercising its powers, the Commission must strive:
(a) to maintain, facilitate, and improve, the performance of companies, and of the securities markets and futures markets, in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and
(b) to maintain the confidence of investors in the securities markets and futures markets by ensuring adequate protection for such investors; and
(c) to achieve uniformity throughout Australia in how the Commission and its delegates perform those functions and exercise those powers; and
(d) to administer national scheme laws effectively but with a minimum of procedural requirements; and
(e) to receive, process, and store, efficiently and quickly, the documents lodged with, and the information given to, the Commission under national scheme laws; and
(f) to ensure that those documents, and that information, are available as soon as possible for access by the public; and
(g) to take whatever action it can take, and is necessary, in order to enforce and give effect to national scheme laws."[1]
At all material times ASIC has had extensive powers of investigation where it has reason to suspect that there may have been committed a contravention of a law of the Commonwealth or of a State or Territory, being a contravention that:
(i) concerns the management or affairs of a body corporate or managed investment scheme;
or
(ii)involves fraud or dishonesty and relates to a body corporate or managed investment scheme, or to securities or future contracts.
The plaintiff's complaints under par311 of the amended statement of claim against ASIC and its officers or agents involve allegations of negligence in the conduct of its investigations into DIT. Indeed the initial allegation is of negligence in undertaking an investigation and it is said that the consequence of that investigation was a run on DIT's funds. Quite clearly the undertaking of an investigation by ASIC, having regard to its statutory responsibilities, could not constitute a breach of a duty of care to anyone, let alone to the plaintiff. As the Court said in Sullivan v Moody (2001) 207 CLR 562 at 582:
"The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations."
In my view there is neither a duty of care on the part of ASIC to the plaintiff in respect of the institution or conduct of its investigation, nor any fact pleaded from which a breach of duty could be established. See also Yuen Kun Yeu v Attorney General Hong Kong [1988] AC 175.
The plaintiff's claim of negligence in commencing proceedings in the Federal Court for the appointment of a provisional liquidator of DIT, which seems to be directed against ASIC vicariously by reason of the negligence of its servant Mr Purdon, the third named defendant, in choosing to apply to the Court when the Administrator already appointed was allegedly capable of achieving a satisfactory result likewise fails, as does the claim that the sixth named defendant, Mr Woods, negligently prepared a report upon which the order was made. Furthermore, in relation to that allegation, the proceedings before Marshall J involved the taking of evidence from Mr Wood, extensive cross-examination of him by the plaintiff and a determination by the Court that it was just and equitable that DIT be wound up as it was insolvent and had an egregious shortfall of funds. It is clear from the transcript that that determination was not affected by the claimed error in any event. The plaintiff has no cause of action against ASIC or the sixth named defendant in respect of their alleged omissions which preceded the Federal Court orders. This attempt to re-litigate the issue in that Court is, in my view, an abuse of the process of the Court.
(f) As against the twelfth, thirteenth, fourteenth, fifteenth, sixteenth and seventeenth named defendants
These claims against the various holders of the office of Attorney-General, the three police officers who investigated certain allegations against the plaintiff which he claims led to still pending criminal proceedings against him, and the holders of the offices of Commissioner of Police and Director of Public Prosecutions for negligence, are unsustainable. 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.
The plaintiff's statement of claim and the proposed amendments to it are misconceived. The documents not only offend the rules of pleading in the sense that they do not set out clearly the material facts upon which he claims relief and that they include prolix and confusing statements which are argumentative or, at best, evidential in character, but it is impossible to discern from them any viable cause of action against any of the defendants presently before me. It is incurable in my view and the only appropriate course is to strike out the statement of claim and the plaintiff's amended statement of claim against each of the first, second, third, fourth, fifth, eighth, ninth, twelfth (in the person of the Honourable J L Jackson), thirteenth, fourteen, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth and twenty-first named defendants and to enter judgment for each of them against the plaintiff. I refrain from making any orders in respect of those defendants who are not before me, namely the sixth, tenth, twentieth defendants and the Honourable P J Patmore who though joined in by order at the hearing of the application has not been served. As to the eleventh named defendant I give the plaintiff leave to amend his statement of claim as against him and will give him the opportunity to advance his argument concerning costs thrown away and the plaintiff the opportunity to respond to it.
"(a) maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs and the efficiency and development of the economy; and
(b) promote the confident and informed participation of investors and consumers in the financial system".
The sub-section remained in the amended form until the repeal of the 1989 Act and its replacement, with effect from 15th July 2001, with the new Federal scheme which includes, in replacement of the 1989 Act, the Australian Securities and Investments Commission Act 2001, s1(2) of which was altered in substance only by deletion of former s1(2)(c).
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