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Jovanovic v Woods

Jovanovic v Woods

Case [2000] TASSC 149 24 October 2000

Jurisdiction

Limitation Periods

Admissibility of Evidence

Breach of Contract

Negligence

Statutory Construction

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[2000] TASSC 149

CITATION: Jovanovic & Ors v Woods & Ors [2000] TASSC 149

PARTIES:  JOVANOVIC, Jon
  TAPPING, Ian Maxwell
  v

WOODS, John William
PURDON, Scott Robert
AUSTRALIAN SECURITIES
AND INVESTMENTS COMMISSION
CARRIGG, David
DAVIES BROTHERS LTD ACN 009 475 754

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  94/1999
DELIVERED ON:  24 October 2000
DELIVERED AT:  Hobart
HEARING DATES:  12 October 2000
JUDGMENT OF:  Master Holt

CATCHWORDS:

Procedure - Supreme Court - Tasmania - Practice under the Rules of Court - Amendments - Statement of claim - Whether reasonable cause of action disclosed - Function of particulars.

Supreme Court Rules (Tas), rr227, 258 and 259.
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; Thorp v Holdsworth (1876) 3 Ch D 637; Bruce v Odhams Press Ld [1936] 1 KB 697; Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd & Ors (1987) 14 FCR 215, referred to.
Aust Dig Procedure [95]
Defamation - Publication - Republication.
Parkes v Prescott [1869] LR 4 Ex 169; Speight v Gosnay (1891) 60 LJQB 231, referred to.
Aust Dig Defamation [30]

REPRESENTATION:

Counsel:
             Plaintiffs:  J Jovanovic
             First named Defendant:  G L Sealy
             Second & Third named Defendants:       P A Bowen
             Fourth & Fifth named Defendants:          N J Cooper
Solicitors:
             Plaintiffs:  J Jovanovic & Associates
             First named Defendant:  Piggott Wood & Baker
             Second & Third named Defendants:       Australian Government Solicitor
             Fourth & Fifth named Defendants:          Butler McIntyre & Butler

Judgment Number: [2000] TASSC 149
Number of Paragraphs: 19

Serial No 149/2000
File No 94/1999

JON JOVANOVIC and IAN MAXWELL TAPPING v JOHN WILLIAM WOODS, SCOTT ROBERT PURDON, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION, DAVID CARRIGG and DAVIS BROTHERS LTD ACN 009 475 754

REASONS FOR JUDGMENT THE MASTER

24 October 2000

The plaintiffs have applied for leave to deliver an amended statement of claim. According to the proposed statement of claim:

1    The plaintiffs, Mr Jovanovic and Mr Tapping, were directors of the company, D W & I M Tapping Pty Ltd ("the company"). The second named plaintiff is a shareholder of the company. The company operated a mortgage investment fund.
2    The first defendant, Mr Woods, is an accountant.
3    The second defendant, Mr Purdon, is an officer of the third defendant, the Australian Securities and Investments Commission ("ASIC").
4    Mr Woods was commissioned by ASIC to investigate and report on the affairs of the company.
5    Mr Woods produced a report under the supervision of Mr Purdon, in which he said, amongst other things, that the company was insolvent and that a liquidator should be appointed ("the Woods report").
6    As a result of a lack of care in the preparation of the report, a debt owed to the company was double counted, leading to the conclusions in the Woods report that the company was insolvent and a liquidator should be appointed.
7    The company is in the process of being wound up and, as a result, Mr Jovanovic and Mr…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Jovanovic v Woods

Details

AGLC: Jovanovic v Woods [2000] TASSC 149
Case: [2000] TASSC 149
Decision Date: 24 October 2000

CaseChat Overview and Summary

Jon Jovanovic and Ian Maxwell Tapping, the plaintiffs, sought leave to deliver an amended statement of claim against John William Woods, Scott Robert Purdon, the Australian Securities and Investment Commission (ASIC), David Carrigg, and Davies Brothers Ltd. The plaintiffs alleged defamation and negligence claims stemming from a report by Mr Woods, supervised by Mr Purdon, which concluded that the company operated by the plaintiffs was insolvent, leading to its liquidation. The report was allegedly negligently prepared, resulting in a double-counting error that inflated the company's debt. The plaintiffs further alleged that a newspaper article by Mr Carrigg, published by Davies Brothers Ltd, republished defamatory content from Mr Woods' report, exacerbating their damages. The court was tasked with determining whether the proposed amended statement of claim disclosed a reasonable cause of action in both defamation and negligence against the defendants.

The court first addressed the defamation claim, focusing on whether the proposed pleading adequately identified the original defamatory publication and the circumstances under which the defendants were responsible for the republication. The plaintiffs' pleading did not specify the original publication or the basis for the defendants' liability for the republication, leading the court to conclude that the pleading did not disclose a reasonable cause of action in defamation against Mr Woods and ASIC. The court emphasised that a pleading must contain material facts that support the claims made and that particulars cannot remedy deficiencies in the statement of claim. Regarding the negligence claims, the court found that the pleading did not sufficiently establish a causal link between the alleged negligent preparation and implementation of the Woods report and the damages claimed by the plaintiffs. The pleadings lacked specific facts necessary to show how the negligent actions led to the loss of director's fees and the diminished value of the plaintiffs' shareholdings. The court further noted that the pleading did not adequately address the potential issues of vicarious liability and the duty of care owed by ASIC in the context of the Woods report. Consequently, the court dismissed the application for leave to deliver the amended statement of claim in relation to the first, second, and third named defendants, while reserving judgment on whether to allow the amendment for the fourth and fifth named defendants, who were not involved in the negligence claims.

Orders