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Jovanovic v Woods (No 3)

Jovanovic v Woods (No 3)

Case [2001] TASSC 96 15 August 2001

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[2001] TASSC 96

CITATION: Jovanovic & Anor v Woods & Ors (No 3) [2001] TASSC 96

PARTIES: JOVANOVIC, Jon

TAPPING, Ian Maxwell
v
WOODS, John William
PURDON, Scott Robert
AUSTRALIAN SECURITIES AND INVESTMENT 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:  15 August 2001
DELIVERED AT:  Hobart
HEARING DATE:  3, 9 August 2001
JUDGMENT OF:  Master Holt

CATCHWORDS:

Procedure - Tasmania - Practice under Rules of Court - Amendments - Statement of Claim - Whether all material facts pleaded - Exercise of discretion.

Supreme Court Rules 2000 (Tas), rr227, 258, 259 and 427.
McKellar & Anor v Container Terminal Management Services Ltd & Ors (1999) 165 ALR 409; Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; Bruce v Odhams Press Ltd [1936] 1 KB 697; H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181; Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215; Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691; The Commonwealth of Australia v Verwayen (1990) 170 CLR 394, referred to.
Aust Dig Procedure [276]

Evidence - Witnesses - Immunities - Preparation of statement for purpose of court proceedings.
Munnings v Australian Government Solicitor & Ors (1994) 118 ALR 385; Darker v Chief Constable (2000) 4 All ER 193, applied.
Aust Dig Evidence [205]

REPRESENTATION:

Counsel:
           Plaintiffs:  J Jovanovic
           First Named Defendant:  G L Sealy
           Second & Third Named Defendants:      P A Bowen
           Fourth & Fifth Named Defendants:       D F M Zeeman
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: [2001] TASSC 96
Number of paragraphs: 8

Serial No 96/2001
File No 94/1999

JOVANOVIC & ANOR v WOODS & ORS (No 3)

REASONS FOR JUDGMENT MASTER HOLT

15 August 2001

The application to amend

The plaintiffs have applied for leave to amend their statement of claim. The action was commenced by the plaintiffs in person by a writ filed 5 February 1999. The plaintiffs claim damages for defamation and damages for negligent mis-statement. There is no complaint about the proposed defamation pleading. As to the negligence claim, in very brief summary, the plaintiffs were directors of D W & I M Tapping Pty Ltd ("the Company"), which operated a mortgage investment fund. The first named defendant ("Woods") was an accountant engaged by the third named defendant ("ASIC") to report as to the financial affairs of the Company. The report was prepared under the supervision of the second named defendant, an employee of ASIC ("Purdon") The resultant report led to an application being made by ASIC to the Federal Court of Australia for an order that the Company be wound up. The Court granted the application and the plaintiffs claim to have thereby suffered financial loss. The plaintiffs…

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 (No 3)

Details

AGLC: Jovanovic v Woods (No 3) [2001] TASSC 96
Case: [2001] TASSC 96
Decision Date: 15 August 2001

CaseChat Overview and Summary

The plaintiffs, Jon Jovanovic and Ian Tapping, have applied for leave to amend their statement of claim against the defendants, John Woods, Scott Purdon, the Australian Securities and Investment Commission (ASIC), and others. The plaintiffs are directors of a company that was wound up by the Federal Court of Australia. They claim damages for defamation and for negligent mis-statement. The defendants have opposed the application on the basis that the amendment fails to disclose a cause of action and that the immunity or absolute privilege applicable to witness statements makes the negligence claim futile.

The court considered the principles of pleadings and found that the amendment, while poorly organised, sets out the material facts necessary to formulate a cause of action for negligence. The court noted that the amendment is an improvement over the previous statement of claim and that the defendants have been given adequate information to understand the case. The court also found that the immunity applying to witness statements extends to the preparation of the report in contemplation of court proceedings, making the negligence claim obviously bad in law.

The court granted leave to amend the statement of claim in relation to the defamation claim, as it is not subject to attack. The court noted that the defendants may seek to have the negligence claim struck out or permanently stayed on the grounds that it is untenable and an abuse of process.

Orders