PAUL EDWARD BAXTER, RODNEY GRAEME BESLEY, ANTHONY JAMES BUTLER, PHILIP JOHN BYRNES, DREW ANTHONY CASTLEY, ANTHONY JAMES CONAGHAN, BENTLEY SEAN COOGAN, JAMES BUCHANAN DANIEL, PHILIP BRIAN DOWLING, JAMES PATRICK FEEHELY, ANDREW ROBERTSON FORBES, EUGENE YUK-KWAN FUNG, ALISON BERESFORD HALY, ANDREW JAMES KELLY, MICHAEL FINDLAY MARSHALL, MARTIN DENNIS McENIERY, SAMANTHA JANE O’BRIEN, CHRISTOPHER JOHN O’SHEA, ROGER WILLIAM QUICK, SEAN ANTHONY SULLIVAN, LAWRENCE NEIL WARD
(fourth defendants)
SUNLAND GROUP LIMITED
(fifth defendant)
FILE NO/S:
SC No 982 of 2015
DIVISION:
Trial Division
PROCEEDING:
Application of the fourth defendants filed 26 October 2015
Application of the first, second, third and fifth defendants filed 28 October 2015
DELIVERED ON:
28 April 2016
DELIVERED AT:
Brisbane
HEARING DATE:
11 November 2015
JUDGE:
Bond J
ORDER:
In relation to the fourth defendants’ application filed 26 October 2015, I order that:
1. The claim against the fourth defendants is struck out.
2. The plaintiff pay the fourth defendants' costs of the proceeding.
In relation to the first, second, third and fifth defendants’ application filed 28 October 2015, I order that:
1. The claim in negligence against the third defendant and paragraphs 86 to 93 of the statement of claim are struck out.
2. The following paragraphs of the statement of claim are struck out, with leave to re-plead:
(a) paragraphs 80 to 85;
(b) paragraphs 94 to 105;
(c) paragraph 8(d); and
(d) paragraphs 29 and 49.
3. Paragraphs 61 and 62 of the statement of claim are struck out.
4. The plaintiff pay the first, second, third and fifth defendants’ costs of the third amended application filed 28 October 2015.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – where third and fourth defendants were engaged to act as solicitors for fifth defendant – where, in performance of retainer, third and fourth defendants drafted a report to be provided to prosecution authorities in Dubai – where plaintiff alleged third and fourth defendants owed duty “to take reasonable care to avoid causing [the plaintiff] to suffer loss resulting from the careless expression of an opinion” – whether actual or potential conflict with duties owed to fifth defendant – whether duty would supplement or subvert the existence of other principles of law – whether arguable that third and fourth defendants owed alleged duty
TORTS – MISCELLANEOUS TORTS – CONSPIRING TO INJURE – GENERAL PRINCIPLES – where plaintiff alleged unlawful conspiracy to injure against first, second and third defendants – where pleadings do not clearly distinguish between unlawful means conspiracy and lawful means conspiracy – whether pleadings fail to specify the unlawful means agreed to be employed and the facts or circumstances which made them unlawful – whether pleadings do not establish necessary causal relationship between unlawful conduct and loss and damage – whether reference to “improper”…
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.
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AGLC
Lee v Abedian [2016] QSC 92
Case
[2016] QSC 92
Decision Date
CaseChat Overview and Summary
The case of Lee v Abedian involved a complex web of claims brought by the plaintiff against various defendants, including individuals and entities involved in a significant financial transaction. The plaintiff alleged a variety of tortious claims, including negligence, conspiracy to injure, malicious prosecution, and false imprisonment. The defendants sought to have various parts of the plaintiff's claims struck out on the basis that they were not properly pleaded or disclosed arguable questions of law.
The central legal issues the court had to address included whether the third and fourth defendants, who were engaged as solicitors, owed a duty of care to the plaintiff to avoid causing loss by the careless expression of an opinion in a report they drafted. The court also had to consider the adequacy of the plaintiff's pleadings for claims of unlawful means conspiracy and lawful means conspiracy, including whether the pleadings specified the unlawful means and the necessary causal relationship between the unlawful conduct and the loss and damage claimed. Additionally, the court examined whether the first, second, third, and fifth defendants were liable for having instigated prosecution proceedings and whether the plaintiff could recover general damages for loss of reputation.
The court determined that the third and fourth defendants did not owe a duty of care to the plaintiff in the circumstances of the case. Regarding the conspiracy claims, the court found that the plaintiff's pleadings did not sufficiently specify the unlawful means or establish the necessary causal relationship between the unlawful conduct and the loss and damage. The court also held that the pleadings were unclear and required more precise articulation of the facts or circumstances relied on to contend that certain conduct was unlawful. As for the malicious prosecution claim, the court found that the pleaded facts did not establish an arguable case that the defendants instigated the prosecution proceedings. The court further found that the claim for general damages for loss of reputation was not properly pleaded.
Based on these findings, the court struck out various parts of the plaintiff's claims against the defendants, including the negligence claim against the third defendant, paragraphs 86 to 93 of the statement of claim, and specific paragraphs related to the conspiracy and malicious prosecution claims. The court also ordered the plaintiff to pay the defendants' costs associated with the applications to strike out the claims.
Orders
Orders of the court
In relation to the fourth defendants’ application filed 26 October 2015, I order that:
1. The claim against the fourth defendants is struck out.
2. The plaintiff pay the fourth defendants' costs of the proceeding.
In relation to the first, second, third and fifth defendants’ application filed 28 October 2015, I order that:
1. The claim in negligence against the third defendant and paragraphs 86 to 93 of the statement of claim are struck out.
2. The following paragraphs of the statement of claim are struck out, with leave to re-plead:
(a) paragraphs 80 to 85;
(b) paragraphs 94 to 105;
(c) paragraph 8(d); and
(d) paragraphs 29 and 49.
3. Paragraphs 61 and 62 of the statement of claim are struck out.
4. The plaintiff pay the first, second, third and fifth defendants’ costs of the third amended application filed 28 October 2015.
Background
Background to the litigation
The first complaint as to the manner of pleading the unlawful means conspiracy is that the plaintiff fails to plead the complete elements of an unlawful means conspiracy. In particular, that he fails to plead that the first, second and third defendants conspired to employ unlawful means. As to this:(a)Unsurprisingly, given the wording of the pleading, the complaint was founded on the proposition that the intention of the pleading was that the matters listed at [83] were the unlawful means, but there was no allegation that the nature of the agreement pleaded at [80] was a conspiracy to engage in those unlawful means. (b)If that had been the way in which the pleading should be read, I would have accepted that complaint.(c)However, the plaintiff met that complaint by contending[17] that the conduct which amounted to unlawful means was the conduct the pleaded at [80], namely the conduct of “[alleging and maintaining] to the Dubai prosecution authorities and publicly, that Sunland was the victim of a fraud in respect of [the $14 million collateral payment] and that the plaintiff (with others) was a participant in the fraud”.(d)I agree with the observations made by Ryan J in Elliott v Seymour [1999] FCA 976 at [97], that what is required is that “the statement of claim specifies with sufficient particularity the time and making of each agreement between the alleged conspirators, the unlawful means agreed to be employed and the facts or circumstances which made them unlawful” (emphasis added). (e)If the agreed conduct amounting to unlawful means is that which the plaintiff contends at [80], then what is missing from the pleading is the precise articulation of the facts or circumstances relied on to contend that the conduct of “[alleging and maintaining] to the Dubai prosecution authorities and publicly, that Sunland was the victim of a fraud in respect of [the $14 million collateral payment] and that the plaintiff (with others) was a participant in the fraud” was unlawful. Paragraph 83 does not do that, because it is in terms directed to how the conspiracy was implemented and why aspects of that implementation were unlawful, when the only aspect of unlawfulness which is relevant is why the agreed unlawful means pleaded at [80] was unlawful. Part of what is pleaded at [83] may be relevant to the requisite proposition of unlawfulness, but not all of it. (f)In my view [80] and [83] as presently formulated do not satisfactorily comply with the observations by Ryan J in Elliott v Seymour to which I have referred. The first, second and third defendants are entitled to have the plaintiff pinned down to what he has clarified is the agreed unlawful means and why that conduct (and not other conduct) is said to have been unlawful. Paragraphs 80 and 83 must be recast.(g)For completeness, I note that in oral submissions Senior Counsel for the plaintiff seemed at times to depart from the proposition in the plaintiff’s written submissions recorded at [80](c) above. He seemed to suggest[18] that the matters listed at [83] of the pleading might be the unlawful means agreed to be employed at the time the conspiracy was entered into. But that is not what the words say. And if it is the intent then, as I have mentioned at [80](b) above, I would have accepted the plaintiff’s criticism that there is no clear pleading that there was an agreement either in or about early February 2009 or about mid to late May 2009 to engage in that conduct. The result would still be that paragraphs 80 and 83 would have to be recast.[17]Plaintiff’s written submissions at [28] to [32]. [18]Transcript 1-84 and 1-85.