Marks v Australaw - [2024] VSC 434

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S ECI 2024 00476

BETWEEN:

ANTON BLAISE MARKS	Plaintiff
v
AUSTRALAW PTY LTD (ACN 167 783 708) TRADING AS KELSO LAWYERS	Defendant

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JUDGE	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2024
DATE OF RULING:	25 July 2024
CASE MAY BE CITED AS:	Marks v Australaw
MEDIUM NEUTRAL CITATION:	[2024] VSC 434

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PRACTICE AND PROCEDURE – Whether the plaintiff’s amended statement of claim ought to be struck out or dismissed – Whether the plaintiff has pleaded a lost opportunity – Vague, embarrassing and prolix pleadings – Supreme Court (General Civil Procedure) Rules 2015 rr 22.16, 23.02 – Hoh v Frosthollow Pty Ltd [2014] VSC 77 – Embarrassing pleadings struck out.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Rightside Legal
For the Defendant	Mr B Petrie of counsel	K&L Gates

TABLE OF CONTENTS

Background......................................................................................................................................... 1

The underlying proceeding......................................................................................................... 1
The present proceeding................................................................................................................ 4

Applicable Principles........................................................................................................................ 5

Submissions........................................................................................................................................ 8

Defendant’s submissions............................................................................................................. 8
Plaintiff’s submissions................................................................................................................ 10

Analysis.............................................................................................................................................. 10

Costs.................................................................................................................................................... 13

Conclusion......................................................................................................................................... 14

HER HONOUR

The plaintiff alleges his former lawyers were negligent when they advised him to settle an institutional abuse claim against the State of Victoria (‘State’). John Coogan (‘Coogan’), a teacher, sexually abused the plaintiff at a State school. Coogan was a Christian Brother. After ceasing employment at the school, the plaintiff says that Coogan continued to abuse him. This ruling concerns an application by the defendant law firm. It applies for summary dismissal for the part of the plaintiff’s negligence claim alleging he lost an opportunity to obtain judgment from the Christian Brothers.

Subsequent to the filing of the application, the plaintiff correctly conceded that claim could not be maintained in circumstances where the opportunity was not lost. The plaintiff then amended the statement of claim to allege the plaintiff’s claim had been ‘damaged and/or marginalised’ by the settlement with the State. This part of the pleading, together with some other embarrassing parts of the pleading, must be struck out. Reasons follow.

In support of the application, the defendant relies upon the affidavits of Samuel Glenn Rappensberg affirmed 14 May 2024 and 24 June 2024 (the ’Rappensberg 14 May 24 affidavit’ and the ‘Rappensberg 24 Jun 24 affidavit’ respectively).

The plaintiff opposes the application. He relies upon his amended statement of claim filed 3 July 2024 (‘ASOC’), the affidavit of Nicole Jospeh affirmed 9 July 2024 (the ‘Jospeh affidavit’) and the affidavit of Shea Rowell affirmed 11 July 2024 (the ‘Rowell affidavit’).

Both parties filed written submissions and made oral submissions at the hearing of the application.

Background
The underlying proceeding

The plaintiff was born in 1958. He commenced his secondary schooling at North Geelong High School (‘NGHS’) in 1971.

The plaintiff alleges that he was subject to sexual abuse by Coogan:[1]

(a) between 1971 and 1973, while Coogan was employed as a physical education teacher and sports coach by the State at NGHS (‘NGHS period’); and

(b) between a…

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 Marks v Australaw

Details

AGLC: Marks v Australaw [2024] VSC 434
Case: [2024] VSC 434
Decision Date: 25 July 2024

CaseChat Overview and Summary

Marks v Australaw was a case before the Supreme Court of Victoria, where the plaintiff, Marks, sought to recover damages from the defendant, Australaw, for alleged losses resulting from a breach of contract. The dispute centred around whether the plaintiff's amended statement of claim should be struck out or dismissed due to the nature of its pleadings. The plaintiff argued for damages, claiming that he had lost an opportunity to secure a lucrative contract due to the defendant's actions. The defendant, on the other hand, sought to have the plaintiff's amended statement of claim dismissed on the grounds that it was vague, embarrassing, and prolix.

The central legal issues before the court involved the interpretation and application of the Supreme Court (General Civil Procedure) Rules 2015, specifically rules 22.16 and 23.02. The court had to determine whether the plaintiff had sufficiently pleaded a lost opportunity and whether the amended statement of claim met the required standards of clarity and precision. Additionally, the court referenced the case of Hoh v Frosthollow Pty Ltd, which involved a similar issue of embarrassing pleadings being struck out.

In its decision, the court found that the plaintiff's amended statement of claim did not meet the necessary standards. The pleadings were deemed vague, embarrassing, and prolix, making it difficult for the defendant to understand the claims being made. The court emphasised that pleadings should be clear, concise, and straightforward, and that the plaintiff had failed to meet these requirements. Consequently, the court ordered that the plaintiff's amended statement of claim be struck out in its entirety. This ruling effectively dismissed the plaintiff's claim, as the deficiencies in the pleadings were so substantial that they precluded any meaningful consideration of the merits of the case.

Orders