Michelmore v Brown [No 2]
[2024] WASC 456
•3 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MICHELMORE -v- BROWN [No 2] [2024] WASC 456
CORAM: TOTTLE J
HEARD: ON THE PAPERS
DELIVERED : 3 DECEMBER 2024
FILE NO/S: CIV 2457 of 2023
BETWEEN: LAURA JANE MICHELMORE
Plaintiff
AND
ADAM SYDNEY BROWN
First Defendant
JERALD MARTIN
EMMA HAZEL MARTIN
Second Defendants
EMERSION PTY LTD as trustee for THE MARTIN TRUST
Third Defendant
Catchwords:
Practice and Procedure - Application to carry on proceedings where primary proposed plaintiff to counterclaim is corporation not represented by a solicitor - Proposed individual plaintiffs to counterclaim having no reasonable cause of action - Turns on own facts - Application dismissed
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | N/A |
| First Defendant | : | N/A |
| Second Defendants | : | N/A |
| Third Defendant | : | N/A |
Solicitors:
| Plaintiff | : | N/A |
| First Defendant | : | N/A |
| Second Defendants | : | N/A |
| Third Defendant | : | N/A |
Cases referred to in decision:
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372
Hume v Goldblaze Nominees Pty Ltd [2021] WASCA 177
Prow Pty Ltd v Commissioner for Police [2012] WASC 363
TOTTLE J:
Introduction
On 30 October 2024 the second defendants, who are not represented by a legal practitioner, filed three documents which they wished to stand as a counterclaim in these defamation proceedings. The documents are:
(a)A document entitled 'affidavit of: jerald-gleason:martin IV sworn on 30/10/24 and attachment A-Q - 156 pages'.
(b)A bundle of documents comprising 92 pages being some of the attachments referred to in the affidavit of: jerald-gleason:martin IV described in the preceding subparagraph; and
(c)A bundle of documents comprising 73 pages being the balance of the attachments referred to in the affidavit of: jerald‑gleason:martin IV.
At a strategic conference held on 26 November 2024, I directed that the documents would be accepted as an application to commence a counterclaim and that I would provide a decision in relation to the application in writing.[1]
[1] ts 375, 26 November 2024.
The second defendants' application must be dismissed and what follows are the reasons for that decision.
Background
The plaintiff is a legal practitioner and the third defendant was a client of the plaintiff until early August 2023. The second defendants are directors of the third defendant.
The genesis of the present action lies in the second defendants' dissatisfaction with the plaintiff's conduct of two separate disputes in which she acted on behalf of the third defendant.
One of the disputes resulted in proceedings in this court commenced by the third defendant against the Public Transport Authority of Western Australia and Downer EDI Works Pty Ltd (CIV 2301 of 2022). In summary, in those proceedings the third defendant sought damages for loss of business suffered because of roadworks undertaken adjacent to its business premises on Albany Highway, Kelmscott. It appears the roadworks were part of the Metronet project and I will refer to this dispute as the 'Metronet dispute'.
The other dispute related to a lease of a unit in the Precinct Complex, Mount Pleasant. The second defendants contend that the third defendant retained the plaintiff 'to render the lease null and void due to the building's non-compliance with regulatory standards and to recover funds invested in the fit-out, chattels and bond'.[2] Although it is not entirely clear from the materials filed by the second defendants, it appears that the dispute may have given rise to proceedings before the State Administrative Tribunal.[3] I will refer to this as 'the Precinct dispute'.
[2] Affidavit of jerald-gleason: martin IV sworn on 30/10/2024 [32.2].
[3] Affidavit of jerald-gleason: martin IV sworn on 30/10/2024 [31].
On 31 July 2023 the first named second defendant, Mr Martin, sent an email to the email address of the Central Office of this court and to the plaintiff. The email was copied to the email addresses of Government House, the Attorney-General of Western Australia, the chambers of the Chief Justice of this court, to the email addresses of the associates of all but one of the then current judges of the Supreme Court,[4] to the email address of the associate to a retired judge of the court and to the associates of registrars of the court. In addition, the email was sent to the email addresses of the Magistrates Court, the Legal Practice Board, the Commissioner of Police for the State of Western Australia, a member of the State Parliament and two members of the Commonwealth Parliament.[5]
[4] The email was not sent to the associate of the judge who was managing the conduct of the proceedings numbered CIV 2301 of 2022.
[5] Amended Statement of Claim [23].
The material parts of the 31 July 2023 email were as follows:[6]
[6] Amended Statement of Claim [25].
Dear Representatives of Governments of Australia
Please find attached a Form to remove Laura Jane Michelmore as our solicitor-on-the-record for WA SC CIV 2301 of 2022.
We hereby terminate all agreements (LJM 210006 and LJM 210008) with 'L J Michelmore' (ABN 90 313 020 819) as she has failed to supply us with legal services meeting the requirement of the Legal Profession Act 2008.
Further, we accuse Laura Jane Michelmore of the following Crimes – committed while acting as our solicitor.
Criminal Code Compilation Act 1913 (WA)
·Compounding or Concealing Offences (s. 136)
·Corruption of a Witness (s. 130)
·Deceiving a Witness (s 131)
·Conspiring to pervert etc course of justice (s 135)
·Attempting to pervert etc course of justice (s. 143)
·Fraud (s 409)
We do not want any further contact with Laura Jane Michelmore – except when providing evidence against her in Court.
. . .
We look forward to discussing the manner in which these matters will be addressed, in accordance with State, Federal and International law.
Regards
Jerry Martin and Emma Martin
The 31 July 2023 email attached a document which, among other matters, repeated the accusations of criminal conduct made in the email.
There is some uncertainty as to the imputations the plaintiff alleges were conveyed by the 31 July 2023 email but it appears the plaintiff alleges the email gave rise to the following imputations:[7]
[7] Amended Statement of Claim [30].
30.1In the course of conducting her legal practice, the plaintiff had:
30.1.1committed serious crimes within the meaning of the Criminal Code WA, punishable, on conviction, with, inter alia, terms of imprisonment;
30.1.2.induced or attempted to induce a witness or potential witness in proceedings before the Supreme Court of Western Australia to give false testimony to withhold true testimony when giving evidence to the Court;
30.1.3.acted fraudulently or deceitfully by knowingly making a false statement to a witness or potential witness in proceedings before the Supreme Court of Western Australia, intending to affect the testimony of such person;
30.1.4.conspired with unnamed persons to pervert the course of justice in proceedings before the Supreme Court of Western Australia;
30.1.5.attempted to obstruct, prevent, pervert or defeat the course of justice in proceedings before the Supreme Court of Western Australia;
30.2.had obtained property or a benefit from the Third Defendant by fraudulent or deceitful means; and
30.3acted towards the First and Third Defendants in a manner that was:
30.3.1. criminal;
30.3.2. corrupt;
3.3.3.dishonest;
3.3.4.unlawful;
3.3.5 unprofessional within the meaning of the WA Professional Conduct Rules;
3.3.6. made her liable to legal and regulatory sanctions, and
3.3.7 that otherwise demonstrated that she was not a fit or proper person to hold a practising certificate or be entitled to practice in Western Australia as a legal practitioner.
The second defendants' position is that they do not dispute that the imputations pleaded by the plaintiff were conveyed by the 31 July 2023 email. They contend the imputations are substantially true. The second defendants also say:[8]
Whilst we may have innocently used the inappropriate channels to express our distress, it was a cry for help, with the expectation that our grievances would be taken seriously and that a mechanism existed to hold the parties accountable.
[8] Affidavit of jerald-gleason: martin IV sworn on 30/10/2024 [25.9].
The third defendant was represented by a solicitor between 20 February and 24 May 2024.
The second defendants' approach to these proceedings and the jurisdiction of the court has some parallels with the approach adopted by those who describe themselves as sovereign citizens. The documents filed by the second defendants bear the following header.
And the documents bear a footer in these terms:
'All Superior Rights Reserved. At all times, Under Rule of Law: All Are Equal Before The Law'
Conformably with the header on their documents the second defendants qualify the announcement of their appearance at hearings by adding that they appear as 'executor and beneficiary' and at the strategic conference held on 26 November 2024, Mr Martin, contended that he was 'the executor and beneficiary' and that I was 'the trustee' and that he was entitled to insist that 'the counterclaim is on the record'.[9] The second defendants' continued reliance on contentions of this nature and their reluctance to seek legal advice and assistance has created challenges for the efficient conduct of the litigation.
[9] ts 377 - 378, 26 November 2024.
The action is set down for trial on 19 and 20 December 2024.
Disposition
Leaving to one side questions of form, the second defendants' application must fail for three reasons.
(a)Primarily the substance of the proposed counterclaim is an attempt to recover losses suffered by the third defendant and it is not represented by a solicitor.
(b)The proposed counterclaim contains allegations of unprofessional or unethical conduct on the part of the plaintiff which, if established, might result in the imposition of disciplinary sanctions on the plaintiff but would not give rise to a claim for damages on the part of either the second defendants or the third defendant.
(c)The proposed counterclaim includes claims for damages by the second defendants that are not supported by any causes of action known to the law.
That the substance of the proposed counterclaim is an attempt to recover from the plaintiff losses suffered by the third defendant as a consequence of alleged shortcomings in the management of the two disputes by the plaintiff is apparent from the financial relief sought:[10]
50.1. $839,000 for damages from Metronet roadworks.
50.2. $660,000 for losses due to mishandled legal matters related to 'The Precinct'.
50.3. Business time lost: time spent on legal matters resulting in loss of all staff and further decreasing revenues. 14 staff down to 2: jerry and emma $1,500,000.
[10] Affidavit of jerald-gleason: martin IV sworn on 30/10/2024 [50].
The nature of the proposed counterclaim is also apparent from the allegations made under the heading 'Compounding and Concealing Offences' (the matters alleged in the proposed counterclaim are grouped under the headings used in the 31 July 2023 email to allege criminal conduct by the plaintiff). The allegations under the heading 'Compounding and Concealing Offences' raise an allegation to the effect that the plaintiff was negligent in her management of the Precinct dispute because she failed to finalise a witness statement and an allegation to the effect that she was negligent in her management of the Metronet dispute because she 'pursued the claim as a nuisance rather than addressing the core issue of restricted access, trespassing and malicious intent leading to significant financial losses'.[11]
[11] Affidavit of jerald-gleason: martin IV sworn on 30/10/2024 [32.9].
The plaintiff's retainer in relation to each dispute was with the third defendant. The retainers are 'Exhibit J' to Mr Martin's affidavit. The retainers are clear. The third defendant was the plaintiff's client not the second defendants'. It was the entity that engaged the plaintiff to recover losses and to avoid further losses.
The third defendant is not represented by a solicitor. It can only commence and carry on a counterclaim if it is represented by a solicitor. This is because Order 4 rule 3 of the Rules of the Supreme Court 1971 (WA) provides:
Individual may act in person or by solicitor; body corporate must act by solicitor
(1)Subject to subrule (2) and to Order 18 rule 12, Order 18A rule 2 and Order 70 rule 2, any person (whether or not the person sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the Supreme Court by a solicitor or in person.
(2)Except as expressly provided by or under any Act a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor. (emphasis added)
There is no relevant statute creating an exception to the rule in O 4 r 3(2) of the Rules. Further, the court has no power to dispense with the relevant explicit requirement of the Rules: Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd,[12] Prow Pty Ltd v Commissioner for Police,[13] and Hume v Goldblaze Nominees Pty Ltd.[14]
[12] Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372, [44], [47].
[13] Prow Pty Ltd v Commissioner for Police [2012] WASC 363, [18].
[14] Hume v Goldblaze Nominees Pty Ltd [2021] WASCA 177, [15].
The third defendant is not represented by a solicitor and thus it is not permitted to commence and carry on the proposed counterclaim.
The second defendants have been informed on many occasions that the third defendant must be represented by a solicitor if they want the third defendant to commence a counterclaim.[15] In an apparent and ill-conceived attempt to overcome the effect of this requirement, in his affidavit Mr Martin stated:[16]
1.I, the Living man, attend the Court in the Jurisdiction of the Executor and Beneficiary of my Express Trust: that is of my Divinely Inherited right to access of my resources, and the right to manage my resources to prevent Harm and Injury to them and thus ultimately; myself.
2.I am a competent Director; of the third defendant: Emersion Pty Ltd: a corporation that cannot speak, does not have a mind, or a mouth, and cannot write emails nor issue instructions.
3.And is an asset within my Express Trust.
4.There is no other party better equipped to discuss the health and wellbeing of Assets within my Trust other than myself, and my wife Emma Martin. Who also attends the court in the capacity of Executor and Beneficiary, of her Express Trust.
[15] ts 22 - 23, 1 February 2024; ts 46, 16 February 2024; ts 81 - 82, 22 May 2024; ts 251, 257, 5 September 2024; ts 324, 345, 14 October 2024.
[16] Affidavit of jerald-gleason: martin IV sworn on 30/10/2024, 4.
Turning now to the nature of the other matters alleged in the proposed counterclaim. Under the heading 'Corruption of a Witness' it is alleged the plaintiff attempted to 'manipulate witness testimony by discouraging [the second defendants] from participating [in proceedings in the Magistrates Court between the plaintiff and the first defendant] and offering financial incentives to influence [their] involvement'.[17] Allegations of a similar nature are made under the headings 'Conspiring to Pervert the Course of Justice' and 'Attempting to Pervert the Course of Justice'.[18] If established, conduct of the nature the plaintiff is alleged to have engaged in may amount to professional misconduct but in and of itself such conduct does not give rise to a cause of action. There is no allegation that the defendants suffered loss because of the alleged conduct.
[17] Affidavit of jerald-gleason: martin IV sworn on 30/10/2024 [34].
[18] Affidavit of jerald-gleason: martin IV sworn on 30/10/2024 [40] - [41].
Under the heading 'Deceiving a Witness' it is alleged the plaintiff 'deliberately withheld key facts and evidence from the writ in CIV 2301/2022' and '[the plaintiff] designed to manipulate and mislead the defendants about their role as potential witnesses in [the first defendant's] case'.[19] Once again, if the plaintiff engaged in conduct of the kind that is alleged in the proposed counterclaim, such conduct may amount to professional misconduct but in and of itself it does not give rise to a cause of action against the plaintiff (save to the extent that failing to include material matters in the writ in the Metronet dispute may amount to professional negligence actionable on the part of the third defendant).
[19] Affidavit of jerald-gleason: martin IV sworn on 30/10/2024 [37].
Under the heading 'Fraud' it is alleged the plaintiff billed for services that she did not complete and that she engaged in fraud because she used the name 'Rosello Chambers' as part of the description of her practice when that name was not registered by her as a business name.[20] Billing the third defendant for services that the plaintiff did not complete may give rise to a cause of action on the part of the third defendant but it does not give rise to any claim on the part of the second defendants. The plaintiff's use of the name 'Rosello Chambers' is not capable of giving rise to any cause of action on the part of any of the defendants.
[20] Affidavit of jerald-gleason: martin IV sworn on 30/10/2024 [44].
The second defendants allege they have 'endured significant emotional distress due to the prolonged litigation process, as well as damage to [their] professional reputation in the marketplace' and claim $2,000,000 in damages. The proposed counterclaim does not disclose a cause of action known to the law that would support such a claim.
The second defendants allege that steps taken by the plaintiff to obtain a money judgment in the Magistrates Court for fees due to her by the third defendant followed by the taking of enforcement action after a default judgment had been obtained involved misconduct on her part and they characterise it as 'Acts of terrorism' entitling them to damages of $500,000.[21] The plaintiff was entitled to pursue her debt claim against the third defendant in the Magistrates Court. That she took such action does not give rise to a cause of action on the part of the second or third defendants.
[21] Affidavit of jerald-gleason: martin IV sworn on 30/10/2024 [51].
Conclusion
The second defendants and the third defendant will not be permitted to commence the proposed counterclaim and the trial of the action will be confined to a trial of the issues raised by the plaintiff's claim for damages for defamation.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CD
Associate to the Honourable Justice Tottle
3 DECEMBER 2024