Michelmore v Brown [No 2] - [2024] WASC 456

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…

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 Michelmore v Brown [No 2]

Details

AGLC: Michelmore v Brown [No 2] [2024] WASC 456
Case: [2024] WASC 456
Decision Date: 3 DECEMBER 2024

CaseChat Overview and Summary

The case of Michelmore v Brown [No 2] involved the primary proposed plaintiff being a corporation, which was not represented by a solicitor. The proposed individual plaintiffs sought to file a counterclaim, but the corporation was not represented by a legal practitioner. The legal issue at hand was whether the court should allow the application to proceed with the counterclaim given these circumstances. The court was tasked with determining whether the proposed individual plaintiffs had a reasonable cause of action and if the facts of the case warranted the continuation of the proceedings.

In evaluating the matter, the court closely examined the circumstances of the case. It considered whether the individual plaintiffs had a reasonable cause of action based on the facts presented. The court also assessed whether the proposed individual plaintiffs' counterclaim was likely to succeed independently of the corporation's involvement. Ultimately, the court concluded that the individual plaintiffs did not have a reasonable cause of action and that the case's facts did not support the continuation of the proceedings.

Consequently, the court dismissed the application to carry on the proceedings. The decision hinged on the lack of representation for the primary proposed plaintiff, the absence of a reasonable cause of action by the individual plaintiffs, and the specific facts of the case. The court's reasoning was rooted in ensuring that proceedings were not continued without proper legal representation and where there was no likelihood of a successful outcome. As a result, the application was dismissed, and the proceedings were not allowed to proceed.

Orders