Pham v Legal Services Commissioner - [2016] VSC 450

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2015 05757

QUAN PHAM	Plaintiff
v
LEGAL SERVICES COMMISSIONER (ABN 66 489 344 310)	Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2016
DATE OF JUDGMENT:	5 August 2016
CASE MAY BE CITED AS:	Pham v Legal Services Commissioner
MEDIUM NEUTRAL CITATION:	[2016] VSC 450

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DEFAMATION – Pleadings – Application to strike out amended statement of claim – Application for summary judgment – Imputations – Whether article is capable of conveying meaning relied upon – No reasonable prospect of success in establishing article conveys plaintiff’s asserted imputation.

PRACTICE AND PROCEDURE – Summary judgment application – No real prospect of success – Granted - Civil Procedure Act 2010 ss 62, 63 and 64 – Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263.

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APPEARANCES:	Counsel	Solicitors
Plaintiff appeared in person
For the Defendant	Mr M Hoyne	Lander & Rogers

HIS HONOUR:

Introduction

The plaintiff was employed by Kabo Lawyers from 24 November 2011 to 10 July 2012. He was first issued a practising certificate, which authorised him to engage in legal practice as an employee solicitor, on 16 February 2012. It was a condition of that certificate that the plaintiff engage in supervised legal practice for a period of two years. The plaintiff did not commence legal practice as a supervised employee solicitor until 27 February 2012, and did not engage in practice after 10 July 2012. On 7 August 2012 the plaintiff made a statutory declaration that in the period of his employment with Kabo Lawyers he had completed the two years of supervised legal practice. The plaintiff submitted an application to the defendant to have his supervised legal practice condition removed, relying on the statutory declaration.

The defendant refused the plaintiff’s application and subsequently brought proceedings against the plaintiff in the Legal Practice List of the Victorian Civil and Administrative Tribunal,[1] seeking ‘an order that [the plaintiff] be found guilty of professional misconduct’ within the meaning of s 4.4.3(1) of the Legal Profession Act 2004 ‘in relation to the making of a statutory declaration containing allegedly false statements.’ On 22 December 2014, Senior Member Butcher found the plaintiff guilty of professional misconduct.
[1]Legal Services Commissioner v Pham (Legal Practice) [2014] VCAT 1591 (22 December 2014).

On or about 27 February 2015 the following publication titled ‘False declaration plus creative accounting equals professional misconduct’ (‘the publication’) was uploaded by the defendant to its then website:

By paragraph 19A of the amended statement of claim in this proceeding, Mr Pham alleges that in its natural and ordinary meaning the publication was defamatory and understood to mean that:

(a) the plaintiff also was engaged in activities of misrepresenting financial figures or data amounting to a finding of professional misconduct;

(b) the plaintiff also was engaged in activities of using loopholes in financial regulations to present financial figures or data in a misleadingly…

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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Details

Case: [2016] VSC 450
Decision Date: 5 August 2016

CaseChat Overview and Summary

The case of Pham v Legal Services Commissioner involved a defamation claim brought by a former lawyer against the Legal Services Commissioner. The dispute centred on an article published by the Commissioner, which the plaintiff argued contained defamatory imputations. The matter was heard in the Supreme Court of Victoria. The Commissioner applied to strike out the plaintiff's amended statement of claim and for summary judgment on the basis that there was no reasonable prospect of success in establishing that the article conveyed the plaintiff's asserted imputations.

The court had to decide whether the article was capable of conveying the meaning relied upon by the plaintiff and whether there was a real prospect of the plaintiff succeeding in establishing the imputations. The court examined the article in its entirety and considered whether the language used could reasonably be interpreted as conveying the imputations claimed. The court concluded that the article was not capable of conveying the plaintiff's asserted imputations and that there was no reasonable prospect of success in establishing that it did.

Consequently, the court granted the Commissioner's application for summary judgment and dismissed the plaintiff's claim. The court found that the plaintiff had failed to establish a prima facie case and that there was no real prospect of the plaintiff succeeding at trial. The court also held that the application to strike out the amended statement of claim was moot as the claim had been dismissed. The final orders of the court included dismissing the plaintiff's claim with costs to the Commissioner.

Orders