Pumpa v Victorian Legal Services Board
[2018] VSC 385
•16 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2017 01583
| ANTHONY WILLIAM PUMPA | Appellant |
| v | |
| VICTORIAN LEGAL SERVICES BOARD | First Respondent |
| EOIN MCCLINTOCK | Second Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 March 2018 |
DATE OF JUDGMENT: | 16 July 2018 |
CASE MAY BE CITED AS: | Pumpa v Victorian Legal Services Board & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 385 |
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PRACTICE AND PROCEDURE – Appeal from decision of an Associate Judge – Whether error in granting summary judgment – No real prospect of success – Scope of immunity provision – Whether respondents acted in good faith – Civil Procedure Act 2010 ss 62, 63, 64 – Legal Profession Uniform Law Application Act 2014 and Legal Profession Uniform Law s 467 – Supreme Court Act 1986 s 17(3) – Supreme Court Act (General Civil Procedure) Rules 2015 rr 77.06, 77.06.9 – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondents | Mr M Hooper | Landers & Rogers |
HIS HONOUR:
On 13 October 2017, Associate Justice Derham summarily dismissed proceedings initiated by Anthony William Pumpa (‘the appellant’) against the Victorian Legal Services Board (‘the Board’) and Eoin McClintock, on the basis that they had no real prospects of success. The appellant now appeals that decision to the Trial Division of this Court pursuant to s 17(3) of the Supreme Court Act 1986.
Background
In his affidavit sworn on 12 September 2017, the appellant states he was a workplace health and safety specialist. In late 2015, he established a business which involved supporting and assisting victims of workplace bullying commence legal proceedings. He registered a business name, ‘Workplacebullyingsolutions’, and set up a website.
The appellant’s two daughters have both claimed to have been victims of workplace bullying. During late 2015 and early 2016, he assisted each of his daughters prepare writs and statements of claim, and attempted to file these documents on their behalf in the County Court of Victoria at Bendigo.
The appellant has not obtained the academic qualifications or practical legal training required for admission to the Australian legal profession, as provided in the Legal Profession Uniform Law (‘Uniform Law’).[1] Accordingly, he is not, and has never been, admitted to the Australian legal profession, does not hold an Australian practising certificate, and is not entitled to engage in legal practice in Australia.
[1]The Uniform Law is set out in sch 1 to the Legal Profession Uniform Law Application Act 2014.
On 20 November 2015, the appellant succeeded in filing a writ on behalf of his first daughter in the County Court at Bendigo. In January 2016, he attempted to file a writ and statement of claim on behalf of his second daughter. On this occasion, he was stopped by the Court Registrar, who refused to accept the documents for filing. The appellant had signed the writ and statement of claim on behalf of his second daughter.
The investigation
The Common Law Division Manager of the County Court of Victoria advised the Board of the appellant’s attempt to file the documents. On behalf of the Board, Eoin McClintock commenced an investigation into the appellant’s actions and possible offences committed under the Uniform Law. Mr McClintock is an Australian legal practitioner and, at all relevant times, was employed as an investigation officer by the Board.
The Board is a body established under s 6.2.1 of the Legal Profession Act 2004. It continues to operate under, and is regulated by, Pt 3, Div 2 of the Legal Profession Uniform Law Application Act 2014 (‘the Application Act’).
On 27 May 2016, following the investigation into the appellant’s actions, the Board commenced proceedings against him in this Court. The Board sought injunctions to restrain the appellant from engaging in legal practice and from advertising or representing his entitlement to do so. It also sought the removal of various statements from his website.
On 1 June 2016, agreement was reached ‘in the corridors’ of the Supreme Court. The appellant consented to orders, made by the Court on 7 June 2016, that provided he be restrained from engaging in legal practice, from advertising or representing himself as engaging in legal practice, and from advertising or representing that any business or entity owned or controlled by him was entitled to engage in legal practice.
The first instance claim
On 2 May 2017, the appellant initiated proceedings against the Board and Mr McClintock. The statement of claim plead various causes of action, including negligence, breach of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’), breach of s 23(1) of the Occupational Health and Safety Act 2004 (‘the OH&S Act’), failure to comply with s 138(1) of the Evidence Act 2008, and corruption in contravention of the Independent Broad-Based Anti-corruption Commissions Act 2011 (‘the IBAC Act’). The appellant made repeated allegations of intimidation, harassment and bullying by the respondents. He sought compensation and damages totalling $2.4 million for psychological harm and financial loss, as well as a written apology.
In response, both respondents sought to rely on the protection from liability provided by s 467 of the Uniform Law. In the alternative, they submitted that Mr McClintock was immune from suit by reason of s 389 of the Uniform Law, which applied by reason of s 153(2) of the Application Act.
The application for summary dismissal
On 18 August 2017, the respondents applied for summary dismissal of the appellant’s action under s 62 of the Civil Procedure Act 2010 (‘the CP Act’). The application was principally brought on the basis that s 467 of the Uniform Law provided immunity from suit to the Board and Mr McClintock, and accordingly the action filed by the appellant was foredoomed to fail.
Section 62 of the CP Act provides that:
A defendant in a civil proceeding may apply to the court for summary judgment in the proceedings on the ground that a plaintiff’s claim or part of that claim has no real prospect of success.
Further, s 63(1) of the CP Act provides that:
Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of a claim, defence or counterclaim, as the case requires, has no real prospect of success.
It should be noted that s 64 of the CP Act enables a court to order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success, the proceeding should not be disposed of summarily because it may not be in interests of justice to do so, or the dispute is of such a nature that only a full hearing on the merits is appropriate.
The application for summary judgment came before Derham AsJ on 28 September 2017. The Associate Justice reserved judgment in the matter until 13 October 2017 and later published comprehensive reasons.[2] He concluded the appellant had no real prospect of success in any of his claims, primarily due to the operation of the immunity granted by s 467 of the Uniform Law. Accordingly, he granted the respondents’ request for summary judgment against the appellant and dismissed the claim.
[2]Pumpa v Victorian Legal Services Board [2017] VSC 629 (‘Reasons’).
Conclusions of the Associate Judge
In his reasons for judgment, the Associate Judge set out the provisions of Pt 4.4 of the CP Act, which provide the legislative basis and test to be applied for summary judgment in circumstances where a claim has no real prospects of success.[3] His Honour acknowledged that courts must ‘continue to exercise the power to terminate proceedings summarily with caution’ and should only exercise the power ‘if it is clear that there is no real question to be tried’.[4]
[3]Ibid [38]–[44].
[4]Ibid [41].
The Associate Judge also set out the scope of the immunity provided by s 467 of the Uniform Law. His Honour concluded that, to attract the protection of s 467, the following criteria were required to be satisfied:
(a) the entity seeking protection must be a relevant person;
(b) any act or omission done or omitted to be done must be in the exercise or purported exercise of functions under the Uniform Law, the Uniform Regulations or the Uniform Rules; and
(c) that act or omission of the relevant person must be done in good faith.
His Honour concluded in his analysis of the provision that:
Given the broad language of the immunity, that ‘no liability attaches’, if the Court is satisfied that the criteria in (a)-(c) above are made out then the immunity is a complete defence to all of the plaintiff’s claims.[5]
[5]Ibid [57].
His Honour noted the respondents’ submission that the immunity under s 467 of the Uniform Law is a complete defence to all claims made by the appellant. They argued the Board is and was a local regulatory authority, and Mr McClintock was a member of staff of the Board, and they were therefore both relevant persons within the meaning of that term contained in s 467(2). They also argued that at all relevant times, in investigating the appellant and commencing proceedings against him, Mr McClintock and the Board were exercising functions under the Uniform Law and acted in good faith.
The Associate Judge also considered the appellant’s submissions. In short, the appellant contended he had never engaged in legal practice and had not advertised on his website that he was entitled to do so. He also alleged that the respondents’ investigation was not properly conducted and that they should not have ‘found him guilty of any serious criminal offence’. The appellant further submitted that the respondents had acted dishonestly in aspects of their investigation, by not undertaking a more exhaustive investigation of the appellant and his Workplacebullyingsolutions website.
The appellant further argued that the respondents had failed to comply with the Board’s own policy and procedures and had thereby acted dishonestly. This was said to vitiate the immunity that they would otherwise enjoy under s 467 of the Uniform Law, because it does not extend to immunity from proceedings relating to negligence, the Wrongs Act 1958, the Charter, or the OH&S Act.
After analysing the submissions of the appellant and the respondents, his Honour concluded that the Board satisfied the description of a local regulatory authority and that Mr McClintock was, at all relevant times, an employee of the Board. Both respondents were therefore relevant persons as required by s 467 of the Uniform Law. His Honour also found that the respondents were exercising functions under the Uniform Law both in their investigation of the appellant and by commencing proceedings against him.
His Honour then turned to the principal question that remained, namely, whether the acts or omissions of the Board and Mr McClintock were carried out in the absence of good faith.
The appellant had submitted that the respondents ‘never acted in good faith’. The Associate Judge observed that the complaints set out by the appellant in his affidavit of 12 September 2017 contained paragraphs which evidenced a lack of understanding of legal processes and terminology. Acting fairly, however, his Honour noted that whilst a lack of understanding of legal processes and terminology on the part of the appellant is one thing, it is another to conclude that, on that basis, there was no evidence of an absence of good faith on behalf of the respondents.
His Honour proceeded to examine the conduct of the respondents towards the appellant, including the accusations that they had bullied and harassed him. His Honour observed that the mere fact that Mr McClintock might have undertaken a more exhaustive investigation did not necessarily evidence a lack of good faith and bona fides.
His Honour found that the acts carried out by the respondents were the ‘necessary and proper steps in performance of their regulatory functions’.[6] He went on to say that:
The correspondence in evidence illustrated that McClintock had before him sufficient evidence to establish that the plaintiff was contravening or was likely to contravene ss 10 and 11 of the Uniform Law.[7]
[6]Ibid [73].
[7]Ibid [82].
His Honour then observed:
Given the purposes of the power of investigation and prosecution given to the Board, my assessment of the actions taken by the defendants as recounted above is that they were taken honestly, without malice, and carefully, without any negligence or breach of duty, if any duty was owed…. this is a case where the facts, objectively assessed, show that McClintock and the Board did act honestly, without malice, and exercised the caution and diligence expected of an honest person of ordinary prudence in the position of the defendants.[8]
[8]Ibid.
Finally, his Honour came to the conclusion that:
There is no reason advanced by the plaintiff, nor any reason evident on the material before me, why I should not accept the evidence of McClintock that I have quoted from his affidavit … Indeed, that evidence is reflective of the other evidence given by him.
The lack of any material negativing the defendants’ evidence that they acted in good faith leads me to conclude that the plaintiff has no real prospect of success in its claims because of the operation of s 467 of the Uniform Law. Accordingly, I would grant the defendants’ request for summary judgment against the plaintiff pursuant to s 62 of the [CP Act].[9]
[9]Ibid [73].
Having come to his conclusions, the Associate Judge decided that the appellant had no real prospects of success in the proceeding and dismissed the action, with costs if the respondents were to seek them.
The applicable law
The procedure to be followed in an appeal pursuant to s 17(3) of the Supreme Court Act 1986 is outlined in r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).
Pursuant to r 77.06.9 of the Rules, a judge hearing an appeal of a decision made by an associate judge has the following powers:
Powers of Judge of the Court hearing appeal
(1)On an appeal referred to in Rule 77.06, a Judge of the Court shall have all the powers of the Court constituted by an Associate Judge.
(2)The Judge of the Court shall have power to—
(a)receive further evidence upon questions of fact, whether by oral examination in court, by affidavit, or by deposition taken before an examiner;
(b)draw inferences of fact;
(c)give any judgment and make any order which ought to have been given or made; and
(d)make any further or other order as the case may require.
Further, a party bringing an appeal under s 17(3) of the Supreme Court Act 1986 must establish error in the associate judge’s decision. The appeal is not by way of hearing de novo. In Wilson v Building Commission of Victoria,[10] John Dixon J stated:
The appellant appeals from the decision of the associate judge under r 77.06 of the Supreme Court (General Civil Procedure Rules) 2005 (‘the Rules’). An appeal from a decision of an associate judge under r 77.06 is no longer by way of a hearing de novo and ordinarily requires the appellant to show error on the part of the associate judge before appellate power may be exercised. Rule 77.06 characterises an appeal as being by way of re-hearing, such that the appellant must demonstrate a legal, factual or discretionary error by the associate judge.[11]
[10][2015] VSC 629.
[11]Ibid [8] (emphasis added). See also Neely v Southern Cross Feeds Pty Ltd [2013] VSC 238.
The foregoing means that in order to succeed in this appeal, the appellant must demonstrate that the Associate Judge fell into legal, factual or discretionary error.
The grounds of appeal
The appellant outlined over 50 grounds in his notice of appeal. Apart from one, the balance of the grounds do not appear to directly relate to establishing error on behalf of the Associate Justice in respect of the immunity issue. The immunity issue was the clear basis for the respondents’ application for summary judgment, and the principal reason for the Associate Judge’s order of dismissal.
The sole ground that related to the s 467 immunity argument was ground 33, which included the terms of s 467(1) and asserted:
The plaintiff states —
‘the VLSB is only immune for the act of conducting an investigation, however to wrongfully state the plaintiff was guilty of an offence is questionable because as the result of the investigation, the VLSB did not act in good faith by what the plaintiff stated in pleadings’ —
‘the plaintiff provided the court a legal definition of what is considered as acting in good fair, but his Honour ignored the evidence’.
Legal definition of what is considered acting in good faith —In law, the fhase [sic] ‘good faith’ refers to a requirement to act honestly without taking unfair advantage of others or hold others to an impossible standard.
This ground is most unclear and does not, in any specific way, allege error on the part of the Associate Justice. Its drafting bespeaks a lack of understanding of the legal requirements the appellant must fulfil in lodging and arguing an appeal. However, in broad terms, the ground raises the complaint that the respondents did not act in good faith in the course of pursuing the investigation and initiating proceedings against the appellant. As previously indicated, if the appellant was able to establish a lack of good faith on the part of the respondents, then they would not be entitled to the immunity offered by s 467 of the Uniform Law.
On the basis of the appellant’s arguments in support of this ground of appeal relating to an alleged lack of good faith, I accept he has gone some distance, as an unpresented litigant, to identify dissatisfaction with the principal conclusion of the Associate Judge, which resulted in the finding that immunity existed and the summary dismissal of his claim.
The appellant’s submissions
In this proceeding, the appellant filed a 17 page, 72 paragraph outline of submissions, which sought to raise and address the issues in this appeal. Further, in the hearing before me, the appellant sought to supplement his written outline with oral submissions. For the most part, these submissions involved referring me to transcribed passages of the arguments made before the Associate Justice, without supplementing those passages with any further comment that shed meaningful light on his appeal grounds.
The appellant’s written outline of submissions demonstrated a propensity to use strong language, asserting bullying and illegal behaviour on the part of the respondents. He alleged the respondents engaged in a discriminatory course of conduct, and made general allegations of misconduct, dishonesty, and misleading behaviour. In short, the appellant’s case involved numerous allegations of serious wrongdoing on the part of the respondents. In many instances, the written arguments that he put forward were incomprehensible.
Further in his written outline, the appellant attacked ‘judicial officers’ for unconscionable conduct. In particular, attacks were made on the Associate Justice, who he claimed:
did not fully consider the principal issue whether the first defendant was immune from the suit by virtue of s 467 of the Legal Profession Uniform Law, and as his Honour stated, “he has been on the Bench for over 42 years”, should have known better by referring to the relevant legislation to confirm or deny what the parties were in disagreement about, instead of just agreeing with what the defendants were implying.
The appellant also argued that the Associate Judge did not perform his duty in relation to self-represented litigants, to ensure that the hearing was conducted fairly and in accordance with the law. The appellant noted that
the transcript of the hearing clearly depicts the misconduct of his Honour and favours the defendants by supporting the statements made by the defendants’ barrister.
The appellant went on to assert that the Associate Judge misled him and was sarcastic in his manner towards him. Finally, the appellant argued that, in his conduct of the proceedings, the Associate Judge was not being fair in the role of judicial officer.
In both his written outline and in his oral submissions, the appellant failed to come to grips with the task that was required of him in this appeal.
The respondents’ submissions
In their written submissions, the respondents noted that the appeal before me was a proceeding by way of rehearing under r 77.06 of the Rules, and it was therefore necessary for the appellant to establish error in the Associate Judge’s decision. They argued the appellant had not demonstrated any error in his notice of appeal or outline of submissions, which the respondents contended made submissions largely unconnected to his 50 grounds of appeal.
Irrespective of their argument the appellant’s submissions were largely unconnected to his grounds of appeal, the respondents grouped similar grounds and addressed each group in turn.
The respondents addressed the issue of immunity under s 467 of the Uniform Law, being the principal ground upon which the Associate Judge dismissed the appellant’s action in summary fashion. The respondents noted the appellant’s sole ground of appeal which asserted a lack of good faith, and argued the Associate Judge had comprehensively dealt with the evidence purported to support it.
They argued his Honour correctly determined that the appellant could not sustain the proposition that there was an absence of good faith during the respondents’ investigation and in seeking an injunction against the appellant. While it was acknowledged that the requirement of good faith varies depending on statutory context, his Honour was satisfied that the respondents had acted both honestly and exercised the diligence expected of an honest person of ordinary prudence. He found no basis to reject the evidence of Mr McClintock as to his conduct of the investigation, and there was no evidence led by the appellant that effectively challenged that tendered by the respondents as to their having acted in good faith.
The respondents submitted before me, as they had before the Associate Judge, that the appellant’s contention as to the absence of good faith was the only point that was potentially arguable in terms of the immunity defence. They noted:
The plaintiff’s contention, however, was not sustainable as there was no material provided by the plaintiff suggesting any genuine dispute as to the existence of good faith, and it followed that summary dismissal was the correct result.
Conclusion
The Associate Judge provided detailed and careful reasons in concluding that the application for summary dismissal should be granted. The transcript of the proceedings before his Honour, and his published reasons, satisfy me that great care was taken both to give the appellant adequate opportunity to present his case, and in reaching the decision that he ultimately did. I reject the complaint that there was misconduct on the part of his Honour and that he did not treat the appellant fairly.
His Honour correctly set out the provisions of the CP Act which provided the legislative basis and test to be applied in an application for summary judgment. Furthermore, his Honour was mindful of the need for caution in cases of proposed summary dismissal and applied the reasoning set out in Mandie v Memart Nominees Pty Ltd,[12] in which the Court of Appeal observed:
a prospect which is not ‘real’ is ‘fanciful’; although the ‘no real prospect of success’ test in s 63(1) of the CP Act is more liberal than the common law test of ‘hopeless’ or ‘bound to fail’, there may not be much difference between them in practice; and, properly understood, a real question to be tried is one which realistically might result in the respondent to an application for summary judgment succeeding in the proceeding.[13]
[12][2016] VSCA 4.
[13]Ibid [45].
In my opinion, the Associate Judge carefully analysed the issues and evidence before him. He correctly concluded that the Board was ‘a relevant person’ within the meaning of the Uniform Law, that the Board was a ‘local regulatory authority’, that Mr McClintock was an employee and staff member of the Board, and that the respondents were properly exercising functions under the Uniform Law. Nothing placed before me in this appeal causes me to doubt or disturb the findings of the Associate Judge in relation to those matters.
The Associate Judge concluded, with respect to the principal question of whether the respondents’ actions were done or omitted to have been done in good faith, that none of the appellant’s allegations were substantiated by the evidence. I respectfully agree with his Honour’s conclusion that the respondents were taking necessary and proper steps in the performance of their regulatory functions, and that their acts were within the scope of the protection from liability granted by s 476.[14]
[14] Ibid [73]
My support for the Associate Judge’s conclusions is confirmed by consideration of his discussion of the meaning of good faith. He referred to decided authority and assessed the evidence and submissions made on this question.
Nothing has been put before me that would satisfy me the Associate Judge fell into error in his assessment of the correct legal principles to be applied, in deciding the factual issues, or in accepting the evidence of Mr McClintock. Nothing was placed before me that would cause me to doubt or disturb the conclusions that the Associate Judge came to.
On the basis of the evidence and submissions placed before me, I am of the view that the criticisms launched by the appellant against the respondents and the Associate Justice, are entirely unfounded. Accordingly, I am not satisfied that the appellant has demonstrated error on the part of the Associate Judge. I find it was entirely open to the Associate Judge to summarily dismiss the appellant’s claim pursuant to s 62 of the CP Act.
I therefore dismiss the appeal and make an order for costs against the appellant.
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