JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2017
DATE OF JUDGMENT:	13 October 2017
CASE MAY BE CITED AS:	Pumpa v Victorian Legal Services Board & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 629

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PRACTICE AND PROCEDURE – Summary dismissal of proceedings pursuant to s 62 of the Civil Procedure Act 2010 (Vic) – Applicable principles – Application granted – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; Mandie v Memart Nominees Pty Ltd, [2016] VSCA 4.

IMMUNITY FROM SUIT – Applicable principles – Scope of immunity provision – Requirement and meaning of ‘good faith’ – Legal Profession Uniform Law Application Act 2014 (Vic) and Legal Profession Uniform Law (Vic), s 467; – Board of Fire Commissioners of NSW vArdouin, (1961) 109 CLR 105; Suatu Holdings Pty Ltd v Australian Postal Corporation, (1989) 86 ALR 532; Puntoriero v Water Administration Ministerial Corporation, (1999) 199 CLR 575; Rowson v Alpass, [2017] VSC 401; Mid Density Developments Pty Ltd v Rockdale Municipal Council, (1993) 44 FCR 290; Bankstown City Council v Alamdo Holdings Pty Limited, (2005) 223 CLR 660.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Defendants	Mr M J Hooper	Lander & Rogers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

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

The investigation........................................................................................................................... 3
Statement of Claim...................................................................................................................... 10
Defence......................................................................................................................................... 11

Summary Judgment Test................................................................................................................ 13

Self-Represented Litigant............................................................................................................... 15

Uniform Law – relevant provisions.............................................................................................. 17

Scope of the immunity.................................................................................................................... 19

Submissions...................................................................................................................................... 19

Analysis.............................................................................................................................................. 21

The immunity defence................................................................................................................ 21
Are the acts complained of within the scope of the immunity?........................................... 22
Were the acts complained of performed in good faith?........................................................ 25
No viable cause of action........................................................................................................... 29

Conclusion......................................................................................................................................... 31

HIS HONOUR:

Introduction

The defendants apply for summary judgment against the plaintiff pursuant to s 62 of the Civil Procedure Act 2010 (Vic) (‘CPA’), alternatively, that the statement of claim be struck out pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’), or in the further alternative, that the proceeding be stayed pursuant to s 28LZMA of the Wrongs Act 1958 (Vic).[1]
[1]Summons filed 18 August 2017.

The summons was supported by an affidavit of the second defendant (‘McClintock’) which exhibits the correspondence between McClintock and the plaintiff and authenticated orders made by Riordan J by consent on 7 June 2016, to which I refer below.[2] In addition, the defendants filed an outline of submissions.[3] On the day of the hearing of the defendants’ summons, the plaintiff filed an affidavit and an Outline of Submissions.[4]
[2]Affidavit of Eoin Anthony McClintock sworn 17 January 2017 (‘McClintock affidavit’).
[3]Outline of submissions dated 18 August 2017, as ordered by Dixon J by order made on 21 July 2017.
[4]Affidavit sworn 12 September 2017, Outline…

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 Pumpa v Victorian Legal Services Board

Details

AGLC: Pumpa v Victorian Legal Services Board [2017] VSC 629
Case: [2017] VSC 629
Decision Date: 13 October 2017

CaseChat Overview and Summary

Pumpa v Victorian Legal Services Board is a case where the plaintiff, Mr Pumpa, sought to challenge the actions of the defendant, the Victorian Legal Services Board. The dispute centred around the Board's decision to summarily dismiss Mr Pumpa's proceedings, as well as the Board's immunity from suit under the Legal Profession Uniform Law Application Act 2014 (Vic). The case was heard in the Supreme Court of Victoria.

The primary legal issues the court had to address were whether the Board's decision to summarily dismiss the proceedings was lawful under section 62 of the Civil Procedure Act 2010 (Vic), and whether the Board was entitled to immunity from suit in relation to its decision-making. The court also considered the meaning of 'good faith' in the context of the immunity provision. The case drew on several precedents, including Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Mandie v Memart Nominees Pty Ltd, Board of Fire Commissioners of NSW v Ardouin, Suatu Holdings Pty Ltd v Australian Postal Corporation, Puntoriero v Water Administration Ministerial Corporation, Rowson v Alpass, Mid Density Developments Pty Ltd v Rockdale Municipal Council, and Bankstown City Council v Alamdo Holdings Pty Limited.

The court found that the Board's decision to summarily dismiss Mr Pumpa's proceedings was consistent with the principles established in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd and Mandie v Memart Nominees Pty Ltd. The court held that the Board had acted within its authority and in accordance with the relevant legislation when it dismissed the proceedings. Regarding the immunity issue, the court examined the meaning of 'good faith' in the context of the Legal Profession Uniform Law Application Act 2014 (Vic) and concluded that the Board's actions were protected by immunity. The court relied on the precedents of Board of Fire Commissioners of NSW v Ardouin, Suatu Holdings Pty Ltd v Australian Postal Corporation, Puntoriero v Water Administration Ministerial Corporation, Rowson v Alpass, Mid Density Developments Pty Ltd v Rockdale Municipal Council, and Bankstown City Council v Alamdo Holdings Pty Limited to support its findings.

As a result of the court's decision, the application for summary dismissal of Mr Pumpa's proceedings was granted, and the Board's immunity from suit was upheld. The court found in favour of the Board on both issues and dismissed Mr Pumpa's claims. The final orders of the court reflected its determination that the Board's actions were lawful and that it was entitled to immunity from suit in relation to those actions.

Orders