Pumpa v Victorian Legal Services Board
[2017] VSC 629
•13 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2017 01583
| ANTHONY WILLIAM PUMPA | Plaintiff |
| v | |
| VICTORIAN LEGAL SERVICES BOARD | First Defendant |
| EOIN MCCLINTOCK | Second Defendant |
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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 dated 12 September 2017. The Outline of Submissions was ordered by Dixon J by order made on 21 July 2017.
The principal issue is whether the first defendant (‘Board’) is immune from suit by virtue of s 467 of the Legal Profession Uniform Law (Vic) (‘Uniform Law’).[5]
[5]The Uniform Law is set out in sch 1 to the Application Act.
Background
The Board is a body established pursuant to s 6.2.1 of the Legal Profession Act 2004 (Vic) and continued in existence by s 28(1) of the Legal Profession Uniform Law Application Act 2014 (Vic) (‘Application Act’). It exercises the powers and functions conferred on it by the Application Act and the Uniform Law.
McClintock is an Australian Legal Practitioner and was employed as an investigations officer and solicitor by the Board from 12 January 2015 to 7 June 2016 and acted as a solicitor on behalf of the Board in that time.
The plaintiff is a workplace health and safety specialist, and professes to be a specialist in civil legal action relating to improving safety in the workplace, particularly in regard to workplace bullying.[6] He decided to return to fulltime employment in late 2015 to support and assist victims of workplace bullying who were unable to afford the services of a lawyer or qualified for Legal Aid and, particularly, because his two daughters were victims of workplace bullying. He sourced information from the County Court website and downloaded information, including a brochure, relating to self-represented litigants. He registered a new business name, ‘WorkPlaceBullyingSolutions’. During October and November 2015 he assisted and supported his first daughter, Mrs Watson, as a self-represented litigant, to prepare her writ, statement of claim and other court documents and on 20 November 2015 filed her writ in the Bendigo County Court.
[6]Affidavit of Anthony William Pumpa sworn 12 September 2017 (‘Pumpa affidavit’).
During the Christmas period, 2015-16, he assisted and supported his second daughter, Ms Lumley, as a self-represented litigant to prepare her writ and statement of claim and other court documents. In January 2016 he tried to file her writ at the Bendigo County Court, and was, to use his words:
confronted by the Court Registrar who displayed contempt about me signing the statement of claim and my daughter being a self-represented litigant and refused to provide assistance, throwing the documents onto the office counter and walking out of the office.[7]
This seems to have led to the County Court Registrar advising the Senior Administrator of the Common Law Division of the County Court of Victoria, one Mr Newton, about Ms Lumley’s writ and statement of claim being signed by the plaintiff, who was not a lawyer. Mr Newton advised the Board of the incident.
[7]Pumpa affidavit [11].
The plaintiff’s activity also resulted in an email from the chambers of Judge Saccardo dated 18 January 2016. Judge Saccardo was at the time the judge in charge of the self‑represented litigants list in the Common Law Division of the County Court. The plaintiff was informed that his Honour had listed the matter for directions on Friday 22 January 2016 at 9.30am. His Honour had directed his associate to inform the plaintiff that both he and Ms Lumley were required to attend. The purpose of the directions hearing was to canvass the validity of the first writ and allow the plaintiff to make submissions on that issue. I will return to this hearing in the course of considering the investigation set out below.
As a result of a notification from Mr Newton, McClintock undertook an investigation of the possible commission of offences by the plaintiff under the Uniform Law. The plaintiff was investigated by McClintock on behalf of the Board in connection with activities he engaged in, including advertising on the website conducted by him, for engaging in legal practice while not a lawyer and representing an entitlement to engage in legal practice while not a lawyer, contrary to ss 10 and 11 of the Uniform Law.
In order to understand the factual basis upon which the plaintiff frames his claims, which are not fully set out in the statement of claim, it is necessary to give an account of the investigation undertaken by McClintock on behalf of the Board and the steps taken leading to orders of the Court in June 2016. There is no dispute regarding these facts.
The investigation
McClintock, on behalf of the Board, first wrote to the plaintiff on 19 January 2016.[8] The content of the letter shows that in investigating whether the plaintiff may have breached the Uniform Law, McClintock viewed the website published by the plaintiff. Other parts of the correspondence show that McClintock obtained the transcript of the hearings before Judge Saccardo and documents relating to the proceeding commenced by the plaintiff.
[8]Exhibit EAM-1 to the McClintock affidavit, sent by email.
The letter of 19 January 2016 referred to the fact that the defendant published on his website statements that ‘Think Safety Systems now represent bullied workers in the Bendigo County Court’.[9] The website also advertised the plaintiff’s services, saying:
Tony [the plaintiff] can assist the bullied victim by investigating the circumstances of the workers bullying, [sic] and if proved, will complete all necessary legal documents required to be filed and serve [sic] in the County Court Bendigo, and also be able to represent the employee in the County Court. The hardest process is the completing of the Court legal documents and ensuring the documents comply with the Court rules.
[9]The website was letter from McClintock on behalf of the Board dated 19 January 2016, exhibit EAM-1 to the McClintock affidavit.
The website stated, however, that:
Tony is not a lawyer, but has many years of experience representing employers, however, Tony now believes it is time to assist the bullied worker and helping the worker sue the employer for damages incurred from bullying.[10]
[10]Ibid.
The letter went on to state that information had been received that the plaintiff had filed and served documents in the County Court in respect of legal proceedings to which he was not a party. The plaintiff was required to immediately cease and desist from making representations that infer he had an entitlement to engage in legal practice and from participating in any legal proceedings to which he is not a party. He was told that the Board was empowered to issue criminal proceedings for contraventions of the Uniform Law and to apply to the Supreme Court for injunctions restraining a contravention of the Uniform Law.
The plaintiff responded by email the same day saying that he was unable to remove the ‘information you requested’ until the electrical power is reinstalled after a traffic accident in the area.[11] The next day (20 January 2016) the plaintiff responded at greater length saying he was quite surprised that a senior lawyer would write such a letter ‘about untruths’, and that ‘I never at any time stated I was a lawyer on my business website’. The letter went on:[12]
I have on many occasions represented clients in, the Magistrates Court, Victorian Civil Administrative Tribunal, Supreme Court of Appeal, and the Fair Work Commission.
I have investigated a bullied persons evidence and from that evidence, have filed a Writ and Served the writ on the defendants in the County Court Bendigo.
I am presently filing another writ in the County Court for a workplace bullying and as far as I am aware, you don’t have to be a lawyer to file and serve a writ, or when approved by the plaintiff and the Court, to represent the plaintiff in the Court room.
The website will remain in place until I meet with a Judge in the County Court in Melbourne this coming Friday.
Any Supreme Court for an injunction will be strongly contested, and I advise you refresh your memory about the Vexatious Act 2014. [sic]
[11]McClintock affidavit exhibit EAM-2.
[12]McClintock affidavit exhibit EAM-3.
McClintock responded at length on 20 January 2016.[13] Various matters were explained to the plaintiff, including he should obtain legal advice before engaging in future correspondence and he was formally cautioned that admissions made in his correspondence may be used as evidence in any future criminal prosecution. It was pointed out to the plaintiff that by his own admission and advertising he had engaged in the conduct of legal proceedings which are the exclusive province of a legal practitioner.[14] Several relevant quotes from decided decisions were referred to[15] so as to attempt to enlighten the plaintiff as to his legal position and the risks he faced should he fail to cease engaging in legal practice and remove the offending matters from his website.
[13]McClintock affidavit, exhibit EAM-4.
[14]Referring to Council of the New South Wales Bar Association v Davison [2006] NSWSC 65, [141(d)].
[15]Council of the New South Wales Bar Association v Dwyer [2015] NSWCA 302 [14]; Cornall v Nagle (1995) 2 VR 188, [210].
The plaintiff responded the same day that he would be seeing a Judge of the County Court the next Friday (22 January 2016) and would provide copies of the Board letters to the Judge. He concluded ‘I am not a person to be bullied’.[16]
[16]McClintock affidavit, exhibit EAM-5.
On 22 January 2016, the plaintiff and his daughters, Ms Lumley and Mrs Watson, attended a directions hearing before Judge Saccardo. Precisely what happened at the directions hearing is not in evidence, although it would seem that the judge raised the absence of any serious injury certificate as a barrier to the Watson proceeding going any further. The directions hearing was adjourned to 28 January 2016. The plaintiff says that ‘the judge stood his ground about the writs requiring a serious injury certificate and Mrs Watson was forced to accept the defendant’s offer of settlement with no costs.’[17] It appears that the Court refused leave to Ms Lumley to issue her Writ.[18]
[17]Pumpa affidavit, [22].
[18]Pumpa affidavit, exhibit AWP -7.
McClintock requested from the Court, and was given, a copy of the audio recordings of the two directions hearings and, on 23 February 2016, wrote to the plaintiff enclosing a copy of the transcript and reiterated his earlier statements regarding the plaintiff engaging in legal practice.[19] It was pointed out that by operation of s 3(c) of the Uniform Law, an objective of the Board is to promote the administration of justice by protecting members of the public and that the Board is concerned that the plaintiff’s conduct has the potential to cause such harm. The letter went on:
Although your offer to assist people who may have been subjected to workplace bullying may be motivated by compassion for aggrieved persons, there is potential for you, as an unqualified person, to cause harm to those people by exposing them to significant legal and financial risk. A useful illustration of this was highlighted by His Honour Judge Saccardo, where he noted that you are exposing your ‘clients’ to adverse costs orders by offering assistance which you are not qualified to offer.[20]
[19]McClintock affidavit, exhibit EAM-6.
[20]Ibid.
McClintock again asked the plaintiff to cease and desist from engaging in legal practice and from continuing to advertise services which contravened s 11 of the Uniform Law.
On 13 May 2016, McClintock telephoned the plaintiff. During the conversation the plaintiff asked McClintock to stop bullying him but, in the words of the plaintiff, ‘McClintock continued with his intimidating and threatening accusations and threats to take me to the Supreme Court for criminal prosecution.’[21] In his affidavit, McClintock exhibits notes taken by one Louise Watson, an investigations officer and solicitor employed by the Board, of his telephone conversation with the plaintiff on 13 May 2016.[22] The plaintiff complains that McClintock did not advise him that another person was listening to the conversation and taking notes. Nevertheless, the notes show that the plaintiff resisted taking the allegedly offending material from his website and maintained that he was acting merely as a person assisting self‑represented litigants. He told McClintock that he had been going to VCAT and the County Court representing his clients for years, but accepted he does not understand the court system. He told McClintock that he had made a complaint to the Attorney‑General regarding corruption in the County Court and if the Attorney‑General states that he (the plaintiff) is wrong then he will take down his advertisement. It also appears he made representations to his Member of Parliament and until he hears back from that Member he would not do anything. The conversation ended with McClintock saying that the Board would write to him and give him ten days to consider his position.
[21]Pumpa affidavit, [26].
[22]McClintock affidavit, exhibit EAM-7.
On 16 May 2016, McClintock wrote again a long letter in the course of which he referred to the telephone conversation and the fact that the plaintiff declined ‘to accede to my lawful demand that you amend your website … to remove any references which offer legal services’. The letter went on:
In an effort to resolve the matter amicably I suggested you amend your website now, and if the Attorney-General, or your local MP, expresses the view that your conduct is lawful, we can have a discussion then about the content of any re‑published version of the website. You declined this proposal.[23]
[23]McClintock affidavit, exhibit EAM-8.
The letter then identified all the offending parts of the website that McClintock contended were in breach of the Uniform Law and stated that if the plaintiff declined to cooperate, the Board will seek an injunction pursuant to s 447 of the Uniform Law and will seek its costs from the plaintiff for so doing.
The plaintiff responded the same day by email.[24] Amongst other things he said:
It’s not the SRL situation which needs to change, it’s organisation like yours who need to make changes to ensure everyone can have their day in court, and it shouldn’t be just for lawyers. It’s a bit like what’s happened with VCAT. It was introduced for the average person, but now it’s been taken over by lawyers and barristers, where the average person is now browbeaten by colourful barrister jargon. [sic]
Let us see what happens when I receive feedback from the Government on this matter, and as I have stated, if I’m wrong I will gladly remove the issues you consider are unlawful from my website.
[24]McClintock affidavit, exhibit EAM-9.
Proceedings were commenced against the plaintiff by originating motion in this Court on 27 May 2016. The proceeding sought injunctions restraining the plaintiff from engaging in legal practice, from advertising or representing that he is entitled to engage in legal practice and seeking the removal of statements from his website. A summons was issued at the same time that was returnable in the Practice Court on 1 June 2016.
On 1 June 2016 agreement was reached ‘in the corridors’ of the Supreme Court as to the orders the plaintiff agreed to be made. The plaintiff consented to orders later made by Riordan J on 7 June 2016, the substance of which was as follows:[25]
[25]McClintock affidavit, exhibit EAM-11.
3.Pursuant to s 447 of the Legal Profession Uniform Law Application Act 2014 (Vic) (“the Act”) the Defendant is restrained from:
a. engaging in legal practice;
b.advertising or representing an entitlement to engage in legal practice; and
c.advertising or representing that any business or entity owned or controlled by him, including the businesses named “Think Safety Systems” and “Workplacebullyingsolutions”, is entitled to engage in legal practice, unless such business is a law practice as defined by the Act.
4.Pursuant to the Act, by 4pm on 7 June 2016, the Defendant is required to remove from the website any statement that advertises or represents an entitlement to engage in legal practice. In particular, the following statements:
a)“We at Think Safety Systems are able to assist bullied workers represent themselves in the County Court.”
b)“On investigation about why this is still happening, we found the only thing the employer and their management personnel really understand is when they are being hit in their back pocket from hefty fines in Court.”
c)“Tony can assist the bullied victim by investigating the circumstances of the workers bullying, and if proved, will assist the worker to complete all necessary court documents required to file and serve in the County Court, and also be able to assist the worker at the Court to represent themselves in the County Court”.
d)“The hardest process is the completing of Court documents and ensuring the documents comply with the Court rules, especially pursuant to the County Court Civil Procedures Rules 2008, section 34A.04 Division of Damages and Compensations List (1) (a) the General Division Workplace Injury, and section 34A.03 Damages an Compensation List (b) (i) any procedure in which the plaintiff claims the recovery of damages founded on tort (including breach of statutory duty.)”
e)“Tony is not a lawyer, but has many years of experience assisting employers to instigate workplace health and safety management systems. However, there are still many employers who do nothing about workplace health and safety.”
The plaintiff complains in his affidavit that paragraphs 1, 2 and 3 of the order were not agreed.[26] Paragraphs 1 and 2 dispensed with the requirements of r 5.03(1) and r 8.02 and authorised the plaintiff to commence the proceeding by Originating Motion in Form 5C. This is an entirely procedural matter that does not affect the substance of the orders agreed. Paragraph 3 contained orders restraining the plaintiff from engaging in legal practice and from advertising or representing an entitlement to engage in legal practice, acts which the Uniform Law prohibits him from doing. The plaintiff also complains about a number of other matters that have no substance, including that the order included in ‘Other Matters’ that it was signed by the Judge pursuant to r 60.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), and that, surprisingly, ‘McClintock probably included this to mislead Justice Riordan into signing the order.’[27] The plaintiff describes the order of 7 June 2016 as vexatious.[28]
[26]Pumpa affidavit, [43].
[27]Pumpa affidavit, [42].
[28]Ibid.
In his statement of claim, the plaintiff gives a summary of the events recounted above, interspersed with allegations of bullying, intimidation, harassment and various comments and submissions. He alleges that he submitted to the orders made on 7 June 2016 under duress, but refused to pay the costs of the Board, which was accepted (agreed).[29]
[29]Statement of Claim, [25].
At the conclusion of his affidavit in support of the application before me, McClintock states:
I did not have any ulterior motive in pursuing my investigation of the plaintiff or the Supreme Court proceeding. I did not collude with anyone to cause the investigation to commence, or be continued. I did not know the plaintiff prior to the investigation. At all times I believed I was acting reasonably and independently in performing my duties as an employee of the LSB.
At all times I was acting with propriety and honesty. I acted in good faith in the performance of my duties as an employee of the LSB. I had no reason not to do so.
At all times I engaged with the Plaintiff in a reasonable, courteous and professional manner. I made numerous efforts to resolve the issues in dispute without the need for litigation. Given the Plaintiff’s particular approach to those issues and the fact that it was, and remains, my view that the Plaintiff was contravening, or had contravened, ss 10(1) and 11(1) of the Uniform Law, the commencement of the Supreme Court proceeding was necessary to ensure the statutory objectives in section 9 of the Uniform Law were achieved.
Statement of Claim
The indorsement on the writ standing as the plaintiff’s statement of claim alleges that the actions of the first and second defendants in investigating and bringing proceedings against him, described in some detail above, ‘to remove a legitimate website’ amount to harassment, intimidation and abuse of power and as a result he has suffered stress, anxiety and psychological harm and financial damage. There are bare allegations of overuse of legal power and illegally trying to remove ‘legitimate workplace solutions information from the plaintiff’s website’.
The plaintiff attempts to plead various causes of action, briefly described as follows:[30]
[30]It is not sensible to give a full account of the statement of claim as it mixes statements of conclusion, submissions as to the law, incomplete references to matters of fact and repeated allegations of bullying, intimidation and harassment, for example, ‘to remove a legitimate website workplace bullying solutions information page, which caused the plaintiff to suffer a serious psychological injury’: [7].
(a) negligence;
(b) breach of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’);
(c) breach of s 23(1) of the Occupational Health and Safety Act 2004 (‘OH&SA’);
(d) failure to comply with s 138(1) of the Evidence Act 2008;
(e) corruption in contravention of the Independent Broad-Based Anti-corruption Commission Act 2011 (Vic) (‘IBAC Act’); and
(f) failure to comply with the Victorian Model Litigant Guidelines and the overarching obligations outlined in chapter 2 of the CPA.
The plaintiff seeks compensation and damages in the order of $2,400,000, a written apology and a written guarantee that the defendants will not pursue the plaintiff for advertising himself as an expert in workplace health and safety and providing advice and information in relation to this on the workplace bullying solutions website.
Defence
In their defence, the defendants carefully and methodically deny each of the claims made and do so with appropriate references to relevant legislative provisions. The defence is, in turn, supported by the outline of submissions supporting the dismissal application and expands on the defence by reference to judicial authorities.
The defendants resist the alleged duty of care to prevent psychological injury to the plaintiff on several bases, including –
(a) the duty is incompatible with the statutory scheme under the Application Act, including the nature of the powers and functions conferred upon the Board and McClintock by the Application Act and the Uniform Law;
(b) the duty is incompatible with the relationship between the plaintiff as the subject of the investigation, the Board as the regulator and McClintock as investigator and solicitor to the Board;
(c) the duty is incompatible with the adversarial nature of the Supreme Court enforcement proceedings;
(d) because of the immunity provision (s 467) of the Uniform Law and s 72(1) of the Wrongs Act 1958.[31]
[31]Section 72(1) provides that the defendant does not owe a duty to the plaintiff to take care not to cause the plaintiff pure mental harm unless the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
In addition, the defendants plead that the plaintiff is not entitled to damages for economic loss as he has not suffered a ’recognised psychiatric illness’ and that they have not been served with a certificate of assessment as required by Part VBA of that Act. Accordingly, by reason of s 28LE of the Wrongs Act the plaintiff is not entitled to damages for non-economic loss in respect of his alleged psychiatric injury, and the Court has power to stay the proceeding under s 28LZMA of that Act.
In relation to the other claims, the defendants say:
(a) the Charter does not apply to them because under s 6(3) of the Application Act, the defendants are not public authorities within the meaning of the Charter. In any event, no cause of action is created by the Charter and even if a breach of the Charter were established, the plaintiff is not entitled to an award of damages by reason of s 39(3) of the Charter;[32]
[32]Director of Housing v Sudi [2011] VSCA 266, [96] and [215].
(b) there can be no breach of s 23(1) of the OH&SA because the plaintiff was not at any time an employee of the Board and, further, by reason of s 34 of the OH&SA nothing in Part 3 of that Act, including s 23(1), confers a right of action upon the plaintiff or otherwise affects any other rights of action the plaintiff has arising at common law;
(c) there can be no breach of s 138 of the Evidence Act. That section deals with the Court’s discretion to exclude otherwise admissible evidence in proceedings in Court. The allegation is misconceived. Section 14 of the Uniform Law empowers the Board to take any steps that may be necessary or proper with respect to the investigation of any question as to conduct by any person that is, or may be, a contravention of a provision of Part 2.1 of the Uniform Law, including ss10(1) and 11(1), and to institute proceedings for such contraventions. The defendants contend they were acting within their powers under the Application Act in investigating the plaintiff and commencing proceedings in the Supreme Court of Victoria for an injunction restraining the plaintiff from contravening ss 10(1) and 11(1) of the Uniform Law;
(d) that the plaintiff has no proper basis for the allegation of corruption in contravention of the IBAC Act. In any event, no cause of action is created by that Act. The defendants also complain that the plaintiff makes wide, general and un-particularised allegations of corruption, including against unnamed staff of the County Court;
(e) they deny the plaintiff’s allegations that they failed to comply with the Victorian Model Litigant Guidelines or in meeting their overarching obligations under the CPA; and
(f) they deny any alleged intimidation, harassment and bullying of the plaintiff. In particular, they deny the plaintiff’s allegations that the Board’s barrister intimidated and harassed the plaintiff and that the plaintiff was under duress when he agreed to remove the Work Place Bullying Solutions webpage.
Finally, and most importantly, the defendants said that they are immune from suit by reason of s 467 of the Uniform Law and that further, and in the alternative, McClintock is immune from suit by reason of s 389 of the Uniform Law, which applied by reason of s 153(2) of that Act.
Summary Judgment Test
Part 4.4 of the CPA sets out the test for summary judgment: a court may give summary judgment if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, has no real prospect of success (s 63). Section 62 provides that a defendant may apply for summary judgment on the ground that the plaintiff’s claim has no real prospect of success.
Part 4.4 of the CPA liberalises the rules governing summary judgment in Victoria, such that it is easier to dispose of unmeritorious claims or defences summarily. The Court of Appeal has stated that the test should be construed as one of whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success and that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test.[33]
[33]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 at [29] per Warren CJ and Nettle JA (Neave JA agreeing).
The test must be applied according to its own terms and not according to considerations of whether the proceeding is ‘hopeless’ or ‘bound to fail’. To adopt ‘an unduly constrained, historical approach to the construction of s 63’ would ‘subvert the purpose of the provision’.[34]
[34]Ibid at [25] per Warren CJ and Nettle JA (Neave JA agreeing).
Courts must, however, continue to exercise the power to terminate proceedings summarily with caution. Courts should therefore only exercise the power if it is clear that there is no real question to be tried. This is so irrespective of whether an application for summary judgment is made on the basis that: the pleadings do not disclose a reasonable cause of action, and no amendment could cure this error; or the action is frivolous, vexatious or an abuse of process; or the application for summary judgment is supported by evidence.[35]
[35]Ibid at [35] per Warren CJ and Nettle JA (Neave JA agreeing).
The power to give summary judgment must be exercised in accordance with the overarching purpose of the CPA and taking into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.[36]
[36]Ibid at [42] per Neave JA).
These principles were confirmed by the Court of Appeal in Mandie v Memart Nominees Pty Ltd[37] where Kyrou, Ferguson and McLeish JJA observed:
According to Lysaght: 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.[Footnote omitted].
[37][2016] VSCA 4, [45].
If there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if it is not in the interests of justice to summarily dispose of the proceeding (s 64(a)), or the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b)). Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case: Barber v State of Victoria.[38]
[38][2012] VSC 554 at [15].
Self-Represented Litigant
A judge has a duty in relation to represented and unrepresented litigants alike to ensure that the hearing or trial is conducted fairly and in accordance with law.[39] It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[40] What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[41] The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant.[42]
[39]MacPherson v The Queen (1981) 147 CLR 512, 523; Dietrich v R (1992) 177 CLR 292; Werden v Legal Services Board (2012) 36 VR 637, [53].
[40]Neil v Nott (1994) 68 ALJR 509, 510; 121 ALR 148, 150; Minogue v HREOC (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68, [104].
[41]Abram v Bank of New Zealand (1996) ATPR 42340, 42347; Minogue v HREOC (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68 [104]; Tomasevic v Travaglini (2007) 17 VR 100, 130.
[42]Tomasevic v Travaglini (2007) 17 VR 100, 130 (Bell J).
In Rajski v Scitec Corporation Pty Ltd[43] Samuels JA said:
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
[43]Unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, (16 June 1986), 14.
In Loftus v Australia and New Zealand Banking Group Ltd [No 2][44] the Court of Appeal quoted with approval from its decision in Trkulja v Markovic:[45]
In determining the proper scope of assistance to be offered to a self‑represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.[46] In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence.[47] It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.[48]
[44][2016] VSCA 308 [27]-[28].
[45][2015] VSCA 298 [39].
[46]McWhinney v Melbourne Health (2011) 31 VR 285, 293 [25] (Neave, Redlich and Mandie JJA), quoting Tomasevic v Travaglini (2007) 17 VR 100, 130 [141] (Bell J).
[47]Werden v Legal Services Board (2012) 36 VR 637, 651 [57] (Redlich JA; Tate JA agreeing).
[48]Pamamull v Albrizzi (Sales) Pty Ltd [No 2] [2011] VSCA 260 [102] (Neave, Harper and Hansen JJA).
The Court went on to say:[49]
A failure by a judge to provide the necessary advice and assistance to a self‑represented litigant may constitute a denial of procedural fairness and warrant an appellate court setting aside the trial judge’s decision and remitting the matter for a further hearing in accordance with law.[50] It is well established that not every departure from procedural fairness at a trial will entitle the aggrieved party to a new trial. An appellate court will not order a new trial where such a trial would inevitably result in the making of the same order as that made by the trial judge at the first trial. However, where a denial of procedural fairness affects the entitlement of a party to make submissions on a material issue of fact, it is more difficult for an appellate court to conclude that compliance with the requirements of procedural fairness could have made no difference.[51]
[49][2015] VSCA 298 [44] (Kyrou and Kaye JJA and Ginnane AJA).
[50]See, eg, Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) 46 VR 283, 303 [105]–[106], 304 [115] (Osborn JA; Whelan JA agreeing); Bahonko v Moorfields Community [2008] VSCA 6 [27], [39] (Nettle JA; Buchanan and Redlich JJA agreeing).
[51]Stead v State Government Insurance Commission (1986) 161 CLR 141, 145–6 (Mason, Wilson, Brennan, Deane and Dawson JJ).
In the course of the hearing of the defendants’ application, I endeavoured to apply these precepts. The plaintiff was not apparently overawed by the process or the Court and conducted himself with courtesy and apparent ease. He showed that he understood the main issue, being the immunity defence raised by the defendants, and addressed the facts relevant to the application of the immunity and, particularly, the requirement of good faith, and the meaning of that expression. He also showed an understanding of the summary dismissal principles and the operation of s 64 of the CPA by asking the Court to allow his claims to go to trial.
Uniform Law – relevant provisions
Sections 10 and 11 of the Uniform Law provide, so far as relevant:
10 Prohibition on engaging in legal practice by unqualified entities
(1)An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity.[52]
[52]By s 6 of the Uniform Law, an ‘entity’ includes an individual.
Penalty:250 penalty units or imprisonment for 2 years, or both.
11Prohibition on advertisements or representations by or about unqualified entities
(1)An entity must not advertise or represent, or do anything that states or implies, that it is entitled to engage in legal practice, unless it is a qualified entity.
Penalty:250 penalty units.
Section 14 of the Uniform Law provides:
14 Functions of local regulatory authority with respect to offence
The designated local regulatory authority may—
(a)take any steps that in its opinion may be necessary or proper for or with respect to the investigation of any question as to conduct by any entity (whether or not an Australian lawyer) that is, or may be, a contravention of a provision of this Part; and
(b)institute prosecutions and other proceedings for the contravention of a provision of this Part by any entity (whether or not an Australian lawyer).
Section 447 of the Uniform Law provides, so far as relevant:
(1)This section applies if a person has contravened, is contravening, or is likely to contravene this Law or the Uniform Rules.
(2)The designated local regulatory authority may apply to the Supreme Court for an injunction.
(3)On application under subsection (2), the Supreme Court may grant an injunction restraining the person from contravening this Law or the Uniform Rules (including by requiring the person to do something).
Section 467 of the Uniform Law provides:
467 Protection from liability
(1)No liability attaches to a relevant person for any act or omission done or omitted in good faith and in the exercise or purported exercise of functions under this Law, the Uniform Regulations or the Uniform Rules.
(2)In this section—
relevant person means—
(a)the Council or the Commissioner; or
(b)a local regulatory authority; or
(c)a committee of the Council or a local regulatory authority; or
(d)a member of the Council, a local regulatory authority or a committee of either; or
(e)a delegate of the Council, the Commissioner or a local regulatory authority; or
(f)a person who is a member of the staff of, or acting at the direction of, any of the entities referred to in paragraphs (a) to (e).
A local regulatory authority is defined as ‘any designated local regulatory authority’.[53] The Board is the designated local regulatory authority for the purposes of ss 14 and 447 of the Uniform Law.[54]
[53]Uniform Law, s 6.
[54]Application Act, s 10(1).
The defendants have, in their defence, referred to s 153 of the Application Act, which applies another immunity provision, s 389 of the Uniform Law, in certain circumstances. Section 389 of the Uniform Law is not, however, relied upon by the defendants in their summary judgment application, so I will not set it out or the circumstances in which it applies.
Scope of the immunity
To attract the protection of s 467 the following criteria must 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.
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.
Submissions
The defendants submitted that:
(a) the immunity under s 467 of the Uniform Law is a complete defence to all claims made by the plaintiff;
(b) the Board is and was a ‘local regulatory authority’ pursuant to s 6(1) of the Uniform Law and s 10(1) of the Application Act and is, accordingly, a relevant person pursuant to sub-s 467(2)(b) of the Uniform Law;
(c) McClintock was a member of staff of the Board and was a relevant person pursuant to sub-s 467(2)(f) of the Uniform Law;
(d) at all relevant times the defendants were exercising functions under the Uniform Law in investigating the plaintiff and commencing Supreme Court proceedings against him; and
(e) at all times McClintock, and therefore the Board, acted in good faith.
The plaintiff submitted that:
(a) he has never engaged in legal practice or has advertised on his website that he was entitled to engage in legal practice and even stated on the website that ‘Tony is not a lawyer’. The defendants’ investigation was not properly conducted and that the defendants should not have ‘found him guilty of any serious criminal offence’;[55]
[55]Plaintiff’s Submission [10] and [21].
(b) the defendants acted dishonestly because of the manner of the investigation being limited to the website without investigating all the material available[56] and included material (presumably the notes taken by Ms Louise Watson of the telephone conversation between the plaintiff and McClintock of 13 May 2016) that should not be admitted into evidence pursuant to s 138(1)(a) and (2) of the Evidence Act 2008;[57]
[56]Plaintiff’s Submission [21].
[57]Plaintiff’s Submission [13].
(c) McClintock acted dishonestly in not undertaking a more exhaustive investigation of the plaintiff and his workplace bullying solutions website;
(d) the defendants failed to comply with the Board’s own policy and procedures, including ensuring a fair go for everyone and demonstrating a spirit of services, and thereby acted dishonestly;[58]
(e) the immunity under s 467 of the Uniform Law does not extend to immunity from proceedings relating to negligence, the Wrongs Act, the Charter, or the OH&SA;[59] and
(f) a certificate of assessment of psychological harm was not necessary to maintain a claim for damages under the Wrongs Act as it is common knowledge that if a person is intimidated, harassed and bullied over a period of time then that person will suffer some form of serious stress, anxiety and depression as a result of the bullying.[60]
[58]Plaintiff’s Submissions [23].
[59]Plaintiff’s Submissions [18].
[60]Plaintiff’s Submissions [37]-[39].
Analysis
During submissions the plaintiff sought to amend a number of paragraphs of his Statement of Claim. In my view, nothing turns on these amendments and I will treat them as having been made.[61]
[61]The amendments are set out in the plaintiff’s Outline of Submissions, [49]-[51].
The immunity defence
A ‘local regulatory authority’ is defined in s 6(1) of the Uniform Law, so far as presently relevant, to mean ‘any designated local regulatory authority’. That expression is defined in s 6(1) of the Uniform Law to mean:
a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used.
Section 10 of the Application Act, being a law of Victoria (‘this jurisdiction’) designates the local regulatory authority for the purposes of a provision of the Uniform Law by reference to a specification in the Table to that section. In relation to ss 14 (investigation and prosecution) and 447 (injunctions) of the Uniform Law the designated local regulatory authority is the Board. As such, the Board is a ‘relevant person’ within the meaning of s 467(2) of the Uniform Law.
In this way the defendants are correct in their submission that the Board is and was at the time of the investigation of the plaintiff a ‘local regulatory authority’ pursuant to and s 10(1) of the Application Act and is, accordingly, a relevant person pursuant to sub-s 467(2)(b) of the Uniform Law.
The evidence discloses that McClintock was an employee of the Board at the relevant times and was thus a member of the staff of the Board within the meaning of s 467(2)(f) of the Uniform Law. He therefore also qualifies as a relevant person under s 467 of the Uniform Law.
The evidence of McClintock also shows that at all relevant times the defendants were exercising functions under the Uniform Law, in particular under s 14, in investigating the plaintiff and commencing Supreme Court proceedings against him.
The principal question that remains is whether the acts or omissions of which the plaintiff complains in his statement of claim were done or omitted to be done in good faith?
Are the acts complained of within the scope of the immunity?
In Rowson v Alpass[62] I considered a number of the authorities relevant to the construction of immunity provisions broadly similar to that found in s 467 of the Uniform Law. The provision applicable in that case was s 366 of the Uniform Law which is similar in its wording to s 467, but applicable in different circumstances. In that case I distilled the following principles applicable to immunity provisions:
[62][2017] VSC 401 at [69].
(a) the application and scope of an ‘immunity’ clause will always be dependent upon its precise terms and statutory context;[63]
[63]Board of Fire Commissioners of NSW vArdouin, (1961) 109 CLR 105, 116 (‘Ardouin’); Suatu Holdings Pty Ltd v Australian Postal Corporation, (1989) 86 ALR 532, 541 (‘Suatu’); Puntoriero v Water Administration Ministerial Corporation, (1999) 199 CLR 575, [4] (‘Puntoriero’).
(b) an immunity or limitation provision should be strictly construed, or given an interpretation that goes further than a ‘jealous interpretation would allow’, because it derogates from the ordinary rights of individuals.[64] The principles of statutory construction may require general words giving immunity for any action against the defendant to be read down so that they do not apply to functions of an ordinary character done pursuant to agreements with the consent of private citizens;[65]
(c) a Court is required to look to the precise conduct or omission sought to be impugned and said to have caused the injury or damage complained of, rather than the general statutory function or power, pursuant to which the authority carries on its relevant undertaking;[66] and
(d) such immunities may not apply to conduct which is already lawful absent the conferral of an authorisation or function by the statute in question.[67]
[64]Ardouin, 116; Australian National Airlines Commission v Newman (1987) 162 CLR 466, 471 (‘Newman’); Suatu, 541; Puntoriero [33] (per McHugh J) referring to Coco v The Queen, (1994) 179 CLR 427, 436.
[65]Puntoriero, 588-9 [37] (per McHugh J).
[66]Ardouin, 117; Newman, 474; Puntoriero [14].
[67]Ardouin, 109-110, 117-118; Newman, 472-473; Puntoriero, 583, 587.
The plaintiff’s Statement of Claim and submissions lack specificity in relation to what the acts or omissions of the defendants were which he says amounted to intimidation, harassment and bullying and which, in turn, caused him loss and damage. Even when questioned directly from the Bench, the plaintiff was unable to point to specific statements or actions of the defendants but spoke in generalities and stated that the fact that the defendants made repeated requests for him to cease and desist in certain conduct was evidence of sustained harassment and bullying.
It is reasonably clear from the plaintiff’s Outline of Submissions and his affidavit that he does not accept that the statements on his website and his actions in signing Mrs Watsons Writ for issue in the County Court at Bendigo, gave rise to any breach of ss 10 or 11 of the Uniform Law. This was also the impression I gained from his oral submissions. The plaintiff took issue with the fact that he was the subject of an investigation and with the contents of the written correspondence from McClintock dated 19 January 2016, 20 January 2016, 23 February 2016, 16 May 2016 and 27 May 2016 and the statements made by McClintock during a telephone conversation on 13 May 2016.
The ability to conduct investigations into conduct which may contravene Part 2.1 of the Uniform Law (of which ss 10 and 11 are a part) and institute proceedings in relation to the contravention are clearly within the functions intended to be conferred on the Board as the local regulatory authority. The defendants’ investigation was instigated following a notification by a member of staff at the County Court (‘Mr Newton’) that the plaintiff may have been acting in a manner that contravened the Uniform Law. In the course of conducting investigations the local regulatory authority is empowered to ‘take any steps that in its opinion may be necessary or proper’[68].
[68]Section 14 of the Uniform Law.
Providing some latitude to the plaintiff, in light of his being a self-represented litigant, the plaintiff’s submissions may be interpreted as suggesting that the defendants acted improperly in communicating with the County Court, in McClintock not disclosing the presence of another person when he conducted the phone conversation with the plaintiff on 13 May 2016 and that McClintock’s repeated correspondence was also unnecessary or improper. The plaintiff also complains of a failure of McClintock to make more extensive enquiries as part of his investigations.
None of the plaintiff’s allegations in relation to the conduct of McClintock are substantiated by evidence:
(a) the plaintiff exhibited a letter to him dated 14 December 2016 from the Victorian Government Solicitor’s Office.[69] The letter responds to a letter that the plaintiff sent to Mr Newton of the County Court dated 18 November 2016 (which is not in evidence). This letter confirms that Mr Newton notified the Board of the plaintiff’s actions and website. This does not evidence any lack of propriety in undertaking an investigation on the basis of the notification;
[69]Exhibit AWP-7 to the Pumpa affidavit.
(b) the defendants’ repeated correspondence requesting the plaintiff to cease and desist were proper and appear to have been necessitated by the plaintiff’s repeated assertions that the website would remain in place in his emails of 20 January 2016 and 16 May 2016 and telephone conversation of 13 May 2016;
(c) the plaintiff’s allegation that McClintock acted dishonestly in conducting his investigation because his investigation could have been more exhaustive is unsupported by any evidence and on the material presented appears to me to be without substance;
(d) the Board’s civil proceedings seeking an injunction against the plaintiff is clearly within the statutory functions outlined in ss 14 and 447 of the Uniform Law and appears to have been necessitated by the defendant’s dogmatic refusal to withdraw the contravening statements from his website and accepting that his activities in representing and assisting self-represented litigants in legal proceedings contravened of the Uniform Law; and
(e) the plaintiff’s characterisation of the Orders of Riordan J made on 7 June 2016 as ‘vexatious’ is completely unfounded.[70]
[70]Affidavit of Anthony William Pumpa sworn 12 September 2017 at [32].
On the other hand, the affidavit of McClintock sworn 17 August 2017 and exhibiting copies of the correspondence between the plaintiff and the defendants and a file note of the phone conversation of 13 May 2016, establishes that the defendants were taking necessary and proper steps in performance of their regulatory functions under the Uniform Law, and specifically s 14, and that their acts, complained of or otherwise, were therefore within the scope of the immunity.
Were the acts complained of performed in good faith?
To attract the protection of s 467 of the Uniform Law the actions of the defendants, being the investigation and commencement of the proceedings and the ancillary actions thereto (including correspondence and communications with the plaintiff and the County Court), must have been performed in ‘good faith and in the exercise or purported exercise of functions’ under the Uniform Law.[71]
[71]Section 467 Uniform Law.
In Mid Density Developments Pty Ltd v Rockdale Municipal Council,[72] the full court of the Federal Court of Australia considered the meaning of ‘good faith’ in the context of a statutory immunity provisions in the NSW Local Government Act 1919 (s 582A) and the Environmental Planning and Assessment Act 1979 (s 149) (‘EPA Act’). The appellants claim was in negligence against the respondent for information supplied in a certificate under s 149 of the EPA Act that responded ‘No’ to the question ‘ Has the Council information which would indicate that the land is subject to the risk of flooding or tidal inundation?’. In the course of considering whether in the circumstances of that case the Council had provided the advice in good faith, the Court noted that the requirement of ‘good faith’:[73]
(a) in some contexts identifies an actual state of mind, irrespective of the quality or character of its inducing causes; something will be done or omitted in good faith if the party was honest, albeit careless;[74] and
(b) in others, may require the exercise of caution and diligence to be expected of an honest person of ordinary prudence.
[72](1993) 44 FCR 290 (Gummow, Hill and Drummond JJ).
[73]Ibid 298.
[74]See, for example, Smith v Morrison [1974] 1 WLR 659.
The cases considered by the Full Court demonstrates that in a particular statutory context, a criterion of ‘good faith’ may go beyond personal honesty and the absence of malice, and may require some other quality of the state of mind or knowledge of the relevant actor. In that case the Court concluded that it was wrong to assume that when used in the relevant legislation the phrase ‘anything done or omitted to be done in good faith’ (in s 582A(1) of the Local Government Act) and ‘in respect of any advice provided in good faith’ (in s 149(6) of the EPA Act) operate to leave the respondent liable only in respect of dishonesty. The Court looked to the evident purpose of the provisions and concluded that in the circumstances of the case, a party in the position of the respondent cannot be said to be acting in good faith within the meaning of the Local Government Act and the EPA Act, if it issues s 149 certificates where no real attempt has been made to have recourse to the vital documentary information available to the council, and the council has no proper system to deal with requests for information of the type in question.
In Bankstown City Council v Alamdo Holdings Pty Limited,[75] the High Court referred with approval to the decision in Mid Density, and the plurality said, in relation to the immunity provision applicable in that case, that:[76]
[G]iven the range of advice, acts and omissions to which [the immunity] may apply, what is required for something to be done or omitted in good faith may vary from one case to the next. This makes it unwise, if not impossible, to place a definitive gloss upon the words of the statute.
[75](2005) 223 CLR 660, [49]–[51] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[76]Ibid [50].
In Bankstown City Council, as here, the Court was presented with vague complaints against the entity seeking to rely on the immunity leading the majority to observe:[77]
Given the vagueness of the complaints against the Council, the weight of its evidentiary burden to establish good faith was correspondingly lightened.
[77]Ibid [51].
Notwithstanding this observation, the Court went on the observe that the burden is on the plaintiff to show an absence of good faith:
There was discussion in the argument in this court of the significance of passages in the judgment of Spigelman CJ said to show that he misunderstood the placing of the burden upon the council to show good faith, rather than upon Alamdo to show its absence. An examination of his Honour's judgment shows that any apparent infelicities of expression indicate no more than a response to the shape the issues had taken at trial. The presence of good faith had come to be assumed unless Alamdo made good its destructive response, as the primary judge held it had.
The statutory context and purpose of the immunity provision in this case is different from that under consideration in Mid Density and Bankstown City Council. Although both those cases concerned claims against Municipal Councils involving liability in negligence,[78] the alleged negligence arose in circumstances quite different from those in this case. Here the context is the protection of the Board and its officers from liability arising in the context of the enforcement of statutory prohibitions on unqualified persons engaging in legal practice (s 10 of the Uniform Law) or advertising or representing their entitlement to engage in legal practice (s 11 of the Uniform Law). Section 9 of the Uniform Law sets out as the objectives of the Part (Part 2.1 of Chapter 2) as:
(a) to ensure, in the interests of the administration of justice, that legal work is carried out only by those who are properly qualified to do so; and
(b) to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.
[78]In the Bankstown City Council case the liability was nuisance involving negligence leading to the grant of an injunction at first instance, which was set aside on appeal to the High Court because of the immunity.
The plaintiff’s submissions that the defendants ‘never acted in good faith’[79] are outlined in the affidavit of Anthony William Pumpa sworn 12 September 2017 at [33]-[46]. These paragraphs largely evidence a lack of understanding of legal processes and terminology on behalf of the plaintiff, however a lack of understanding on the part of the plaintiff does not evidence an absence of good faith on behalf of the defendants.
[79]Affidavit of Anthony William Pumpa sworn 12 September 2017 at p 4.
The actions complained of by the plaintiff as evidencing an absence of good faith by the defendants have been discussed above in relation to s 14 of the Uniform Law (see paragraphs 68 to 73). On the one hand the plaintiff complains that McClintock could have undertaken a more extensive investigation of the plaintiff’s conduct, website and motivations but on the other hand he accuses the defendants of bullying and harassment on the basis of the volume of correspondence. The mere fact that McClintock might have undertaken a more exhaustive investigation does not without more evidence a lack of good faith. 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. Furthermore, a more exhaustive investigation was likely to provide more evidence of contravention. In fact, in his letter dated 20 January 2016 McClintock counselled the plaintiff to seek legal advice before he engaged in future correspondence with McClintock and cautioned him that his admissions may be used against him in criminal proceedings.
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. That is, whether or not the requirement of good faith in s 467 involves both honesty and the ‘exercise of caution and diligence to be expected of an honest person of ordinary prudence’, 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. The letters written to the plaintiff were measured and explained why his conduct fell foul of the Uniform Law. The taking of notes of the telephone conversation is obviously sensible. There could be no complaint had McClintock kept his own notes. There is no difference in substance that another person take notes – presumably listening on loud speaker phone – and that has the added benefit of there being corroboration, if needed, of what was said. It is perfectly proper for an investigator in the position of McClintock to have a witness to a telephone conversation of the kind in question. That the plaintiff says he was not told of the fact that Ms Watson was listening and taking notes does not, in my view, establish a want of honesty.
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 (above at paragraph 29). 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 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 CPA.
No viable cause of action
The defendants also contended that the proceeding should be dismissed because the particular causes of action purportedly raised had no real prospect of success. I have already referred to the defences raised to these claims. In my view, none of the causes of action are viable; they do not have any real prospect of success, and there is no reason why the Court should exercise its discretion under s 64 of the CPA. My reasons for so concluding are set out briefly in the following paragraphs.
The alleged duty of care to prevent psychological injury alleged to be owed to the plaintiff is incompatible with the statutory scheme under the Application Act, including the nature of the powers and functions conferred upon the Board and McClintock by the Application Act and the Uniform Law. The existence of the duty would distort the proper performance of the investigatory and protective functions conferred on the Board and undermine the effectiveness of the Board as a regulator of the legal profession, including the purpose of protecting the public from unqualified legal practice.[80]
[80]X (Minors) v Bedfordshire County Council, [1995] 2 AC 633, 739; Sullivan v Moody (2001) 207 CLR 562, [30];State of New South Wales v Paige (2002) 60 NSWLR 371, [115]-[117]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 574, [78].
The Charter does not apply to the defendants. Section 6 of the Application Act overrides the Charter, in that by s 6(1) the Charter has no application to the Uniform Law. Further, by s 6(2) the usual sunset provision applicable does not apply to the Application Act or the Uniform Law; and by s 6(3) in performing functions or exercising powers under the Uniform Law, the Board is not a public authority within the meaning of the Charter in respect of its performance of those functions or the exercise of those powers. In any event, no cause of action is created by the Charter and even if a breach of the Charter were established, the plaintiff is not entitled to an award of damages by reason of s 39(3) of the Charter.[81]
[81]Director of Housing v Sudi [2011] VSCA 266, [96] and [215].
There can be no breach of s 23(1) of the OH&SA because the plaintiff was not at any time an employee of the Board and, further, by reason of s 34 of the OH&SA nothing in Part 3 of that Act, including s 23(1), confers a right of action upon the plaintiff or otherwise affects any other rights of action the plaintiff has arising at common law.
There can be no breach of s 138 of the Evidence Act. That section deals with the Court’s discretion to exclude otherwise admissible evidence in proceedings in Court. It does not apply to investigations pursuant to s 14 of the Uniform Law, which empowers the Board to take any steps that may be necessary or proper with respect to the investigation of any question as to conduct by any person that is, or may be, a contravention of a provision of Part 2.1 of the Uniform Law, including ss 10(1) and 11(1), and to institute proceedings for such contraventions. The defendants were acting within their powers under the Application Act and the Uniform Law in investigating the plaintiff and commencing proceedings in the Supreme Court of Victoria for an injunction restraining the plaintiff from contravening ss 10(1) and 11(1) of the Uniform Law.
There is no proper basis for the allegation of corruption in contravention of the IBAC Act. No cause of action is created by that Act.
Conclusion
For these reasons I conclude that the plaintiff has no real prospects of success in his proceeding and it should be dismissed, with costs if the defendants seek costs.
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