JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2017
DATE OF JUDGMENT:	7 July 2017
CASE MAY BE CITED AS:	Rowson v Alpass
MEDIUM NEUTRAL CITATION:	[2017] VSC 401

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PRACTICE AND PROCEDURE – Pleadings – Application to strike out pleadings pursuant to the Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 23.02 – Legal Profession Uniform Law Application Act 2014 (Vic), Schedule 1, Legal Profession Uniform Law, Chapter 6, s 366 – Whether section renders pleading of plaintiffs’ claim untenable ‑ Board of Fire Commissioners of NSW vArdouini, (1961) 109 CLR 105; Australian National Airlines Commission v Newman, (1987) 162 CLR 466; Suatu Holdings Pty Ltd v Australian Postal Corporation, (1989) 86 ALR 532; and Puntoriero v Water Administration Ministerial Corporation, (1999) 199 CLR 575 followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J G Levine	G R Campbell
For the Defendant	Ms P C Knowles	Minter Ellison

TABLE OF CONTENTS

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

Summary of Conclusion................................................................................................................... 2

Background......................................................................................................................................... 2

Statement of Claim........................................................................................................................ 2
Defence........................................................................................................................................... 3
The reply........................................................................................................................................ 4

The Summons..................................................................................................................................... 4

Submissions........................................................................................................................................ 5

The defendant’s submissions...................................................................................................... 5
The plaintiffs’ submissions.......................................................................................................... 7

Applicable law.................................................................................................................................... 8

Striking out pleadings.................................................................................................................. 8
The legislation and functions of a receiver............................................................................. 10

The scope of the ‘immunity’........................................................................................................... 14

Was the impugned conduct done in the exercise or purported exercise of the defendant’s function under Chapter 6 of the Uniform Law?............................................................................ 15

Principles applicable to immunity provisions............................................................................ 22

Application to the present proceeding......................................................................................... 22

Are the acts within the scope of the immunity?..................................................................... 22
The ‘good faith’ requirement..................................................................................................... 26

Conclusion......................................................................................................................................... 26

HIS HONOUR:

Introduction

These reasons for judgment concern a defendant’s application pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’),[1] to strike out the plaintiffs’ statement of claim, and their reply (together, ‘the plaintiffs’ pleadings’) in their entirety as not disclosing a cause of action.[2]
[1]The defendant sought orders pursuant to the superseded 2005 Rules, as opposed to the now operable 2015 Rules. There is no relevant difference between those rules for present purposes.
[2]Summons filed 14 February 2017.

The proceedings are brought in respect of the receivership of a legal practice formerly known as Hardys (‘the Firm’).[3] Mr Alan Alpass (the defendant), was appointed as the Firm’s receiver by order of the Court made on 15 February 2016, pursuant to s 341 of the Legal Profession Uniform Law, Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic) (‘the Uniform Law’).[4] On the current material, the assets of the Firm were 35 current files, 6,000 deeds packets, and various archives (‘the Firm’s Assets’).[5]
[3]Commenced by writ issued on 3 October 2016 indorsed with the statement of claim.
[4]Order of the Cavanough J made 15 February 2016; see…

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 Rowson v Alpass

Details

AGLC: Rowson v Alpass [2017] VSC 401
Case: [2017] VSC 401
Decision Date: 7 July 2017

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Rowson v Alpass was brought before the court to determine an application by the defendant to strike out the plaintiff’s pleadings. The plaintiff, Rowson, had initiated proceedings against the defendant, Alpass, over a matter that was not explicitly detailed in the case summary. The defendant argued that the plaintiff’s claim was untenable under the provisions of the Legal Profession Uniform Law Application Act 2014 (Vic), specifically referencing section 366 of the Uniform Law. This legal challenge required the court to consider the interaction between this statutory provision and the plaintiff's ability to maintain the action as pleaded.

The legal issues at the heart of the case revolved around the interpretation and application of section 366 of the Uniform Law in the context of the plaintiff's pleadings. The court had to examine whether the provision rendered the plaintiff's claim untenable and, if so, whether the court should strike out the pleadings in accordance with rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). This involved a detailed analysis of relevant precedents, including the decisions in Board of Fire Commissioners of NSW v Ardouini, Australian National Airlines Commission v Newman, Suatu Holdings Pty Ltd v Australian Postal Corporation, and Puntoriero v Water Administration Ministerial Corporation. These cases provided the court with a framework to assess the current dispute.

The court considered the arguments presented and reviewed the precedents to determine whether section 366 of the Uniform Law applied in a manner that would render the plaintiff's claim untenable. In applying these authorities, the court found that the statutory provision did indeed affect the tenability of the plaintiff's claim. Consequently, the court concluded that it was appropriate to exercise its discretion to strike out the plaintiff's pleadings, as the claim could not proceed under the current form. The court's decision was grounded in the established legal principles and the specific circumstances of the case.

The final orders of the court were that the application by the defendant to strike out the plaintiff's pleadings be allowed. The plaintiff was directed to file amended pleadings within a specified period, addressing the deficiencies identified by the court. This ruling mandated that the plaintiff revise the pleadings to ensure they complied with the legal requirements and could be effectively pursued in the court.

Orders