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Sims v Chong

Sims v Chong

Case [2014] FCA 1069 3 October 2014

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FEDERAL COURT OF AUSTRALIA
Sims v Chong [2014] FCA 1069

Citation: Sims v Chong [2014] FCA 1069

Parties: DOUGLAS ARTHUR SIMS v PATTI PENG SA CHONG

File numbers: WAD 116 of 2014

Judges: BARKER J

Date of judgment: 3 October 2014

Catchwords: PRACTICE AND PROCEDURE – application for summary judgment or to strike out applicant’s statement of claim – claims against legal practitioner – whether proceeding is an abuse of process – whether doctrine of advocate’s immunity from suit applies

Legislation:
Australian Consumer Law (Cth) (Sch 2 to the Competition and Consumer Act 2010 (Cth))
Federal Court of Australia Act 1976 (Cth) s 31A
Trade Practices Act 1974 (Cth)

Federal Court Rules 2011 (Cth) R 16.21(1)(e), R 16.21(1)(f), R 26.01(1)(a), R 26.01(1)(c), R 26.01(1)(d)

Cases cited: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Goddard Elliott (a firm) v Fritsch [2012] VSC 87
NT Pubco Pty Ltd v Strazdins [2014] NTSC 8
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198
Sims v Suda Ltd [2014] WASC 3
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169

Date of hearing: 5 September 2014

Date of last submissions: 17 September 2014

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 52

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr SF Popperwell

Solicitor for the Respondent: Denman Popperwell Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 116 of 2014

BETWEEN:
DOUGLAS ARTHUR SIMS
Applicant

AND:
PATTI PENG SA CHONG
Respondent

JUDGE:

BARKER J

DATE OF ORDER:

3 OCTOBER 2014

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The proceeding be struck out for abuse of process pursuant to R 16.21 Federal Court Rules 2011 (Cth) and summary judgment be entered for the respondent in any event under s 31A Federal Court of Australia Act 1976 (Cth) and R 26.01.
2.The applicant pay the respondent's costs of the interlocutory application filed 20 June 2014 and the proceeding, including all reserved costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 116 of 2014

BETWEEN:
DOUGLAS ARTHUR SIMS
Applicant

AND:
PATTI PENG SA CHONG
Respondent

JUDGE:

BARKER J

DATE:

3 OCTOBER 2014

PLACE:

PERTH

REASONS FOR JUDGMENT

In early 2011, the applicant, who was aggrieved by the failure of a company called Suda Ltd to honour what he considered to be a written contractual promise to reward him for his inventions, instructed the respondent, a legal practitioner practising as Patti Chong Lawyer (the practitioner), to commence a proceeding against Suda Ltd (which was then known by the name Eastland Medical Systems Ltd) to enforce the alleged promise to pay.
A proceeding was initially commenced in the District Court of Western Australia against Eastland and others but…

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 Sims v Chong

Details

AGLC: Sims v Chong [2014] FCA 1069
Case: [2014] FCA 1069
Decision Date: 3 October 2014

CaseChat Overview and Summary

Sims v Chong involved a claim by Sims against Chong, a legal practitioner, in the Federal Court of Australia. Sims alleged professional negligence and sought damages. The nature of the dispute centred on whether the proceedings against Chong constituted an abuse of process and whether the doctrine of advocate’s immunity from suit applied to shield Chong from liability.

The court was required to determine two primary legal issues: first, whether Sims' proceeding against Chong constituted an abuse of process; and second, whether the doctrine of advocate’s immunity from suit applied to the claims Sims sought to litigate. The court examined whether Sims’ claims were an improper use of the court process and if Chong was protected by the immunity afforded to legal practitioners under certain circumstances.

The court found that the proceeding against Chong was an abuse of process, as Sims' claims were considered an improper use of the court process. Additionally, the court held that the doctrine of advocate’s immunity from suit applied, protecting Chong from liability for the matters Sims sought to litigate. Consequently, the court dismissed Sims' proceeding with costs, including reserved costs.

Orders

Orders of the court

1. The proceeding be struck out for abuse of process pursuant to R 16.21 Federal Court Rules 2011 (Cth) and summary judgment be entered for the respondent in any event under s 31A Federal Court of Australia Act 1976 (Cth) and R 26.01.

2. The applicant pay the respondent's costs of the interlocutory application filed 20 June 2014 and the proceeding, including all reserved costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would therefore, further to striking out the proceeding for abuse of process, give summary judgment to the practitioner on the basis of the doctrine of advocate’s immunity from suit in respect of the matters the applicant wishes to litigate.CONCLUSION AND ORDER For these reasons, the proceeding should be dismissed with costs including any reserved costs.1.The proceeding be struck out for abuse of process pursuant to R 16.21 Federal Court Rules 2011 (Cth) and summary judgment be entered for the respondent in any event under s 31A Federal Court of Australia Act 1976 (Cth) and R 26.01.2.The applicant pay the respondent’s costs of the interlocutory application filed 20 June 2014 and the proceeding, including all reserved costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Sims v Chong [2014] FCA 1069

Most Recent Citation

Sims v Suda Ltd (No 2) [2015] FCA 281

Cases Citing This Decision

King v Patrick Projects Pty Ltd [2016] FCA 1110
Citation 1 (Para 26)

…th of Australia [1999] FCA 1571; as well as attempting to re-litigate issues which have already been determined in previous proceedings: Sims v Chong [2014] FCA 1069.…
Sims v Chong (No 2) [2015] FCAFC 163
Citation 2

…FEDERAL COURT OF AUSTRALIA Sims v Chong (No 2) [2015] FCAFC 163 Citation: Sims v Chong (No 2) [2015] FCAFC 163 Appeal from: Sims v Chong [2014] FCA 1069 Parties: DOUGLAS ARTHUR SIMS v PATTI PENG SA CHONG File number: WAD 315 of 2014 Judges: MANSFIELD, SIOPIS AND RARES JJ Date of judgment: 17 November 2015 Legislat…
Sims v Suda Ltd [2015] FCA 967
Citation 3 (Para 20)

…That complaint appears to relate to the fact that the primary judge referred in his reasons for judgment to a decision of Barker J in Sims v Chong [2014] FCA 1069 ( Sims v Chong ) which was at the time of the hearing, the subject of appeal to the Full Court. The applicant’s complaint appears to be that the primar…
Sims v Chong [2015] FCAFC 80
Citation 4 (Para 1)

…or the respondent under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), with costs to be payable by the appellant: Sims v Chong [2014] FCA 1069 (the primary judgment). The appellant applied for leave to appeal. The appellant’s application for leave to appeal and the appeal were heard at the s…
Sims v RM Capital Pty Ltd and Anor (No.3) [2015] FCCA 1301
Citation 5 (Para 8)

…rience before Fair Work Australia referred to at [25(a)] above; b)Mr Sims’ experience before the Federal Court, including in: i) Sims v Chong [2014] FCA 1069 (“ Chong ”) involving a successful application for summary judgment to strike out Mr Sims’ Statement of Claim (which is presently reserved for judgment on ap…
Sims v Suda Ltd (No 2) [2015] FCA 281
Citation 6 (Para 11)

…nd dismissed another related proceeding commenced by the applicant as being an attempt to re-litigate previously determined disputes. In Sims v Chong [2014] FCA 1069 his Honour noted at [36] that: There must be finality in litigation. A litigant cannot take the same cause of action from one court to another when t…

See all citing cases →

Cases Cited

NT Pubco Pty Ltd v Strazdins [2014] NTSC 8
Citation 1 (Para 18)

…owever framed, whether or not, for example, it involves a claim for contravention of the Australian Consumer Law . See NT Pubco Pty Ltd v Strazdins [2014] NTSC 8 where Hiley J came to that view at [108]‑[109] and [114] following Goddard Elliott (a firm) v Fritsch [2012] VSC 87 and Yates Property Corporation Pty…
Sims v Suda Ltd [2014] WASC 3
Citation 2 (Para 24)

…at Registrar Boyle decided in relation to the fifth statement of claim, is correct. The decision of Registrar Boyle is to be found at Sims v Suda Ltd [2014] WASC 3. At [11]‑[13] the Registrar stated as follows: 11 The question of consideration has dogged the plaintiff's pleadings from the start. It is worth repe…
Goddard Elliott v Fritsch [2012] VSC 87
Citation 3 (Para 18)

…NT Pubco Pty Ltd v Strazdins [2014] NTSC 8 where Hiley J came to that view at [108]‑[109] and [114] following Goddard Elliott (a firm) v Fritsch [2012] VSC 87 and Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169.…
Spencer v Commonwealth of Australia [2010] HCA 28
Citation 4 (Para 12)

…has the power to give summary judgment to a party when a proceeding has no reasonable prospect of succeeding. See Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118.…
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
Citation 5 (Para 11)

…In D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [45], the plurality of the High Court of Australia upheld the doctrine of advocate’s immunity and said that the central justification for it is the principle that controversies, once resolved, are not to be reopened except in a few narrow…
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142
Citation 6 (Para 5)

…n the guise of an action against his former lawyer. In that regard, the decision of the New South Wales Court of Appeal in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 provides a good example of how attempts to litigate or re‑litigate issues decided in other proceedings should not be allowed to…
[1980] AC 614 [1980] AC 614
Citation 7 (Para 24)

…ew and far between. Both parties submitted that the principle is perhaps best explained in the advice of the Privy Counsel in Pao On v Lau Yiu Long [1980] AC 614, at 629, An act done before the giving of a promise to make a payment or to confer some other benefit can sometimes be consideration for the promise. T…

Legislation Cited

Federal Court of Australia Act 1976 (Cth) 31A
2 mentions (from Para 12)
Competition and Consumer Act 2010 (Cth)
1 mention
Federal Court Rules 2011 (Cth)
1 mention (from Para 10)
Trade Practices Act 1974 (Cth)
1 mention (from Para 8)

Citation:	Sims v Chong [2014] FCA 1069
Parties:	DOUGLAS ARTHUR SIMS v PATTI PENG SA CHONG
File numbers:	WAD 116 of 2014
Judges:	BARKER J
Date of judgment:	3 October 2014
Catchwords:	PRACTICE AND PROCEDURE – application for summary judgment or to strike out applicant’s statement of claim – claims against legal practitioner – whether proceeding is an abuse of process – whether doctrine of advocate’s immunity from suit applies
Legislation:	Australian Consumer Law (Cth) (Sch 2 to the Competition and Consumer Act 2010 (Cth)) Federal Court of Australia Act 1976 (Cth) s 31A Trade Practices Act 1974 (Cth) Federal Court Rules 2011 (Cth) R 16.21(1)(e), R 16.21(1)(f), R 26.01(1)(a), R 26.01(1)(c), R 26.01(1)(d)
Cases cited:	D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Goddard Elliott (a firm) v Fritsch [2012] VSC 87 NT Pubco Pty Ltd v Strazdins [2014] NTSC 8 Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 Sims v Suda Ltd [2014] WASC 3 Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169
Date of hearing:	5 September 2014
Date of last submissions:	17 September 2014
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	52
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr SF Popperwell
Solicitor for the Respondent:	Denman Popperwell Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 116 of 2014

BETWEEN:	DOUGLAS ARTHUR SIMS Applicant
AND:	PATTI PENG SA CHONG Respondent

JUDGE:	BARKER J
DATE OF ORDER:	3 OCTOBER 2014
WHERE MADE:	PERTH

JUDGE:	BARKER J
DATE:	3 OCTOBER 2014
PLACE:	PERTH