Sims v Jooste
[2013] WASC 425
•28 NOVEMBER 2013
SIMS -v- JOOSTE [2013] WASC 425
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 425 | |
| Case No: | CIV:1991/2011 | 14 NOVEMBER 2013 | |
| Coram: | KENNETH MARTIN J | 28/11/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Hearing not required | ||
| B | |||
| PDF Version |
| Parties: | DOUGLAS ARTHUR SIMS JAMES CECIL INNES JOOSTE |
Catchwords: | Practice and procedure Plaintiff application Removal of defendant's solicitors Conflict of interest Turns on own facts |
Legislation: | Defamation Act 2005 (WA), s 25 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
JAMES CECIL INNES JOOSTE
Defendant
Catchwords:
Practice and procedure - Plaintiff application - Removal of defendant's solicitors - Conflict of interest - Turns on own facts
Legislation:
Defamation Act 2005 (WA), s 25
Result:
Application dismissed
Hearing not required
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : In person
Defendant : Bennett + Co
Case(s) referred to in judgment(s):
Nil
1 KENNETH MARTIN J: The plaintiff, Mr Sims, by solicitors, commenced these defamation proceedings by a writ of summons filed on 9 June 2011. There followed a statement of claim of 16 August 2011 indicating that Mr Sims' complaint concerned a publication that appeared on an internet website known as 'Hot Copper' on 10 June 2010. Alleged defamatory words complained of are asserted to have been published or caused to be published by the defendant (Dr Jooste). The defamatory words are identified at par 4 of the statement of claim in these terms:
I disagree, Arthur. Corporate governance and transparency are better than ever under the current Board and Management. If anyone is responsible for reckless or even criminal disregard for a shareholders' interests it would be the aforementioned Douglas Arthur Sims, as events in and around the Courts will show in due course.
2 Mr Sims complains that in their natural and ordinary meaning these words meant or were understood to mean that:
(a) he had engaged in criminal conduct in the management of a corporation; and/or
(b) he in his management of the corporation had acted with reckless disregard to the interests of shareholders.
3 The same two imputations are advanced on the alternative basis of being true innuendo, that is meanings ascertainable by persons knowing further information (see par 7 of the statement of claim) - including that the words appeared on a web site that related to Eastland Medical Systems Ltd.
4 After a significant amount of interlocutory disputation, a final iteration of Dr Jooste's further substituted defence (amended) emerged, on 23 July 2012. Amongst other matters, the defence raises a plea of justification against the two imputations contended for on the basis that they are substantially true and, in addition to the common law, invokes s 25 of the Defamation Act 2005 (WA). The justification plea is elaborately particularised under par 10 of that defence.
5 On 17 September 2012 Mr Sims, by solicitors, filed a reply - finally bringing about the closing of the pleadings. Various further interlocutory issues then arose concerning particulars and discovery.
6 On 15 August 2013 this year I extended time for the parties to give their respective discovery to 5 September 2013 and then for them to complete inspection by 11 September 2013.
7 On 12 September 2013 Mr Sims filed a notice of intention to act in person. Therein, it seems to me, lies a root cause of the ensuing difficulties now encountered in the case management of this action.
8 On 16 September 2013 Mr Sims filed a document entitled Minute of Proposed Orders. This document sought:
1. An order for the defendant's defence be struck out as void, or
2. the matter be listed for trail [sic]
3. costs in Course [sic].
9 In support of those orders, Mr Sims filed his personal affidavit (also on 16 September), in which he said, inter alia:
1. For three years I have endured the defamation and ridicule of this matter, which matter should have in the proper course of justice been deliberated long before.
2. Evidence to the contrary to the defence of the Defendant has now come to hand and supports the Plaintiffs claim of a gross injustice by the board of directors of Suda Ltd, within which the Defendants father was an Officer.
…
6. I seek the matter be set for a two-day trial …
10 On 18 September 2013 the defendant filed a notice of appointment of fresh solicitors (Bennett + Co) in lieu of the former solicitors of record for the defendant, KWL Ebsworth.
11 The matter returned to me for directions in my CMC list on 19 September 2013. At that time Mr Sims had not yet given discovery. The defendant moved for a springing order to enforce Mr Sims' compliance.
12 On 19 September 2013 I issued a springing order affording Mr Sims until 26 September 2013 to provide discovery verified on oath. Subsequently, Mr Sims met that deadline. He provided an affidavit verifying a list of documents on oath on 25 September 2013.
13 The parties were directed by me on 19 September 2013 to confer with respect to non-expert trial evidence and trial documents and to file a minute of orders by 10 October 2013 in that regard. Otherwise, I adjourned directions to 9.15 am on Thursday, 14 November 2013.
14 On 24 September 2013 Mr Sims filed a one-page document entitled Witness List - identifying himself and three other persons as his trial witnesses.
15 Mr Sims' affidavit verifying a list of documents on behalf of the plaintiff on 25 September 2013 resolved the issue of his default in filing his outstanding discovery.
16 On 2 October 2013 Mr Sims caused to be filed at court a witness statement of Peter Tiede and a witness statement of Trevor Preston Strahan.
17 On 10 October 2013 the defendant submitted to my Associate a signed and agreed minute of consent orders, effectively dealing with trial witness statements by the parties and with responsive statements, including objections to admissibility of witness statements - programmed to occur in a period between 12 December 2013 and 20 March 2014.
18 Proposed orders 8 through 12 of that 10 October 2013 consent minute deal with trial documents, including an assembly of an effective trial bundle and the parties' conferral in relation to documents which might be tendered by consent at the trial and any objections to documents. Directions 8 through 12 span agreed developments in the period 27 March 2014 to 24 April 2014.
19 The 10 October 2013 consent minute submitted by the defendant's solicitors carries the signature of Mr Sims as plaintiff in person. I approved the orders in those terms on 4 November 2013, effectively timetabling the matter towards a trial after April 2014.
20 With another directions hearing of 14 November 2013 looming, Mr Sims, on 12 November 2013, now filed a document at court (dated 18 October 2013) seeking the following order:
The plaintiff seeks an Order for the removal of Bennett + Co as representative lawyers for the Defendant citing the appropriateness of Bennett + Co to continue to act for both the Defendant and Suda Ltd in a manifest conflict of interest and convergences of un authorised [sic] Public Company information in breach of the Australian Securities and Corporations Act by Bennett + Co and the Defendant.
21 That minute from Mr Sims was not supported by any underlying affidavit from him or anyone else.
22 When the matter came on for hearing in my CMC list on 14 November 2013 Mr Sims again appeared in person. I asked him whether he proposed to press for an order for the removal of the defendant's current solicitors. He indicated he did.
23 I then pointed out to Mr Sims the need for any such an application to be properly supported by some evidence and not simply be the subject of his generalised assertions. Manifestly, there would be a need for some supportive affidavit material and Mr Sims would need to formulate the relief which he was seeking as regards any removal of the defendant's solicitors far more precisely. I also pointed out to Mr Sims that any affidavit he filed in advancing a case for such relief should not contain arguments, but merely set out underlying facts he relied upon. I also advised Mr Sims to the extent he proposed to advance arguments in support of orders that restrained or removed the defendant's solicitors, he should file a separate document containing his arguments, and thereby confine his affidavit just to facts.
24 Hence, on 14 November 2013 I ordered that Mr Sims 'file any orders, affidavit material and written submissions in support of his order by 4.00 pm Tuesday, 20 November 2013'. At the time I indicated to Mr Sims I would review his filed materials to see whether they provided a sufficiently arguable basis to advance a disqualification application concerning the defendant's solicitors. I indicated to Mr Sims that if I was not satisfied with the content of his materials that I may, in the exercise of powers in the CMC list as case manager, issue a direction that his interlocutory application seeking removal of the defendant's solicitors not be heard: see O 4A r 2(2)(f) of the Rules of the Supreme Court 1971 (WA).
25 On 19 November 2013 Mr Sims filed three documents, namely:
(a) [Mr Sims'] proposed orders by order Justice Kenneth Martin 14 November 2013;
(b) [Mr Sims'] affidavit 20 November 2013; and
(c) [Mr Sims'] statement of facts by order Justice Kenneth Martin 14 November 2013.
26 Obviously, reasonable allowances must be made for Mr Sims' position as a party now acting in person. It is evident Mr Sims has plainly misunderstood my direction that his affidavit material be confined to facts and that his arguments advancing his application should be in a separate document.
27 Nevertheless, I evaluate the filed materials from Mr Sims. It is convenient to note he now seeks these proposed orders under his document filed 19 November 2013:
1. The removal of Bennett + Co as representative lawyers for the Defendant citing the appropriateness of Bennett + Co to continue to act for both the Defendant and Suda Ltd in a manifest conflict of interest.
2. The defendant by Affidavit, submit to the court within 14 days a list setting forth the information obtained by him from Suda Ltd from 9 June 2009 until December 2012 and the manner in which that information was obtained.
3. All correspondence between Peter Innes Jooste and the Defendant between 9 June 2009 and December 2012 relating to:
(a) CIV 1991 of 2011
(b) The business of Suda Ltd.
4. Clause 10(b) to 19 inclusive be struck out of the Defendant's Further Substituted Defence dated 20 December 2011 as this information has been obtained illegally by the Defendant and is contrary to Fact.
28 In essence, therefore, Mr Sims seeks to attribute to the defendant's solicitors a disqualifying conflict of interest position. Mr Sims' references to Suda Ltd are, it would seem, to be interpreted as references to the corporation once known as Eastland Medical Systems Ltd. (There is nothing before me to indicate that Suda Ltd retains any connection with Mr Sims as a current director, officer or shareholder. Nor is there anything to indicate the board of Suda objects to information in the possession of the defendant's current solicitors being used in this action or any matter of that kind.)
29 The nature of the asserted conflict of interest of the defendant's solicitors appears to be articulated by Mr Sims, largely by reference to grievances more properly articulated by Suda Pty Ltd, rather than by Mr Sims.
30 I will refer briefly to Mr Sims' affidavit. It contains many asserted conclusions or arguments as well as what on the face of it would appear to be some scandalous assertions. By way of a small sample, I refer to par 3, where Mr Sims says:
3. I am the victim of prejudice in this matter and the matters surrounding the conflict by Bennett + Co relating to Dr Jooste and Suda Ltd. Suda Ltd was formerly known as Eastland Medical Systems Ltd.
31 Further illustrations of the argumentative, conclusionary or scandalous character of Mr Sims' affidavit include pars 11, 15, 16, 17 and 23. In short, there is a great deal of bare, negative assertion as to an asserted conflict of interest by Bennett + Co as solicitors, in terms of that firm acting as solicitors for the defendant. Bound up in that appears to be assertions by Mr Sims concerning the alleged illegitimate obtaining of information from Suda Ltd by Bennett + Co and to be used, it is put, improperly for the purposes of advancing the justification defence run in this defamation action by Dr Jooste.
32 Mr Sims' affidavit concludes:
The removal of Bennett + Co as representative lawyers for Dr Jooste is essential for the proper course of justice. They are wearing three hats and the hats are in conflict.
33 Mr Sims' affidavit does not provide any underlying admissible evidentiary material to set a proper platform for Mr Sims to argue about a conflict of interest in Bennett + Co. Putting aside his conclusionary assertions to that end and a large amount of pejorative rhetoric, there is simply a glaring absence of any underlying facts. Likewise, the separate document, said to be a statement of facts, is mostly argument or assertion and advances Mr Sims' case no further. By illustration, par 30 of the statement of facts says:
For Bennett + Co to use the confidential records of Suda Ltd in Dr Jooste's defence represents a severe abuse of Justice.
34 A further underlying problem is that it would be for Suda Ltd, by its board, not Mr Sims (who would appear to have no present connection with that corporation) to advance such conflict grievances and arguments. It does not. I am not privy to what decisions may have been made by the board of Suda Ltd in terms of consensually providing any particular information to Dr Jooste's solicitors as regards the defence of the defamation action brought against Dr Jooste by Mr Sims. That is just a matter for speculation.
35 There are manifest defects in this attempted application to remove the opposition's solicitors by a litigant in person who does not appear to comprehend basic rules of evidence.
36 In my assessment, it would be a total waste of this Court's time and ever diminishing resources to programme an inter partes argument and hearing of a manifestly hopeless application that is doomed to fail.
37 I should say that at the directions hearing on 14 November 2013 Mr Bennett indicated the defendant's opposition to the application in the strongest terms. I have taken the course, therefore, of evaluating the merits of Mr Sims' written materials myself from a perspective of endeavouring to ascertain whether there is anything faintly arguable therein warranting such a hearing. There is not. Accordingly, the matter will not be listed for hearing as it will not be heard.
38 Mr Sims should direct his energies to adhering to the timetabling directions to which he agreed on 10 October 2011 in advancement of a progression of the action to a trial in 2014.
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