Sims v Jooste and Ors (No.4)
[2016] FCCA 2641
•18 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMS v JOOSTE & ORS (No.4) | [2016] FCCA 2641 |
| Catchwords: PRACTICE AND PROCEDURE – Application for substituted service of originating application – application at hearing to extend time for substituted service of originating application – whether to extend time – whether to make substituted service order. PRACTICE AND PROCEDURE – Extension of time – whether to extend time to serve originating application. PRACTICE AND PROCEDURE – Application in a Case to re-open and to read affidavits previously not read – whether to read affidavits – whether to allow re-opening. COSTS – Application for indemnity costs – whether indemnity costs payable. WORDS AND PHRASES – “scandalous”. |
| Legislation: Australian Consumer Law, ss.18, 20, 52 |
| Cases cited: AHI15 v Minister for Immigration & Border Protection [2016] FCA 64 Russell V Miller, Miller’s Australian Competition and Consumer Law Annotated (38th Edn) (Pyrmont: Law Book Co, 2016) |
| Applicant: | DOUGLAS ARTHUR SIMS |
| First Respondent: | PETER INNES JOOSTE (DEC’D) |
| Second Respondent: | MICHAEL ROBERT STEWART |
| Third Respondent: | MARTIN LAWRENCE BENNETT |
| File Number: | PEG 30 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 20 July 2016 |
| Date of Last Submission: | 20 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 18 October 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First and Second Respondents: | Mr M MacLennan |
| Solicitors for the First and Second Respondents: | Bennett + Co |
| Counsel for the Third Respondent: | Mr S Popperwell |
| Solicitors for the Third Respondent: | Denman Popperwell Lawyers |
ORDERS
Pursuant to r.15.29(1) of the Federal Circuit Court Rules 2001 (Cth):
(a)paragraph 3(b), (c), (g), (h), (i) and (j); and
(b)in the second paragraph (h):
(i)the first sentence;
(ii)placitas (v), (vi), (xi), (xii), (xiii) and (xv); and
(iii)the second placita (xi),
of the affidavit sworn by the applicant on 6 July 2016 be struck out as scandalous and inadmissible.
The applicant’s application in a case filed 8 July 2016 be dismissed.
The applicant is to pay the costs, on an indemnity basis, of:
(a)the first and second respondents in relation to the applicant’s Application in a Case filed 8 July 2016;
(b)the first respondent’s costs of the first respondent’s Application in a Case filed 19 July 2016; and
(c)the third respondent’s costs of the third respondent’s Application in a Case filed 13 July 2016,
with the actual quantum, if not agreed, to be determined by a Registrar of this Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 30 of 2014
| DOUGLAS ARTHUR SIMS |
Applicant
And
| PETER INNES JOOSTE (DEC’D) |
First Respondent
| MICHAEL ROBERT STEWART |
Second Respondent
| MARTIN LAWRENCE BENNETT |
Third Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to three applications in a case:
a)Douglas Sims’ (the applicant) filed 8 July 2016 (“Mr Sims’ Application in a Case”);
b)Martin Bennett’s (the third respondent) filed 13 July 2016 (“Mr Bennett’s Application in a Case”); and
c)the late Peter Innes Jooste QC’s (the first respondent) filed 19 July 2016 (“Mr Jooste’s Application in a Case”).
Mr Sims’ Application in a Case seeks orders for substituted service of the originating application on the second respondent, Michael Robert Stewart (“Mr Stewart”), and an extension of time for such service, and for affidavits filed with the Court on 7 July 2014 (“Second Sims’ Affidavit”) and 5 August 2014 (“Third Sims’ Affidavit”) to be read by the Court and accepted as evidence, and, effectively, for the re-opening of the case against the late Mr Jooste QC and Mr Bennett.
Mr Jooste’s and Mr Bennett’s Applications in a Case seek orders pursuant to r.15.29(1) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) to strike out as scandalous and inadmissible parts of Mr Sims’ affidavit sworn 6 July 2016 (“Fifth Sims’ Affidavit”) in support of Mr Sims’ Application in a Case, and for their costs to be paid by Mr Sims on an indemnity basis.
Mr Jooste’s Application in a Case was supported by an affidavit sworn by Tanya Rachel Lavan, a senior associate at Bennett + Co. Mr Bennett’s Application in a Case was supported by an affidavit sworn by Sean Francis Popperwell, a partner at Denman Popperwell Lawyers. Both affidavits indicate that the deponents have instructions to seek the orders set out in the respective applications.
By way of procedural background the Court observes that:
a)in Sims v Jooste & Ors [2016] FCCA 1343 at [149(a)-(c)] and [150] per Judge Lucev (“Sims v Jooste (No. 1)”) this Court dismissed the originating application as against Mr Jooste and Mr Bennett, pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) on a number of bases, including the following:
i)that the Court had no jurisdiction to hear the claims made therein;
ii)that the claims made therein had no reasonable prospect of success in any event; and
iii)that the proceedings instituted by Mr Sims were frivolous, vexatious and an abuse of process; and
b)in Sims v Jooste & Ors (No. 3) [2016] FCCA 1751 (“Sims v Jooste (No.3)”) this Court struck out portions of an earlier affidavit sworn by Mr Sims on 19 May 2016 (“Fourth Sims’ Affidavit”) as scandalous and inadmissible. Many of the same issues arise in Mr Jooste’s and Mr Bennett’s Applications in a Case.
The Court will deal with Mr Bennett’s and Mr Jooste’s Applications in a Case first, and then Mr Sims’ Application in a Case.
Mr Jooste’s and Mr Bennett’s Applications in a Case
Objectionable material may be struck out of affidavits
Rule 15.29 of the FCC Rules provides as follows:
(1) The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.
(2) Unless the Court or a Registrar otherwise directs, any costs caused by the material struck out must be paid by the party who filed the affidavit.
Mr Sims’ Affidavit
The Fifth Sims’ Affidavit was filed in support of Mr Sims’ Application in a Case.
Mr Sims’ alleges the late Mr Jooste QC:
a)was involved in conspiracy: Fifth Sims’ Affidavit at [3(g), (h), (2nd (h), (xi), (xiii) and (xv)];
b)committed forgery: Fifth Sims’ Affidavit at [3(b), (c), (h) and (i)];
c)interfered with the public records of a company: Fifth Sims’ Affidavit at [3(b), (c) and (g)];
d)perverted the course of justice: Fifth Sims’ Affidavit at [3(b) and (c)];
e)used proceeds of crime: Fifth Sims’ Affidavit at [3(2nd (h) (xi)]; and
f)committed general breaches of the Corporations Act: Fifth Sims’ Affidavit at [3(b), (c), (g), (h), (2nd h)(i), (vi), (1st xi), (xiii) and (xv)].
Mr Sims alleges Mr Bennett:
a)perverted the course of justice: Fifth Sims’ Affidavit at [3(j) and (2nd h) (iv) and (vi)],
b)was aware of the allegations made against the late Mr Jooste QC: Fifth Sims’ Affidavit at [3(2nd h) (2nd xi) and (xii)]; and
c)received funds from offences committed by the late Mr Jooste QC and Mr Stewart: Fifth Sims’ Affidavit at [3 (2nd h), (iv), (vi) and (2nd xii)].
Proper pleading and particularisation of allegations
Mr Sims has been made aware of the requirement to properly plead and particularise serious allegations, whether in pleadings or in affidavits, on numerous occasions, by numerous courts, including the following:
a)the Supreme Court of Western Australia, Court of Appeal in Sims v Jooste QC [2013] WASCA 245 at [17] per Pullin and Newnes JJA (“Jooste QC”), where having referred to a case which could be cured by appropriate amendment observed that “[t]hat is not the situation in this case. The indorsement in this case, and its collection of disparate and unparticularised complaints, makes it impossible to detect what causes of action might support the claim for damages”;
b)by the Federal Court of Australia in:
i)Sims v Suda Ltd [2015] FCA 280 at [1] per Gilmour J: the “ … affidavit … does not disclose, in any sensible or comprehensible manner, the proposed content of any substituted statement of claim”; and
ii)Sims v Suda Ltd(No. 2) [2015] FCA 281 where a Statement of Claim was struck out and removed from the Court file; and
c)in this Court in:
i)Suda Ltd v Sims [2013] FCCA 1833 (“Suda (No. 1)”) where a counterclaim by Mr Sims was struck out;
ii)Suda Ltd v Sims (No. 3) [2014] FCCA 2127 where five of six claims made, and a re-pleaded Reply and Counterclaim, were struck out; and
iii)Sims v RM Capital Pty Ltd (No. 3) [2015] FCCA 1301 at [38] per Judge Lucev where an application for an extension of time for Mr Sims to file a Statement of Claim was refused with the Court observing that:
38. The failure to file a Statement of Claim, or even to put to the Court a draft Statement of Claim, or give some evidence that a Statement of Claim has been discussed, substantively, with a lawyer, or is actually being prepared, or even what its substantive content and consequent causes of action and remedies might be, means that the Court has no means whatsoever of assessing the prospects of success of any future proceedings which might be brought by Mr Sims.
iv)Sims v Jooste (No. 1) where the Court referred to the fact that Mr Sims as a self-represented litigant was not entitled to disregard procedural rules and jurisdictional boundaries and to treat the Court as if it was some kind of board of inquiry with unlimited general jurisdiction, citing Manolakis v Carter [2008] FCAFC 183: Sims v Jooste (No. 1) at [15] per Judge Lucev, and where the Court went on to cite at [16]-[17] per Judge Lucev the observation of the Supreme Court of Western Australia, Court of Appeal in Jooste QC cited at [11(a)] above, together with its repetition by this Court in Suda (No. 1).
Whether affidavit material inadmissible, irrelevant, scandalous, argumentative or unnecessary
In Sims v Jooste (No. 3) at [24]-[28] per Judge Lucev this Court set out in some detail the authorities relating to material considered to be scandalous. The Court relies upon what was there said, without repeating it. The late Mr Jooste QC also relied on an additional authority, Delahey & Garra-Marsh [2014] FCCA 499 where at [20]-[21] and [23] per Judge Scarlett (“Delahey”) the Court stated:
20. The word “scandalous” in a legal sense is defined by Osborne’s Concise Law Dictionary (Eighth Edition) as:
The allegation in pleading of anything unbecoming to the dignity of the court to hear, or contrary to good manners or which unnecessarily charges some person with crime or immorality.
21. The same work also defines “an argumentative affidavit” as:
An affidavit which contains arguments as to the bearing of facts on the matter in dispute.
…
23. Affidavits should be confined to the recitation of asserted facts and should not contain a submission about the party’s case.
Mr Sims’ Affidavit demonstrates that Mr Sims does not appreciate that it is necessary in an affidavit to present evidence, and not assertion or argument, to the Court, and that evidence must be relevant to the issues in dispute. Each of the portions of Mr Sims’ Affidavit which have been objected to contain one or other of argument, assertion, submissions or conclusions of law which have no place in an affidavit, and are inadmissible as evidence: Delahey at [21] and [23] per Judge Scarlett.
The application as it pertains to both the late Mr Jooste QC and Mr Bennett has been dismissed because the Court lacks jurisdiction: Sims v Jooste (No. 1) at [149]-[150] per Judge Lucev, therefore, the assertions now made concerning both of them are irrelevant to any fact in issue, and therefore inadmissible: Evidence Act 1995 (Cth), s.56(2) (“Evidence Act”). The assertions made are also unsupported by any proper evidence. Almost without exception the paragraphs objected to are also argumentative, and effectively put submission and argument in relation to each assertion made against each of the late Mr Jooste QC and Mr Bennett.
The irrelevance of the paragraphs concerned weighs heavily in favour of their being struck out as scandalous: Cavil Business Solutions Pty Ltd v Jackson [2005] WASC 138 at [25] per Hasluck J.
Whether an allegation is scandalous involves an objective assessment: C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd v Leigh (No. 3) [2012] FCA 680 at [6] per Yates J. The various allegations against the late Mr Jooste QC and Mr Bennett, as set out at [9]-[10] above, are manifestly serious allegations. Mr Sims has alleged that both the late Mr Jooste QC and Mr Bennett – both legal practitioners bound to uphold the administration of justice – have acted to pervert the course of justice and received funds from the commission of an offence. Similarly to what was said in Sims v Jooste & Ors (No.3) at [29] per Judge Lucev (where Mr Sims also alleged that Mr Bennett profited from an offence), there can be few allegations more scandalous than these in relation to a lawyer’s conduct.
In the above circumstances there must be orders in the terms sought in Mr Jooste’s and Mr Bennett’s Applications in a Case, striking out the parts of Mr Sims’ Affidavit identified at [9]-[10] above, as irrelevant, inadmissible, argumentative and scandalous. The necessity for the making of these orders is only reinforced by the conclusions reached below in respect of Mr Sims’ Application in a Case, namely, that the Second and Third Sims’ Affidavits ought not to be read, and Mr Sims’ case against the late Mr Jooste QC and Mr Bennett ought not to be re-opened.
Mr Sims’ Application in a Case
Orders sought
Mr Sims’ Application in a Case seeks the following orders:
1. Relief to serve the Second Respondent by Post.
2. Relief to have the Court accept and read the Applicant’s Affidavit affirmed on the 7th July 2014 & Affidavit of 5th August 2014 as evidence,
3. Relief to submit new evidence in support of a prima facie case to answer by the Second Respondent.
Service by post
Mr Sims is required to serve the application and any other Court documents on Mr Stewart by hand: FCC Rules, r.6.06. Mr Sims claims he has been unable to do so, and now wants an order allowing substituted service by post: FCC Rules, r.6.14.
Extension of time for service
The time within which an originating application must be served is 12 months from the date of filing of the originating application: FCC Rules, r.6.17. The originating application in this case was filed on 5 February 2014. Mr Sims therefore requires an order under r.3.05(1) of the FCC Rules to extend the time for service of the originating application. Mr Sims’ Application in a Case did not seek an extension of time order, but Mr Sims did identify the necessity for such an order in his written submissions, and the issue was addressed by the relevant parties. The Court will therefore deal with the extension of time submissions as if an application to extend time had been made, a course which accords with the objects of the FCC Rules: FCC Rules, r.1.03. The Court notes that for the purposes of Mr Sims’ Application in a Case Mr Stewart is represented by lawyers, but without any concession as to Mr Stewart’s appearance in relation to the originating application.
Mr Sims’ submissions
Mr Sims’ stated that Mr Stewart had displayed verbal violence and anger towards him, and that he fears for his safety if he had to serve Mr Stewart personally. Mr Sims’ also says he does not have the means to engage a “professional server”, that Mr Stewart lives in a “secluded and remote region” of Western Australia and that he “avoids service”: Fifth Sims’ Affidavit at [1]. Beyond those broad assertions Mr Sims’ Affidavit does not provide any further detail as to the alleged difficulty in serving Mr Stewart.
Mr Sims’ submissions in support of the order for substituted service stated he had travelled to “the remote area of Bridgetown” to serve Mr Stewart before “the Primary Judge” had reserved judgment, in Sims v Jooste (No. 1) and, in doing so, he feared for his safety. Mr Sims also submitted that the Court had refused to read affidavits after reserving judgment, and that there is a “prima facie case” that obligates the Court to make an order for substituted service. Mr Sims’ submits that time should be extended because of special circumstances and public interest.
At the hearing on 20 July 2016, Mr Sims arguably accepted that the Court has no jurisdiction in respect of his claims against Mr Stewart, and at the very least was unable to indicate to the Court how it was that the Court had jurisdiction to deal with his claims against Mr Stewart: Transcript, 20 July 2016, pages 3-4; see also, generally, Sims v Jooste (No. 1).
The late Mr Jooste QC and Mr Stewart’s submissions
The late Mr Jooste QC and Mr Stewart submitted that Mr Sims has not made unsuccessful or considerable or diligent efforts to locate Mr Stewart. They say Mr Sims is aware of the locality of Mr Stewart’s home: Fifth Sims’ Affidavit at [1], but that as a result of unsubstantiated allegations against Mr Stewart, Mr Sims has chosen not to attempt service, or engage a process server.
With respect to extending time allowable for service, the submissions on behalf of the late Mr Jooste QC and Mr Stewart were that:
a)the delay is significant, being 17 months beyond the 12 month limitation period;
b)there is no explanation for the delay;
c)there is no evidence of any steps taken by Mr Sims to serve Mr Stewart between 5 February 2014 and now; and
d)this Court has already determined that:
i)it has no jurisdiction to hear the claims made in the originating application;
ii)the claims made in the originating application have no reasonable prospects of success;
iii)these proceedings are frivolous, vexatious, and an abuse of process; and
iv)Mr Sims should not be granted leave to amend his originating application.
Mr Bennett’s submissions
Mr Bennett made no submissions with respect to the service issue.
Consideration
Extension of time – considerations
The Court’s discretion to extend time in the present case is unfettered, but the generally accepted considerations in determining whether or not to extend time are:
a)the extent of the delay;
b)whether the applicant has an acceptable explanation for the delay including action taken by the applicant in the meantime;
c)whether the grant of leave would cause prejudice to a respondent and, if so, the extent of that prejudice; and
d)whether the substantive grounds of the originating application have merit or reasonable prospects of success.
See Blackman v Leppard (No.3) [2016] FCCA 272 at [14]-[15] per Judge Lucev (“Blackman (No. 3)”) citing Hunter Valley Developments v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315; FCR at 348-349 per Wilcox J; AHI15 v Minister for Immigration & Border Protection [2016] FCA 64 at [18] per Edelman J.
It is for the Court to weigh the above factors, and, according to the particular circumstances, one factor may outweigh another: Blackman (No. 3) at [14] per Judge Lucev.
Delay
The High Court in Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”) made the following general observations concerning limitation periods and their extension:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
c)where a significant period of time has elapsed, in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority at 553 per McHugh J.
Brisbane South Regional Heath Authority is binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ (“SZANS”); Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 (“Suh”) at [29] per Spender, Buchanan and Perram JJ.
In this case, it is plain that the delay is excessive: there is a delay of approximately 17 months beyond an already generous limitation period of 12 months. That is an extraordinarily long delay which, of itself, weighs heavily against the grant of an extension of time.
Explanation for delay
As observed above, the delay here is extraordinarily long. Generally speaking, the longer the delay, the more persuasive the explanation for the delay needs to be: Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ.
In Marks at [16] per McHugh J the High Court observed that:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent …. had brought about the delay.
In this case there is an absence of explanation for the delay in serving Mr Stewart. Mr Sims’ submissions seemingly concede that there has been no attempt to serve Mr Stewart with the originating application. If there was such an attempt, then there is no evidence of the attempt, or what the outcome was, or what conduct of Mr Stewart might have prevented service from being effected. The “evidence” in the Fifth Sims’ Affidavit is of the most generalised kind, and does not descend to any level of detail which would allow the Court to make findings that any conduct of Mr Stewart gave rise to a fear on Mr Sims’ part for his safety if in the proximity of Mr Stewart, or that Mr Stewart lives in a remote location. That lack of evidence means that it is unnecessary to resort to the provisions of s.144 of the Evidence Act for proof that Bridgetown is not in a secluded and remote region of the State. The lack of evidence means that the Court does not accept that if Mr Stewart resides in Bridgetown that he resides in a secluded and remote region of the State or that he avoids service as asserted by Mr Sims.
There is also no evidence of Mr Sims not having the means at the relevant time to engage a professional process server to serve Mr Stewart. There is also no cogent evidence or explanation as to why Mr Sims has not endeavoured to serve Mr Stewart at an earlier time, or made an application for substituted service to enable him to serve Mr Stewart at an earlier time.
Given the extraordinary length of the delay there would need to be a strong and cogent explanation given by Mr Sims for that delay, but in all of the above circumstances, the Court does not accept that there is any, let alone a satisfactory, explanation for the delay in serving Mr Stewart, and that weighs heavily against any extension of time in which to serve the originating application.
Prejudice
If time is extended to allow service of the originating application Mr Stewart would be put to the time, trouble and expense of responding to the originating application, whether by filing a response or filing an application to summarily dismiss the originating application, in circumstances where, for the same reasons as set out in Sims v Jooste (No. 1) in relation to the claims against the late Mr Jooste QC and Mr Bennett, the Court has no jurisdiction to entertain any of the claims which have been made by Mr Sims against Mr Stewart. It is, therefore, manifest that requiring Mr Stewart to do anything in relation to an originating application in respect of which the Court has no jurisdiction causes prejudice to Mr Stewart, and particularly so with respect to the incurring of unnecessary costs.
In the circumstances, the fact that Mr Stewart would be prejudiced by extending time to allow service of the originating application is a factor which weighs against an extension of time to serve the originating application.
Whether reasonable prospects of success
Even if:
a)the delay was not significant;
b)there was an explanation for the delay; and
c)Mr Sims had taken steps in the meantime,
it remains the case that Mr Sims’ originating application has neither merit nor reasonable prospects of success, and the Court has no jurisdiction to deal with the claims made in the originating application. Further, Mr Sims has previously been denied leave to amend or re-plead the originating application: Sims v Jooste (No. 1) at [140]-[143] per Judge Lucev. It is not in the interests of the administration of justice to extend time in relation to an application which has no reasonable prospect of success: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J. Therefore, and regardless of any other factor, the Court will not exercise its discretion to extend time because the originating application has neither merit nor reasonable prospects of success.
Order for substituted service
The Court can order substituted service: r.6.14 of the FCC Rules. Rule 6.15 of the FCC Rules sets out a non-exhaustive list of matters the Court can take into account when making an order for substituted service. They are:
a)whether reasonable steps have been taken to attempt to serve the document;
b)whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served;
c)whether the person to be served could become aware of the existence and the nature of the document by means of advertising or another means of communication that is reasonably available;
d)the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and
e)any other relevant matter.
In Societe des Produits Nestle SA & Anor v James William Christian & Anor [2014] FCCA 367 at [11]-[12] per Judge Manousaridis (cited with approval in Fair Work Ombudsman v Goldfinger Facility Management Pty Ltd & Anor [2016] FCCA 356; (2016) 304 FLR 320 at [13] per Judge Lucev), the Court set out the matters that the Court had to be satisfied of before making an order for substituted service, as follows:
11. To satisfy the Court, therefore, that it is impracticable to serve by hand a document on a person that the rules require be served by hand, it is necessary for the party seeking to so persuade the Court to adduce evidence that tends to establish the following:
a) a diligent attempt has been made to discover the place or places at which the person may be served by hand the document, but that attempt has not produced reliable information about the place or places at which the person may be handed the document; or
b) if there is reliable information about the place or places at which the person may be handed the document, diligent attempts have been made to meet that person at that place or places with a view to handing that person the document, but those attempts have proved fruitless.
12. The second matter of which, in my opinion, the Court must be satisfied before it may make an order under r.6.14 of the FC Rules dispensing service is that the document “has been brought to the attention of the person to be served”. In the context of rules for substituted service which have used the same expression, it has been held that this requires the Court to be satisfied that the proposed method of substituted service (or the method of service actually undertaken) is reasonably likely to bring the proceedings to the notice of the person being served: Syndicate Mortgage Solutions Pty Ltd v Khaled El-Sayed [2009] NSWSC 207 per Brereton J.
As time to serve the originating application on Mr Stewart will not be extended the Court considers that it would be futile to order substituted service, and will not do so. Even if the Court were to have considered whether an order for substituted service ought to issue, the Court would have concluded that no order for substituted service should issue. For reasons set out above: see [34]-[35] above, no attempts, whether described as reasonable or diligent, have been established on the evidence to have been taken by Mr Sims in an attempt to serve the originating application on Mr Stewart. Even if such steps had been taken, the originating application remains one in respect of which this Court has no jurisdiction, and ordering substituted service would therefore be an exercise in futility.
For all of the above reasons, this Court will not order substituted service of the originating application on Mr Stewart.
Re-opening and new evidence
Further affidavit evidence and re-opening the case
Mr Sims’ Application in a Case seeks to have the evidence in the Second Sims’ Affidavit and the Third Sims’ Affidavit read by the Court and accepted as new evidence. In Mr Sims’ written submissions he says that:
a)“the Affidavit evidence of the Applicant was sworn as true evidence, was accepted by the Court, and has not been tried”; and
b)“[t]he evidence contained within these rejected Affidavits secures a prima facie case to be answered by the Respondents and cannot be summary judged”. (underlining added)
The first submission is simply inaccurate. What the Court said in Sims v Jooste (No. 1) at [9] per Judge Lucev was as follows:
9. Mr Sims filed further affidavits affirmed on 7 July 2014 (“Second Sims Affidavit”), 5 August 2014 (“Third Sims Affidavit”) and 23 May 2016 (“Fourth Sims Affidavit”), after the hearing of the Application in a Case by the Court. There were no orders permitting the filing of the Second, Third and Fourth Sims Affidavits, and no application was made seeking leave to file further affidavits. Nor has any application been made to re-open the Application in a Case to accept further evidence. Such an application for re-opening would need to set out the grounds for re-opening, and those grounds would need to satisfy the relevant test for the grant of leave to re-open: Londish & Ors v Gulf Pacific Pty Limited (1993) 45 FCR 128; (1993) 117 ALR 361; FCR at 139 per Neaves, Burchett and Ryan JJ; Ample Source International Limited (BVICN 1575638) v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors (No. 6) [2011] FCA 1484; (2011) 285 ALR 488 at [355] per Robertson J. In the absence of an application setting out grounds for leave to re-open the Second, Third and Fourth Sims Affidavits cannot be read by the Court. In the circumstances the gratuitous (because it is not the subject of a grant of leave) filing of the Second, Third and Fourth Sims Affidavits was improper: albeit that the case is related to the filing of submissions, the relevant principles are set out in NT Power Generation Pty Ltd v Power and Water Authority & Anor [2004] HCA 48; (2004) 219 CLR 90; (2004) 79 ALJR 1; (2004 210 ALR 312 at [192] per McHugh ACJ, Gummow, Callinan and Heydon JJ, and see also Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for the Sustainability, Environment, Water, Population and Communities [2013] FCA 782 at [2]-[4] per Logan J. The Court has therefore taken no account of the Second, Third and Fourth Sims Affidavits.
As is evident from the underlined passage at [44(b)] above, what is effectively now sought is not only to have the evidence in the Second and Third Sims’ Affidavits read, but to effectively re-open the case against the late Mr Jooste QC and Mr Bennett, the application against them having been dismissed by order of the Court on 9 June 2016, and leave to amend or re-plead having been specifically not granted: Sims v Jooste (No. 1) at [140]-[143] and [149]-[150]
Save for the assertion that the evidence in the Second and Third Sims’ Affidavits would establish a case against the respondents, no other grounds for re-opening the case against Mr Jooste QC or Mr Bennett are put forward.
For present purposes the relevant test in relation to leave to re-open is set out in the Federal Court judgment in Ample Source International Limited (BVICN 1575638)v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors(No. 6) [2011] FCA 1484; (2011) 285 ALR 488 at [355] per Robertson J (“Ample Source”). None of Mr Sims’ present submissions address that test. Part of that test is the relevance of the proposed material: see Ample Source at [355] per Robertson J, where the Federal Court said as follows:
Leave to reopen needs to be considered by reference to the Full Court decision in Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138–139. The threshold is lower than that which applies after the entry of judgment. If there was no deliberate decision not to call material, the primary consideration is embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 266-267. The essential principle is that the Court should do justice as between the parties. Within that concept, of course, must be the cogency or relevance of the material sought to be adduced on the application to reopen. There is reference in Londish to applications to amend and therefore the approach in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 must now inform the principle.
It is necessary to apply the above principles to the affidavit evidence sought to be read in relation to the re-opening of the case.
Turning first to the Second Sims’ Affidavit that affidavit indicates at [2] that it relates to each of the respondents (the late Mr Jooste QC, Mr Stewart and Mr Bennett) “misleading and deceptive conduct in misleading the Courts and the Public by collaboration to harm me and, insight (sic) the public to think worse of me”, and that misleading, deceptive and unconscionable conduct continues, and that the late Mr Jooste QC and Mr Bennett “continue” (sic) to deceive the public and shareholders by concealing information from them, and that Mr Bennett is “privy to their illegal acts”: at [4].
It is not apparent whether the misleading, deceptive and unconscionable conduct referred to is intended to be under the former Trade Practices Act 1974 (Cth) (“TP Act”) or under the relevant provisions of the Australian Consumer Law (“ACL”) under the Competition and Consumer Act 2010 (Cth) (“C&C Act”).
Insofar as conduct contrary to the TP Act is concerned the Court repeats what it said in Sims v Jooste (No. 1) at [36] per Judge Lucev:
36. Section 52 of the TP Act applies to misleading and deceptive conduct by corporations, save where s.6 of the TP Act operates so as to apply its provisions to individuals. There is nothing contained in the material relied upon by Mr Sims which would bring the matter within any extended application of s.52 of the TP Act under s.6 of the TP Act, and no claim to that effect by Mr Sims. As the Application therefore seeks to apply s.52 of the TP Act to individuals, and not to a corporation, that part of the Application which relies upon s.52 of the TP Act has no reasonable prospect of success.
The same rationale applies to what is alleged in the Second Sims’ Affidavit, and to that extent the Second Sims’ Affidavit raises no issue that has a reasonable prospect of success in this regard.
Likewise, s.18 of the ACL applies to the conduct of a corporation and not individuals: Murphy v State of Victoria & Anor [2014] VSCA 238; (2014) 289 FLR 337; (2014) 45 VR 119; (2014) 313 ALR 546 at [72] (citing Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; (1990) 64 ALRJ 293; (1990) 92 ALR 193; CLR at 602-603 per Mason CJ, Deane, Dawson and Gaudron JJ) and [77] per Nettle AP, Santamaria and Beach JJA (“Murphy”).
Section 51AA of the TP Act, and s.20 of the ACL, dealing with unconscionable conduct, like s.52 of the TP Act and s.18 of the ACL dealing with misleading and deceptive conduct, are related to the conduct of a corporation, for the same reasons as set out in Murphy cited above, and see Russell V Miller, Miller’s Australian Competition and Consumer Law Annotated (38th Edn) (Pyrmont: Law Book Co, 2016) at [1.S2.20.25] (“Miller”).
For the above reasons, the allegations of misleading, deceptive and unconscionable conduct, to the extent that they are intended to be references to those matters as set out in ss.52 and 51AA of the TP Act and ss.18 and 20 of the ACL, have no reasonable prospect of success. Further, for reasons which follow, the remainder of the material in the Second Sims’ Affidavit discloses no cause of action based on misleading and deceptive conduct, or unconscionable conduct, or otherwise.
At [5] the Second Sims’ Affidavit refers to an affidavit of a Mr Paterson “to the Court in matter CIV 1991 of 2012”, which is not a matter in this Court, as “more evidence as in support of continuing victimisation” against Mr Sims by each of the respondents. This paragraph is vague. It does not indicate what the nature of the alleged “victimisation” is, what the alleged cause of action arising from the victimisation is, bearing in mind that “victimisation” is not a cause of action known to the common law, and (setting aside momentarily the issue of misleading, deceptive or unconscionable conduct) no relevant federal or state law, or any federal cause of action is set up by this paragraph.
Reference is then made at [6] in the Second Sims’ Affidavit to the late Mr Jooste QC’s son, and his use of what would appear to be an internet forum, to blog material which Mr Sims says is “designed to harm”. This needs to be read in conjunction with [20] and [21] of the Second Sims’ Affidavit which alleges that the later Mr Jooste QC drove his son to defame and harm Mr Sims in aggravated breach of his human rights, and that it contravenes his human rights “as [an] innocent victim of crime”: at [21] of the Second Sims’ Affidavit.
The human rights allegations in the Second Sims’ Affidavit are not such as to betray any proper idea of what is being alleged by Mr Sims’ in this regard, and as in Sims v Jooste (No. 1) at [25] per Judge Lucev:
25. … The matters set out do not allege, and are not referable to, any discernible breach of any human rights or discrimination law known to the Court.
As was also the case in Sims v Jooste (No. 1) there is no evidence of a complaint to the Australian Human Rights Commission (“AHRC”), and for reasons set out in Sims v Jooste (No. 1) at [26]-[28] per Judge Lucev, there can therefore be no matter actionable before this Court in relation to any alleged contravention of Mr Sims’ human rights.
At [27] of the Second Sims’ Affidavit Mr Sims says that Mr Bennett “repeatedly refers” to Mr Sims’ “un intelligence confirming my intellectual disability and persecuted that disability in aggravated breach of my Human Rights”. Whilst it is possible for a person to be discriminated against on the basis of their intellectual disability: see Disability Discrimination Act 1992 (Cth), s.4(1) (definition of “disability”) and ss.5-6; the allegation made by Mr Sims is made in such vague and general terms as to fail to reveal to Mr Bennett precisely what it is that is alleged. In any event, there is once again no matter actionable before this Court in the absence of any evidence of a complaint to the AHRC concerning Mr Bennett’s conduct.
In the Second Sims’ Affidavit at [6]-[19] reference is made to the conduct of a particular junior barrister, together with other lawyers (not including the late Mr Jooste QC and Mr Bennett) seemingly in relation to intellectual property litigation in the Federal Court in which it seems Mr Sims was involved. There are various allegations in relation to the conduct of an employee of a company, the junior barrister concerned, law firms, and in relation to costs and missing files, but none of these matters are set out in such a way as to enable the reader to understand, in any coherent way, what is alleged, but, more importantly, the allegations disclose no discernible link to the matters the subject of the originating application in this Court. Indeed, on the basis of the Second Sims’ Affidavit there is no apparent link between these matters and any of the late Mr Jooste QC, Mr Stewart or Mr Bennett, save for the oblique and vague reference to the fact that “nothing happened in relation to what Mr Sims alleges was a “contempt of Court” (but not a contempt of this Court) by the employee concerned “because of the influence by a certain person in this town who had invested in appropriated property of my company, including … [Mr Stewart]”: Second Sims’ Affidavit at [7]. What link that allegation has in relation to the subject matter of the originating application is impossible to discern from the Second Sims Affidavit, or any of the other materials filed by Mr Sims in these proceedings, and is a matter in respect of which this Court can do nothing, contempt of court being a matter for the court in which the contempt arises: see [69] below.
At [18] of the Second Sims’ Affidavit there is reference to the Legal Practice Complaints Committee (“LPCC”) doing nothing in relation to the conduct of the junior barrister involved in the intellectual property litigation, and that similar circumstances surround Mr Sims’ complaints against the late Mr Jooste QC and a Mr Thomas, another lawyer in respect of whom Mr Sims has complained to the LPCC, which circumstances Mr Sims alleges have been exploited by Mr Bennett. The Court dismissed an application by Mr Sims against Mr Thomas: Sims v Thomas [2016] FCCA 1752 (“Thomas”), in the course of which, having referred to a complaint made to the LPCC in relation to Mr Thomas’ conduct, and the subsequent decision in Sims and Legal Profession Complaints Committee & Ors [2013] WASAT 44 (“Legal Profession Complaints Committee”), the Court observed (in Thomas at [61] per Judge Lucev) that:
61. What Mr Sims now seeks to do is have this Court re-visit the decision of the LPCC, in circumstances where Mr Sims was unable to persuade SATWA to extend time to bring an application for SATWA to review the decision of the LPCC, in circumstances where SATWA found that there was “simply no arguable case for review of the decision to dismiss” the complaint in relation to Mr Thomas because there was “no reasonable likelihood” that Mr Thomas “would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if the complaint were referred to the Tribunal”: Legal Profession Complaints Committee at [41] per Judge Parry DP. Further, Mr Sims seeks to have the Court consider the matter in circumstances where the Court has no primary or associated jurisdiction to do so: FCCA Act, ss.10 and 18, and in those circumstances no ancillary jurisdiction. In any event, even if there were some basis for the complaint, the Court’s usual course of action is to refer the conduct of the practitioner to the relevant professional regulatory body, which has already been done in relation to this conduct, with the finding being made by the LPCC that there was no reasonable likelihood Mr Thomas would be found guilty of unsatisfactory professional conduct or professional misconduct if the complaint were to be referred to SATWA, a finding confirmed by SATWA’s decision in Legal Profession Complaints Committee.
Mr Sims seemingly now seeks to refer to that matter, and in a manner wholly vague and unexplained, seeks to suggest that Mr Bennett has somehow exploited, to Mr Sims’ detriment, what occurred in relation to the complaints to the LPCC, but without any suggestion as to how such matters are linked to the originating application or the jurisdiction of this Court.
At [22]-[24] of Sims’ Second Affidavit Mr Sims makes allegations in relation to witness statements filed in various proceedings in the District Court of Western Australia and Supreme Court of Western Australia alleging that the late Mr Jooste QC and Mr Stewart, with the assistance of Mr Bennett, drafted convoluted witness statements designed to pervert the course of justice, that the late Mr Jooste QC signed witness statements he knew to be convoluted and in some instances untrue, and that Mr Stewart did likewise, and in his case with an intention to pervert the course of justice in the relevant proceedings, and that as a consequence Mr Sims says at:
a)[25] of Sims’ Second Affidavit that the late Mr Jooste QC and Mr Bennett have breached their professional obligations and used misleading and deceptive conduct to commit the “unconscionable offence of dishonesty under Commonwealth Law”;
b)the second [25] of Sims’ Second Affidavit each of the late Mr Jooste QC, Mr Stewart and Mr Bennett have contravened the “Evidence Act and as such have committed a criminal offence”; and
c)[26] of Sims’ Second Affidavit the late Mr Jooste QC committed contempt of court by discarding Supreme Court documents.
As this Court observed in Sims v Jooste (No. 1) at [127] per Judge Lucev, albeit in relation to a claim then made against Mr Bennett only in relation to Supreme Court of Western Australia and District Court of Western Australia proceedings:
127. If, as alleged, Mr Bennett misled, or engaged in a fraud, in the course of his legal practice, and in particular as Counsel for a party, related to the proceedings that were then before the WA Supreme Court, that is a matter for the WA Supreme Court, or the Legal Practice Board (if a complaint were to be made to it), to deal with.
This Court has no jurisdiction to deal with complaints concerning the conduct of practitioners in proceedings in the Supreme Court of Western Australia and the District Court of Western Australia, and repeats its observations in Sims v Jooste (No. 1) at [127] per Judge Lucev and Thomas at [61] per Judge Lucev that if such complaints need to be made, or if there is a basis for them (the complaints here are so vague and general that it is impossible to discern what the basis for them is) then those complaints are properly made to the court in which the conduct occurred, or to the Legal Practice Board of Western Australia.
It is also relevant to cite Sims v Jooste (No. 1) at [94] per Judge Lucev where this Court observed as follows:
94. These allegations misstate facts that have already been dealt with and elucidated by this Court in Suda Ltd. The matters relating, as they do, to alleged perjury, a criminal offence, or professional misconduct by Mr Jooste or Mr Bennett in their professional capacities, have no connection with the jurisdiction of this Court, either at all, or, insofar as Mr Jooste may have been, and Mr Bennett remains, an officer of this Court, because the relevant events (so far as they are particularised, and insofar as they have some factual foundation, which is doubtful for reasons set out in Suda Ltd) occurred in another court.
In relation to the alleged contempt of the Supreme Court, contempt of a particular court is always a matter for that court, not some other court, and in particular, not some other court more than for four years after the alleged event occurred. An action for contempt of a particular court must be brought in the particular court in which it is alleged that the contempt occurred: R v Flower (1799) 8 Term 314; (1799) 101 ER 1408; Term at 321 per Nash J: “Contempts can only be punished by the Court of the Jurisdiction before which they are committed, or by some Superior Court”. This is now reflected in legislation and rules of various courts. Thus an action for contempt of the Supreme Court of Western Australia must be brought in that court: Supreme Court Act 1935 (WA), s.16; Rules of the Supreme Court 1971 (WA), O.55. Likewise, a contempt of this Court must be brought in this Court: FCCA Act, s.17. Thus, this Court would have no jurisdiction to deal with the alleged contempt set out at [26] of the Second Sims’ Affidavit.
In relation to alleged offences under Commonwealth law, the Court repeats the observation made in Sims v Jooste (No. 1) at [85] per Judge Lucev:
85. … In the absence of any alleged federal statutory civil offence within the jurisdiction of this Court: see [66] above, and in the absence of jurisdiction in this Court to deal with criminal matters under the Criminal Code: see [64] above, there can be no reasonable prospect of success in relation to these allegations.
The allegation of dishonesty is one which, must be pleaded with particularity, and must unequivocally demonstrate that dishonesty is involved: Sims v Jooste (No. 1) at [79] citing Belmont Finance Corp Ltd v Williams Furniture [1979] Ch 250; [1978] 3 WLR 712; [1979] 1 All ER 118; Ch at 268 per Buckley LJ. The Second Sims’ Affidavit does not indicate what the alleged dishonesty actually is as a matter of fact. Furthermore, there is no identification of what Commonwealth law gives rise to the alleged “unconscionable offence of dishonesty”, and even if it was so particularised, for the reasons given in Sims v Jooste (No. 1) this Court would have no jurisdiction to deal with it: Sims v Jooste (No. 1) at [64], [66] and [85] per Judge Lucev.
As to the alleged breach of the “Evidence Act”, the Court again repeats what was said in Sims v Jooste (No. 1) at [95] per Judge Lucev:
95. The references to breaches of the “Evidence Act” take the matter no further. It is not apparent whether this is a reference to the Evidence Act 1995 (Cth) or the Evidence Act 1906 (WA) (“WA Evidence Act”). In any event, even if it is possible to commit a breach of either of those two Acts, and even if breaches of those two Acts are properly alleged, which they are not, they do not appear to be matters within the jurisdiction of this Court.
In the above circumstances there is nothing in the Second Sims’ Affidavit which establishes jurisdiction for the Court to deal with the matters referred to, and, or alternatively, a cause of action with any, or any reasonable, prospect of success.
The Third Sims’ Affidavit alleges at [2] that each of the late Mr Jooste QC, Mr Stewart and Mr Bennett were involved in:
… collaboration to harm me which collaboration by new evidence continues in contravention of s 52 of Consumer Law and s 18 of The Trade Practices Act and evidence Act.
What are alleged to be particulars follow at [3]-[5] of the Third Sims’ Affidavit.
It is also alleged that a “collaboration” between each of the late Mr Jooste QC, Mr Stewart and Mr Bennett to assist the late Mr Jooste QC’s son to “construct a defence” in proceedings in the Supreme Court of Western Australia was, in addition to the TP Act, ACL and Evidence Act contraventions, a “persecution under the International Human Rights which persecution is moving to the International Court in the Hague”. For reasons set out above, the references to the “evidence Act” and alleged breaches of human rights give rise to no cause of action in this matter.
The claims made in the Third Sims’ Affidavit are otherwise fraught with difficulty. Section 52 of the ACL (assuming the ACL is what is meant by the “Consumer Law” at [2] and [3(i)] of the Third Sims’ Affidavit) is a provision in part 3-2 of the ACL dealing with a consumer’s right to undisturbed possession of goods supplied to that consumer, and provides a statutory guarantee to possession of the goods, except against the holder of security in the goods, where the security was disclosed to the consumer before the consumer agreed to acquire the goods: see Miller at [1. S2. 52.10]. Plainly the section is not applicable to the circumstances described in the Third Sims’ Affidavit. Section 18 of the TP Act deals with meetings of the Australian Competition and Consumer Commission, and gives no rise to any cause of action in relation to any matter relevant to these proceedings.
Even if it be assumed that what was intended in the Third Sims’ Affidavit was that reference be made to s.52 of the TP Act and s.18 of the ACL, for reasons set out in Sims v Jooste (No. 1) at [36] per Judge Lucev, and also at [52]-[56] above, conduct in contravention of s.52 of the TP Act and s.18 of the ACL relates to conduct by corporations, with certain exceptions. Those exceptions are not brought into operation by anything which is said in the Third Sims’ Affidavit. Nothing in the Third Sims’ Affidavit therefore discloses a cause of action based on misleading and deceptive, or unconscionable, conduct.
The particulars of the Third Sims’ Affidavit relate primarily to two causes of action, being:
a)matter CIV 2168 of 2011; and
b)matter CIV 1991 of 2012.
The particulars are a mix of alleged facts and assertion, argument and submission. They are objectionable in their entirety for that reason. Thus, save for the first paragraph, which describes Mr Sims as a litigant in person in these proceedings, the entirety of Mr Sims’ Affidavit would ordinarily be stuck out as inadmissible.
The particulars, insofar as they might be seen to be endeavouring to plead a case of misleading and deceptive conduct, do not do so. It suffices for present purposes, to say that the allegations made are general, vague and arguably incomprehensible, and certainly do not set out the allegations with that clarity and specificity which is required of a pleading of misleading and deceptive conduct.
Insofar as the Third Sims’ Affidavit alleges contraventions of fiduciary duty and provisions of the corporations law by the late Mr Jooste QC and Mr Stewart by acting without ratification or shareholder approval, those are matters which for reasons set out in Sims v Jooste (No. 1) are not within the jurisdiction of this Court to deal with: see Sims v Jooste (No. 1) at [40]-[62] and [97]-[99] per Judge Lucev.
In all of the above circumstances, there is nothing in the Third Sims’ Affidavit which either establishes jurisdiction for the Court to deal with the matters referred to, and, or alternatively, a cause of action with any reasonable prospect of success, or indeed, any prospect of success at all. Furthermore, insofar as the Third Sims’ Affidavit is tendered as evidence it is wholly objectionable except for the first paragraph which describes Mr Sims as a litigant in person. In the circumstances, the Third Sims’ Affidavit neither assists Mr Sims to establish a cause of action, nor puts before the Court any relevant evidence going to a cause of action in respect of which this Court might have jurisdiction: see generally Sims v Jooste (No. 1).
An observation of this Court in Thomas [at [107] per Judge Lucev], albeit in connection with leave to re-plead, is worth repeating at this juncture, for it reflects, in large part, what Mr Sims has done in these proceedings:
107. In these proceedings Mr Sims has collected the litter from his lost and settled cases in the litigation dustbin and dumped them into the Application in this Court, without regard for whether this Court has jurisdiction in any of the matters as pleaded, which for reasons set out above it does not, and, in any event, has pleaded them in a manner which is wholly unsatisfactory, and in a manner not inconsistent with the wholly unsatisfactory manner in which he has pleaded previous causes, as set out above: see [12] and [13] above. In the circumstances, the Court cannot find any justification whatsoever to entertain giving Mr Sims leave to re-plead, and no such leave will therefore be granted.
The material sought to be relied on in the Second and Third Sims’ Affidavits is neither relevant nor cogent to any proceedings which Mr Sims might seek to progress in this Court. Moreover, the material is embarrassing (in a pleading sense), and prejudicial to each of the late Mr Jooste QC, Mr Stewart and Mr Bennett, and in that regard the Court repeats the observations made at [37] above. It is not in the interests of justice, or the administration of justice, for this Court to read the Second and Third Sims’ Affidavits, or to re-open the case against the late Mr Jooste QC or Mr Bennett. The Court will therefore not grant leave to Mr Sims to re-open his case to adduce fresh evidence, and will not have any regard to the Second and Third Sims’ Affidavits.
Disclosure obligations
Mr Sims raised an additional issue in his written submissions referring to “continual disclosure obligations” and “s.694” and s.1311 of the Corporations Act 2001 (Cth) (“Corporations Act”). The Court assumes that the reference to “s.694” of the Corporations Act is a reference to s.674, as there is no s.694, and s.674 deals with disclosure.
The Court has already determined in these proceedings it has no jurisdiction with respect to offences under the Corporations Act: Sims v Jooste (No.3) at [13]-[14] per Judge Lucev. If there has been a breach of continual disclosure obligations under the Corporations Act, it is not actionable in this Court.
Whether indemnity costs to be ordered
The Court refers to and adopts, without repeating it, its consideration of the law as it applies in this Court to the awarding of indemnity costs in Sims v Jooste (No. 1) at [144]-[145] per Judge Lucev.
In Sims v Jooste (No. 1) at [146]-[147] per Judge Lucev the Court observed as follows:
146. Indemnity costs are not the norm. In this case, however, the Court has found that:
a) the Court has no jurisdiction to hear the claims made;
b) the claims made have no reasonable prospect of success, in any event; and
c) Mr Sims is an experienced self-represented litigant who has failed to heed the admonition of the WA Court of Appeal in Jooste QC and this Court in Suda Ltd with respect to the manner and form of his instituting and pursuing proceedings of the kind that he has instituted and proceeded with in this matter; and
d) the allegations of fraud, forgery, deceit and slander, often scandalously made, also in many instances previously made unsuccessfully: see the cases cited at [141] above, are without any reasonable prospect of success, and bear no relation to the federal statutory jurisdiction of this Court, or in the absence of federal statutory jurisdiction any matter within the associated or accrued jurisdiction of this Court..
147. It will be evident from the foregoing that Mr Sims’ conduct has caused considerable loss of time to the Court, and to Mr Jooste and Mr Bennett, considerable expense to Mr Jooste and Mr Bennett, and the waste of public monies by this Court having to deal with a plethora of complaints in respect of which the Court has no jurisdiction, and which in any event have no reasonable prospect of success.
In Sims v Jooste (No. 3) at [31] per Judge Lucev the Court said as follows:
31. The circumstances in which indemnity costs might be ordered, and the circumstances in which indemnity costs were ordered in Sims v Jooste (No. 1), are set out in Sims v Jooste (No. 1) at [144]-[148] per Judge Lucev. The Court adopts what was said there with respect to the basis for granting indemnity costs, both generally and specifically. Those bases are likewise applicable in relation to the present Application in a Case, and perhaps even more so where the application has already been struck out, and the material in Mr Sims’ Affidavit, which was not an affidavit which the Court ordered or granted leave to be filed, is both scandalous and inadmissible. It follows that there must be an order for indemnity costs in favour of Mr Bennett.
The observations with respect to the applicability of indemnity costs, and the awarding of indemnity costs, in both Sims v Jooste (No. 1) and Sims v Jooste (No. 3) also apply in this case to Mr Sims’ conduct of the proceedings. The material in the Fifth Sims’ Affidavit the subject of the late Mr Jooste QC and Mr Bennett’s Applications in a Case is scandalous, and of the same type as was found to be scandalous, and in respect of which indemnity costs were ordered, in Sims v Jooste (No. 3). It follows for the same reasons that indemnity costs must be awarded against Mr Sims in relation to the costs of Mr Jooste QC and Mr Bennett’s Applications in a Case.
In relation to Mr Sims’ Application in a Case, and allowing for some minor but inconsequential differences as to the nature of the allegations and causes of action which might be sought to be raised by the Second and Third Sims’ Affidavits, the comments in Sims v Jooste (No. 1) apply equally here.
It follows from the above that indemnity costs must also be awarded against Mr Sims in relation to Mr Sims’ Application in a Case.
Conclusion and orders
For the reasons set out above the Court has concluded that:
a)the paragraphs of the Fifth Sims’ Affidavit which Mr Jooste QC and Mr Bennett’s Applications in a Case seek to strike out as scandalous, are scandalous (and also irrelevant, argumentative and inadmissible), and ought to be struck out of the Fifth Sims’ Affidavit;
b)that time will not be extended for Mr Sims to serve the originating application on Mr Stewart, and nor would an order for substituted service have been granted in any event;
c)Mr Sims’ Application in a Case for the admission of the Second and Third Sims’ Affidavits into evidence, and the re-opening of the case against the late Mr Jooste QC and Mr Bennett, is a hopeless one, and Mr Sims’ Application in a Case must be dismissed; and
d)Mr Sims must pay indemnity costs in relation to each of the late Mr Jooste QC and Mr Bennett’s Applications in a Case, and Mr Sims’ Application in a Case, which costs if not agreed, are to be determined by a Registrar of this Court.
Given that the effect of these Reasons for Judgment is that the application as against the late Mr Jooste QC and Mr Bennett remains dismissed, and there is no leave to serve the originating process on Mr Stewart, the question arises as to whether the originating application ought to be dismissed as against Mr Stewart. The Court will hear the parties in relation to that question, following a short adjournment.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 18 October 2016
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