Sims v Jooste & Ors
[2016] FCCA 1343
•9 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMS v JOOSTE & ORS | [2016] FCCA 1343 |
| Catchwords: COSTS – Indemnity costs – whether indemnity costs to be awarded. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15C Corporations Act 2001 (Cth), ss.9, 180, 180, 181, 182, 184, 1315, 1317DA 1317E, 1317H, 1317HA, 1317J, 1317DA, 1317HA, 1337B, 1337C, 1337D, 1337E Federal Circuit Court of Australia Act 1999 (Cth), ss.8, 10, 14, 17A, 18, 53, 79(2) and (3) Trade Practices Act 1974 (Cth), ss.6, 51, 52, 82 [Part IV] |
| Cases cited: Alfaro v Crown Commercial Cleaning Pty Ltd & Anor [2012] FMCA 478 Ejueyitsi v Bond University [2012] FMCA 872 Fencott v Muller (1983) 152 CLR 570; (1983) 57 ALJR 317; (1983) 46 ALR 41 Rowe v Emmanuel College [2013] FCA 939 Roy Galvin & Co Pty Ltd v Ives [2013] FCCA 1645 Sims v Jooste QC [2013] WASC 245 Sims v Legal Profession Complaints Committee & Ors [2013] WASAT 44 |
| Applicant: | DOUGLAS ARTHUR SIMS |
| First Respondent: | PETER INNES JOOSTE |
| Second Respondent: | MICHAEL ROBERT STEWART |
| Third Respondent: | MARTIN LAWRENCE BENNETT |
| File Number: | PEG 30 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 17 June 2014 |
| Date of Last Submission: | 17 June 2014 |
| Delivered at: | Perth |
| Delivered on: | 9 June 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondents: | Mr N Ebbs |
| Solicitors for the First Respondents: | Bennett + Co |
| For the Second Respondent: | No appearance |
| Counsel for the Third Respondent: | Mr S Popperwell |
| Solicitors for the Third Respondent: | Denman Popperwell Lawyers |
ORDERS
That pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) the application filed 5 February 2014 be dismissed as against the first and third respondents.
Otherwise, the matter be adjourned to a further directions hearing on a date to be fixed upon written application by the applicant or the second respondent to Chambers at [email protected].
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 30 of 2014
| DOUGLAS ARTHUR SIMS |
Applicant
And
| PETER INNES JOOSTE |
First Respondent
| MICHAEL ROBERT STEWART |
Second Respondent
| MARTIN LAWRENCE BENNETT |
Third Respondent
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment concern an Application in a Case by the first respondent, the late Peter Innes Jooste QC (“Mr Jooste”), and the third respondent, Martin Lawrence Bennett (“Mr Bennett”), to dismiss an Application against them by the applicant, Douglas Arthur Sims (“Mr Sims”), filed on 5 February 2014.
The application
The Application purports to be made in the Court’s jurisdiction under:
… work Place Relations Act 1966, Human Rights discrimination Act, Competition and Consumer Act 2010, alternatively Trade Practices Act 1974 S51 and s52 s82, Australian Securities & Corporations legislation s 181(1)(a)(b), S182(1)(a), S184(1)(a)(b)(d), S184(2)(a)(b) and S184(3)(a)(b) AND Commonwealth Criminal Code Act.
The Application seeks final orders for damages and compensation to be paid by each of the respondents to the applicant, and for a further order in the following terms:
An Order the First and Second Respondents properly inform the Shareholders of Suda Ltd and the Public of their wrongful and unlawful published allegations, collaboration and deceit which unlawful conduct has destroyed the integrity, respect and the international business activities of the Plaintiff causing acute stress, financial loss and acute depression of the Plaintiff and his family.
The grounds of the Application are said to be as follows:
The Aggravated Slander, deceit and fraud of the Applicant by First, Second and Third Respondents in a passage of collaboration to pervert Justice.
Blatant dishonesty and fraud which dishonesty and fraud contravenes the Commonwealth Crimes Code Act.
Unconscionable conduct by the First Second and Third Respondents intended to harm.
An affidavit affirmed 4 February 2014 was filed by Mr Sims in support of the Application (“First Sims Affidavit”).
Responses
Responses have been filed by Mr Jooste and Mr Bennett. The second respondent, Michael Robert Stewart (“Mr Stewart”) has not filed a Response, and has taken no part in the proceedings thus far.
The Responses of Mr Jooste and Mr Bennett are in similar terms, each seeking that the Application be dismissed on the basis that:
a)it discloses no reasonable cause of action;
b)is frivolous, vexatious and improper;
c)is evasive and ambiguous;
d)has no reasonable prospect of success; and
e)is otherwise an abuse of process of the Court.
The allegations made against each of Mr Jooste and Mr Bennett are denied by them in affidavits sworn by them: Mr Jooste in an affidavit sworn 12 March 2014 (“Jooste Affidavit”), and Mr Bennett in affidavits sworn 21 February 2014 (“First Bennett Affidavit”), and 9 May 2014 (“Second Bennett Affidavit”).
Each of Mr Jooste and Mr Bennett’s Responses contain numerous objections to the First Sims Affidavit in schedules annexed to their Responses. For reasons which will become apparent it has been unnecessary to deal with those objections.
Mr Sims’ Further Affidavits
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.
Consideration
The legal basis for the Applications in a Case by Mr Jooste and Mr Bennett
Mr Jooste and Mr Bennett make their Applications in a Case pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).
Section 17A of the FCCA Act provides that:
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
The words of s.17A of the FCCA Act mean what they say and there is little point in attempting to formulate other phrases to encapsulate their meaning: Spencer v Commonwealthof Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 at [58] per Hayne, Crennan, Kiefel and Bell JJ (“Spencer”); Ejueyitsi v Bond University [2012] FMCA 872 at [25] per Jarrett FM. The Court must embark upon a “practical judgment … as to whether the applicant has more than a ‘fanciful’ prospect of success”: Spencer at [25] per French CJ and Gummow J. The task was described in Spencer as follows:
… The … Court may exercise power … if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
Rule 13.10 of the FCC Rules provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
a) the party prosecuting the proceeding or claim for relief has no reasonable prospects of successfully prosecuting the proceeding or claim; or
b) the proceeding or claim for relief is frivolous or vexatious; or
c) the proceeding or claim for relief is an abuse of the process of the Court.
The power to give summary judgment under s.17A of the FCCA Act can probably be exercised on wider grounds than the power under r.13.10 of the FCC Rules, since the latter is not qualified by the statement that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success: Rowe v Emmanuel College [2013] FCA 939 at [12] per Rangiah J.
The entitlements of a self-represented litigant
The fact that Mr Sims is a self-represented litigant does not entitle him to disregard the procedural rules and jurisdictional boundaries of the Court, or to treat the Court as if it were some kind of board of inquiry with unlimited general jurisdiction. In Manolakis v Carter [2008] FCAFC 183 the Full Court of the Federal Court observed at [10]-[12] per Spender, Graham and Tracey JJ that:
10 Courts do not exist to allow self-represented litigants to make scatter-gun claims against all and sundry and to indulge themselves by using proceedings they have instituted as vehicles for what might be seen to be private ‘Royal Commissions’.
Nor do courts exist to allow the frustrations of self-represented litigants to be relieved by the making of abusive or contemptuous tirades directed at those whom they perceive to have wronged them, judicial officers who may have decided not to find for them, or judges whose duty it is to hear them, when such litigants sense that the expressions of their grievances are not being favourably received by the court.
11 One does not petition a court as one might the Speaker or other officer-bearer in a House of Parliament, nor does one approach a court as if its role was to serve as an Ombudsman.
12 An aggrieved self-represented applicant must, like any other litigant, address:
· his or her standing to make claims against other persons,
· the jurisdiction of the court in which he or she wishes to make those claims,
· the precise identity of the parties against whom the claims are to be made,
· the relief that is to be sought, and
· the facts which are said to found an entitlement to that relief.
Both the Supreme Court of Western Australia, Court of Appeal (“WA Court of Appeal”) and this Court have made Mr Sims aware of the need to properly set out his claims when seeking redress through the courts. The WA Court of Appeal in Sims v Jooste QC [2013] WASCA 245 at [17]-[19] per Pullin and Newnes JJA (“Jooste QC”) said:
17 In Glendinning v Cuzens, the deficiencies in the indorsement were not obviously incapable of being cured by appropriate amendments [44]. That 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. Although, on the one hand, the appellant submitted to this court that the master should have exercised his discretion by permitting the appellant to amend the indorsement of claim, on the other hand, he said that he stood by the claims made in the indorsement. The appellant, in his oral submissions, said that he wanted 'justice'. He did not seem to appreciate that justice required a disclosure of the legal basis for a claim put in a form that the respondent and court could understand in order to adjudicate fairly between the parties.
18 In the absence of any proposed amendment, and the disclosure that the appellant stood by the indorsement he had drafted, the prospect is that the respondent will be vexed and therefore prejudiced by a regurgitation of the same deficient material. Repeated costs orders will not fully overcome the vexing effect of the need for repeated appearances in the court.
19 If the appellant has genuine causes of action, then it appears that he requires the assistance of a lawyer before they will emerge. There was no suggestion from either party that any limitation period has expired since the issue of the writ.
This Court has previously adopted the observation of the WA Court of Appeal in Jooste QC at [19] per Pullin and Newnes JJA in determining an application by Mr Sims to strike out a counterclaim in other proceedings in this Court: Suda Ltd v Sims [2013] FCCA 1833 at [72] and fn.97 per Judge Lucev (“Suda Ltd”). Further, Mr Sims is no novice litigator: rather, as this Court observed in Suda Ltd v Sims (No. 2) [2014] FCCA 190 at [24(e)(ii)] per Judge Lucev (“Suda Ltd (No. 2)”):
e. although Mr Sims is a self-represented litigant, he ought not escape the consequences of indemnity costs. That is because:
i. …
ii. he is an experienced self-represented litigant, having previously appeared on his own behalf before the Supreme Court of Western Australia, both at first instance and in the Court of Appeal, the District Court of Western Australia, and the Fair Work Commission both at first instances and before a Full Bench on appeal, in litigation similar or subject matter related to the current proceedings;
Jurisdiction of the Court
This Court has:
a)original jurisdiction vested in it by laws made by the Parliament, either by express provision, or by the application of s.15C of the Acts Interpretation Act 1901 (Cth) to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in this Court in relation to a matter: FCCA Act, s.10(1), effectively, federal statutory jurisdiction where granted by Parliament;
b)associated jurisdiction under s.18 of the FCCA Act, that being jurisdiction in another federal matter, but only where the Court’s federal statutory jurisdiction has otherwise been invoked. Thus where an alleged federal matter is not justiciable, or where there is no federal matter at all, the Court is not seized of any “matter”, and has no jurisdiction, original, associated, or accrued: Arturi v Zupps Motors Pty Ltd (1980) 49 FLR 283; (1980) 33 ALR 243; FLR at 287 per Brennan J; Petrotimor Companhia de Petroleos SARL & Anor v Commonwealth of Australia & Ors [2003] FCAFC 83; (2003) 128 FCR 507; (2003) 198 ALR 269 at [21] per Black CJ and Hill J; and
c)accrued jurisdiction to deal with related non-federal matters as part of the resolution of a single dispute or controversy: Re Wakim; Ex parte McNally & Another [1999] HCA 27; (1999) 198 CLR 511; (1999) 73 ALJR 839; (1999) 163 ALR 270; (1999) 31 ACSR 99; CLR at [140]-[145] per Gummow and Hayne JJ (“Wakim”); Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [83] per French J (“Johnson Tiles”); FCCA Act, s.14.
A number of propositions can be broadly stated and accepted in relation to the issues in this matter:
a)that when a federal court such as this Court: FCCA Act, s.8(1), has jurisdiction to determine a federal matter, jurisdiction is conferred on that federal court to determine the whole controversy, and not just that part which attracted federal jurisdiction: Moorgate Tobacco Company Limited v Philip Morris Limited & Anor (1980) 145 CLR 457; (1980) 54 ALJR 479; (1980) 31 ALR 161; CLR at 472 per Gibbs J; Beck & Anor v Spalla & Anor [2005] FCAFC 82; (2005) 142 FCR 555; (2005) 223 ALR 21 at [25] per Hill, Finn and Kenny JJ; Johnson Tiles at [85] per French J; FCCA Act, ss.14 and 18;
b)once a federal court has jurisdiction that jurisdiction is not lost even if the claim which attracted jurisdiction is dismissed, lost, struck out, found unnecessary to be decided, cannot be substantiated, or displaced by some countervailing claim or assertion: Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No. 2) (1987) 16 FCR 410; (1987) 75 ALR 271; FCR at 415-416 per Gummow J; Johnson Tiles at [86]-[87] per French J (and other cases there cited);
c)non-federal claims are treated as part of the matter for the purposes of federal jurisdiction where they cannot be severed from the federal claims, a condition satisfied if both sets of claims:
i)arise from a common sub-stratum of facts; or
ii)are so related that determination of one is essential to determination of the other: Wakim at [140]-[145] per Gummow and Hayne JJ; Johnson Tiles at [83] per French J;
d)it may be a matter of impression and practical judgment as to whether the claims are one justiciable controversy and thus a single matter: Fencott v Muller (1983) 152 CLR 570; (1983) 57 ALJR 317; (1983) 46 ALR 41; CLR at 608 per Mason, Murphy, Brennan and Deane JJ (“Fencott”); PCS Operations Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 863; (1998) 80 IR 469; (1998) 153 ALR 520 at [10] per Gaudron J; Wakim at [140] and [149] per Gummow and Hayne JJ, and in this regard the Court can look at the conduct of the parties and the pleadings, which define the issues and in which the claims for relief are set out: Johnson Tiles FCR at [83] per French J;
e)assessing whether a claim falls within the scope of a federal court’s accrued jurisdiction requires consideration of the overall relationship of the federal claim to the controversy in respect of which jurisdiction is sought to be invoked: Johnson Tiles at [84] per French J, and if it is a trivial or insubstantial aspect of the controversy it would be inappropriate and inconvenient for such a case to be determined by a federal court: Fencott at 609 per Mason, Murphy, Brennan and Deane JJ; Johnson Tiles at [84] per French J; and
f)even if a federal claim is determined adversely, whether as a question of law or fact, to an applicant, that determination does not necessarily deprive a federal court of jurisdiction to deal with the non-federal claims: Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629 at 632 per Northrop, Jackson and Gummow JJ; Johnson Tiles at [84] per French J.
Statutory basis for claims in the Application
Workplace Relations Act 1996 (Cth)
The Court notes that the Application refers to the “work Place Relations Act 1966”, but has assumed that this is intended to refer to the Workplace Relations Act 1996 (Cth) (“WR Act”).
The Court notes that although there is some reference to Fair Work Australia (“FWA”) in the First Sims Affidavit (at paragraph 20), there is no reference at all to the WR Act. What is asserted by Mr Sims at paragraph 20 of the First Sims Affidavit is that Mr Jooste (and Mr Stewart) engaged in unconscionable aggravated slander and fraud by participating in the putting of a false submission to FWA in proceedings in which Mr Sims applied for an extension of time in relation to “wrongful termination”, and thereby breached the Corporations Act “by dishonesty” consisting “of aggravated deceit and fraud”. In these proceedings, however, no discernible claim under the WR Act is made in relation to that issue.
At paragraph 21 of the First Sims Affidavit Mr Sims alleges a fraud on the terms of his engagement contract by reason of Suda Ltd, at the direction of Mr Jooste (and Mr Stewart) failing to pay debts due and payable to Mr Sims under Mr Sims’ engagement contract. This is a common law contract claim, and engages no relevant provision of the WR Act.
In the absence of specification of a provision of the WR Act which has been contravened or pursuant to which penalties are sought to be imposed, Mr Jooste (and likewise the Court) could not have had any idea what was being alleged by Mr Sims in relation to the WR Act, and the Application could not, in that respect, have any reasonable prospect of success.
In the above circumstances, there is no reasonable prospect of success of any action against Mr Jooste by Mr Sims based upon the provisions of the WR Act.
“Human Rights discrimination Act”
The reference in the Application to “Human Rights discrimination Act” is reflected at paragraph 29 of the First Sims Affidavit where reference is made in the heading to a purported breach of “Human Rights Discrimination Act (1966)”. There is no Act by that name in any Australian jurisdiction. As such, no action based upon it has any prospect of success, let alone any reasonable prospect of success. Furthermore, there is no reference to any provision of such an Act, or any similar Act, or any human rights or any discrimination Act at all, at paragraph 29 of the First Sims Affidavit. In the absence of the specification of a provision of an Act of one of those types Mr Jooste could not have had any idea what was being alleged by Mr Sims in this regard, and the Application could not, in that respect, have any reasonable prospect of success. In any event, the gist of paragraph 29 of the First Sims Affidavit relates to complaints about service of documents, and proceedings in the Magistrates Court of Western Australia in relation to a violence restraining order application against Mr Sims by Mr Stewart. 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.
If what is intended to be referred to in the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”), which gives this Court jurisdiction to hear claims of unlawful discrimination: AHRC Act, s.46PO(1), then Mr Sims must have made a complaint to the Australian Human Rights Commission (“AHRC”) which complaint must have been terminated by the President of the AHRC by the issuance of a notice under s.46PH(2) of the AHRC Act, and any such application must then be made within 60 days of the issue of the termination notice, or within such further time as the Court concerned allows: AHRC Act, s.46PO(2).
In this case, there is no evidence of a complaint to the AHRC, the issuance of a termination notice by the President of the AHRC, and therefore no application made within 60 days of the date of the issue of the termination notice, or such further time as this Court may allow, noting that no application for an extension of time has been made (assuming that there is a complaint and a termination notice). Mr Sims conceded at hearing that there was no evidence before the Court of the issuance of a termination notice by the President of the AHRC: Transcript, page 21.
In all of the above circumstances, there is no reasonable prospect of success of any action based upon the AHRC Act, or, as claimed, the “Human Rights discrimination Act”, or any other human rights or discrimination Act.
Competition and Consumer Act 2010 (Cth) (alternatively Trade Practices Act 1974 (Cth))
The Court notes that although the Application alleges that the Application is made in the Court’s jurisdiction under the Competition and Consumer Act 2010 (Cth) (“C&C Act”), the First Sims Affidavit contains no mention of the C&C Act, or of any section of the C&C Act. The reference to the C&C Act in the Application is therefore one made, in the absence of any specification of a section of the C&C Act, or any alleged term or condition of the C&C Act being particularised as having been contravened, in a vacuum. Without an allegation of a contravention of a specific section of the C&C Act, neither Mr Jooste nor Mr Bennett (and likewise the Court) could discern what is alleged against them by Mr Sims. In those circumstances, the Application as it relates to the C&C Act has no reasonable prospect of success.
The above conclusion makes it unnecessary to examine whether the C&C Act came into effect on a date subsequent to any alleged contraventions, whenever they might have been.
Unlike the C&C Act, the reference to the Trade Practices Act 1974 (Cth) (“TP Act”) in the Application specifies three sections: ss.51, 52 and 82. That, is, however, as far as the Application goes. The First Sims Affidavit takes the matter no further: there is no reference within it to the terms of the TP Act. Without an allegation of a contravention of a specific section of the TP Act, neither Mr Jooste nor Mr Bennett (and likewise the Court) is in a position to discern what is alleged against them by Mr Sims. In the circumstances, the Application as it relates to the TP Act has no reasonable prospect of success. It is unnecessary for the Court to consider any time limitation issues which might arise.
There are further, and arguably more fundamental, reasons as to why the TP Act does not give rise to a cause of action in the circumstances of this matter.
Section 51 of the TP Act appeared in Part IV of the TP Act and provided grounds of exemption from provisions relating to restricted trade practices under Part IV of the TP Act. Part IV of the TP Act contained substantive provisions protecting and enhancing competition and containing prohibitions against:
a)anti-competitive contracts, arrangements and understanding;
b)price fixing and other cartels;
c)monopolisation and misuse of market power;
d)anti-competitive mergers;
e)resale price maintenance; and
f)secondary boycotts affecting competition.
These provisions relate to conduct directed against one of the objects of the TP Act, namely the object of promoting competition: Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5; (2003) 215 CLR 374; (2003) 77 ALJR 623; (2003) 195 ALR 609. The exemptions are exemptions from provisions of the TP Act which otherwise make certain conduct by corporations anti-competitive.
To the extent that Mr Sims’ claim is specified or particularised it does not relate to anti-competitive conduct by a corporation, but by individuals, namely, Mr Jooste and Mr Bennett. Furthermore, it is difficult to understand how, if at all, an exemption provision might be contravened. Any action based upon s.51 of the TP Act therefore has no reasonable prospect of success in these proceedings.
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.
Section 82(1) of the TP Act provided as follows:
(1) A person who suffers loss or damage by an act of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person.
By reason of the fact that there is no reasonable prospect of success in relation to the allegations of contravention of ss.51 (in Part IV) and 52 (in Part V) of the TP Act, there is also no reasonable prospect of success in an action for damages under s.82(1) of the TP Act to recover loss or damage. In the circumstances it is unnecessary to deal with the limitation period issues raised by the Respondents’ Submissions.
In all of the above circumstances, the Application as it relates to the TP Act has no reasonable prospect of success.
“Australian Securities & Corporations legislation”
The Court assumes that the reference to “Australian Securities & Corporations legislation” followed by the references to ss.181(1)(a) and (b), 182(1)(a), and 184(1)(a), (b) and (d), (2)(a) and (b) and (3)(a) and (b), are a reference to the Corporations Act 2001 (Cth) (“Corporations Act”).
Section 181 of the Corporations Act, which is a civil penalty provision: Corporations Act, s.1317E, provides as follows:
(1) A director or other officer of a corporation must exercise their powers and discharge their duties:
(a) in good faith in the best interests of the corporation; and
(b) for a proper purpose.
(2) A person who is involved in a contravention of subsection (1) contravenes this subsection.
Section 182 of the Corporations Act, which is a civil penalty provision: Corporations Act, s.1317E, provides as follows:
Use of position--directors, other officers and employees
(1) A director, secretary, other officer or employee of a corporation must not improperly use their position to:
(a) gain an advantage for themselves or someone else; or
(b) cause detriment to the corporation.
(2) A person who is involved in a contravention of subsection (1) contravenes this subsection.
Section 184 of the Corporations Act, which is an offence provision, provides as follows:
Good faith--directors and other officers
(1) A director or other officer of a corporation commits an offence if they:
(a) are reckless; or
(b) are intentionally dishonest;
and fail to exercise their powers and discharge their duties:
(c) in good faith in the best interests of the corporation; or
(d) for a proper purpose.
Use of position--directors, other officers and employees
(2) A director, other officer or employee of a corporation commits an offence if they use their position dishonestly:
(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or
(b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.
Use of information--directors, other officers and employees
(3) A person who obtains information because they are, or have been, a director or other officer or employee of a corporation commits an offence if they use the information dishonestly:
(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or
(b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.
Section 1317J of the Corporations Act provides as follows:
Application by ASIC
(1) ASIC may apply for a declaration of contravention, a pecuniary penalty order or a compensation order.
Application by corporation
(2) The corporation, or the responsible entity for the registered scheme, may apply for a compensation order.
(3) The corporation, or the responsible entity for the registered scheme, may intervene in an application for a declaration of contravention or a pecuniary penalty order in relation to the corporation or scheme. The corporation or responsible entity is entitled to be heard on all matters other than whether the declaration or order should be made.
Compensation order relating to financial services civil penalty provision--any other person who suffers damage may apply
(3A) Any other person who suffers damage in relation to a contravention, or alleged contravention, of a financial services civil penalty provision may apply for a compensation order under section 1317HA.
(3B) Subsections (2) and (3) do not apply in relation to a contravention of:
(a) section 901E (complying with derivative transaction rules); or
(b) section 903D (complying with derivative trade repository rules).
No one else may apply
(4) No person may apply for a declaration of contravention, a pecuniary penalty order or a compensation order unless permitted by this section.
(5) Subsection (4) does not exclude the operation of the Director of Public Prosecutions Act 1983.
Sections 1337B, 1337C and 1337E of the Corporations Act provide as follows:
SECT 1337B
Jurisdiction of Federal Court and State and Territory Supreme Courts
(1) Jurisdiction is conferred on the FederalCourt of Australia with respect to civil matters arising under the Corporationslegislation.
(2) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977 , jurisdiction is conferred on the Supreme Court of:
(a) each State; and
(b) the Capital Territory; and
(c) the Northern Territory;
with respect to civil matters arising under the Corporations legislation.
(3) Despite section 9 of the Administrative Decisions (Judicial Review) Act 1977 , jurisdiction is conferred on the Supreme Court of:
(a) each State; and
(b) the Capital Territory; and
(c) the Northern Territory;
with respect to matters arising under that Act involving or related to decisionsmade, or proposed or required to be made, under the Corporations legislation by a Commonwealth authority or an officer of theCommonwealth.
(4) Subsection (3) applies to a decisionmade, or proposed or required to be made:
(a) whether or not in the exercise of a discretion; and
(b) whether before or after that subsection commences.
(5) The jurisdiction conferred on a Supreme Court by subsection (2) or (3) is not limited by any limits to which any other jurisdiction of that Supreme Court may be subject.
(6) This section has effect subject to section 1337D.
SECT 1337C
Jurisdiction of Family Court and State Family Courts
(1) Jurisdiction is conferred on the FamilyCourt with respect to civil matters arising under the Corporations legislation.
(2) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977 , jurisdiction is conferred on each State Family Court with respect to civil matters arising under the Corporationslegislation.
(3) The jurisdiction conferred on a StateFamily Court by subsection (2) is not limited by any limits to which any other jurisdiction of the State Family Court may be subject.
(4) This section has effect subject to section 1337D.
SECT 1337E
Jurisdiction of lower courts
(1) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977 , jurisdiction is conferred on the lower courts of:
(a) each State; and
(b) the Capital Territory; and
(c) the Northern Territory;
with respect to civil matters (other than superior court matters) arising under the Corporations legislation.
(2) The jurisdiction conferred on a lowercourt by subsection (1):
(a) is subject to the court's general jurisdictional limits, so far as they relate to:
(i) the amounts; or
(ii) the value of property;
with which the court may deal; but
(b) is not subject to the court's other jurisdictional limits.
The Court notes that s.1337D of the Corporations Act, to which ss.1337B, 1337C and 1337E are subject, is not strictly relevant for present purposes, and, in any event, confers no jurisdiction on this Court.
There does not appear to be any dispute that Mr Jooste was at relevant times a director of Suda Ltd: Transcript, page 4, and in that capacity, bound by ss.181, 182 and 184 of the Corporations Act. There is nothing in the Application, nor in the First Sims Affidavit, which suggests in what, if any, capacity that Mr Bennett might relevantly have been bound by the Corporations Act, and in particular ss.181, 182 and 184 thereof.
In Alfaro v Crown Commercial Cleaning Pty Ltd & Anor [2012] FMCA 478 (“Alfaro”) the then Federal Magistrates Court observed that:
The claim, insofar as it arises under the Corporations Act, may be dealt with briefly. Sections 1337B, 1337C and 1337E confer jurisdiction on the Federal Court and State and Territory Supreme Courts, on the Family Court of Australia and State Family Courts and on the lower courts of the States and Territories in relation to civil proceedings arising under the Corporations Act. No jurisdiction is conferred upon this Court. That may be seen as an oversight by Parliament but the consequence is that this Court has no jurisdiction to entertain Mr Alfaro's proceedings to the extent they depend upon the Corporations Act.
Alfaro at [6] per Driver FM.
Although the Federal Magistrates Court was held to have associated jurisdiction in Corporations Act matters in Cass v Kingston Capital Ltd [2010] FMCA 762 (“Kingston Capital”), in that case there was a concession with respect to jurisdiction under different provisions of the Corporations Act, and again with respect to a different provision of the Corporations Act, it was held that it was arguable that the then Federal Magistrates Court had jurisdiction. Significantly, in Kingston Capital, the provisions of ss.1337B, 1337C and 1337E of the Corporations Act were not raised for consideration by the Court. In Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281 (“Allblend Holdings”) the then Federal Magistrates Court also determined that a cross-claim seeking a compensation order under s.1317H of the Corporations Act was within the associated jurisdiction of the Federal Magistrates Court by reason of a claim having been made (which was not disputed) in the response that the relevant employee had breached her duties under ss.180, 181 and 182 of the Corporations Act. Again, ss.1337B, 1337C and 1337E of the Corporations Act were not raised with the Federal Magistrates Court for consideration.
Having regard to the provisions of ss.1337B, 1337C and 1337E of the Corporations Act, and following the rationale in Alfaro, it is clear that this Court does not have jurisdiction conferred on it in civil proceedings under the Corporations Act. Alfaro is to be preferred to Kingston Capital and Allblend Holdings, both of which are distinguishable, and may even be wrongly decided.
For the above reasons, the Court is of the view that it does not have jurisdiction to hear the contraventions which Mr Sims alleges in the Application of ss.181 and 182 of the Corporations Act.
There are further obstacles in Mr Sims’ path with respect to the alleged contraventions of ss.181 and 182 of the Corporations Act. As prescribed by s.1317J(1) and (2) of the Corporations Act the only circumstances in which a person other than ASIC, the corporation or a responsible entity for a registered scheme may apply for a declaration of contravention, pecuniary penalty order or compensation order is where another person who suffers damage in relation to a contravention or alleged contravention of a financial services civil penalty provision may apply for a compensation order under s.1317HA of the Corporations Act: Corporations Act, s.1317J(3A) and (4).
A “financial services civil penalty provision” is defined in s.9 of the Corporations Act to have the meaning given by s.1317DA of the Corporations Act which defines “financial services civil penalty provision” as follows:
In this Act:
…
“financial services civil penalty provision” means a provision specified in column 1 of any of the following items of the table in subsection 1317E(1):
(a) item 14;
(b) items 23 to 45.
The provisions of s.1317E(1) of the Corporations Act referred to in the definition of “financial services civil penalty provision” do not include the provisions of ss.181 and 182 of the Corporations Act, those provisions appearing in item 1 of s.1317E(1) of the Corporations Act. It follows that Mr Sims has no standing to sue under those provisions. Even if he did, the lack of proper or understandable particularisation of any alleged contravening conduct by Mr Jooste or Mr Bennett would preclude any reasonable prospect of success under ss.181 and 182 of the Corporations Act.
In all of the above circumstances, the Application as it relates to ss.181 and 182 of the Corporations Act has no reasonable prospect of success.
Section 1315 of the Corporations Act provides as follows:
(1) Subject to this Act, in any proceedings for an offence against this Act, any information, charge, complaint or application may be laid or made by:
(a) ASIC; or
(b) a Commission delegate; or
(c) another person authorised in writing by the Minister to institute the proceedings.
(2) A delegate for the purposes of paragraph (1)(b), or an authorisation for the purposes of paragraph (1)(c), may relate to all offences, or to specified offences, against this Act.
(3) Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.
Subject therefore to anything appearing in the Director of Public Prosecutions Act 1983 (Cth) (“DPP Act”), Mr Sims is not in a position to bring proceedings concerning any allegation of an offence contrary to s.184 of the Corporations Act as he is not a person prescribed by s.1315(1) of the Corporations Act as a person who may lay or make any information, charge, complaint or application in any proceedings for an offence against the Corporations Act.
In Silbermann & Ors v CGU Insurance Ltd [2003] NSWSC 795 (“Silbermann”) the New South Wales Supreme Court observed that:
The heading to section 184 refers to “criminal offences”. Division 2 of Part 9.4 deals with “Offences Generally” including the manner in which “criminal proceedings” may be commenced. “Criminal proceedings” are not defined in this Division but the manner in which proceedings of this nature may be commenced are, it seems, limited to them being brought by ASIC, a Commission delegate or another person authorised in writing by the Minister to institute the proceedings (s 1315).
Silbermann at [31] per Bergin J.
In Australian Securities and Investments Commission v Neolido Holdings Pty Ltd & Ors [2006] QCA 266 (“Neolido Holdings”) a member of the Queensland Court of Appeal observed that generally it was ASIC which brought proceedings for offences against the Corporations Act, and noted that with an exception (irrelevant to these proceedings) company liquidators had no ability to bring proceedings for an offence against the Corporations Act or to seek a declaration of contravention or a pecuniary penalty order: NeolidoHoldings at [43] per Keane JA. In neither Silbermann nor Neolido Holdings did the New South Wales Supreme Court or the Queensland Court of Appeal respectively have need to address what was meant by the terms of s.1315(3) of the Corporations Act, whereby nothing in s.1315 of the Corporations Act affects the operation of the DPP Act.
Section 9(1) of the DPP Act provides that the Commonwealth Director of Public Prosecutions (“Commonwealth DPP”) may prosecute by indictment or otherwise an offence against a law of the Commonwealth. Under the DPP Act, however, a private prosecution may be brought by a person other than the Commonwealth DPP: Miller v Commonwealth Director of Public Prosecutions [2005] FCA 482; (2005) 142 FCR 394 (“Miller”); R v Drainer & Ors; Ex parte Pullen (unreported, Supreme Court of the Australian Capital Territory, SC 82 of 1988, 19 February 1988); Suda Ltd at [56] and fn.79 per Judge Lucev. This can be inferred because the Commonwealth DPP is entitled under s.9(5) of the DPP Act to take over and carry on, or discontinue, a prosecution instituted, or being carried on by, a person other than the Commonwealth DPP: Miller; Suda Ltd at [56] and fn.79 per Judge Lucev. In these circumstances, the Court is not prepared to find that Mr Sims could not allege, and seek to privately prosecute, an offence under the Corporations Act, and in particular s.184 of the Corporations Act.
Section 1338B of the Corporations Act provides as follows:
Jurisdiction of courts
(1) Subject to this section, the several courts of each State, the Capital Territory and the Northern Territory exercising jurisdiction:
(a) with respect to:
(i) the summary conviction; or
(ii) the examination and commitment for trial on indictment; or
(iii) the trial and conviction on indictment;
of offenders or personscharged with offences against the laws of the State, the Capital Territory or the Northern Territory, and with respect to:
(iv) their sentencing, punishment and release; or
(v) their liability to make reparation in connection with their offences; or
(vi) the forfeiture of property in connection with their offences; or
(vii) the proceeds of their crimes; and
(b) with respect to the hearing and determination of:
(i) proceedings connected with; or
(ii) appeals arising out of; or
(iii) appeals arising out of proceedings connected with;
anysuch trial or conviction or any matter of a kind referred to in subparagraph (a)(iv), (v), (vi) or (vii);
have the equivalent jurisdiction with respect to offenders or personscharged with offences against the Corporations legislation.
(2) The jurisdiction conferred by subsection (1) is not to be exercised with respect to the summary conviction, or examination and commitment for trial, of any person except by a magistrate.
(3) The jurisdiction conferred by subsection (1) includes jurisdiction in accordance with provisions of a relevant law of a State, the Capital Territory or the Northern Territory, and:
(a) the reference in paragraph (1)(b) to " any such trial or conviction" includes a reference to any conviction or sentencing in accordance with the provisions of a relevant law; and
(b) unless the contrary intention appears, a reference to jurisdiction conferred by subsection (1) includes a reference to such included jurisdiction.
(4) A person may be dealt with in accordance with a relevant law even if, apart from this section, the offence concerned:
(a) would be required to be prosecuted on indictment; or
(b) would be required to be prosecuted either summarily or on indictment.
(5) For the purposes of the application of a relevant law as provided by subsection (3):
(a) a reference in that law to an indictable offence is taken to include a reference to an offence that may be prosecuted on indictment; and
(b) in order to determine the sentence that may be imposed on a person by a court pursuant to the relevant law, the person is taken to have been prosecuted and convicted on indictment in that court.
(6) Subject to subsection (8), the jurisdiction conferred on a State or Territory court by subsection (1) is conferred despite any limits as to locality of the jurisdiction of that court under the law of that State or Territory.
(7) If:
(a) jurisdiction is conferred on a State or Territory court in relation to the summary conviction of personscharged with offences against the Corporations legislation by subsection (1); and
(b) thecourt is satisfied that it is appropriate to do so, having regard to all the circumstances including the public interest;
the court may decline to exercise that jurisdiction in relation to an offence committed in another State or Territory.
(8) The jurisdiction conferred on a court of a State, the Capital Territory or the Northern Territory by subsection (1) in relation to:
(a) the examination and commitment for trial on indictment; and
(b) the trial and conviction on indictment;
of offenders or personscharged with offences against the Corporations legislation is conferred only in relation to:
(c) offences committed outside Australia; and
(d) offences committed, begun or completed in the State or the Territory concerned.
(9) In this section:
" appeal" includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge.
" Australia" does not include the coastal sea.
" relevant law" means a law providing that where, in proceedings before a court, a person pleads guilty to a charge for which he or she could be prosecuted on indictment, the person may be committed, to a court having jurisdiction to try offences on indictment, to be sentenced or otherwise dealt with without being tried in that last-mentioned court.
Section 1338B of the Corporations Act makes it clear that no jurisdiction in criminal proceedings under the Corporations Act is vested in this Court. This Court cannot therefore hear Mr Sims’ claim in the Application of an offence by Mr Jooste and Mr Bennett under s.184 of the Corporations Act.
In all of the above circumstances, the Application as it relates to s.184 of the Corporations Act has no reasonable prospect of success.
“Commonwealth Criminal Code Act”
The reference to the “Commonwealth Criminal Code Act” is presumably a reference to the Criminal Code Act 1995 (Cth) (“Criminal Code”).
No allegation of the commission of a crime under the Criminal Code is within the jurisdiction of this Court. This Court has not been vested by the Commonwealth Parliament with criminal jurisdiction under the Criminal Code, or the capacity to have a trial by jury with respect to indictable offences, or at all: FCCA Act, ss.10 and 53. Claims based upon the Criminal Code could not therefore succeed because the Court lacks jurisdiction to hear them.
It follows that the Application as it relates to alleged offences under the Criminal Code has no reasonable prospect of success.
No federal jurisdiction
By reason of what is set out above this Court has no jurisdiction under any relevant federal law, and therefore no original federal statutory jurisdiction in relation to the Application: FCCA Act, s.10(1), and therefore does not have jurisdiction to hear the Application, as there is no federal “matter”: Wakim at [140]-[145] per Gummow and Hayne JJ; Johnson Tiles at [83] per French J. This is not a case of colourable or arguable federal claims being made, but rather, no claims made within the jurisdiction of the Court, and, therefore, no jurisdiction in this Court. Lest that conclusion be wrong, however, the Court will consider the nature of the claims made against both Mr Jooste and Mr Bennett in the First Sims Affidavit.
The nature of the claims made
The nature of the claims made in the First Sims Affidavit is considered hereunder.
The First Sims Affidavit begins by setting out certain preliminary matters in relation to Mr Sims as applicant, and each of the respondents, and their relationship. Having done so at paragraphs 1 to 15 of the First Sims Affidavit, Mr Sims then asserts that his action arises from and is in respect of various matters which are then set out, and which the Court has dealt with hereunder by grouping the various claims seemingly made against Mr Jooste and Mr Bennett.
Claims against Mr Jooste
Allegations of fraud, aggravated fraud and lying
Allegations of fraud, aggravated fraud and lying are made in paragraphs 15, 17(c), 17(i), 17(m) and text following, 18, 19(a), 19(c), 19(d), 20(d) and text following, 21, 22(h) and text following, 23(i), 23(o), 24(f), 26(g), 27(f), 30(b) and text following, and 31(c)(iv) of the First Sims Affidavit.
Allegations of fraud or misrepresentation must be distinctly alleged and distinctly proved: Davy v Garrett [1877] 7 ChD 473 at 489 per Thesiger LJ. Hence, allegations of fraud and misrepresentation should not be pleaded at all unless there is clear and sufficient evidence to support them: Associated Leisure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 QB 450 at 456 per Lord Denning MR. The use of the word “fraud” in a pleading is not sufficient where it is nothing more than a bald assertion pleaded without particulars, or reasonable particularity, of the circumstances said to constitute the fraud: The Australian Metropolitan Life Assurance Co Ltd v Ure (1923) 33 CLR 199 at 219-220 per Isaacs J.
In Jooste QC at [11]-[12] per Pullin and Newnes JJ the WA Court of Appeal observed as follows:
11 The indorsement in this case, with its disparate collection of insufficiently particularised allegations, was unquestionably deficient. It was not possible to determine the nature of the claims made and how they related to the relief sought. It was not possible in relation to many of the allegations to determine whether the claims fell within a relevant limitation period. It was not possible to determine the metes and bounds within which any statement of claim must be framed.
12 The indorsement was also deficient in another way. Allegations of dishonesty or impropriety may have a serious impact on a litigant. It is well established that such allegations should not be made unless there is a proper factual basis for them, and where such allegations are made, they must be clearly and distinctly alleged. A party should not be obliged to defend any legal proceedings for any period based on generalised allegations of dishonesty or impropriety. It is improper for a party to make generalised allegations of fraud: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [24]. It is true that an indorsement on a writ is not the place for full particularisation, but an allegation of fraud must not be alleged in such generalised terms that it is impossible to ascertain from the indorsement the nature of the allegation.
The observations set out above in Jooste QC apply with equal force to the allegations of fraud, aggravated fraud and lying made in these proceedings. The references to matters of alleged fraud and misrepresentation (and lying) in the First Sims Affidavit do not move beyond the level of bald assertion, and do not meet the required standard to sustain an action in this Court. In relation to none of the allegations is there, for example, any reference to any detail which might constitute the elements comprising a cause of action for fraud or misrepresentation. It is not for the Court to trawl through a lengthy affidavit and hundreds of pages of unpaginated annexures, seeking to extract the elements of causes of action for fraud and misrepresentation which have not been properly pleaded or particularised by Mr Sims.
As to alleged “criminal fraud” under the Criminal Code the Court has no jurisdiction in any event: see [64] above.
In the above circumstances, the Court considers that no cause of action for fraud, misrepresentation or lying has been pleaded properly or particularised appropriately by Mr Sims, and that his allegations of fraud, misrepresentation or lying, such as they are, have no reasonable prospect of success.
Allegations of deceit and aggravated deceit
In the First Sims Affidavit there are allegations of deceit and aggravated deceit in paragraphs 17, 17(b), 17(c), 17(d), 17(m) and text following, 18(b), 19(a), 20(d) and text following, 22 and 30(b) and text following.
Like fraud and misrepresentation, deceit is a serious matter the gravity of which requires that it be pleaded properly and with particularity. The First Sims Affidavit does not make reference to any law, principle of law, or legislation, giving rise to a cause of action with respect to the alleged deceit, and fails to plead the deceit by reference to proper principles of pleading, and does not particularise the alleged deceit.
In the above circumstances, the allegations of deceit and aggravated deceit have no reasonable prospect of success.
Allegations of dishonesty
Allegations of dishonesty are made in the First Sims Affidavit at paragraphs 19(d), 20(d) and text following, 25(d) and 28(l).
As with allegations of fraud, misrepresentation and deceit, an allegation of dishonesty must be pleaded with particularity, and the language used to plead the facts must unequivocally demonstrate that dishonesty is involved: 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 allegations of dishonesty made in the First Sims Affidavit are not pleaded with particularity. As with the allegations of fraud, misrepresentation and deceit, the allegations of dishonesty refer to no law, principle of law, or legislation, to found any cause of action, even if the dishonesty was particularised and unequivocally demonstrated, which it is not.
In the above circumstances, the allegations of dishonesty have no reasonable prospect of success.
Allegations of slander, aggravated slander and criminal aggravated slander
There are allegations of slander, aggravated slander and criminal aggravated slander in the First Sims Affidavit at paragraphs 17(m) and text following, 18, 19(a), 19(c), 19(d), 22(h) and text following, 23(o), 28(l), 30(b) and text following, 31(c) and 32(c)(iv).
Once again there is no particularisation of the allegations of slander, aggravated slander and criminal aggravated slander made by Mr Sims, and no reference to any law, principle of law, or legislation giving rise to a cause of action. Insofar as the allegations might allege a crime, then there is no jurisdiction in this Court to deal with the matters, for the reasons set out above: see [64] above. In these circumstances these allegations have no reasonable prospect of success.
Allegations of offences and crimes generally
There are allegations of offences and crimes made in the First Sims Affidavit at paragraphs 17(m) and text following, 25(g) and text following and 28(p).
Once again, apart from the Criminal Code Mr Sims makes no reference to any relevant law, principle of law, or other legislation. 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.
Allegations of forgery
There are allegations of forgery in the First Sims Affidavit at paragraphs 23(d)-(h), 23(n) and 28(h).
Once again these allegations are not properly particularised, and there is no reference to any law, principle of law, or legislation which would vest this Court with jurisdiction to deal with an allegation of forgery. Insofar as forgery is a criminal offence, this Court has no jurisdiction to deal with forgery as a criminal matter, for reasons set out at [64] above.
In the circumstances, the allegations of forgery have no reasonable prospect of success in this Court.
Allegations of misleading and deceptive conduct and unconscionable conduct
The First Sims Affidavit makes allegations of misleading and deceptive conduct or unconscionable conduct at paragraphs 17(m) and text following, 19(a), 24(d) and (e) and 28(h)(ii)(b).
This Court has certain jurisdiction under the TP Act” and the C&C Act” to deal with such matters, but for reasons set out above at [29]-[39], not in this matter.
In any event, the allegations made by Mr Sims lack particularity, and, in the case of the alleged misleading and deceptive conduct it is not clear precisely whom is said to be misled, and how they are said to have been misled, or alternatively deceived, and the elements of a properly pleaded claim for misleading and deceptive conduct are simply not addressed. Likewise, there is simply no attempt to address the elements of a claim for unconscionable conduct.
In all of the above circumstances, the allegations of misleading and deceptive conduct or unconscionable conduct have no reasonable prospect of success.
Allegations of perjury, and lying to Court or lawyers
The First Sims Affidavit makes allegations of perjury, lying to Court or lawyers by Mr Jooste or Mr Bennett at paragraphs 20(c), 24(d), 28(h)(ii)(b) and 31(c)(vi).
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.
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.
The allegations of perjury, lying to Court or to lawyers in the First Sims Affidavit have no reasonable prospect of success, for the reasons set out above, and also for the reasons set out in relation to Mr Bennett in more detail at [126]-[133] below.
Allegations of breach of fiduciary duty and duty of care
The First Sims Affidavit makes allegations of breach of fiduciary duty and duty of care by Mr Jooste and Mr Bennett at paragraphs 18(a), 19(d), 25(g) and text following, 28(h)(ii)(b) and 28(i).
No legal basis in support of these claims is set out in the First Sims Affidavit other than a reference to “Securities and Corporations legislation” at paragraph 19(d). This might be intended to be a reference to ss.181, 182 and 184 of the Corporations Act, as set out in the Application, but if so the Court does not have jurisdiction to deal with those matters for reasons set out above: see [40]-[62] above. In any event, there are no properly pleaded or particularised alleged breaches of fiduciary duty or duty of care.
In all of the above circumstances, the allegations of breach of fiduciary duty or duty of care in the First Sims Affidavit have no reasonable prospect of success.
Allegation of misuse of status as Queen’s Counsel
In relation to an allegation of interference with company records by Mr Jooste and Mr Stewart, the First Sims Affidavit alleges at:
a)paragraph 23(q), that Mr Jooste continued to misuse his status as Queen’s Counsel; and
b)at paragraphs 23(r) and (s) that the police (seemingly a reference to the Western Australian Police Service) had told Mr Sims that they were not going to charge those responsible, or investigate the allegation of interference with company records because Mr Jooste was a Queen’s Counsel, and Mr Sims goes on to state that “they”, presumably a reference to Mr Jooste and Mr Stewart, “will be charged over my dead body”.
The allegation itself relates to an allegation that Mr Jooste produced a forged minute of a board meeting of a company, presumably Suda Ltd, which has been referred to the Western Australian Police who have refused to take the matter further, and which Mr Sims says has become the subject of a federal police investigation at his request.
Insofar as the matter:
a)alleges misconduct by Mr Jooste in his capacity as Queen’s Counsel, that was a matter for complaint to the Legal Practice Board, not this Court; and
b)relates otherwise to allegations of a forged minute of a board meeting of Suda Ltd on 8 June 2009, and the alleged forged resignation of Mr Sims from Suda Ltd both as an employee and director, the alleged actual interference with company records is not a matter within the jurisdiction of this Court.
Otherwise, the matter of the alleged forgery is a criminal matter, and therefore not within the jurisdiction of this Court, for reasons otherwise explained above: see [64] above.
Generally, the allegation of “misuse of QC status” is not a matter which:
a)has any clear legal meaning; and
b)seems capable of translating into a cause of action in relation to which Mr Sims would have standing to sue in this Court.
In the above circumstances, the allegation of misuse by Mr Jooste of his position as a Queen’s Counsel has no reasonable prospect of success.
Allegations of misappropriation of invention and property
The First Sims Affidavit makes allegations of misappropriation of invention or property at paragraphs 26(a) and 26(d).
It is not apparent how it is that this Court obtains jurisdiction to deal with the allegation of misappropriation of invention and property. There is no plea referrable to any federal statutory provision which would vest this Court with jurisdiction. Insofar as the matters allege fraud, they are, for reasons set out above: see [70]-[72] above, not properly pleaded or particularised.
In the absence of jurisdiction and a properly pleaded and particularised claim there can be no reasonable prospect of success for the allegations of misappropriation of invention or property made in the First Sims Affidavit.
Allegation of abuse
At paragraph 22(e) in the First Sims Affidavit it is alleged that there was abuse by a blogger on a chat forum, and that a number of other bloggers defamed and committed aggravated slander, against Mr Sims. It is alleged that the first blogger is Dr James Jooste (“Dr Jooste”), the son of Mr Jooste. The abuse appears to relate to further allegations that Dr Jooste slandered Mr Sims. This allegation is made in the context of what is described, in the heading to paragraph 22 of the First Sims Affidavit, as “Aggravated deceit to Third Parties to harm Applicant [Mr Sims] by the First Respondent [Mr Jooste]”.
It is not apparent, and no attempt is made in the First Sims Affidavit, to:
a)establish how this Court has jurisdiction to deal with a claim of abuse, whether it be by Dr Jooste, or indirectly by Mr Jooste, or how it is that this Court has jurisdiction to deal with generalised claims of abuse, deceit and slander, or how it otherwise gives rise to a cause of action in this Court; and
b)explain the material facts which link Dr Jooste with any conduct of Mr Jooste in relation to the information allegedly blogged by Dr Jooste. The mere fact that the person blogging the information is someone’s son is not sufficient to link the parent to the conduct, without more, and here there is nothing pleaded by way of a material fact to make that link.
In the circumstances, the allegation of abuse at paragraph 22(e) of the First Sims Affidavit has no reasonable prospect of success in this Court.
Allegations of discrimination, degradation, harm, prejudice and intimidation
The First Sims Affidavit makes allegations of discrimination, degradation, harm, prejudice and intimidation at paragraphs 17(m) and text following, 19(c), 22, 24(f) and text following, 25(g), 27(e), 28(p), 31(d) and 33 and text following.
In relation to these allegations the First Sims Affidavit makes no attempt to establish causes of action referable to the jurisdiction of this Court. The allegations made are broadly stated without reference to any federal statutory provision, or any statutory provision at all, save for the incorrect reference to the “Human Rights Discrimination Act 1966”: see [25] above. In the absence of any original federal statutory jurisdiction in this Court, the above paragraphs from the First Sims Affidavit cannot be said to be matters otherwise within the jurisdiction of this Court. In any event, the matters concerned are not properly pleaded, are not properly particularised, and, in many respects, are scandalous. In those circumstances there is no reasonable prospect of success in relation to the allegations of discrimination, degradation, harm, prejudice and intimidation made in the First Sims Affidavit.
Allegations of breach of Australian Securities and Investments Commission and Australian Stock Exchange obligations
At paragraph 28(j) of the First Sims Affidavit it is alleged that Mr Jooste and Mr Stewart, aided and abetted by Mr Bennett in his capacity as an officer of the courts, “failed to properly inform the Public and Shareholders of Suda Ltd of … developments in Potsdam, Germany.” That appears to be a reference to what is said at paragraph 28(h)(ii)(a) where it is alleged that Potsdam County Court documents confirmed an action against Suda Ltd claiming €8 million for non-performance of the assignment of Suda Ltd’s exclusive beneficial ownership of certain patents by a Mr Patterson on 2 July 2008 bearing Suda Ltd’s common seal. Whatever the truth or otherwise of that particular allegation, and whether or not Mr Jooste, aided and abetted or not by Mr Bennett, failed to properly inform the public and shareholders of Suda Ltd of those developments, is not a matter in respect of which Mr Sims attempts to establish a cause of action by reference to the jurisdiction of this Court. To the extent that there might theoretically be a cause of action with respect to such matters, under the Corporations Act, or associated companies and securities legislation, there is no proper pleading, or particularisation, of any such cause of action in the First Sims Affidavit. In the above circumstances, the allegations of breach of Australian Securities and Investments Commission and Australian Stock Exchange obligations have no reasonable prospect of success in this Court.
Allegation of insider trading
At paragraph 32(i) of the First Sims Affidavit it is asserted that Mr Jooste was “confronted” (presumably by Mr Sims) in a District Court action with an allegation of insider trading by Mr Stewart, and Mr Jooste claimed that he had authorised the trading, and Mr Sims therefore alleges that Mr Jooste was party to the insider trading.
It is not apparent from the First Sims Affidavit as to how this Court is said to have jurisdiction with respect to the allegation of insider trading. If the matter is criminal, then this Court has no jurisdiction, for reasons explained above: see [64] above. If the matter is subject to Commonwealth corporations and securities legislation, then that legislation is not pleaded, properly or at all, nor is it apparent as to how this Court might have jurisdiction even if it were pleaded.
In all of the above circumstances, the Court is of the view that this allegation has no reasonable prospect of success.
Allegation of denial of right to pay fees and retain prior art
At paragraph 27(d) of the First Sims Affidavit Mr Sims alleges that Mr Jooste and Mr Stewart deliberately denied Mr Sims the right to “pay … fees” (seemingly “Patent payments”: First Sims Affidavit at paragraph 27(c), of a kind not clearly specified) and retain his prior art in particular patents and trademarks.
There is no attempt in the First Sims Affidavit to establish a cause of action by reference to the jurisdiction of this Court in this matter, which was said to arise during the period 1999 to June 2009: First Sims Affidavit at paragraph 27(a). Rather, Mr Sims alleges “aggravated fraud”, when all that is pleaded is deliberate non-payment to deny Mr Sims “his rights to retain his valuable inventions”: First Sims Affidavit at paragraph 27(e). In the manner pleaded, deliberate non-payment of fees cannot, without more, constitute fraud.
In the above circumstances, the allegation of denial of the right to pay fees and retain prior art in the patents has no reasonable prospect of success as an allegation of fraud.
Allegation of conspiracy
In the text following an allegation of perjury set out at paragraph 33 of the First Sims Affidavit it is alleged that in the circumstances set out in the First Sims Affidavit that Mr Jooste, Mr Stewart and Mr Bennett “conspired to prejudice and harm” Mr Sims causing him various loss and detriment for which he claims $10 million in damages from each of them, and compensation from Mr Jooste and Mr Stewart amounting to $10 million.
There is no attempt to establish a cause of action with reference to the jurisdiction of this Court. Conspiracy alone will not suffice without there being some federal statutory jurisdiction of this Court tenably alleged in relation to the claims made in the First Sims Affidavit.
A conspiracy requires an agreement between two or more persons to create an unlawful situation either by agreeing to perform an unlawful act or to perform a lawful act by unlawful means: Nirta & Ors v R (1983) 51 ALR 53; (1983) 79 FLR 190; (1983) 10 A Crim R 370, and must be sufficiently particularised. The plea in this case is that “In the circumstances as set out in this Affidavit, … [Mr Jooste and Mr Bennett] conspired to prejudice and harm …” Mr Sims. There is no plea of what circumstances constituted the alleged conspiracy. To refer to “the circumstances as set out in this Affidavit” where, as might be evident from the foregoing, the First Sims Affidavit is constituted by a series of discursive and often scandalous allegations, is not to sufficiently particularise a matter. As the Supreme Court of Western Australia observed in Austwhim Resources NL v Jenlor Ltd (unreported, Supreme Court of Western Australia, Master Seaman, 23 November 1987, Library No. 6973) acts of conspiracy and analogous allegations must be set forth as material facts with clarity and precision. The bare allegation at paragraph 33 of the First Sims Affidavit does not meet this test for alleging conspiracy.
Both the bare allegation of conspiracy, without reference to particular overt acts, and the lack of federal statutory jurisdiction in this Court in relation to the claims made in the First Sims Affidavit, mean that the allegation of conspiracy has no reasonable prospect of success.
The claims against Mr Bennett
The primary claims against Mr Bennett appear to relate to proceedings:
a)before the Supreme Court of Western Australia on 22 December 2009 when Mr Bennett appeared for RM Capital Ltd, on instructions from Lavan Legal, on the hearing of an application by Suda Ltd to restrain dealings in shares in a German company by persons and entities associated with Mr Sims, but not actually against Mr Sims, and what Mr Bennett said on that occasion;
b)in relation to his representation of Suda Ltd in District Court proceedings CIV 2168 of 2011 commenced by Mr Sims against Suda Ltd; and
c)in which he represented Dr Jooste in WA Supreme Court proceedings commenced by Mr Sims against Dr Jooste,
as set out at paragraph 28 of the First Sims Affidavit.
The primary factual situation seemingly alleged by paragraph 28 of the First Sims Affidavit in relation to the 22 December 2009 hearing before the Supreme Court of Western Australia (“WA Supreme Court”) is that Mr Bennett made a submission to the WA Supreme Court which was contrary to the facts that would be alleged by another party to the proceeding. That does not:
a)without more, give rise to a cause of action against Mr Bennett; and
b)in any event, have any connection to the federal statutory jurisdiction of this Court.
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.
The relevant factual matrix for this aspect of what is alleged in paragraph 28 of the First Sims Affidavit is also not made out on the materials before the Court. Neither Mr Jooste nor Mr Thomas appeared before the WA Supreme Court according to the transcript, and it is not otherwise apparent that they were in attendance. It is also not apparent as to how it is said that the WA Supreme Court was misled even if Mr Jooste and Mr Thomas were in attendance. The assertion that, “as clearly recorded in the transcript of that hearing”, Mr McDonald stood in the presence of Mr Jooste and Mr Bennett and told the WA Supreme Court that the allegations against Mr Sims were a lie, is also not made out. Mr McDonald announced his appearance for the first to fifth defendants at page 3 of the transcript of the proceedings, and thereafter said nothing before Mr Bennett was granted leave to withdraw at page 8 of the transcript. There is otherwise no suggestion by Mr McDonald in the transcript of the proceedings that anything was “a lie”, and, if anything, Mr McDonald struggled throughout the proceedings by reason of the fact that the parties that he represented, which did not include Mr Sims, did not have sufficient evidence before the Court. Further, what is said by Mr Sims at paragraph 28(d) of the First Sims Affidavit is not made out, because upon a reading of the transcript, Mr Bennett did not make the submission that Mr Sims alleged he made. It is plain that the factual allegations against Mr Bennett cannot be made out in relation to the proceedings before the Supreme Court of Western Australia on 22 December 2009, and that they therefore have no reasonable prospect of success.
Given the doctrine of advocate’s immunity for conduct in court, or conduct out of court that leads to a decision affecting the conduct of an action in court: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; (2005) 79 ALJR 755; (2005) 214 ALR 92 at [85] per Gleeson CJ, Gummow, Hayne and Heydon JJ, it is also not apparent how it is that the submissions made by Mr Bennett in seeking leave to withdraw from the proceedings on 22 December 2009, a withdrawal which was agreed to by Counsel for the plaintiff and the other defendants who appeared, can give rise to any liability at all vis-à-vis Mr Sims. Finally, whatever action the WA Supreme Court took on that day, that action did not depend, substantively or otherwise, upon the submissions made by Mr Bennett (who was simply seeking leave to withdraw), but rather the submissions of other Counsel who appeared on behalf of the plaintiff and the other represented defendants respectively. Therefore, nothing that Mr Bennett did on 22 December 2009 before the WA Supreme Court gave rise to any loss on Mr Sims’s part. Again, this means that there is no reasonable prospect of success on the Application, because the Court could make no order with respect to any loss (or compensation) in relation to what Mr Bennett did on 22 December 2009 before the WA Supreme Court.
The next allegation against Mr Bennett is that Mr Bennett misconducted himself in the conduct of proceedings in the District Court of Western Australia in which Mr Bennett acted for Suda Ltd on a claim brought by Mr Sims against Suda Ltd. Mr Sims asserts in the First Sims Affidavit at paragraph 28(g)(ii)-(iv) that Mr Bennett supported Mr Jooste in lodging false evidence, that Mr Bennett concealed critical evidence from the trial in the District Court, and that Mr Bennett made allegations against Mr Sims which he knew to be untrue. There is also an allegation concerning Mr Bennett’s treatment of Mr Sims’ health condition with which the Court need not concern itself.
Dealing with allegations of misconduct by Counsel during the course of a trial in the District Court is a matter either for the District Court, or upon complaint to it, the Legal Practice Board of Western Australia. Further, if as appears to be the case, the matter is the subject of an appeal to the WA Court of Appeal, the matter is one properly raised before that Court. There is no federal statutory jurisdiction in this Court to deal with generalised complaints about the conduct of a legal practitioner, as advocate, in the course of proceedings before a State intermediate court, especially where:
a)the matter concerned is the subject of an appeal to the WA Court of Appeal; and
b)there is otherwise (for reasons otherwise set out in these Reasons for Judgment) no federal statutory jurisdiction to deal with such a matter, or the other matters alleged by Mr Sims in these proceedings.
In the circumstances, Mr Sims’s complaint concerning Mr Bennett’s conduct in the District Court proceedings where he acted for Suda Ltd has no reasonable prospect of success.
In relation to Mr Bennett’s conduct in defending Dr Jooste, this appears to relate to an action for defamation brought by Mr Sims in the Supreme Court of Western Australia. There is a broad allegation of “aggravated deceit and Slanderous fraud” made by Mr Sims against Mr Bennett, said to be supported by an allegation that Mr Bennett supported a false defence for Dr Jooste in the WA Supreme Court proceedings, being a defence that Mr Bennett “has all of the evidence that it is false”. There is no particularisation of this allegation, and apart from the allegation itself, nothing to indicate the material facts upon which the allegation is based. Even if there were, it would not be a matter within the jurisdiction of this Court. There is no federal statutory jurisdiction in relation to the proceedings involving Dr Jooste and Mr Sims in relation to alleged defamation by the former against the latter. Further, if the conduct of a legal practitioner in proceedings for defamation before the WA Supreme Court is conduct which is inappropriate, that is a matter for that Court, or the Legal Practice Board if a complaint is made to it. Mr Sims’ complaint concerning Mr Bennett’s conduct in defending Dr Jooste therefore has no reasonable prospect of success.
For the reasons set out above the allegations against Mr Bennett made at paragraph 28 of the First Sims Affidavit have no reasonable prospect of success.
Whether the proceeding or claim for relief is frivolous, vexatious or an abuse of process
A proceeding is frivolous when, despite whatever attempts are made to discern a cause of action in a case, it is still not arguable or when the proceedings are without substance, groundless or fanciful: Pickering v Centrelink [2008] FCA 561 at [27] per McKerracher J.
In relation to whether proceedings are vexatious it suffices for present purposes to adopt the observations of the Federal Court in Rana v Commonwealth of Australia [2013] FCA 189 at [42]-[43] per Mansfield J, as follows:
42 Proceedings have been held to be “vexatious” in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 481.
43 It has also been pointed out that “vexatiousness” is a quality of the proceeding rather than a litigant's intention so that the “question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious”: Re Vernazza [1960] 1 QB 197 at 208.
An abuse of process may be constituted by proceedings which are manifestly groundless or without foundation or which serve no useful purpose, and include proceedings which are manifestly unfair to a party to the litigation or which would otherwise bring the administration of justice into disrepute among right thinking people, and further extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment: Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75; (2009) 83 ALJR 1180; (2009) 260 ALR 34 at [28] per French CJ, Gummow, Hayne and Crennan JJ.
In circumstances where the Court has found that these proceedings are not within the jurisdiction of the Court, and, in any event otherwise have no reasonable prospect of success, the proceedings can be described as frivolous and vexatious because they are without substance, untenable and groundless. For essentially the same reasons, the proceedings are an abuse of process, because they are manifestly groundless and without foundation and serve no useful purpose, and as such are seriously and unfairly burdensome to those required to respond to them. Moreover, the allegations of fraud, deceit and slander, which have been found to have no reasonable prospect of success, are or were prejudicial or damaging to those required to respond to them.
Although not findings to be lightly made, the Court, for the above reasons, finds that the proceedings are frivolous, vexatious and an abuse of process.
Whether leave to amend or re-plead ought to be granted
In the Court’s view leave to amend or re-plead ought not be granted to Mr Sims. The Court has found that it does not have jurisdiction with respect to the matters alleged to be the subject of federal statutory jurisdiction, and, otherwise, the claims made have been found to have no reasonable prospect of success, even if the Court had jurisdiction. Furthermore, the claims are so discursive, and in many instances so scandalous, that it is difficult to comprehend how they might be sensibly amended. The Court further notes that in litigation before the WA Court of Appeal in Jooste QC, and before this Court in Suda Ltd, not dissimilar claims to those made in these proceedings were held to have no reasonable prospect of success, and Mr Sims was enjoined by both the WA Court of Appeal and this Court to seek assistance in properly framing his claims or applications. Notwithstanding those admonitions, and notwithstanding that they were made in other proceedings, it is apparent that Mr Sims has not sought professional assistance, or given proper regard to the need to amend the materials he has put before the Court, in these proceedings.
The Court further notes that complaints similar to many of those made in these proceedings have been made by Mr Sims before other Courts and tribunals, with a singular lack of success on his part: see, for example:
a)Sims v Legal Profession Complaints Committee & Ors [2013] WASAT 44 (complaints concerning the conduct of Mr Jooste);
b)Jooste QC;
c)Sims v Jooste [2013] WASC 425 (unsuccessful application for the removal of Dr Jooste’s solicitor in the defamation proceedings referred to at [133] above);
d)Sims v Suda Ltd [2014] WASC 3 (Statement of Claim struck out in relation to a claim that Suda Ltd entered into a binding agreement with Mr Sims to pay him money and issue him with shares);
e)Sims v Suda Ltd [2014] WADC 7 (claim for damages for constructive dismissal from employment with Suda Ltd dismissed by the District Court); and
f)Suda Ltd (Counterclaim by Mr Sims alleging a breach of s.678 of the Fair Work Act 2009 (Cth) struck out on the basis that Mr Sims had no standing, and that the Counterclaim was hopeless and bound to fail, vexatious and an abuse of process).
It suffices to observe that in the proceedings mentioned immediately above, if not all, then certainly the majority, of the claims now made in these proceedings have been dealt with by the WA Court of Appeal, the District Court, this Court or the State Administrative Tribunal, and either been dismissed or struck out as having no reasonable prospect of success. That observation also reinforces the finding made above: see [138]-[139] above, that the proceedings are an abuse of process.
In the above circumstances granting leave to amend or re-plead this claim would in the Court’s view be an exercise in futility.
Costs
The Court has jurisdiction to grant indemnity costs: FCCA Act, s.79(2) and (3); Suda Ltd (No. 2) at [22] per Judge Lucev. The law as to when it is appropriate for the Court to award costs on an indemnity basis is well established, and the principles applicable to indemnity costs orders are found in Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561 (“Colgate-Palmolive”).
In determining whether to award indemnity costs the Court has a very wide discretion, to be exercised judicially. The normal practice, not to be lightly departed from, is to provide for costs on a party-party basis. Nevertheless, there are certain issues to which the Court will give consideration, and have to weigh, when determining whether to make, and the extent of, an indemnity costs order. An indemnity costs order should only be made where the issues establish special or unusual circumstances warranting an indemnity costs order. Those issues relevantly include, but are not limited to the following:
a)whether a party should have known that there was no prospect of success in the case;
b)where a party alleges fraud or forgery, knowing the accusation to be false, or irrelevant to the issues;
c)whether the party against whom indemnity costs is sought is a self-represented litigant, and whether the self-represented litigant ought to escape the consequences of indemnity costs;
d)where a party persists in the making of allegations which ought not to have been made, or in undue prolongation of groundless contentions; and
e)where a party’s conduct causes loss of time to the Court, and to other parties.
Colgate-Palmolive FCR at 233-234 per Sheppard J; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397 at 400-401 per Woodward J; Roy Galvin & Co Pty Ltd v Ives [2013] FCCA 1645 at [60] per Judge Lucev.
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.
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.
It follows from the foregoing that this is a case in which indemnity costs will be awarded by the Court.
Conclusions and orders
The Court has concluded that:
a)the Court has no jurisdiction to hear the claims as made in the Application;
b)the claims as made in the First Sims Affidavit are either not within the jurisdiction of the Court, or, in any event, have no reasonable prospect of success;
c)the proceedings instituted by Mr Sims are frivolous, vexatious and an abuse of process;
d)Mr Sims ought not be granted leave to amend or re-plead the Application; and
e)costs ought to be ordered on an indemnity basis in favour of Mr Jooste and Mr Bennett.
It follows that the Application by Mr Sims must be dismissed as against Mr Jooste and Mr Bennett. Otherwise, the matter will be adjourned to a further directions hearing on a date to be fixed upon written application by Mr Sims or Mr Stewart to Chambers at [email protected]. The Court will hear the parties as to the form of the order for indemnity costs.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 9 June 2016
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