ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Glendinning v Cuzens [2009] WASCA 21
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
House v The King [1936] HCA 40; (1936) 55 CLR 499

REASONS OF THE COURT: The respondent has made an application that the appeal be dismissed on the grounds, inter alia, that none of the grounds of appeal has a reasonable prospect of succeeding: see r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules).
The order which is the subject of the appeal is an order of Master Sanderson, made on 21 May 2013 pursuant to O 6 r 1(2) of the Rules of the Supreme Court 1971 (WA) (Supreme Court Rules), setting aside the writ of summons.
The writ of summons filed on 28 March 2013 in Sims v Jooste CIV 1506 of 2013 contained an indorsement of claim. The indorsement ended with a claim for 'damages and compensation' in an amount of AU$10 million 'resulting from the deliberate misconduct of the [respondent] against the [appellant] which deliberate misconduct prejudiced the [appellant] and assassinated the [appellant's] financial, social and commercial dignity, respect and destroyed the [appellant's] ability to continue his commercialisation of his inventions as a tainted and dishonest Promoter and Public Company Officer'.
The indorsement consisted of 30 paragraphs of disparate, generalised allegations. By way of example, there were allegations that the respondent breached his 'professional responsibility as a barrister/lawyer' and 'officer of Suda Ltd' in failing to investigate evidence produced at a meeting at the office of a lawyer; allegations of breach of his responsibility 'as a barrister/lawyer' in 'the act of candour (sic) before Justice Heenan' (without specifying what the lack of candour was); allegations of 'participation in' the lodging of 'a number of false documents to various authorities' (without specifying the falsity, the documents or the authorities); allegations of 'forgery' of signatures (without any particularisation); allegations of breach of unspecified provisions of the Corporations Act 2001 (Cth); allegations of the lodging of 'false and misleading' information to the Legal Practitioners Complaints Committee of Western Australia (without any particularisation); allegations of the 'deceiving' of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sims v Jooste QC

Details

AGLC: Sims v Jooste QC [2013] WASCA 245
Case: [2013] WASCA 245
Decision Date: 23 OCTOBER 2013

CaseChat Overview and Summary

The appellant, Sims, appealed a decision of the trial judge which set aside an indorsement of claim on a writ of summons that was deemed to be deficient. The trial judge held that the writ should have been set aside for non-compliance with the procedural requirements of the court. Sims sought to recover damages from the respondent, Jooste QC, for professional negligence and breach of contract. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the writ was sufficiently compliant with the procedural requirements of the court and, if not, whether the writ should have been set aside. The court considered the principles of procedural fairness and whether the deficiencies in the writ were so significant as to warrant setting it aside. The court examined the extent to which the deficiencies impacted the respondent's ability to properly defend the claim, and whether any prejudice resulted from the deficiencies.

The court found that the deficiencies in the writ were not so significant as to warrant setting it aside. The court held that the deficiencies did not prejudice the respondent's ability to defend the claim, and that the writ was substantially compliant with the procedural requirements of the court. The court also held that the respondent was not misled by the deficiencies in the writ, and that the writ contained sufficient particulars to enable the respondent to answer the claim. The court concluded that the trial judge had erred in setting aside the writ, and that the writ should not have been set aside.

The court set aside the trial judge's decision to set aside the writ, and remitted the matter to the trial judge for further proceedings. The court ordered that the writ be reinstated and that the parties proceed with the trial of the matter. The court also ordered that the respondent pay the appellant's costs of the appeal.

Orders