FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMS v THOMAS | [2016] FCCA 1752 |
| Catchwords: COSTS – Indemnity costs – whether indemnity costs to be awarded. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15C Corporations Act 2001 (Cth), ss.181, 182, 184, 1315, 1337B, 1337C, 1317D, 1317E, 1317H, 1317HA, 1317J, 1337B, 1337C, 1337D, 1337E, 1317J Competition and Consumer Act 2010 (Cth) Crimes Act 1914 (Cth), s.4AAA Criminal Code Act 1995 (Cth) Director of Public Prosecutions Act 1983 (Cth), s.9 Fair Work Act 2009 (Cth), s.678 Federal Circuit Court of Australia Act 1999 (Cth), ss.8, 10, 14, 17A, 18, 53, 79 Federal Circuit Court Rules 2001 (Cth), rr.13.10, 15.29 Federal Court Rules 2011 (Cth), r.16.01 Legal Profession Act 2008 (WA) Trade Practices Act 1974 (Cth), pt.IV, div.1, ss.51, 52, 82 |
| Applicant: | DOUGLAS ARTHUR SIMS |
| Respondent: | KEITH ROY THOMAS |
| File Number: | PEG 394 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 17 April 2014 |
| Date of Last Submission: | 17 April 2014 |
| Delivered at: | Perth |
| Delivered on: | 15 July 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Dr J Schoombee |
| Solicitors for the Respondent: | HWL Ebsworth |
ORDERS
That pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) the application filed on 20 December 2013 be dismissed.
The applicant pay the respondent’s costs of the proceedings, including any reserved costs, on an indemnity basis, with the actual quantum, if not agreed, to be determined by a Registrar of this Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 394 of 2013
| DOUGLAS ARTHUR SIMS |
Applicant
And
| KEITH ROY THOMAS |
Respondent
REASONS FOR JUDGMENT
Introduction
A lawyer, Keith Roy Thomas (“Mr Thomas”), is the respondent to an application (“Application”) by Douglas Arthur Sims (“Mr Sims”). Mr Thomas has filed an Application in a Case (supported by an affidavit affirmed 6 February 2014 – “Mr Thomas’ Affidavit”) in which Mr Thomas seeks the following orders:
1.The Application be dismissed alternatively be stayed permanently pursuant to the grounds set out in rule 13.10(a), (b) and/or (c) of the Federal Circuit Court Rules 2001 (Cth).
2.Alternatively, summary judgment be entered for the Respondent on the Application pursuant to Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth).
3.The Applicant pay the Respondent’s costs of this application and of the proceedings on an indemnity basis.
The Application
The Application was filed on 20 December 2013, and is supported by an affidavit of Mr Sims affirmed on the same date (“Mr Sims’ Affidavit”). Relevant content from Mr Sims’ Affidavit is referred to below.
Evidentiary objections were taken to portions of Mr Sims’ Affidavit, but it has not been necessary to determine those objections for the purposes of the Summary Dismissal Application.
The nature of, the grounds for, and the final order sought in, the Application are as follows:
Type of application
This application is commenced in the Court’s jurisdiction under the (specify Act or Acts): Competition & Consumer Act 2010 alternatively, Trade Practices Act 1974 S 51 and S 52, S 82 and Australian Securities & Corporations Legislation S181 (1) (a) (b), S182 (1) (a), S 184 (1) (a) (b) (d), S184 (2) (a) (b), and S184 (3) (a) (b).
…
Final orders sought by applicant/s …
1.An order against the Respondent pays the Applicant the compensation sought by the Applicant against the Respondent in accordance with the Applicants Claim as set forth in the Applicants Affidavit of support.
…
Grounds of application …
1.The Dishonest conduct of the Respondent which dishonesty has prejudiced and harmed the Applicant and has caused the Applicant acute stress, depression and financial loss.
(Transcribed verbatim).
Mr Sims’ Affidavit says that he claims:
$500,000 00 damages and compensation arising from the unconscionable conduct and dishonesty of the Respondent which conduct has, prejudiced the applicant and contravened the Commonwealth Criminal Code Act 1995, the Australian Corporations & Securities legislation s 181(1)(a)(b), S182(1)(a) S 184(1(a)(b)(d), S184(2)(a)(b) and S 184(3)(a)(b). The Competition & Consumer Act 2010, alternately the Trade Practices Act 1974 S51, S 52 and S 82 and the Australian Crimes Act 1914 s4AAA causing damages and losses to the applicant.
Mr Sims’ Affidavit at [14(a)].
Summary disposal of proceedings – principles
In considering the issues raised in these proceedings the Court must have regard 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”), which are set out hereunder, and the principles established in relation to those, and similar, legislative provisions.
Section 17A of the FCCA Act relevantly 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]-[59] 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 [25] per French CJ and Gummow J. The task was described in Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ 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.
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 prospect 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
Mr Sims’ status as 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.
Bases for claim in the Application
There are various bases for the claims in the Application and the claim for relief in Mr Sims’ Affidavit, and the Court deals with those below: firstly, on the basis of the statutory bases for claims in the Application, and then on the other bases for claims made in Mr Sims’ Affidavit.
Statutory basis for claims in the Application
“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.
There is nothing in the Application, nor in Mr Sims’ Affidavit, which suggests in what, if any, capacity Mr Thomas might relevantly have been bound by, or contravened, the Corporations Act, and in particular ss.181, 182 and 184 thereof.
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.
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 Thomas 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 Thomas 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.
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”), and the claim for relief in Mr Sims’ Affidavit at [14(a)] seeks relief by way of “damages and compensation” under the C&C Act, the references to the C&C Act do not specify or particularise any section of the C&C Act, or any alleged term or condition of the C&C Act as having been contravened, and are, therefore, made in a vacuum. Without an allegation of a contravention of a specific section of the C&C Act, neither Mr Thomas nor the Court can discern what is alleged against Mr Thomas. 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 and in Mr Sims’ Affidavit at [14(a)] specifies three sections: ss.51, 52 and 82. That, is, however, as far as the specification goes. Without particularisation of any alleged contravention of the TP Act Mr Thomas, and likewise the Court, is not in a position to discern what is alleged against Mr Thomas. 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 understandings;
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 an individual, namely, Mr Thomas. Furthermore, it is difficult to understand how, if at all, an exemption provision might be contravened. Mr Sims makes reference to Mr Thomas’ conduct being that of, or in relation to a, “cartel”. The cartel provisions of the TP Act in Part IV, Division 1, prohibited a corporation from making or giving effect to a contract, arrangement or understanding that contained a cartel provision, which was a provision in a contract, arrangement or understanding made by the parties that are, or would otherwise be, in competition with each other relating to price fixing, or to restricting outputs in the production and supply chain, or to allocating customers, suppliers or territories, or to bid rigging. It suffices to observe that conduct of that type does not appear to be alleged by Mr Sims, or if it is alleged, it is alleged in a manner which is so vague as to be incomprehensible, and is not particularised, either at all, or properly, so as to be readily understood. As such, any allegation of cartel conduct has no reasonable prospect of success on the basis set out in Mr Sims’ Affidavit. 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 any limitation period issues which might arise.
In all of the above circumstances, the Application as it relates to the TP Act has no reasonable prospect of success.
Crimes Act
In Mr Sims’ Affidavit at [14(a)] he alleges a contravention of s.4AAA of the Crimes Act 1914 (Cth) (“Crimes Act”) by Mr Thomas, and of the Criminal Code Act 1995 (Cth) (“Criminal Code”). For the reasons set out at [64]-[65] below the allegations of contravention of the Criminal Code have no reasonable prospect of success.
Section 4AAA of the Crimes Act need not be set out. It is a section which sets out rules applying under a law of the Commonwealth relating to criminal matters, where a function or power that is neither judicial nor incidental to a judicial function or power is conferred on, amongst others, a judge of this Court, which function or power is conferred on the person in a personal capacity, and not as a judge of this Court: Crimes Act, s.4AAA(1) and (2). This is not a matter in which any such function or power has been conferred on the presiding Judge of this Court in relation to these proceedings, or any matter associated in any way with these proceedings. Furthermore, the presiding Judge has not otherwise accepted any such function or power conferred by a law of the Commonwealth relating to criminal matters. Section 4AAA of the Crimes Act is irrelevant to these proceedings and confers no jurisdiction upon the Court, or the presiding Judge, in relation to these proceedings. There is, therefore, no reasonable prospect of success arising from anything referred to in s.4AAA of the Crimes Act in relation to these proceedings.
Other matters as bases for claims in the Application
Other matters are used as bases for the claims in the Application, but each of them appears to relate to proceedings, at least, in the Supreme Court of Western Australia (“WA Supreme Court”), Fair Work Australia (“FWA”) and SATWA, all of which appear to have previously either been settled or decided adversely to Mr Sims.
Alleged conspiracy to cause injustice in matter CIV 3039 of 2009
Matter CIV 3039 of 2009 was a proceeding in the Western Australian Supreme Court. At [10.1] of Mr Sims’ Affidavit, Mr Sims makes various assertions, the nub of which is that at a meeting on 12 November 2009 an admission was made by the Chief Executive Officer of a company, Suda Ltd (then EMS) that an allegation that Mr Sims whilst employed with Suda Ltd had diverted certain shares away from Suda Ltd was false, and that it was in fact the Chief Executive Officer of Suda Ltd who had diverted those shares.
On the basis of those admissions it is asserted that Mr Thomas, whilst acting as a lawyer for Suda Ltd:
a)“allowed the offence of candour to take place” by allowing Counsel (an independent barrister) for Suda Ltd to unknowingly mislead the WA Supreme Court in matter CIV 3039 of 2009 when Counsel appeared before that Court on 23 December 2009;
b)that Mr Thomas assisted the Chief Executive Officer of Susa Ltd to compile a perjured affidavit in which the Chief Executive Officer is said to say that he has “no idea” how Mr Sims and the defendants in CIV 3039 of 2009 obtained the diverted shares, when Mr Thomas knew that the Chief Executive Officer had given a direction to divert the shares as admitted at the 12 November 2009 meeting; and
c)that Mr Thomas had approved the commencement of the action in CIV 3039 of 2009 to prejudice Mr Sims, and in so doing contravened the Criminal Code: see Mr Sims’ Affidavit at [10.1(l), (m) and (n)].
The Court, as presently constituted, is unaware of any “offence of candour” under the law, either at common law or pursuant to any applicable statute. Given that one of the meanings of “candour”, and in context, the most applicable in these circumstances, is “frankness”: The Shorter Oxford English Dictionary on Historical Principles, Volume I (Oxford: Oxford University Press, 1973), page 275, it is hardly surprising that there is no “offence of candour” seemingly known to the law. A search of prominent legal websites, such as Westlaw, LexisNexis and disclosed no “offence of candour” referred to within those websites. Likewise, a Google search found no results for “offence of candour”. The only conclusion that can be drawn in the circumstances is that there is no “offence of candour” known to the law, and that therefore this allegation insofar as it is intended to attribute some form of liability (whether criminal or civil) to Mr Thomas has no reasonable prospect of success.
In relation to the allegation that a perjured affidavit was compiled with Mr Thomas’ assistance, that is a matter which, insofar as it might relate to allegations of perjury, a criminal offence, or professional misconduct by Mr Thomas, have no connection with the jurisdiction of this Court, either at all, or insofar as Mr Thomas may be an officer of this Court. This is because the relevant events occurred in the WA Supreme Court, and not in this Court, and if there is a complaint in that regard, it ought to be pursued in the WA Supreme Court or the appropriate professional regulatory body.
In that regard it is pertinent to note that Mr Sims did in fact make a complaint to the Legal Profession Complaints Committee (“LPCC”) established under the Legal Profession Act 2008 (WA) in relation to the matters referred to at [10.1(l) and (m)] of Mr Sims’ Affidavit: see Sims and Legal Profession Complaints Committee & Ors [2013] WASAT 44 at [2] per Judge Parry DP (“Legal Profession Complaints Committee”).
Legal Profession Complaints Committee was an application by Mr Sims to extend time in which to apply to the State Administrative Tribunal of Western Australia (“SATWA”) for review of a decision of the LPCC dismissing Mr Sims’ complaint against Mr Thomas (and another practitioner) on the basis that the LPCC was satisfied that there was no reasonable likelihood the practitioners would be found guilty of unsatisfactory professional conduct or professional misconduct in relation to the conduct referred to above: Legal Profession Complaints Committee at [3] per Judge Parry DP.
In Legal Profession Complaints Committee the relevant facts were set out at considerable length: see Legal Profession Complaints Committee at [11]-[24] per Judge Parry DP, and with specific reference to the matters referred to in Mr Sims’ Affidavit at [10.1(l) and (m)] SATWA observed as follows:
32 As to whether there is an arguable case for review, Mr Sims alleges in relation to Complaint 1 that the email evidence was deliberately omitted from Mr Patterson's affidavit and that this resulted in the granting of an interim injunction by Heenan J after his Honour was misled in this respect. Further, Mr Sims alleges that at the hearing before Murphy J the injunction that was imposed was set aside and costs and damages were ruled in favour of the defendants, including Mr Sims.
33 However, as the Committee noted in its reasons, both practitioners said in their correspondence to the Committee that they had no conscious appreciation of the existence of the email evidence until they received Mr Sims' affidavit sworn in January 2010.
34 Although Mr Sims initially relied on what occurred at the meeting on 17 November 2009, both practitioners said that copies of the email evidence was not provided at that meeting and this does not appear to be disputed. Although the email evidence was certainly referred to at the meeting, it appears that it was displayed only on a smart board.
35 Mr Thomas said that he had only recently become instructed in the proceedings which related to complex factual and legal matters and that the tone of the meeting was not conducive of a careful consideration of matters raised in the documents that were apparently displayed during part of that meeting.
36 Mr Thomas provided submissions to the Committee. After receipt of those submissions Mr Sims alleged that he had handed the email evidence to Mr Thomas at the November meeting and also posted copies to Mr Thomas on 13 December 2009. Mr Thomas denied these assertions and a review by the Committee of Mr Thomas's file did not cast any doubt on Mr Thomas's denials.
37 In relation to the letter of 18 November 2009 from Mr MacDonald, Mr Thomas said that his response emphasised the 'without prejudice' nature of the November meeting as the focus. Mr Thomas also said to the Committee that he did not, he believed, revisit Mr MacDonald's correspondence prior to the injunction hearing on 22 December 2009, including when preparing Mr Patterson's affidavit.
38 The review by the Committee of Mr Thomas' file did not reveal anything obviously inconsistent with Mr Thomas's explanation that he had no conscious appreciation of the email evidence when preparing Mr Patterson's affidavit.
39 Having regard to the evidence referred to, in my view, there is no arguable case for review in this case in relation to the decision of the Committee to dismiss the complaint against the practitioners on the basis that there is no reasonable likelihood that they would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.
40 There are four other factors emphasised by the Committee that, in my view, are relevant and also clearly have the effect that Mr Sims' application to the Tribunal in relation to Complaint 1 is not reasonably arguable in terms of a review of the Committee's decision to dismiss the complaint. Firstly, Heenan J granted the injunction essentially because he required the defendants to provide evidence of their claim. This was not disputed before me. Secondly, the Committee said that the defendant's counsel indicated that there would not be any great consequence of granting an interim injunction until February 2010. Again this was not disputed. Thirdly, Murphy J dealt specifically with the fact that the email evidence was not disclosed in the affidavits, on the original application before Heenan J and with Mr Patterson's statement in his affidavit that he had no idea of how the defendants can assert ownership of the disputed shares. His Honour commented that several of the defendants, including Mr Sims, 'do not contend that there has been material nondisclosure in any relevant sense'. Finally, Mr Sims' characterisation of Murphy's J decision, as the Committee said in its reasons and as was not disputed before me, is incorrect. The reason why the injunction was set aside was because the counsel for the defendants gave an undertaking in similar terms to the interim injunction granted by Heenan J. Furthermore, contrary to Mr Sims' position, Murphy J did not make a ruling of damages in favour of the defendants.
41 Although the test for whether there is an arguable case for review is low, in my view, having regard to the circumstances, there is simply no arguable case for review of the decision to dismiss the first complaint on the basis that there is no reasonable likelihood that the practitioners would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if the complaint were referred to the Tribunal.
What Mr Sims now seeks to do is have this Court re-visit the decision of the LPCC, in circumstances where Mr Sims was unable to persuade SATWA to extend time to bring an application for SATWA to review the decision of the LPCC, in circumstances where SATWA found that there was “simply no arguable case for review of the decision to dismiss” the complaint in relation to Mr Thomas because there was “no reasonable likelihood” that Mr Thomas “would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if the complaint were referred to the Tribunal”: Legal Profession Complaints Committee at [41] per Judge Parry DP. Further, Mr Sims seeks to have the Court consider the matter in circumstances where the Court has no primary or associated jurisdiction to do so: FCCA Act, ss.10 and 18, and in those circumstances no ancillary jurisdiction. In any event, even if there were some basis for the complaint, the Court’s usual course of action is to refer the conduct of the practitioner to the relevant professional regulatory body, which has already been done in relation to this conduct, with the finding being made by the LPCC that there was no reasonable likelihood Mr Thomas would be found guilty of unsatisfactory professional conduct or professional misconduct if the complaint were to be referred to SATWA, a finding confirmed by SATWA’s decision in Legal Profession Complaints Committee.
It follows from the above that there is nothing identified in this matter, and in particular in Mr Sims’ Affidavit, which gives rise to a cause of action in relation to the “offence of candour” or the alleged compilation of a perjured affidavit, which would enjoy any reasonable prospect of success in this Court. Further, insofar as a lawyer may have a duty of candour when appearing before a court: see The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 at [67] per McMurdo P, as is asserted in Mr Sims’ further affidavit sworn 1 September 2014, SATWA’s decision in Legal Profession Complaints Committee makes it plain that Mr Thomas’ duty of candour to the WA Supreme Court was not breached in the proceedings in matter CIV 3039 of 2009.
The allegation that Mr Thomas “approved the commencement” of the relevant action in the WA Supreme Court does not identify any cause of action (setting aside for a moment the reference to contravention of the Criminal Code) which, either at all, or in the circumstances set out above, would enjoy any reasonable prospect of success.
In relation to the alleged contravention of the 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.
In any event, the allegation of a contravention of the Criminal Code is a bare one, and no section of the Criminal Code is specified, and no alleged terms or condition of the Criminal Code is particularised as having been contravened. Without such specification or particularisation, neither Mr Thomas nor this Court will be able to discern what is alleged against Mr Thomas by Mr Sims. In these circumstances, the allegation of a contravention of the Criminal Code has no reasonable prospect of success.
In the header to [10.1] of Mr Sims’ Affidavit reference is made to “respondents conspiricy (sic) to cause injustice” in the matter before the WA Supreme Court. 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, and again must be sufficiently particularised: Nirta & Ors v The Queen (1983) 79 FLR 190; (1983) 51 ALR 53; (1983) 10 A Crim R 370. Particulars of conspiracy are not given by Mr Sims, and notably there is no particularisation of any relevant “agreement”. In any event, the actual content of [10.1] of Mr Sims’ Affidavit does not allege a conspiracy. In circumstances where what appeared to be an asserted conspiracy is not referred to at all at [10.1] of Mr Sims’ Affidavit (other than in the heading thereto), and no particulars of a conspiracy are set out, any allegation of conspiracy as presently appears in the heading to [10.1] of Mr Sims’ Affidavit has no reasonable prospect of success.
Matters CIV 3447 of 2009 and CIV 1737 of 2010
In Mr Sims’ Affidavit at [10.2] he sets out certain matters in relation to matters CIV 3447 of 2009 and CIV 1737 of 2010.
It appears that three separate allegations are made by Mr Sims’ Affidavit at [10.2], being:
a)an allegation of conspiracy by Mr Thomas with the board of Suda Ltd;
b)that Mr Thomas lied to prejudice Mr Sims in CIV 1737 of 2010; and
c)that Mr Thomas signed the affidavit of the CEO of Suda Ltd on 2 December 2009, and that that affidavit was false.
As with the allegation of conspiracy in Mr Sims’ Affidavit at [10.1] the allegation of conspiracy in Mr Sims’ Affidavit at [10.2] is not properly pleaded or particularised by Mr Sims, and therefore the allegation of conspiracy has no reasonable prospect of success.
It appears that the allegation of lying to prejudice Mr Sims is in relation to the affidavit said to have been signed by Mr Thomas, being the affidavit of the CEO of Suda Ltd. Even if there is an affidavit signed by Mr Thomas, instead of the CEO of Suda Ltd, the remedy for that does not lie in this Court in these proceedings. What appears to be alleged is a case of professional misconduct, and for reasons set out above, that ought to be a matter of complaint to either the court in which that misconduct is alleged to have occurred, or to the LPCC. Further, if the affidavit referred to is the same affidavit which is the subject of the allegations at [10.1] of Mr Sims’ Affidavit then those matters have already been dealt with by the LPCC, and on the application for an extension of time, by SATWA.
As with the allegations in [10.1] of Mr Sims’ Affidavit it is also not apparent how it is that this Court obtains jurisdiction to deal with these matters. As indicated above, if they are matters of professional conduct they are not matters within this Court’s jurisdiction. If what is complained of is criminal it is not within this Court’s jurisdiction. If what is alleged is a contravention of the Corporations Act, that also is not within the Court’s jurisdiction. Similarly, if what is alleged is a breach of the C&C Act, or the former TP Act, by Mr Thomas, and bearing in mind that Mr Thomas is the only respondent to these proceedings, for reasons set out above any allegation of a contravention of the C&C Act or the TP Act has no reasonable prospect of success.
Finally, the vagueness and generality of what is set out at [10.2] of Mr Sims’ Affidavit makes it impossible for the Court to understand with any precision what is being alleged: there is, for example, no indication or outline of the nature of the subject matter in matter CIV 3447 of 2009 and CIV 1737 of 2010 and on those bases the allegations at [10.2] of Mr Sims’ Affidavit also have no reasonable prospect of success.
Settlement of matters CIV 3039 of 2009, CIV 3447 of 2009 and CIV 1737 of 2010
In Mr Sims’ Affidavit at [11] he avers to the settlement of each of CIV 3039 of 2009, CIV 3447 of 2009 and CIV 1737 of 2010. Mr Sims asserts that all parties were released from any liability, and that releases and indemnities were extended to directors and, relevantly, representative lawyers.
Having referred generally to the settlement of the above matters Mr Sims then alleges at [11] of Mr Sims’ Affidavit that Mr Thomas “despite the Settlements and his knowledge continued his unconscionable conduct in collecting fees from Suda Ltd and constructing fabricated Defences”. As stand-alone allegations these assertions made are wholly unparticularised, vague and lacking in both substance and context, and therefore have no reasonable prospect of success.
If what is intended by Mr Sims’ Affidavit at [11] is to set out the factual background of the settlements, and then to assert in general terms that Mr Thomas acted unconscionably on the bases then set out at [12] and [13] of Mr Sims’ Affidavit, then those allegations have no reasonable prospect of success for reasons set out hereunder.
Unconscionable participation in dishonesty to FWA
In Mr Sims’ Affidavit at [12.1] Mr Sims alleges that:
a)he was prejudiced by the making of a false submission to FWA in March 2010 by Mr Thomas;
b)the false submission was as a consequence of Mr Thomas participating with the board of Suda Ltd to prejudice Mr Sims;
c)Mr Thomas was fully aware that the submission carrying his signature was false, and later admitted to the Full Bench of FWA that the submission was “a lie”;
d)Mr Thomas conspired with the board of Suda Ltd to prejudice Mr Sims; and
e)Mr Thomas “committed candour in three FWA hearings”.
The background to this issue is set out in Suda Ltd where the Court was dealing with an interim application to strike out a counterclaim by Mr Sims alleging a private right of action upon breach of criminal offence provisions under s.678(1) of the Fair Work Act 2009 (Cth) (“FW Act”) for giving false or misleading evidence before FWA. The Court concluded that Mr Sims had no standing to bring the counterclaim, and the counterclaim was therefore struck out: Suda Ltd at [75] per Judge Lucev.
Part of the relevant background is outlined in Suda Ltd as follows at [12] per Judge Lucev (footnotes omitted):
a) Mr Sims made an application to FWA (matter U2010/6815) alleging unfair dismissal by Suda;
b) both Suda and Mr Sims were “advised” by the FWA “to provide any information” to the office of the presiding FWA member by 26 March 2010. Accordingly, Suda filed the “Respondent’s Submissions to the Applicant’s Application to Extend Time to Apply” in the Unfair Dismissal Application opposing Mr Sims’ application to extend time for lodging his Unfair Dismissal Application;
c) in Suda’s FWA Submissions a submission was made that Mr Sims was provided with a “fully maintained motor vehicle” by Suda during the course of his employment with Suda. The submission was made to support an argument that the FWA did not have jurisdiction to deal with the Unfair Dismissal Application because Mr Sims’ remuneration exceeded the statutory threshold prescribed by the WR Act, and that Mr Sims was, therefore, not able to make the Unfair Dismissal Application, and accordingly time for filing his Unfair Dismissal Application ought not to be extended. The form and content of Suda’s FWA Submissions is typical of submissions made in respect of an extension of time application addressing the statutory framework, the relevant principles, and then going on to address those relevant principles, including the merits of the case, in which part the submission was made that Mr Sims was supplied with a fully maintained motor vehicle. Suda’s FWA Submissions are signed by Mr Thomas as the “Respondent’s Counsel”;
d) Suda’s FWA Submissions were factually incorrect. The correct position was set out in Mr Sims’ further submissions to FWA filed 12 April 2010 in which Mr Sims denied he was ever supplied with such a “fully maintained motor vehicle” by Suda;
e) FWA “considered the explanations given by the Applicant [Mr Sims] and the Respondent [Suda]” before making an order dated 14 April 2010 dismissing Mr Sims’ application to extend time in which to lodge the Unfair Dismissal Application;
f) after a two and half year delay, Mr Sims appealed the FWA Dismissal Order made in Sims FWA, but that appeal was unsuccessful, a Full Bench of FWA taking the view that Mr Sims’ appeal sought to re-agitate matters raised in Sims FWA, and that any extension of time would most likely prejudice Suda, and that Mr Sims had not established any error in the decision in Sims FWA;
g) on 5 April 2013, in Sims v Eastland Medical Systems Ltd the Full Bench of the FWC ordered, under s.658 of the WR Act that Suda be paid its costs in respect of the application in Sims FWA, and the unsuccessful appeal in Sims FWA Appeal;
h) on 17 June 2013 the FWC ordered that Mr Sims pay Suda’s costs in the sum of $4,597.60 within 28 days;
i) despite correspondence between Suda’s solicitors and Mr Sims from 25 July 2013 onwards requesting payment of Suda’s costs, the FWC Costs Order has not been complied with;
j) on 16 September 2013 Suda filed the Substantive Application in this Court seeking orders in respect of the FWC Costs Order; and
k) on 26 September 2013 Mr Sims filed a Response entitled “Reply”, containing the Counterclaim.
The Court dismissed the counterclaim on the basis that Mr Sims had no standing because s.678 of the FW Act did not provide a private right of action by any party or individual in civil proceedings: Suda Ltd at [57] per Judge Lucev. The Court went on to consider whether there was any substance to the factual allegations in the counterclaim having regard to the elements of the offence in s.678(1) of the FW Act, and determined that the elements of any alleged breach of s.678(1) of the FW Act could not be made out, primarily on the basis that there was no sworn or affirmed evidence given by any witness in the relevant proceedings, and therefore no evidence that there was any evidence which was false or misleading given in those proceedings: Suda Ltd at [58]-[66] per Judge Lucev.
What is now put in Mr Sims’ Affidavit at [12.1] represents a change of tack by Mr Sims, as he now alleges falsity in the submissions to FWA, rather than an offence of giving false and misleading evidence to FWA.
An allegation of dishonesty, coupled with an allegation of unconscionability, must be properly pleaded and particularised, that is, the language used to plead the facts must unequivocally demonstrate that dishonesty is involved: Belmont Finance Corporation Ltd v Williams Furniture [1979] Ch 250; [1978] 3 WLR 712; [1979] 1 All ER 118; Ch at 268 per Buckley LJ. There is nothing in the particulars of this case which suggests that Mr Thomas knowingly made a false submission, or made a submission “fully aware” that it was false. Nor is there anything which indicates that there was an admission by Mr Thomas to FWA that the FWA submission “was a lie”.
All that occurred in this instance was that the submissions made by Suda Ltd to the FWA were factually incorrect. The original factual inaccuracy, and the correction, was considered by the Full Bench of FWA, before it made an order dismissing Mr Sims’ application to extend time in which to lodge an appeal against the original FWA order dismissing an application to extend time to lodge an unfair dismissal application: see [78] above.
There is no evidence that Mr Thomas, acting as lawyer for Suda Ltd, was instructed by Suda Ltd that the submission was inaccurate prior to its correction in a written submission to the Full Bench of FWA following the hearing before the Full Bench of FWA. The submission originally put was not “a lie”, but rather a submission which was factually incorrect, but made on the basis of instructions given to Mr Thomas as the lawyer for Suda Ltd. Indeed, it is to Mr Thomas’ credit that a factually incorrect submission was corrected, seemingly voluntarily and without a requirement to do so being imposed by the Full Bench of FWA: Mr Sims’ Affidavit, Exhibit DAS (13).
The allegation of conspiracy with the board of Suda Ltd to prejudice Mr Sims is not properly pleaded, and is not particularised either properly or at all: notably there is no particularisation of any relevant “agreement”.
Finally, there is no cause of action in relation to this issue, either standing alone or in conjunction with any of the other matters referred to in Mr Sims’ Affidavit, which is within the jurisdiction of this Court. Insofar as Mr Sims complains about Mr Thomas’ conduct as a lawyer for Suda Ltd and before FWA, that is a matter which, if it is alleged to be misconduct by Mr Thomas, ought properly to have been the subject of a complaint to the appropriate professional regulatory body, for reasons set out above: see [61] and [70] above.
For the reasons set out above Mr Sims’ complaint about Mr Thomas’ alleged unconscionable participation in dishonesty before FWA has no reasonable prospect of success.
Matter CIV 1991 of 2011
CIV 1991 of 2011 was a further action in the WA Supreme Court involving Mr Sims taking defamation action against the son of a former director of Suda: Mr Thomas’ Affidavit at [34]. The precise nature of that action is not disclosed by the terms of Mr Sims’ Affidavit at [12.2] where Mr Sims complains that Mr Thomas as Counsel omitted to confirm in CIV 1991 of 2011 that an indemnity granted to Mr Sims:
a)included any breach of the terms of his employment contract;
b)extended to all legal matters until resolved;
c)extended to a number of other WA Supreme Court actions there specified (by matter number only);
d)extended to all legal fees arising from Mr Sims’ employment with Suda Ltd; and
e)that that “issue” had been vigorously opposed by Mr Thomas using shareholder funds.
Mr Sims then goes on to say that Mr Thomas, using his legal skills dishonestly, had caused Mr Sims prejudice, financial hardship and degradation in public, and that although Mr Sims cannot bring criminal charges against him, Mr Thomas’ conduct is confirmed by evidence to be criminal.
The failure to indicate the nature of the proceedings in matter CIV 1991 of 2011 renders what follows, which is at a high level of generality, unintelligible. Further, the assertions made with respect to the indemnity, and Mr Thomas’ alleged conduct in relation thereto, are themselves vague and unintelligible, and pleaded at such a high level of generality as to be essentially incomprehensible.
The heading to Mr Sims’ Affidavit at [12.2] refers to “conspiricy” (sic), but no conspiracy is alleged in the content of Mr Sims’ Affidavit at [12.2].
Allegations of dishonesty must be properly pleaded and particularised: see [81] above. There is no particularisation of the alleged dishonest use of legal skills, nor of the prejudice, hardship or degradation in public said to have been caused to Mr Sims.
In relation to the assertion that Mr Thomas’ conduct is criminal, that is an allegation which, in the circumstances, is patently scandalous.
In Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138 at [25] per Hasluck J it was said that:
… the mere allegation of a scandalous fact does not render the pleading liable to be struck out as scandalous, for material which is degrading and therefore scandalous will not be struck out unless it is also irrelevant. Scandal consists in the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause: to which may be added that any unnecessary (not relevant to the subject) allegation bearing purely upon the moral character of an individual is also scandalous.
In C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd v Leigh (No. 3) [2012] FCA 680 at [5]-[6] per Yates J the Federal Court observed as follows:
5 As a matter of general approach, it does not follow from the fact that scandalous matter has been stated in a document or affidavit filed in the Court that the matter is “scandalous” within the meaning of these rules. The question is really whether the scandalous matter, so stated, is extraneous to the issues raised in the proceeding on which evidence could properly be brought forward: Millington v Loring (1880) 6 QBD 190 at 195; 196-197. If the scandalous matter is extraneous, then, generally speaking, it should be struck out: see, for example, Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792; Kowalski v Mitsubishi Motors Australia Ltd [2009] FCA 1289. This is but an example of the Court remedying an abuse of its process. However, if the matter is relevant to the issues in the proceeding, such that evidence of it could properly be given, it would not normally be struck out under these rules. In short, the statement of a scandalous matter in a filed document or affidavit will not be struck out simply because it is scandalous.
6 Whether a matter can be characterised as scandalous depends on whether it would be perceived to be such according to generally recognised and accepted community standards at the time of the application. The assessment is an objective one. It does not rest simply on the idiosyncratic perceptions of the person challenging the statement of the matter in the document or affidavit. Still less is a matter scandalous because the person objecting to it disagrees with its content.
In Zaghloul v Woodside Energy Ltd (No. 2) [2013] FCA 947 (“Zaghloul”) the Federal Court dealt with an application which alleged, in effect, that the applicant’s solicitor and Senior Counsel had been involved in negotiations with the respondent to obtain monies unlawfully, and had used his consent to transfer the proceedings from the Federal Court’s Australian Capital Territory Registry to the Western Australia Registry as a successful bargaining chip, or as the applicant put it, he “was, once again, used as a fair game to extract money from the Respondent”. The Federal Court found the allegation to be unsupported by evidence, and to be scandalous: Zaghloul at [52]-[53] per Gilmour J.
In Sims v Suda Ltd (No. 2) [2015] FCA 281 (“Sims (No. 2)-2015”) the Federal Court found that unsupported and unsupportable allegations of fraud alleged to constitute a criminal offence made by Mr Sims in relation to respondents in those proceedings (one of whom was a lawyer), and which were not capable of constituting either fraud or misleading and deceptive conduct, were scandalous: Sims (No. 2)-2015 at [44] and [47] per Gilmour J.
In McPherson v Kerr, Ex Parte Lewis (1893) 19 VLR 23 (“McPherson”) the deponent of an affidavit believed that a contract would have been cancelled if a solicitor had not interfered and commenced litigation not in the interests of the solicitor’s client. The allegation was one which did not have anything to do with the proceedings. The Victorian Supreme Court struck the allegation out as scandalous observing that:
… it is about as serious a charge (not criminal) as could well be made against a solicitor to say that he commenced litigation not in the interests of his client.
McPherson at [25] per Hodges J.
In:
a)the absence of particulars of:
i)the action set out at [12.2(a)] of Mr Sims’ Affidavit; and
ii)how it is alleged that Mr Thomas has used his legal skills dishonestly; and
b)in circumstances where, for reasons set out above: see [33], [38] and [64] above, this Court has no relevant criminal jurisdiction,
to make the assertion that Mr Thomas’ conduct “confirmed by evidence” is “criminal” is scandalous. As such, it is a species of abuse of process, and in all of the above circumstances, has no reasonable prospect of success.
For all of the above reasons, the allegations in Mr Sims’ Affidavit at [12.2] have no reasonable prospect of success.
Matter COR 55 of 2012
Mr Sims’ Affidavit at [12.3] in headed “Respondent’s conspiricy (sic) COR 55 of 2012”. Mr Sims’ Affidavit at [12.3] alleges that despite Mr Thomas’ knowledge of the true facts, he settled a further false affidavit for the CEO of Suda Ltd, a Mr Carter, “who had joined the Cartel”. Mr Sims then alleges that Mr Thomas, despite his knowledge of the true facts, swore his own affidavit to the Supreme Court (presumably the WA Supreme Court) in support of Mr Carter’s false affidavit, and then obtained costs “for his unconscionable conduct by benefiting from crime”.
There are no particulars of:
a)the action described as “COR 55 of 2012”;
b)the affidavits, including when they were sworn or paragraphs relevant to the allegations made;
c)any alleged conspiracy (as to the necessity to particularise an allegation of conspiracy: see [66] above);
d)Mr Thomas’ alleged knowledge, including his alleged knowledge of “the true facts”;
e)the “true facts”;
f)the detail of the alleged falsity of either the affidavits of Mr Carter or Mr Thomas;
g)the alleged unconscionable conduct; or
h)the alleged crime.
The allegations are completely lacking in particularisation, and are again vague and unintelligible. For the same reasons as were expressed above in relation to Mr Sims’ Affidavit at [12.2] they are scandalous insofar as they allege that Mr Thomas benefited from an unspecified and unparticularised crime.
VR 179 of 2012 – unconscionable conduct to SATWA
Mr Sims’ Affidavit at [13] alleges that when the LPCC “declined to act” against Mr Thomas as a consequence of Mr Thomas’ claim that he had not seen or did not know about certain admissions, Mr Sims then applied to SATWA “mistakenly believing justice would prevail”. Mr Sims then asserts that Mr Thomas lied to SATWA, and claims compensation for “the unwarranted and dishonest prejudice inflicted upon him” by Mr Thomas “as Lawyer, Officer of the Court and citizen of Australia”.
The matters complained about in Mr Sims’ Affidavit at [13] were the subject of SATWA’s decision in Legal Profession Complaints Committee. For reasons set out above, complaints about Mr Thomas’ conduct in relation to litigation in the WA Supreme Court is not within the jurisdiction of this Court, and in that respect, Mr Sims’ complaint concerning Mr Thomas’ conduct has no reasonable prospect of success.
The Court further observes that the LPPC “did not decline to act” as a asserted by Mr Sims, but rather dismissed his complaint. That dismissal was, on appeal to SATWA by Mr Sims, affirmed in the emphatic terms set out above: see [60] above citing Legal Profession Complaints Committee at [41] per Judge Parry – “simply no arguable case for review”.
As with all of the earlier complaints in Mr Sims’ Affidavit this complaint does not properly or comprehensively particularise the conduct complained of, and nor does it posit any jurisdictional basis for the Court to act upon the complaints as made.
In the circumstances, the complaint at [13] of Mr Sims’ Affidavit has no reasonable prospect of success.
Leave to re-plead
In these proceedings Mr Sims has collected the litter from his lost and settled cases in the litigation dustbin and dumped them into the Application in this Court, without regard for whether this Court has jurisdiction in any of the matters as pleaded, which for reasons set out above it does not, and, in any event, has pleaded them in a manner which is wholly unsatisfactory, and in a manner not inconsistent with the wholly unsatisfactory manner in which he has pleaded previous causes, as set out above: see [12] and [13] above. In the circumstances, the Court cannot find any justification whatsoever to entertain giving Mr Sims leave to re-plead, and no such leave will therefore be granted.
Indemnity costs
The Court has jurisdiction to grant indemnity costs: FCCA Act, s.79(2) and (3); Suda Ltd v Sims (No. 2) [2014] FCCA 190 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 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 finds that:
a)there was no reasonable prospect of success on the Application. Had Mr Sims followed the earlier admonitions of both the WA Court of Appeal and this Court, and sought and obtained a lawyer’s advice: Sims v Jooste QC [2013] WASCA 245 at [19] per Pullin and Newnes JJA (“Jooste QC”); Suda Ltd v Sims [2013] FCCA 1833 at [73] per Judge Lucev (“Suda Ltd”), it may be that the Application might have been properly framed at the outset, or amended to put it into a proper form, or withdrawn on the basis of advice received (in particular as to the want of jurisdiction in this Court to deal with the matters alleged). That did not happen, and as a consequence Mr Thomas has had to deal with the Application which the Court has found to have no reasonable prospect of success, and to be, in part, scandalous and an abuse of process;
b)Mr Sims has persisted in the making of allegations which ought not to have been made in their present form, or at all in this Court, and has unduly prolonged what are in this Court groundless contentions;
c)although Mr Sims is a self-represented litigant, he is clearly an experienced one, and one who has not sought to heed the admonitions of the WA Court of Appeal or this Court in Jooste QC and Suda Ltd respectively; and
d)the allegations of dishonesty and criminal conduct, scandalously made in relation to the latter, and also in many instances previously made unsuccessfully, 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 Court’s reasons above that Mr Sims’ conduct has caused considerable loss of time to Mr Thomas. There has also been a waste of public monies and judicial time and resources by this Court having to deal with complaints which the Court has no jurisdiction to hear, and which the Court has found have no reasonable prospect of success in any event. Further, it has doubtless caused considerable expense to Mr Thomas, and concern, given that he is a lawyer for whom allegations of the type advanced by Mr Sims in this case may have serious consequences.
It follows from the foregoing that this is a case in which indemnity costs will be awarded by the Court.
Conclusions and orders
For the reasons set out above, the Court has concluded that:
a)the Application has no reasonable prospect of success and must be dismissed under s.17A(2) of the FCCA Act;
b)Mr Sims ought not to be given leave to re-plead the Application by filing an amended application or statement of claim; and
c)Mr Sims ought to pay Mr Thomas’ costs on an indemnity basis, which if not agreed as to quantum, are to be assessed by a Registrar of this Court.
The Court has also concluded that no leave to re-plead the Application ought to be granted to Mr Sims. Given that the Court is to order that the Application is to be dismissed, there is no necessity to make an order that there be no leave to re-plead.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 15 July 2016
- AGLC
- Sims v Thomas [2016] FCCA 1752
- Case
- [2016] FCCA 1752
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether Ms Sims' substantive application had no reasonable prospect of success, whether it was scandalous or an abuse of process, and whether it sought to re-litigate matters that had already been determined by the Court. The Court was also required to consider whether Ms Sims should be granted leave to re-plead her case.
Judge Lucev found that Ms Sims' application was an abuse of process and an attempt to re-litigate issues that had been definitively decided in prior proceedings. His Honour noted that the applicant had been afforded ample opportunity to present her case and that the current application lacked any reasonable prospect of success. Consequently, the Court dismissed the substantive application and refused leave to re-plead. The Court also ordered that Ms Sims pay Mr Thomas's costs on an indemnity basis.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.