Victoria (No.3) [1990] VicRp 25; (1990) VR 257, at pp.271-272.).

14. The third cause of action upon which the plaintiff may possibly seek to rely is that of deceit. Again, damage is the gist of

actionable deceit. Moreover, the plaintiff must himself have acted

to his detriment in reliance upon the misrepresentation and clearly

the pleadings do not allege that to have been the case in the Federal

Court action ((16) See Holmes v. Jones [1907] HCA 35; (1907) 4 CLR 1692.).

15. There is, I think, an additional reason why the plaintiff's action is bound to fail. It is the general proposition enunciated by Lord

Mansfield in R. v. Skinner ((17) (1772) Lofft. 54, at p.56 (98 ER

529, at p.530).) that "neither party, witness, counsel, jury, or

Judge, can be put to answer, civilly or criminally, for words spoken in

office". It is true, as Deane J and I observed of that statement in

Jamieson v. The Queen ((18) [1993] HCA 48; (1993) 67 ALJR 793, at p.795; [1993] HCA 48; 116

ALR 193, at p.197. See also Munster v. Lamb (1883) 11 QBD 588, at

pp.603-605; Cabassi v. Vila [1940] HCA 41; (1940) 64 CLR 130, at p.140; Giannarelli

v. Wraith [1988] HCA 52; (1988) 165 CLR 543, at pp.557, 569-570, 594-596.), that

"it must be qualified as regards substantive administration

of justice offences (such as perjury, contempt of court

and, depending upon the circumstances, perverting the course

of justice) and offences associated therewith (such as

conspiracy and attempt). Nonetheless, and notwithstanding

the submissions of the Crown to the contrary, the

proposition as so qualified remains valid as a general

statement of common law principle."

The making of the admission of which the plaintiff complains was by

words spoken by the defendant Slicer as counsel conducting proceedings

on behalf of the plaintiff in the Federal Court. They cannot,

therefore, give rise to civil liability. I think that the notice to

admit must fall into the same category, but it is difficult in any

event to conceive how the delivery of the notice to admit could impose

16. I should add that the plaintiff upon the pleadings appears to make separate allegations against the defendants Slicer and Cunningham.

The allegation against the defendant Slicer would seem to be that of

neglect (albeit deliberate neglect) in the conduct of the plaintiff's

case in the Federal Court. That can, however, give rise to no cause

of action because it is clear that counsel is not civilly liable for

the conduct of a client's case in court ((19) Giannarelli v. Wraith

[1988] HCA 52; (1988) 165 CLR 543.). The plaintiff alleges that the defendant

Cunningham "covered up" unlawful acts by Telecom and its officers

during the years 1983 to 1985. However, the mere failure to disclose

unlawful acts does not, without more, found a civil cause of action.

17. For all of these reasons I do not think that the plaintiff's pleadings disclose a reasonable cause of action. The action is, in my

view, groundless and bound to fail. It is, therefore, vexatious ((20)

Dey v. Victorian Railways Commissioners (1949) 78 CLR, at p.91.).

The endorsement on the writ and the amended statement of claim should

be struck out and the action permanently stayed. There is, I think,

no reason why the AGS, as a successful party, should not have its

costs of the action including the costs of this application.