Sheehan v Brett Young & Ors

PRACTICE AND PROCEDURE - Application for leave to file and serve a further amended statement of claim- P leading manifestly defective both in substance and form - No point of principle - Leave refused.

PRACTICE AND PROCEDURE - Application for summary judgement - Want of prosecution of claims by plaintiff - Plaintiff unable to formulate a proper pleading - s 63 of Civil Procedure Act 2010, r 23.02 of the Supreme Court (Civil Procedure Rules) 2005

1 The plaintiff brought an application for leave to file and serve a proposed amended statement of claim on 31 August 2015. This is not the plaintiff's first application to file and serve an amended state of claim. I will set out that procedural history shortly.

2 The defendants did not consent to the application and the fourth and fifth defendants applied for summary judgment.

3 On 15 October 2015, I announced the following orders, and that I would in due course publish my reasons for these orders:[1]

1. The plaintiff's application for an adjournment, made via fax on 15 October 2015 to Mr J Sala of counsel, is refused.
2. The plaintiff's application for leave to file the proposed amended statement of claim filed on 31 August 2015 is dismissed.
3. The plaintiff pay the defendants costs, including reserved costs, of and incidental to the application for leave to file the proposed amended statement of claim.
4. There is summary judgment for the fourth and fifth defendants and the plaintiff's proceeding against the fourth and fifth defendants is dismissed.
5. 5. The plaintiff pay the fourth and fifth defendants' costs of the proceeding, including reserved costs.

4 What follows are my reasons for making these orders.

5 The plaintiff, Mr Marshall Sheehan, asserts that at all relevant times he was an Australian Legal Practitioner and held a Victorian Local Practising Certificate. This assertion was contradicted by a document issued on 26 February 2009 from the Law Institute of Victoria that purported to certify that the plaintiff did not hold a practising certificate enabling him to engage in legal practice from 1 July 2008.

6 The plaintiff alleged that on 21 April 2009 he attended Wodonga Magistrates Court to represent a client when a police prosecutor challenged his right of appearance. The plaintiff left the courtroom and was arrested by Wodonga police for practising law without a practising certificate.

7 The first to third defendants are representatives of the Law Institute of Victoria, and the eleventh defendant is a representative of the Legal Services Board (collectively 'the regulatory parties'). The fourth defendant (the 'estate') is a deceased former client (Tony Dockerty) of the plaintiff. The fifth defendant (Obst) is a solicitor who was retained by the fourth defendant. The six to tenth defendants are police officers and the twelfth defendant is the State of Victoria (collectively 'the police parties').

8 This proceeding was commenced on 5 March 2014 by Statement of Claim filed in the Supreme Court of New South Wales. The plaintiff filed an amended statement of claim on 3 April 2014. On 20 August 2014, the police parties filed a notice of motion for transfer of the proceeding to this court, and that transfer was ordered by consent on 20 October 2014.

9 On 12 December 2014, at the first directions hearing in this court, the plaintiff stated that he was retaining counsel to consider his pleading, and wanted more time to address new legislation, namely the Victoria Police Act 2013, in his pleading. This would be the first of many promises that the plaintiff would retain counsel to rectify deficiencies in his pleading. The police parties and Obst had already drawn defects in the pleading to the attention of the plaintiff. The court gave the plaintiff an opportunity on this occasion to amend his pleading. This and subsequent opportunities were informed by the fact that the plaintiff was in possession of detailed submissions by counsel about specific problems in the pleading, and was in a good position to address, or have counsel address for him, existing errors in the pleading.

10 The plaintiff was ordered, inter alia, to serve a proposed Further Amended Statement of Claim by 22 December 2014. The defendants then each had the opportunity to object or consent to its filing.[2]

11 On 5 February 2015, the estate and Obst each issued a summons to strike out the existing Statement of Claim. The affidavits in supporting documented recurrent issues with the plaintiff's Statement of Claim; that it was vague, confusing, and disclosed no cause of action. The proposed Further Amended Statement of Claim reflected many of the same problems that had appeared in the Amended Statement of Claim filed in the New South Wales Supreme Court on 3 April 2014, despite the plaintiff's access to detailed submission documenting the pleading issues that concerned the defendants.

12 On 6 February 2015, the plaintiff served on the defendants a proposed Further Amended Statement of Claim. The proceeding returned to court for directions on 13 February when the plaintiff did not attend, but had given consent to the orders sought by the police parties. It was clear on its face that counsel had not settled the latest proposed Further Amended Statement of Claim. The summonses filed by the estate and Obst were listed for hearing on 3 March 2015. Immediately following the directions hearing, the police parties issued a summons for summary dismissal or for summary judgment, or that the plaintiff's claims be struck out against them. On 18 February 2015, Obst amended his summons. The hearing of the summonses was adjourned to 1 April 2015.

13 On 1 April 2015, at a directions hearing, the plaintiff did not press for leave to file his extant second proposed Further Amended Statement of Claim, which was similar tin content and form to the Amended Statement of Claim, and which had been served on some of the defendants on the day prior to the directions hearing. There had been 'continual' correspondence between the solicitors for the police parties and the plaintiff addressing the defects in the original statement of claim, yet many problems remained in the second proposed Further Amended Statement of Claim. Amongst other issues, the estate was not properly identified as a justiciable entity in the pleading. More broadly, the pleading did not clearly explain the claims brought by the plaintiff, and on what basis those claims were brought against each defendant.

14 The plaintiff requested an adjournment on 1 April 2015 on the basis that he had retained a solicitor (Mr Derek Norquay) and Counsel (Mr Joe Sala, who was, at that time, in hospital, and Mr Haydn Carmichael) in order to settle a proper pleading. The plaintiff also made an oral application for my recusal for ostensible bias, which was dismissed. The plaintiff advised the court that he would provide his proposed Further Amended Statement of Claim to the other parties prior to 1 May 2015. The hearing was adjourned to 8 May 2015.

15 On 8 May 2015, at a directions hearing before J Forrest J, the plaintiff again did not seek leave to serve the proposed Further Amended Statement of Claim. The plaintiff informed the court that because of health problems, Mr Sala had been unable to review that statement of claim. The plaintiff also stated that Mr Sala had not yet been formally briefed. J Forrest J struck out the plaintiff's Statement of Claim dated 3 April 2014 (the Second Further Amended Statement of Claim) and gave the plaintiff leave to file and serve an amended statement of claim by 19 June 2015. At the hearing, the plaintiff agreed to inform the defendants, as well as the court, of the name of his legal representative. The plaintiff was directed to file and serve points of claim against each Defendant by 22 May 2015. The plaintiff was then to meet (with his legal representation) with the defendant's legal representative prior to 5 June 2015 to discuss the points of claim and narrow the issues between the parties about pleading issues.

16 In a letter to the court dated 13 May 2015, the plaintiff stated he had briefed Mr J Sala of counsel to draw his statement of claim. On 11 June 2015, following service of the points of claim, the parties attended a 'without prejudice' conference. The plaintiff filed an amended Statement of Claim with the court on 19 June 2015, pursuant to the order of 8 May 2015.

17 On 20 July 2015, Obst issued a summons for summary judgment, dismissal of the proceeding, or alternatively, strike out of the claims against him. On 28 July 2015, the estate applied by summons for the same relief. On 27 July 2015, the estate applied by summons for security of costs.

18 A directions hearing was held on 31 July 2015. The defendants maintained similar objections to those previously made concerning the Amended Statement of Claim dated 19 June 2015. The pleading was not signed by counsel. It was significantly defective in form so as to be largely incomprehensible. I struck out that Statement of Claim dated 19 June 2015 and granted the plaintiff a 'last chance' by granting him leave to serve an Amended Statement of Claim by 31 August 2015 together with a supporting affidavit that verified on oath the material facts on which his claims were based. The defendants each had the opportunity to object or consent to its filing.

19 On 31 August 2015, the plaintiff served another proposed Amended Statement of Claim, which was effectively the fifth attempt at pleading a statement of claim, together with a supporting affidavit. On 15 October 2015, the proceeding returned before me for directions. The plaintiff did not attend the hearing, but faxed a medical certificate to Mr Sala, who appeared as amicus curae. The medical certificate certified that Mr Sheehan was not fit for full time work until the end of September, which date had then passed and it did not indicate that Mr Sheehan could not appear in court. Mr Sala informed the court he had not been retained by Mr Sheehan, but Mr Sheehan had told him that Mr McCormick of counsel would be retained by him. The latest proposed Amended Statement of Claim (ASOC) featured many of the same problems as earlier versions, which were repeated in the submissions of the defendants at directions hearings and in correspondence between the parties.

20 Me Sheehan did not appear to prosecute the application to file and serve the pleading. His medical certificate was inadequate. His amicus curae had no proper instructions or information and, somewhat curiously, Mr McCormick whom Mr Sala believed had been briefed to settle the statement of claim did not appear.

21 Mr Sheehan's application to adjourn the hearing was communicated to the court via a facsimile transmission from Mr Sheehan to Mr Sala immediately prior to the hearing was opposed by the defendants when they learned of it in open court. The context is relevant. As the procedural history shows applications in relation to the statement of claim have run for almost 12 months and these applications were set down for hearing well in advance of the date, following several false starts, in order that they might be determined without further significant financial disadvantage to the defendants through continued exposure to unrecoverable legal costs. Because he is a legal practitioner, it may be assumed that Mr Sheehan has a basic understanding of what evidence is required to justify an adjournment of an application, which is opposed, on medical grounds.

22 Mr Sheehan's chosen method of communication with the court and the medical certificates that were proffered were entirely inadequate to demonstrate that it would be just to adjourn the applications. The medical certificates did not provide any basis for a conclusion that Mr Sheehan was unable to attend court. Further, it may be assumed that because Mr Sheehan was in contact with Mr McCormick about him accepting a brief, Mr Sheehan had the opportunity, if it was needed, to take advice about adjourning the application. Evidently, he did not do so. In considering Sheehan's adjournment application I took into account the matters set out in ss 5 - 7 of the Civil Procedure Act, 2010.

23 It was for these reasons that Mr Sheehan's adjournment application was rejected and the applications proceeded in his absence.

24 I will now set out the objections made by the defendants to the proposed pleading. There were neither submissions from the plaintiff nor relevant correspondence between the parties about the issues and the plaintiff did not appear to contest these objections on 15 October 2015. I refused to plaintiff leave to file and serve his proposed pleading because he did not prosecute his application for that leave. However, I would add that the submissions put by the defendants were strong and demanded an appropriate response. That the submissions had been repeated on several occasions and largely ignored was also a matter that I took into account although I do not propose to rule on the objections as such.

25 The plaintiff seeks relief against each of the defendants by attempting to plead various causes of action. The latest version of the ASOC appears to allege the following:

(k) conduct in breach of s 9(1) of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

Against the sixth to tenth and twelfth defendants:

26 Identifying with any precision the content of the plaintiff's claims is a challenging exercise. The causes of action against the estate and Obst are especially problematic, and have been subject to longstanding objections on the bases I will now set out. Further, as stated above, many of the objections made by the defendants that I will presently set out are longstanding objectives, made against earlier versions of the statement of claim that were struck out. The defendants are being required to repeat many of the same objections that were successfully made to earlier versions of the statement of claim.

Claims against the fourth defendant (the estate)

27 The estate objects that the ASOC is not (so far as the allegations against it are concerned) an improvement on previous versions of the statement of claim. The plaintiff has simply not addressed the issues previously raised by the estate and he failed to provide an affidavit verifying the material allegations. The estate's objections to the ASOC can be summarised as follows:

(a) it is not clear who the fourth defendant is and no attempt has been made by the plaintiff to clarify this issue;

(b) the allegations against the fourth defendant in the proposed statement of claim are largely incomprehensible;

(c) the proposed statement of claim does not disclose a cause of action against the estate;

(d) any cause of action against the estate that may be disclosed in the proposed statement of claim is vested in the plaintiff's trustee in bankruptcy;

(e) the plaintiff's supporting affidavit is manifestly deficient and does not show 'that there are facts which probably can be proved and which, if proved, would support the general allegations in his proposed statement of claim';[3]

(f) the proposed statement of claim appears to raise new causes of action after the expiry of the relevant limitation period and the amendment would cause prejudice to the fourth defendant in a manner that could not be fairly met by an adjournment, an award of costs or otherwise;

(g) there are a number of other formal deficiencies with the statement of claim.

28 The writ named the fourth defendant as 'The Estate of the late Anthony Richard Dockerty', which is not a legal entity and cannot be sued. The ASOC assumes that the fourth defendant is the deceased, Anthony Dockerty. Unlike the previous statements of claim, the proposed statement of claim does not state the basis upon which the proceeding is brought against the fourth defendant.

(a) commences with an allegation of reliance by Dockerty on the advice of Obst (seemingly, an allegation against Obst only), then alleges that Dockerty did not pay for legal services provided to 'him and his companies and trusts' without stating what those legal services were, who the companies and trust are alleged to be, why Dockerty would be personally responsible for legal services to the unnamed companies and trusts, how a retainer was entered into, and how the amount claimed is calculated;

(b) alleges that Dockerty 'unlawfully' recovered a Jaguar motor vehicle - without stating how it was 'recovered', and what was 'unlawful' about the recovery and without any details about the alleged purchase or ownership of the vehicle then alleges that the plaintiff thereby lost the 'consideration be provided for the vehicle';

(c) alleges that the plaintiff also suffered pecuniary loss of $231,332.14 without stating what this pecuniary loss actually relates to or when it was incurred;

(d) claims the amount of $231,332.14 from both Obst and the estate.

30 Paragraph [40] (which is not actually numbered) of the proposed pleading:

(a) alleges that Dockerty 'willfully and maliciously' published 'the false advice' that the plaintiff did not hold a practicing certificate to four of the plaintiff's clients. No material facts relating to the alleged publication are pleaded - all that is pleaded is the conclusion that the advice 'was published'. Although it is not clear, it appears not be alleged that Dockerty knew that advice was incorrect;

(b) alleges that Dockerty knew that these clients had entered into 'costs disclosure and retainer agreements' with the clients and it is alleged that Dockerty intended to cause the plaintiff to suffer pecuniary loss in his legal practice - no particulars of knowledge are provided contrary to rule 13.10(3)(b);

(c) alleges that Dockerty 'thereby' induced the clients to 'breach their retainer agreements' - no facts are pleaded as to what the terms of the retainer agreements would be or how the clients breached those agreements (in circumstances where the client of a lawyer could usually terminate the retainer with the lawyer without notice).

(a) alleges that between August 2009 and March 2010 and again in August 2012, Dockerty published 'false statements' to the public 'utilising [sic] a web site known as Borderline Albury Wodonga'. No material facts or particulars of the publication are provided and it is entirely unclear what he means to allege when stating that someone publishes material 'utilising' a website;

(b) alleges that the publication was willful and malicious. Inadequate particulars of malice are provided. It is alleged that the statements prior to 7 March 2011 were false and that Dockerty knew that statements he made after 7 March 2011 were false. No particulars of this knowledge are provided. While the prosecution against the plaintiff was discontinued on 7 March 2011, no allegation is made that Dockerty learned of this - or the reasons why the prosecution was discontinued - on that date. Dockerty could was not be aware that the statements made between August 2009 and March 2010 were false. It is not apparent how statements which Dockerty must have believed to be true are said to be malicious;

(c) alleges various imputations from the publication (without stating what words were actually used by Dockerty) and that the statements were made with the intent to cause the plaintiff to suffer pecuniary loss and damage to his legal practice without particulars;

(d) provides very generalised particulars of loss and damage but claims damages, aggravated damages and exemplary damages from Dockerty and his unnamed companies and trusts (who are not parties) and Obst for negligence, misleading and deceptive conduct and injurious falsehood 'as pleaded above';

(e) alleges against Dockerty that he acted with malice in complaining to his 'friends in the Victoria Police' that the plaintiff did not have a practicing certificate. No particulars of who he complained to or how he acted with malice are provided;

(f) alleges in the particulars that Dockerty acted with malice in informing clients and the public at large that the plaintiff did not hold a practicing certificate. Again, no particulars of the alleged malice are provided;

(g) alleges a number of other confusing allegations against the estate, for example that Dockerty did not pay for legal services provided to 'him and his companies and trusts' without stating what those legal services were, who the companies and trust are alleged to be, why Dockerty would be personally responsible for legal services to the unnamed companies and trusts, how a retainer was entered into, and how the amount claimed is calculated; and that Dockerty 'unlawfully' recovered a Jaguar motor vehicle and that the plaintiff also suffered pecuniary loss of $231,332.14.

32 The plaintiff appears to allege a mixed claim of debt and conversion/detinue without material facts pleaded that would support an allegation that the estate is liable to the plaintiff for legal services rendered (whether those services were provided to Dockerty or to the 'companies and trusts'). Similarly, the material facts for a claim in conversion and detinue are not pleaded, for example, who owned the vehicle and the details of the 'repossession'.

33 The plaintiff's allegations of malicious falsehood do not allege any material facts of publication. It does not specify the alleged malice. In contravention of r 13.10(2) there are numerous failures to provide particulars of Dockerty's alleged state of mind including knowledge and malice.

34 A sequestration order was made against the plaintiff on 21 April 2011. The fourth defendant submits that even if they were pleaded properly, the causes of action upon which the plaintiff wishes to rely vested in his trustee in bankruptcy and, as a result, he has no standing to bring the current proceeding against the fourth defendant.[4]

35 The claims made against the fourth defendant in the initial statement of claim were for injurious falsehood in relation to the complaint to police and in relation to 'inciting' clients of the fourth defendant to make complaints to the police and the Law Institute. While the claim at paragraph [40] of the ASOC arises, in general terms, out of the same facts as were alleged in the original statement of claim, the allegations for debt (paragraph [39]) and for injurious falsehood relating to the website publications (paragraph [41]) do not.

36 The claim in debt at paragraph [39] is statute barred and the fourth defendant contends that amendments ought not be permitted to raise a cause of action after the expiry of the relevant limitation period if the amendment would cause prejudice to the fourth defendant in a manner that could not be fairly met by an adjournment, an award of costs or otherwise (r 36.01(6), Limitation of Actions Act s 34). The prejudice is not limited to prejudice suffered after the expiry of the limitation period.[5] Anthony Richard Dockerty died on 2 December 2013. Hence, he is not available to provide instructions or to give evidence in relation to these matters. It is plain that his estate would suffer very significant prejudice if the claims in paragraphs [39] and [41] were now permitted to be brought.

(a) Obst was at all material times a competent and knowledgeable solicitor with expertise in professional negligence matters and statutory construction; and the fifth defendant held himself out as such.

(b) On 28 February 2009, Obst received a document from the Law Institute of Victoria showing that the plaintiff did not hold a practising certificate enabling him to engage in legal practise from 1 July 2008 (Certificate).

(c) On the basis of the Certificate, Obst advised Dockerty, inter alia, that the plaintiff did not hold a practising certificate enabling him to engage in legal practise from 1 July 2008.

(d) In late April 2009 and late August 2009, Obst provided written statements to the Victorian Police concerning the plaintiff. Each statement was 'based on' the Certificate.

(e) The Certificate itself highlighted that it had been issued under s 7.2.5 of the Legal Profession Act 2004 (LPA).

(f) That provision contained a rebuttable presumption that the information recorded in the Certificate was correct.

(g) Notwithstanding the contents of the Certificate, as a matter of fact, the plaintiff was licensed to practise at all material times. Accordingly, the relevant presumption was rebuttable.

(h) Obst failed to heed the following: (1) the 'prompts' highlighted on the face of the Certificate concerning s 7.2.5 of the LPA; and (2) the terms of that section. Further, Obst did not make enquiries concerning whether the presumption the subject of the Certificate was rebuttable.

(i) By reason of these failures, Obst breached his duty of care to Dockerty.

(j) By giving 'false' legal advice to Dockerty, Obst engaged in conduct in contravention of s 9(1) of the Australian Consumer Law and Fair Trading Act 2012 (Vic) and 'thereby caused the plaintiff to suffer pecuniary loss and damage'.

(k) Various parties relied on the fifth defendant's 'false advice' to the detriment of the plaintiff.

(l) Obst's publication of the 'false advice' was wilful and malicious, and it 'was calculated by him to cause the plaintiff to suffer pecuniary loss and damage'.

38 Seeking to identify what facts the plaintiff bases these proposed claims, Obst refers to paragraph [5] of the plaintiff's affidavit of 31 August 2015. That paragraph states:

The allegations of fact as pleaded in paragraphs 25 to 41 of the Amended Statement of Claim are true and are matters within the Plaintiff's personal knowledge and matters contained in documents in the Plaintiff's possession including a two page letter dated the 27 February 2009 under the hand of Howard Obst, a statement made by Anthony Dockerty to Victoria Police on the 28 May 2009, a statement made by Howard Obst to Victoria Police dated the 21 August 2009 and a copy of statements by Dockerty on Borderline Albury Wodonga a copy of a certificate issued by Leach to Obst dated the 25 February 2009.

39 In summary, the proposed allegations rely on facts drawn from two sources, viz. (1) the plaintiff's 'personal knowledge' and (2) documents 'including' the documents described in this paragraph. Obst makes three points concerning this evidence. First, for the reasons explained below, this evidence does not identify any facts capable of proving the proposed allegations against him. Second, if this evidence sets out the facts hitherto available to the plaintiff, such facts did not support any previous claims pleaded against him. Third, this evidence demonstrates or suggests that the plaintiff is incapable of discharging his relevant duties and responsibilities under the Civil Procedure Act.

40 Against this background, the claim proposed against Obst suffers from one fatal defect. The pleading does not identify any material facts from which it could be inferred determinatively that Obst knew, or ought to have known, that the presumption the subject of the Certificate was rebuttable.

41 In the light of Obst's repeated complaints, the plaintiff attempted to tackle this defect. The plaintiff no longer seeks to make explicit allegations concerning the state of Obst's knowledge. He now alleges that Obst failed to make enquiries or 'heed' prompts. Absent material indicating Obst's knowledge (actual or constructive) that the presumption was in fact rebuttable, however, such allegations fall short. Absent knowledge of facts and matters suggesting that the presumption was rebuttable, Obst was not required to 'go behind' the Certificate. Under the legislation, he was entitled to rely on the presumption. The documents on which the plaintiff has based the proposed allegations show that Obst relied on the presumption, but the documents do not ground an allegation that Obst knew that the presumption was rebuttable.

42 At most, the materials relied on give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture.[6] Even if the fifth defendant had 'heeded' the terms of s 7.2.5 of the Legal Profession Act 2004, absent knowledge of facts operating to rebut the presumption, the fact of Obst's experience and competence as a solicitor could not found the proposed claim. If the plaintiff cannot demonstrate the relevant knowledge of facts operating to rebut the presumption, the proceeding against Obst is unsustainable.

43 The proposed misleading and deceptive claim is based on Obst's advice to Dockerty and it is flawed. The plaintiff has not identified with the requisite degree of precision the conduct on which this proposed claim rests.[7] In particular, as any advice remains privileged, the plaintiff cannot demonstrate that any advice was rendered or the terms in which any such advice was rendered.

44 In any event, the proposed misleading and deceptive conduct claim suffers from two other fundamental defects. First, assuming contrary to the fact that the proposed claim identifies sufficiently the relevant 'conduct', neither the pleading nor the affidavit identifies anything demonstrating the falsity of the alleged advice. The equally probable inference is that, if Obst gave any advice (which is not conceded), such advice (and subsequent conduct) was faithful to the terms of the Certificate, and the language of the plaintiff's allegations is consistent with that inference ('On the basis of the certificate' and 'gave a written statement ... which was based on the certificate'). Absent materials supporting a knowledge plea, the 'false advice' allegation provides a flawed premise for this claim.

45 Second, by acting in accordance with the Certificate (as the plaintiff alleges) Obst did not contravene any relevant consumer protection legislation. Obst was an innocent conduit, relying on a statutory presumption. There is no allegation, or even suggestion, that he vouched for the accuracy of the Certificate. Absent knowledge of facts or matters suggesting otherwise, he was entitled to rely simply on the statutory presumption. He was not responsible for maintaining the accuracy of the register of licensed practitioners and, like any other person, the relevant statute enabled him to presume the correctness of what the Certificate stated. There was no adoption or endorsement in these circumstances.[8]

46 Next, there is no foundation for the injurious falsehood claim against the fifth defendant. Neither the pleading nor the affidavit identify the material facts supporting each element of this serious allegation against Obst. Significantly, there is no allegation to the effect that Obst was aware of any malicious, dishonest or dubious conduct on the part of the person(s) responsible for publishing the Certificate.[9] The plaintiff's repetition of this claim - without particulars and in light of previous complaints - borders on scandalous.

47 Over a long period of time, in the context of a proceeding that first commenced in NSW in early 2014, the fifth defendant has drawn the critical defects in the claims against him to the plaintiff's attention. Having received these complaints, the plaintiff has been unable to formulate with clarity and particularity his cause of action against the fifth defendant.

Claims against the first, third and eleventh defendants

48 The regulatory parties primarily complain that the proposed Amended Statement of Claim does not specify which section or sections of the Legal Profession Act 2004 are said to impose statutory duties on the first to third defendants. Only s 2.4.5 is referred to. That section clearly does not impose a statutory duty on the first to third defendants; it does not require them to do anything at all. It relates to the duration of local practising certificates.

49 The allegations that the first to third defendants committed the tort of injurious falsehood are contained at paragraphs 8, 12 and 16(a) of the proposed Amended Statement of Claim (read in conjunction with the third paragraph on page 8 of the proposed Amended Statement of Claim). The plaintiff provides inadequate and vague particulars of the alleged malice. His particulars are, in essence, that the first to third defendants published information that they 'knew' was false. Similarly, the plaintiff has provided inadequate and vague particulars of the alleged malice or other state of mind required to make out the tort of misfeasance in public office

50 The allegation that the first to third defendants committed the tort of malicious prosecution is contained at paragraph 20 of the proposed Amended Statement of Claim. The plaintiff alleges that the first to third defendants' 'prosecution' of Mr Sheehan between 21 October 2010 and 2 May 2011 before the Victorian Civil and Administrative Tribunal was malicious.

51 The VCAT Proceeding, however, was commenced by Mr Sheehan. In that proceeding, Mr Sheehan sought a review of the third defendant's decision dated 21 October 2010 to refuse Mr Sheehan's application for a renewal of his practising certificate. The same problem arises in relation to the abuse of process claim.

52 Similar problems attend the plaintiff's claims against the eleventh defendant (confusingly, referred to in the current proposed pleading as the seventh defendant). Given that there was no prosecution of Mr Sheehan by the eleventh defendant (or the Legal Services Commissioner), Mr Sheehan's claim that the eleventh defendant committed the tort of malicious prosecution cannot be made out and leave to pursue that claim should be refused. The claim of misfeasance of public office is based on the VCAT 'prosecution'. The particulars of the allegation of injurious falsehood against the eleventh defendant are vague and inadequate that the eleventh defendant 'knew' that Mr Sheehan held a practising certificate throughout the period in which the eleventh defendant falsely alleged that Mr Sheehan did not hold one.

53 The allegation that the eleventh defendant committed the tort of abuse of process cannot be made out as the eleventh defendant did not use any court process.

Claims against the sixth to tenth and twelfth defendants

54 The police parties oppose the plaintiff's application for leave to file and serve the pleadings.[10] There is no schedule of parties annexed to the proposed ASOC and it is difficult to discern who the named defendants are. It was assumed for the purposes of this application that the State is the sixth defendant.

55 The proposed pleading is vague and embarrassing as it does not disclose clearly what is alleged. Claims of defamation, false imprisonment and malicious prosecution are alleged against the 'Victoria Police'. Individual police officers are not named nor are the claims properly pleaded and particularised. These claims are ambiguous, vague and too general.

56 The plaintiff appears to allege that Constables Simpfendorfer and Schulze and Sergeant Revel have committed the torts of assault, false imprisonment, trespass to land and trespass to goods. However, the pleading does not identify with any particularity which conduct against which officer constitutes the basis for each of these claims. A claim of malicious prosecution lacks particulars of the lack of 'reasonable and probable cause'. It is alleged Constables Taylor, Simpfendorfer, Schulze, Nicholls and Sergeant Revel, abused their powers as constables and that each of these officers' 'conduct' was an 'abuse of process'. The pleading does not identify the nature of the alleged abuse of process against each of the officers and the particulars to be relied upon.

The claims of defamation against Constables Taylor, Simpfendorfer and Nicholls do not comply with the pleading rules because no defamatory imputations are specified in the pleading. Further, the plaintiff appears to claim by a writ issued on 5 March 2014 that:

(a) he was defamed by Constable Taylor on 21 April 2009;

(b) he was defamed by Constable Simpfendorfer on 22 April 2009;

(c) he was defamed by Constable Simpfendorfer on 4 July 2009; and

(d) he was defamed by Constable Nicholls on 17 and 18 November 2009.

57 These claims of defamation are statute-barred. The causes of action arose on 21 and 22 April 2009, 4 July 2009 and 17 and 18 November 2009. On 5 March 2014, the plaintiff instituted proceedings against the police officers and the State in the Supreme Court of New South Wales. The claims in defamation have been brought outside the 12 month limitation period: see Limitation of Actions Act 1958, s 5(1AAA).[11]

58 An application by the plaintiff for leave to commence defamation proceedings after one year has lapsed would be futile as an action cannot be commenced if three years has elapsed since the alleged publications: see Limitation of Actions Act 1958, s 23B. The maximum three-year limit in which to bring defamation proceedings in this case expired in 2012.

59 The proposed causes of action in defamation have "no real prospect of success", within the terms of s 63 of the Civil Procedure Act 2010, and thus should not be permitted.[12]

The Second Proposed Amended Statement of Claim (ASOC)

60 At the hearing on 15 October 2015, the defendants opposed the plaintiff's application for leave to file and serve the latest pleading. However, it was clear that the plaintiff was not intending to rely on that pleading, given the plaintiff had stated, through Mr Sala, his intention to brief other counsel, Mr McCormack to reconsider that draft. As set out in the procedural history of this proceeding, the plaintiff has made such representations before and they have proven false. For that reason alone, I would refuse leave to the plaintiff to file and serve the pleading.

61 Putting that considerations aside, it was also clear that the pleading did not comply with the rules of pleading, as was the case with previous versions of the plaintiff's statement of claim. In Knorr v CSIRO[13] Beach J (as he then was) set out the essential requirements of the rules of pleading as follows:

(a) The rules of pleading require every pleading to contain in a summary form a statement of all the material facts on which the party pleading relies, but not the evidence by which those facts are to be proved. Additionally, the rules require each allegation so far as practicable to be contained in a separate paragraph.

(b) Pleadings should be as brief as is consistent with clarity. Whilst brevity is of secondary importance when compared with clarity and precision, in an extreme case, a pleading may be struck out for prolixity. As has been said repeatedly, the parties in any litigation are under a duty to cooperate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his or her own conclusions about the merits of the case. Neither parties nor courts have unlimited resources.

(c) In the case of a statement of claim, pleading all the material facts means pleading all the facts necessary to constitute a complete cause of action. No more. No less.

(d) Again, as has been repeatedly stated, the material facts relied on should be stated precisely and briefly. As a rule, they should be arranged in chronological order. Only the material facts should be stated, and statements of fact which are not necessary are liable to be struck out. Again, evidence by which material facts are to be proved should not be pleaded.

(e) In addition to the pleading rules I have just described, each pleading must contain the necessary particulars of any fact or matter pleaded. The ultimate aim of pleading rules is the definition with precision of the issues between the parties. The rules facilitate the just, economic and efficient disposition of litigation: they are no mere technicality. As has been repeatedly said, they serve very important purposes so far as the proper determination of disputes is concerned.

62 Rule 23.02 is concerned only with the sufficiency of the pleading of the opposite party as distinct from the validity of that party's claim. Its only purpose is to secure compliance with the rules of pleading.[14]

63 The proposed Amended Statement of Claim proffered by the plaintiff is manifestly defective and must be struck out. Like previous versions, it does not comply with Order 13 of the Rules as it does not contain page numbers, sequential paragraph numbers, or section numbers. For example, there are no page numbers, and paragraph numbers [25], [31], [35], [62], [63], and [70] are repeated twice, and there is no paragraph [40]. It is not divided into sections. It lacks basic punctuation and clear formatting. There are many spelling mistakes. Separate allegations are not contained in separate paragraphs.

64 On the basis of the unopposed and repeated submissions of the defendants, the pleading fails to identify in any coherent and understandable way the precise claims and causes of action upon which the plaintiff relies against each defendant. I have set the submissions out in these reasons to demonstrate the extent and nature of the pleading deficiencies alleged against the plaintiff. Many of the objections against the original statement of claim remain unanswered.

65 The High Court recently stated in Fortescue Metals Group Ltd v Australian Securities and Investments Commission & Anor[15] that one of the fundamental requirements for a fair trial is that a party making allegations of contravention of law must identify the case which it seeks to make and do that clearly and distinctly. The proposed further amended statement of claim (like its predecessors) does not do that. The failures of the proposed further amended statement of claim to comply with basic pleading rules are manifest. Permitting a trial on the basis of it would undoubtedly prejudice, embarrass and delay a fair trial of the proceeding.

66 For these reasons, I struck out the proposed further Amended Statement of Claim dated 28 August 2015.

67 By a summons filed on 20 July 2015, the fifth defendant applied for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic), or alternatively, dismissal of the proceeding pursuant to Rule 23.02 of the Supreme Court Rules 2005 (Vic) or an order striking out claims against it pursuant to Rule 23.02, or alternatively, strike out of the claims against it. On 28 July 2015, the fourth defendant issued a summons seeking the same relief.

68 Considering the test for summary judgment, in Lysaght Building Solutions Pty Ltd (T/A Highline Commercial Construction) v Blanalko Pty Ltd[16] Warren CJ and Nettle JA relevantly stated:

(a) The test for summary judgment under s 63 of the CPA is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success.

(b) The test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel Industries Inc v Comm. for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.

(c) It should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success.

(d) At the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

69 In Knorr v CSIRO & Ors Beach J struck out the plaintiff's statement of claim on the basis that it was manifestly defective in failing to comply with any of the ordinary rules of pleading.[17] His Honour refused leave to file a draft Further Amended Statement of Claim. Beach J granted the plaintiff a further opportunity to plead the statement of claim.[18] At the hearing which followed, Beach J refused the plaintiff leave to file and serve the second draft further amended statement of claim, noting that it was 'as defective as its predecessors'.[19]

70 Having refused the plaintiff's further application, Beach J dismissed the proceeding for want of prosecution. Upholding Beach J, the Court of Appeal[20] held that the dismissal of the proceeding by Beach J was entirely consistent with, and indeed mandated by, the provisions of the Civil Procedure Act. The Court of Appeal stated that:

(a) The main purposes of the Civil Procedure Act include 'the overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute' (s 1(1)(c)).

(b) Parties have a paramount duty to the Court to further the administration of justice (s 16) and an overarching duty to act honestly (s 17). Further and perhaps more relevantly the parties must have a proper basis for making a claim or defence (s 18).

(c) Parties to a dispute have a number of other overarching obligations. They must not engage in conduct which is misleading or deceptive or likely to mislead or deceive (s 21). They must endeavour to narrow the issues in dispute (s 23). They must ensure costs are reasonable and proportionate (s 24). They also have an ongoing overarching obligation to minimise delay (s 25).

71 Over a long period of time, in the context of a proceeding that first commenced in NSW in early 2014, the fourth and fifth defendants have repeatedly drawn the serious defects in the pleading of claims against them to the plaintiff's attention. Yet, the plaintiff has experienced considerable difficulty in formulating with clarity and particularity his cause of action against those defendants. As Gleeson CJ said in Trau v University of Sydney,[21] 'that is often a very good indication that there is no cause of action'. The procedural history of this proceeding permits that inference to be comfortably drawn, as do the uncontested submission of the defendants.

72 If I gave the plaintiff further opportunity to plead the case in compliance with the rules of pleading set out above, I am comfortably satisfied that the plaintiff would continue to deliver similar documents that do not address the extant objections of the fourth and fifth defendants or comply with the rules of pleading, meaning a trial against the fourth and fifth defendants could not reasonably or fairly be conducted. I regard the plaintiff's promises to brief counsel as conduct that is likely to be in breach of s 21 of the Civil Procedure Act 2010. Although not having given the plaintiff an opportunity to address that specific question, I make no finding in that regard. I am persuaded that the plaintiff does not have any real prospect of success in its claims against the fourth and fifth defendant.

73 As was said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd & Anor,[22] '[t]here comes a point at which a self-represented litigant must be required to take responsibility for his choices'. Consistently with the principles enunciated in the Civil Procedure Act, the plaintiff cannot be permitted to continue to subject the defendants to this proceeding to significant cost that is unlikely to be compensated and to significant inconvenience and to add pointlessly to the load on the court's already limited resources. The fundamental problem with this proceeding is that, if it is left on foot, there will be no progress. What will occur will be contrary to the requirements of the Civil Procedure Act. The only purpose that the proceeding would serve is to vex the fourth and fifth defendants.

74 The plaintiff's proceeding against the fourth and fifth defendants must be dismissed. The remaining defendants did not have before the court an extant application for either summary dismissal or a stay of the proceeding but stated an intention to bring such an application before the court. The proceeding will be adjourned to 2 December 2015 for further directions.

[1] Since the hearing of the application but prior to publication of these reasons an affidavit of Marshall Sheehan sworn 12 November 2015 was filed in the court. The affidavit was not accompanied by any application and was not considered by me in preparing these reasons.

[2] The proposed Further Amended Statement of Claim was not received by the Fourth Defendant in accordance with the orders of 16 December 2014.

[3] As required by my order of 31 July 2015.

[4] Jacks v Jakimowicz (2014) 288 FLR 365; [2014] VSCA 120, [22]-[23].

[5] Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 3 All ER 132.

[6] See Bradshaw v McEwans Pty Ltd (27 April 1951, unreported), as quoted in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, 358; and see also Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 141; ACCC v Amcor [2000] FCA 17; (2000) 169 ALR 344, 361; and Mutual Community General Insurance Pty Ltd v Khatchmanian [2013] VSCA 144.

[7] Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, [5].

[8] Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435, [3] and [70] (French CJ, Crennan and Kiefel JJ).

[9] For the elements of this cause of action, see Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388.

[10] The police officers are not named as defendants in the proposed ASOC.

[11] The provisions of the Defamation Act 2005 apply to all publications on or after 1 January 2006: see s 2 of the Defamation Act 2005. The 'new limitation law', as defined in s 23C(1) of the Limitation of Actions Act 1958 to mean s 5(1AAA) and s 23B of that Act as inserted by the Defamation Act 2005, applies to the publication of any defamatory matter to which the Defamation Act 2005 applies: see s 23C(2) of the Limitation of Actions Act 1958.

[12] See Matthews v SPI Electricity Pty Ltd (No. 2) [2011] VSC 168, [15]-[22]; Matthews v SPI Electricity Pty Ltd (No. 6) [2012] VSC 70, [33]-[34].

[13] [2012] VSC 529.

[14] Meckiff v Simpson [1968] VicRp 7; [1968] VR 62, 70 (Winneke CJ, Adam and Gowans JJ).

[15] [2012] HCA 39, [25].

[16] [2013] VSCA 158, [35].

[17] Knorr v CSIRO & Ors ('No 1') [2012] VSC 83 at [12].

[18] Knorr v CSIRO & Ors '(No 2') [2012] VSC 268 at [47].

[19] Knorr v CSIRO & Ors ('No 3') [2012] VSC 529.

[20] Knorr v CSIRO [2014] VSCA 84.

[21] (1989) 34 IR 466.

[22] [2012] VSCA 97, [36].