Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Proceedings in lieu of demurrer - Striking out statement of claim as disclosing no reasonable cause of action.

Jovanovic v Law Society of Tasmania & Ors (No 2) [2003] TASSC 65; Jovanovic v Law Society of Tasmania [2004] TASSC 124; Spaulding v Law Society of Tasmania [2004] TASSC 1; Mentyn v Law Society of Tasmania (No 2) [2004] TASSC 127, referred to.

Judgment Number: [2005] TASSC 20

TIMOTHY G BUGG, K A M AGH, M F DALY, R A BROWN, CHRISTOPHER A CUNNINGHAM, F DI GIOVANI, N R READETT, DANIEL F M ZEEMAN,

KASS A M PITT QC, PHILLIP JACKSON and JAN MARTIN

1 The plaintiff has sued twelve defendants for damages. In pars1 to 13 of his statement of claim, the plaintiff in substance alleges:

* that the first named defendant, the Law Society of Tasmania ("the Society"), has statutory responsibility for investigating complaints against legal practitioners in Tasmania;

* that each of the second to eleventh named defendants was at the material time a legal practitioner and a member of the Society's investigation committee "with the statutory responsibility of investigating complaints against legal practitioners in Tasmania"; and

* that the twelfth named defendant ("the Executive Director") is and was at all material times an employee of the Society and "charged with the responsibility of administering the Legal Practitioners Act and the Rules of Practice".

2 The following is a verbatim copy, inclusive of apparent errors, of pars14 to 26 of the statement of claim, which contains the substance of the plaintiff's claim:

"14 On or about July 2000 the Plaintiff instructed Mr Leon Wootton, legal practitioner and officer of the supreme Court of Tasmania of the legal firm Levis Stace And Cooper to act on the Plaintiff's behalf who was purchasing a property on behalf of his son.

15 The legal practitioner was negligent and failed to carry out the instructions given and as a consequence the Plaintiff suffered loss and damages.

16 The Plaintiff lodged a complaint to the 1st named Defendant.

17 The 1st named Defendant failed to properly investigate the Plaintiff's claim causing the Plaintiff to suffer loss and damages.

18 On or about the end of August 2000 the Plaintiff wrote to the 1st named Defendant requesting information because of problems looming with the transaction.

19 The 12th named Defendant replied to the correspondence and sent the Plaintiff an complaints form.

20 On or about October of 2000 the Plaintiff experienced difficulties with the transaction and sought advice about finding another solicitor to assist him to resolve the problem from the 1st named Defendant

21 Mr Des Polden replied on behalf of the 1st named Defendant replied that he could not provide any assistance, advising that it was the policy of the 1st named Defendant no to provide any recommendations.

22 On or about January 2001 the Plaintiff was evicted from his premises.

23 On the 14th March 2001 the Plaintiff lodged a formal complaint with the 1st named Defendant.

24 The 1st to 11th named Defendant's failed to investigate the breach of Mr Wooton's instructions to convey the subject of the conveyance to the Plaintiff's son as instructed in late July 2000, breached their Statutory Duty, failed properly Investigate the Plaintiff's claim. Failed to apply Standard of Professional Behaviour Impartially, Failed to abide by Principles of Natural Justice, Failed to accord Administrative Fairness, failed to act reasonably, in accordance with the Wednesbury formulae, were Negligence and breach of undertaking to investigate the Plaintiff's complaint against Mr Wooton and Mr Friend.

25 The 12th named Defendant breached her statutory duty to the Plaintiff by failing to ensure that the 1st named to 11th named Defendant did not treat the Plaintiff's complaint against Mr Wootton an Mr Friend, regarding Mr Wootton;s breach of undertaking and failure to carry out instructions which included negligent and misleading advice, breach of fiduciary duty, breach of duty of care, failure to act in good faith, breach of undertaking to inter alia the Plaintiff, as a floccinalicinihilipilification..

26 As a consequence of the Defendant's breaches the Plaintiff suffered loss and damages"

3 The defendants apply to have the statement of claim struck out and for the entry of judgment in their favour on the ground that it discloses no reasonable cause of action. The power to make such an order is inherent and is also given express form in the Supreme Court Rules 2000, r259. The jurisdiction to summarily terminate an action is to be sparingly employed and is not to be used unless the lack of a cause of action is clearly demonstrated, General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128 - 130. A litigant is entitled to submit a claim for determination, although its foundation may be slender, Cox v Journeaux & Ors [1935] HCA 48; (1935) 52 CLR 713 at 720.

4 On 5 November 2003, the plaintiff provided the defendants with particulars of his statement of claim. From these particulars and pars14 to 23 of the statement of claim, the following emerges in relation to the factual assertions that underpin the plaintiff's claim.

5 In about July 2000, the plaintiff engaged a legal practitioner, Mr Wootton, to act for the plaintiff in the purchase of a property on behalf of the plaintiff's son. The plaintiff paid $20,000 to Mr Wootton in mid-August 2000 and, with the agreement of the vendor, the plaintiff went into possession of the property on the basis that he would pay the balance purchase price within "a month or two". A fortnight after taking possession, the plaintiff wrote a letter of complaint to Mr Wootton and Mr Wootton responded by telling the plaintiff to engage another lawyer. At the end of August 2000, the plaintiff wrote to the Society requesting information because of problems with the transaction. The Executive Director responded and provided the plaintiff with a form for making a complaint. Lawyers approached by the plaintiff to act on his behalf in the completion of the purchase of the property declined to accept his instructions, so in about October 2000, the plaintiff wrote to the Executive Director requesting her to suggest a lawyer who would act for him. In reply, the plaintiff was informed that it was the policy of the Society not to recommend lawyers. In January 2001, the plaintiff was evicted from the property. On 11 March 2001, the plaintiff delivered a 30 page complaint in respect of Mr Wootton to the Executive Director at the Society. The plaintiff has not received any response to his complaint that indicates that it has been investigated.

6 In par24 of his statement of claim, the plaintiff details a number of alleged failures and breaches by the first 11 defendants: some are expressed in terms that might be characterised as shorthand descriptions of a cause of action in tort, viz, "breached their Statutory Duty" and "Negligence"; the others are expressed in terms that indicate that the plaintiff's grievance sounds in administrative law, not an action for damages for a tort. The same can be said of the claims he advances against the Executive Director in par25 of the statement of claim, although this paragraph is, to a significant degree, unintelligible. For example, it alleges that the Executive Director failed to ensure that the first 11 defendants did not treat the plaintiff's complaint, but does not indicate what the treatment is that the Executive Director should have ensured did not occur. The paragraph alleges a number of failures and breaches "to inter alia the plaintiff, as a floccinalicinihilipilification [sic]". Whilst floccinaucinihilipilification is a word, it means the action or habit of estimating as worthless, its use in these circumstances suggests that the pleading is unintelligible by design rather than inadvertence or misunderstanding.

7 In par26 of the statement of claim the plaintiff alleges that as a consequence of the defendants' breaches, he suffered loss and damage. The particulars provided by the plaintiff of this claim are that the loss and damage claimed is that which he suffered as a result of Mr Wootton's alleged negligence and failure to carry out instructions, that being:

" (i) Approximately $6, 000 to regain possession of 16 Crockers Rd, Railton.

(ii) $9, 994, 000.00 (nine million, nine hundred and ninety-four thousand) to obtain an equivalent property - plus compensation for the bizarre, malevolent and horrendous ordeals which followed."

Nothing in the plaintiff's statement of claim or particulars provides any basis for the plaintiff to claim these damages from the defendants by reason of anything they did or did not do arising from the plaintiff's complaint to the Society dated 11 March 2001. Accepting for present purposes that the plaintiff suffered damages as a consequence of Mr Wootton's negligence and failure to carry out instructions in July and August 2000, it is clear that those damages were suffered prior to the plaintiff's complaint to the Society. If, as may be the case, the plaintiff believes that disciplinary proceedings against Mr Wootton would be a vehicle via which the plaintiff might recover the damages he claims to have suffered because of Mr Wootton's conduct, such a belief is misconceived, Jovanovic v Law Society of Tasmania & Ors (No 2) [2003] TASSC 65 [109] - [110] and Jovanovic v Law Society of Tasmania [2004] TASSC 124 [40] - [44]. Whilst for these reasons alone the plaintiff's statement of claim should be struck out, I mention one further matter. Central to the plaintiff's claim for damages against the defendants is the alleged failure to properly investigate his complaint against Mr Wootton and the proposition that by reason of such statutory duties as are imposed referable to the investigation of a complaint, the defendants were subject to a duty of care to the plaintiff. In Spaulding v Law Society of Tasmania [2004] TASSC 1, Master Holt concluded that the imposition of a duty of care on the Society to a complainant in respect of the investigation and prosecution of a complaint against a legal practitioner pursuant to the Law Society Act 1962 would be incompatible with the objects of that Act and accordingly no such duty was owed to a complainant. The Law Society Act was repealed by the Legal Profession Act 1993. The plaintiff's complaint to the Society is governed by the latter Act, under which the Society, and any investigation committee established pursuant to s65 of that Act, have certain roles in relation to the investigation of complaints by members of the public concerning legal practitioners. In Mentyn v Law Society of Tasmania (No 2) [2004] TASSC 127, Blow J considered whether a breach by the Society or a member of an investigation committee of any statutory duty imposed by the Legal Profession Act gave rise to a private cause of action by a complainant for damages for breach of statutory duty or negligence. He concluded that it did not, for the reasons explained by Master Holt in Spaulding. Accordingly, an additional reason for striking out the plaintiff's statement of claim is that there is no foundation for the duty of care that is central to the claims he advances against the defendants.

8 I order that the statement of claim be struck out.