Jorgensen v Shorten (No 2)

1. [1]

   The plaintiffs, Mr Jorgensen and two companies with which he is associated (Teksid Pty Ltd and Jim’s Water Tanks Pty Ltd) commenced these proceedings by a statement of claim filed on 30 June 2016.

2. [2]

   There are five defendants. The first is Mr William Shorten (who is sued in his capacity as a former officer of the Australian Workers Union). The second is Mr Kelvin Thomson (a former member of the Australian Parliament). The third is the Australian Securities and Investments Commission. The fourth and fifth are former employees of ASIC, Mr Glen Cook and Mr Graham Ashworth.

3. [3]

   By separate notices of motion, Mr Shorten and Mr Thomson on the one hand, and what I will call the ASIC defendants on the other, move to have the proceedings dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4 or the statement of claim struck out pursuant to UCPR r 14.28.

4. [4]

   Mr Jorgensen appeared for himself and, with leave, for the two companies.

5. [5]

   Although there are three plaintiffs named in the statement of claim, the allegations are, in substance, those of Mr Jorgensen. Accordingly, for convenience, I will so refer to them.

The matters alleged in the statement of claim

1. [6]

   The statement of claim describes the “Essence of the Claim” as follows:

2. [7]

   Although the statement of claim is far from clear, it appears that Mr Jorgensen seeks to allege that he, or an entity associated with him (I will return to this) suffered damage as a result of what he describes as a “Conspiracy to Commit a Crime” between the defendants concerning the proposed “friendly take-over” of Castalloy Ltd in 1999.

3. [8]

   This is confirmed by an affidavit that Mr Jorgensen swore on 29 June 2016 in these proceedings, in which, under the heading “Case Summary”, he said:

4. [9]

   The “Report” to which Mr Jorgensen refers in that passage is a document called “Report of ASIC Internal Inquiry into Complaint by Alan Jorgensen” prepared in early 2000 by ASIC’s then Acting Regional Commissioner for Tasmania, Mr Simon Dwyer. I will refer to it as “the Report” and return to it below.

5. [10]

   This passage in the “Essence of Claim” narrative that “in 2007 after ASIC once again, stepped in and ruined [Mr Jorgensen’s] highly successful water tank business” is directed to a later event when, in 2007, ASIC commenced proceedings against Mr Jorgensen and the third plaintiff, Jim’s Water Tanks, in the Supreme Court of Queensland. I will return to this below.

The claims against Mr Shorten and Mr Thomson

1. [11]

   Mr Jorgensen seeks a declaration that Mr Shorten and Mr Thomson are “guilty of Conspiring to Commit a Crime” whereby they “conceived an unlawful plan” to prevent Mr Jorgensen from completing “his Group’s 100% takeover of Castalloy Ltd”.

2. [12]

   Declarations are also sought that Mr Shorten was the “instigator” of that “Conspiracy to Commit a Crime”, that he incited Mr Thomson to “maliciously defame” Mr Jorgensen by referring to him, in Federal Parliament, “as another Christopher Skase in the making”, that Mr Shorten “incited” a reporter to write an article in The Age newspaper about Mr Jorgensen and “circulated the contrived, false Age story” to Mr Jorgensen’s bankers (HSBC) which “appointed receivers” and “thereby destroyed [Mr Jorgensen’s] takeover of Castalloy Ltd, which completed Shorten’s Conspiracy”.

3. [13]

   In support of those declarations Mr Jorgensen alleges (in par 4 of the statement of claim) that Mr Shorten, when an officer of the AWU, was involved in “many fights” with Mr Jorgensen such that Mr Jorgensen and Mr Shorten “became bitter enemies”.

4. [14]

   These allegations are particularised by reference to various statements that Mr Shorten is alleged to have made to Mr Jorgensen. The allegations do not lead to any further allegation in the statement of claim. They are gratuitous and pointless.

5. [15]

   Mr Jorgensen then alleges, in par 5 of the statement of claim, that Mr Shorten and Mr Thomson “hatched a plan to bring Jorgensen and his companies down”.

6. [16]

   The statement of claim does not set out the facts relied on to make that serious allegation.

7. [17]

   Instead, the statement of claim purportedly particularises the allegation as follows (omitting paragraphs that seem to have nothing at all to do with Mr Shorten or Mr Thomson):

8. [18]

   As can be seen, these “particulars” are replete with rolled up, conclusionary statements of an extravagant and scandalous nature.

9. [19]

   They include, so far as Mr Thomson is concerned, allegations of statements he is said to have made in parliament which would be subject to parliamentary privilege.

10. [20]

    Insofar as it is possible to follow these particulars, they appear to assert (without statement of any of the underlying facts relied on) that:

11. [21]

    Arising from these matters, Mr Jorgensen seeks a declaration, to which I have referred, that Mr Shorten and Mr Thomson are guilty of “Conspiring to Commit a Crime”.

12. [22]

    But Mr Jorgensen does not allege any commission of any crime or identify what crime Mr Shorten or Mr Thomson are said to have conspired to commit. Mr Jorgensen claims that, arising from these matters, Mr Shorten and Mr Thomson “conceived an unlawful plan” to prevent Mr Jorgensen from completing the takeover of Castalloy, but did not identify what such “unlawfulness” was.

13. [23]

    The pleading is embarrassing and scandalous and must be struck out.

14. [24]

    Further, in Mr Jorgensen’s submissions of 7 November 2016 (entitled “Plaintiffs’ Response to the Application for Strike Out and Dismissal by the First and Second Defendants”) Mr Jorgensen said:

15. [25]

    The rhetorical questions asked in that passage by Mr Jorgensen (“did Shorten incite Conroy to repeat Thomson’s scandalous allegations in a story in the Age” and “did Shorten fax that contrived Age story to Jorgensen’s bankers”) show that Mr Jorgensen does not know, and has no basis to assert the matters referred to at [20](d) and (g) above.

16. [26]

    It is, in my opinion, an abuse of process for Mr Jorgensen to make such serious allegations when he does not know whether or not they are true and does not seek to set out in the statement of claim any fact from which any inference to that effect could possibly be drawn.

The claim against ASIC and its officers

1. [27]

   In par 8 of the statement of claim Mr Jorgensen recites ASIC’s duty under s 127 of the Australian Securities and Investments Commission Act 2001 (Cth) (“the ASIC Act”) (to take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence) and then asserts that Mr Cook and Mr Ashworth “were bound by the above very strict codes of conduct” and have “manifestly breached that trust” and that “duty of trust”.

2. [28]

   It is not pleaded to whom the “duty of trust” is said to be owed, although presumably, Mr Jorgensen means to say that the duty is owed to him and his companies.

3. [29]

   But it cannot, without more, follow from the provisions of s 127 of the ASIC Act, that ASIC’s employees have a “duty of trust” of the kind alleged.

4. [30]

   And the pleading simply fails to reveal how any conduct of Mr Cook or Mr Ashworth could be said to have been in breach of any such duty.

5. [31]

   Following the allegation is a lengthy list of “particulars” which do not appear to be in aid of the allegation of “duty of trust” but purport to set out the damage that Mr Jorgensen and his companies claim to have suffered as a result of the alleged breach of trust.

6. [32]

   The “particulars” are, relevantly, as follows.

7. [33]

   As best as one can follow these particulars, the allegation appears to be that:

8. [34]

   This pleading is embarrassing and must be struck out.

9. [35]

   The statement of claim then goes on to assert, in par 10, without any elaboration, and without alleging any duty owed by ASIC (beyond that in s 127) a “monumental breach of duty” by ASIC itself to “embark on such a dishonest path”. The “dishonest path” is not identified; evidently it is that of which Messrs Cook and Ashworth are accused, namely the “backdating of critical documents to mislead HSBC and induce them into appointing [receivers] over Jorgensen’s group”.

10. [36]

    That breach is said to compel the conclusion that ASIC should produce the Report.

11. [37]

    Again, the facts said to give rise to the duty, let alone any breach of it, are not revealed.

12. [38]

    The pleading then directs attention to events said to have occurred between August 2007 and February 2008.

13. [39]

    Thus, in par 11 it is alleged that, between August 2007 and February 2008 ASIC “embarked on a similar campaign to destroy” the third plaintiff (Jim’s Water Tanks) and “continued on with its conspiracy” to put Mr Jorgensen out of business “without any warning or notice”.

14. [40]

    Again, no facts are alleged that could possibly give rise to such a rolled up allegation.

15. [41]

    Although this is not stated in the statement of claim, the reference is, evidently, to the commencement by ASIC on 28 November 2007 of proceedings against Mr Jorgensen and Jim’s Water Tanks in the Supreme Court of QLD.

16. [42]

    The allegation in par 10 appears to be allied to that in par 12 which asserts that:

17. [43]

    Those circumstances in which ASIC “withdrew” from the Supreme Court of QLD proceedings are dealt with in a judgment of de Jersey CJ in Australian Securities and Investments Commission v Jorgensen [2008] QSC 233.

18. [44]

    His Honour did record that on 22 September 2008 ASIC indicated that it wished to discontinue the proceedings but concluded that ASIC had acted reasonably in bringing the proceedings and ordered that Mr Jorgensen pay the costs of the proceedings.

19. [45]

    The pleading concludes by seeking a declaration that Messrs Cook and Ashworth have “breached their statutory duties in unlawfully setting out to destroy” the plaintiffs’ businesses and that ASIC has “aided and abetted, or alternatively, condoned” the “unlawful” actions of Messrs Cook and Ashworth.

20. [46]

    Again, the basis upon which such a declaration is sought is simply not revealed.

21. [47]

    The pleading is embarrassing and must be struck out.

Conclusion on the pleading

1. [48]

   The statement of claim does not disclose a recognisable cause of action against any of the defendants.

2. [49]

   It is so imprecise in its identification of material factual allegations as to deprive the defendants of adequate and proper notice of the claim they must meet: Gunns Limited v Marr [2005] VSC 251 at [14]-[15]; McGuirk v The University of New South Wales [2009] NSWSC 1424 at [21]-[35].

3. [50]

   It is in a form that is vague, confusing and embarrassing in the sense explained by Bongiorno J in Gunns Limited at [15]:

4. [51]

   The statement of claim is so seriously deficient that it cannot be allowed to go forward and must be struck out.

Reasons why no opportunity to re-plead should be given

1. [52]

   There are further, fundamental, problems with the case sought to be propounded in these proceedings.

2. [53]

   Those matters compel the conclusion that there can be no point permitting Mr Jorgensen an opportunity to re-plead.

3. [54]

   Instead, the proceedings should be dismissed.

Parties

1. [55]

   The first problem is associated with the manner in which the 1999 events concerning Castalloy have been pleaded.

2. [56]

   The statement of claim does not allege any facts which, if proved, would show that, but for the conduct of the defendants complained of, the “friendly takeover” of Castalloy would have proceeded.

3. [57]

   In particular, it is not pleaded that any of the current plaintiffs, Mr Jorgensen, Teksid, or Jim’s Water Tanks, would have been the vehicle that would have benefited from any such takeover.

4. [58]

   The only reference to that subject is a prayer for relief in which Mr Jorgensen and Teksid seek a declaration that they:

5. [59]

   But it is not pleaded that any of Mr Jorgensen, Teksid or Jim’s Water Tanks would have acquired Castalloy.

6. [60]

   Indeed, in submissions before me, Mr Jorgensen said that the company which was to acquire Castalloy was Light Metal Casting Ltd; a company which, Mr Jorgensen said, no longer exists.

7. [61]

   When I asked Mr Jorgensen how, in these circumstances, he contended that either he, or Teksid, could claim to have suffered any loss arising out of the 1999 Castalloy transaction, Mr Jorgensen simply asserted that he was “the principal” of all companies with which he was associated.

8. [62]

   It is clear from this that none of the plaintiffs has any standing to make any claim against the defendants (or at all) arising from the allegedly failed Castalloy takeover.

Limitation

1. [63]

   The second problem is that these proceedings are clearly brought out of time.

2. [64]

   The damage alleged to have been suffered as a result of the alleged fact that the Castalloy takeover did not take place (leaving aside who may have suffered the damage) must have occurred in 1999; 17 years ago.

3. [65]

   The events of which Jim’s Water Tanks complains (see [33ff] above) are alleged to have taken place between August 2007 and February 2008; well over six years ago.

Re-litigation of issues

1. [66]

   Further, the complaint made in the statement of claim about the alleged meeting of 1 July 1999 between Messrs Cook and Ashworth on the one hand and representatives of HSBC on the other, repeats a claim that was made by Mr Jorgensen and Teksid (and one other company) in proceedings commenced in the Supreme Court of Victoria on 7 August 2006. That statement of claim was struck out by order of Hargrave J on 14 March 2007. No application was made to re-plead and on 16 May 2007 the proceedings were dismissed for want of prosecution.

2. [67]

   Thus, to a significant extent, Mr Jorgensen seeks, in these proceedings, to re-agitate, as against ASIC and its former officers, claims already made in other proceedings which were, in effect, abandoned.

The Report

1. [68]

   It is also evident that Mr Jorgensen’s real purpose in bringing these proceedings is to obtain access to the Report (see [9] above).

2. [69]

   The Report followed a complaint made by Mr Jorgensen about ASIC’s investigation of his affairs, which investigation led ASIC, in November 1998, to ban Mr Jorgensen from acting as a company director for three years.

3. [70]

   Mr Jorgensen has since 2000 been seeking to gain access to the Report and the material relied on by Mr Dwyer when preparing the Report. He has had no success.

4. [71]

   Most recently, Mr Jorgensen made an application to ASIC under the Freedom of Information Act 1982 (Cth) for, amongst other things, the Report. On 15 February 2016 ASIC refused that request.

5. [72]

   In his affidavit of 29 June 2016 Mr Jorgensen said that, faced with that refusal:

6. [73]

   Thus, the primary focus of the present proceedings appears to be to gain access to the Report.

7. [74]

   The final prayer for relief in the statement of claim is an order that “all 3 of the versions” of that Report be “made available forthwith to the plaintiffs”.

8. [75]

   Thus, as I have mentioned, in the statement of claim, under the heading “Essence of Claim” it is stated that:

9. [76]

   In this affidavit Mr Jorgensen also said:

10. [77]

    Mr Jorgensen thus appears to recognise the shortcomings of the statement of the claim and is, at least to this extent, really seeking to bring an application for preliminary discovery.

11. [78]

    That, in my opinion, is a further reason to dismiss the proceedings.

Mr Jorgensen’s “further submissions”

1. [79]

   On 2 December 2016, Mr Jorgensen filed and served a document called “Plaintiffs’ Further Submissions from Court Hearing 24 November 2016”.

2. [80]

   That document was served pursuant to leave I granted Mr Jorgensen on 24 November 2016, in order that he could leave court at lunch time that day to attend to a family commitment.

3. [81]

   To some extent, that document repeated submissions Mr Jorgensen had made earlier, and which I have taken into account in coming to the conclusion set out above.

4. [82]

   The document also made further claims which go very much further than those in the statement of claim and which are, in any event, untenable.

5. [83]

   For example, inchoate allegations of fraud are made against each of the defendants, without any attempt to link them to a recognised cause of action.

6. [84]

   An allegation of “conscious maladministration” and “wilful maladministration” is made, seemingly against Messrs Shorten, Thomson and Cook and seemingly in connection with the Castalloy matter. If this is intended to be an allegation of misfeasance in public office, it is not included in the statement of claim, is obviously out of time and, so far as concerns Mr Shorten, appears to overlook the fact that the statement of claim makes no allegation that Mr Shorten, at the relevant time, held a public office; and indeed makes the inconsistent allegation that he was an officer of the AWU.

7. [85]

   There is also an assertion, again not reflected in the statement of claim, that Mr Thomson, when “Shadow Minister and Shadow Attorney General” was somehow in breach of “his Fiduciary Duty” (presumably, it is said, to one of the plaintiffs). I see no basis on which any such claim could be made.

8. [86]

   The further submissions take Mr Jorgensen’s claim no further.

Conclusion

1. [87]

   I order that the proceedings be dismissed with costs.