Contact:

Patrick Lunn

Our Ref:

PJL:CT:143127

23 October 2015

Mr Fred Lester
Clarke & Gee Lawyers
By e-mail: fred@clarkeandgee.com.au

Dear Sir
Susan Burge v. Commonwealth Bank of Australia
Supreme Court of Tasmania Launceston Registry Action No. 532 of 2015
This is an open letter.
In addition to the inadequacy of the allegations pleaded in the plaintiff's reply dated
21 October 2015, in respect of which we refer you to Forrest v ASIC [2012] HCA
39; (2012) 247 CLR 486, our investigations have led us to conclude that the very
serious allegations contained in paragraph 4 of the plaintiff's reply dated 21
October 2015, namely that the defendant has engaged in:
i.
ii
iii

misleading and deceptive conduct;

unconscionable conduct; or
fraud

("the allegations") are without foundation.

As you should be aware such allegations, and in particular the allegation that the
defendant has engaged in fraud without specific instructions and an appropriate
evidentiary foundation, direct or inferred, can be an abuse of process and a breach
of duty by the practitioner to the Court amounting to professional misconduct, and
attract an order for costs personally (See e.g. White Industries v Flower & Hart
(1998) 156 ALR 169; Minister for Crown Lands v Tweed Byron Aboriginal Land
Council BC9002479 (New South Wales Court of Appeal, 7 May 1990; Mullarkey v
Broad [2007] EWHC 3400 (Ch) at [40]-[45].
It is for these reasons, that we hereby give you and your client an opportunity to
withdraw the allegations by filing and serving an amended reply to the defendant's
defence that omits the allegations, and all of the subsequent allegations that
explicitly or by inference depend on the allegations, by no later than 2:00pm
Monday 26 October 2015.

s I m m o n s WOLFHAGEN

If the allegations have not been withdrawn by the filing and service of an amended
reply to the defendant's defence that omits the allegations and all of the
subsequent allegations that explicitly or by inference depend on the allegations by
2:00pm Monday 26 October 2015, we will make an application to strike out the
allegations and all other allegations that turn on the allegations and seek an order
for costs on an indemnity basis without further notice.
Yours faithfully
Simmons Wolfhagen

Patrick Lunn
Managing Partner Litigation Dispute Resolution
patrick.lunn@simwolf.com.au

Our Ref: PJL:CT:143127

23 October 2015
Page 2