Culleton v Permanent Custodians Ltd
[2018] WASC 251
•22 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CULLETON -v- PERMANENT CUSTODIANS LTD [2018] WASC 251
CORAM: ALLANSON J
HEARD: 10 AUGUST 2018
DELIVERED : 22 AUGUST 2018
FILE NO/S: CIV 1320 of 2016
BETWEEN: RODNEY NORMAN CULLETON
First Plaintiff
LESLEY DIANNE CULLETON
Second Plaintiff
AND
PERMANENT CUSTODIANS LTD
First Defendant
AWB SERVICES LTD
Second Defendant
BNY TRUST (AUSTRALIA) REGISTRY LTD
Third Defendant
LANDMARK OPERATIONS LTD
Fourth Defendant
AWB COMMERCIAL FUNDING LTD
Fifth Defendant
AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
Sixth Defendant
COOPERATIEVE (RABO BANK AUSTRALIA BRANCH)
Seventh Defendant
ANZ CAPEL COURT LTD
Eighth Defendant
AURORA SECURITISATION PTY LTD
Ninth Defendant
FTI CONSULTING
Tenth Defendant
VNW INDEPENDANT
Eleventh Defendant
MATTHEW RONALD FORD
Twelfth Defendant
JESSE DAVID FORD
Thirteenth Defendant
GRAHAM ARTHUR HARDING
Fourteenth Defendant
Catchwords:
Practice and procedure - Strike out of pleadings - Abuse of process - Failure to plead reasonable cause of action - Embarrassing pleading
Legislation:
Australian Securities and Investments Commission Act 2001 (Cth)
Judiciary Act 1903 (Cth), s 78B
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 20, O 62A, O 67A r 4(7), O 69
Trade Practices Act 1974 (Cth)
Result:
Leave is granted to the tenth defendant to extend time to bring an application to strike out
The further amended statement of claim is struck out in full
The second plaintiff's action against the first, third, sixth, eighth, ninth, tenth and eleventh defendants is dismissed
Category: B
Representation:
Counsel:
| First Plaintiff | : | In person |
| Second Plaintiff | : | In person |
| First Defendant | : | Mr D W John |
| Second Defendant | : | No appearance |
| Third Defendant | : | Mr D W John |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | Mr D W John |
| Seventh Defendant | : | No appearance |
| Eighth Defendant | : | Mr D W John |
| Ninth Defendant | : | Mr D W John |
| Tenth Defendant | : | Ms K H L Sutherland |
| Eleventh Defendant | : | Mr S D Hubbard |
| Twelfth Defendant | : | No appearance |
| Thirteenth Defendant | : | No appearance |
| Fourteenth Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | In person |
| Second Plaintiff | : | In person |
| First Defendant | : | Herbert Smith Freehills |
| Second Defendant | : | No appearance |
| Third Defendant | : | Herbert Smith Freehills |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | Herbert Smith Freehills |
| Seventh Defendant | : | No appearance |
| Eighth Defendant | : | Herbert Smith Freehills |
| Ninth Defendant | : | Herbert Smith Freehills |
| Tenth Defendant | : | Corrs Chambers Westgarth |
| Eleventh Defendant | : | DLA Piper Australia - Perth |
| Twelfth Defendant | : | No appearance |
| Thirteenth Defendant | : | No appearance |
| Fourteenth Defendant | : | No appearance |
Case(s) referred to in decision(s):
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd [2005] WASCA 157
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
DM Drainage and Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170
Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486
Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998) 8
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
Mao v AMP Superannuation Limited [2017] NSWSC 987
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129
Nyoni v Patterson [2012] WASCA 171
Permanent Custodians Ltd v Elite Grains Pty Ltd [2014] WASC 495
Permanent Custodians Ltd v Elite Grains Pty Ltd [No 2] [2016] WASC 238
Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 91 ALJR 803
Re Culleton [2017] HCA 3
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
The State of Western Australia v Cunningham [No 2] [2017] WASCA 197
Tobin v Dodd [2004] WASCA 288
ALLANSON J:
Background
The first plaintiff, Rodney Norman Culleton, and the second plaintiff, Lesley Dianne Culleton, commenced these proceedings against 14 defendants by writ with endorsed statement of claim filed 29 February 2016. The plaintiffs claimed orders pursuant to the Trade Practices Act 1974 (Cth) and the Australian Securities and Investment Commission Act 2001 (Cth).
These reasons concern applications by seven of the defendants - the first, third, sixth, eighth, ninth, tenth, and eleventh defendants - to strike out the statement of claim of the second plaintiff. The first plaintiff's claim has already been dismissed in circumstances I describe below.
The first, third, sixth, eighth, and ninth defendants were represented by the same solicitors. They are, in order, Permanent Custodians Limited, BNY Mellon Trust Ltd, Australian and New Zealand Banking Group Ltd, Cooperative (Rabo Bank Australia Branch) and Aurora Securitisation Pty Ltd.
The tenth defendant, FTI Consulting, and the eleventh defendant, VNW Independent, were separately represented.
There is a dispute about whether the writ was properly served on all defendants, although nothing turns on the dispute for current purposes. The defendants who have brought this application have each entered consent judgments regarding the first plaintiff's claim and accordingly have waived any irregularity in service.
On 23 December 2016, the first plaintiff was declared bankrupt.
On 11 April 2017, a registrar made orders by consent dismissing the first plaintiff's action against the tenth defendant and against the eleventh defendant. The memorandum of consent orders was signed on behalf of the first plaintiff by his trustee in bankruptcy.
On 1 February 2018, the plaintiffs filed an amended statement of claim.
On 7 March 2018, I made orders by consent dismissing the first plaintiff's claim against the first, third, sixth, eighth and ninth defendants. Again, the memorandum of consent orders was signed on behalf of the first plaintiff by his trustee in bankruptcy.
At a directions hearing on 8 March 2018, I made orders that the first, third, sixth, eighth and ninth defendants file any application to strike out the second plaintiff's statement of claim by 2 May 2018, and adjourned the matter for directions to 4 May 2018.
On 27 April 2018, the second plaintiff filed a further amended statement of claim.
On 2 May 2018, the first, third, sixth, eighth and ninth defendants filed their application to strike out.
On 3 May 2018, the eleventh defendant filed an application by chamber summons to strike out the statement of claim.
Also on 3 May 2018, the second plaintiff filed a minute of proposed orders, although only the first two proposed orders were directed to the current applications.
On 4 May 2018, I made orders programming the filing of written submissions for a hearing at a special appointment on 10 August 2018.
On 12 June 2018, the tenth defendant also filed a chamber summons seeking leave to extend time to apply to strike out the statement of claim, and that the claims against it in the further amended statement of claim be struck out.
The applications to strike out, and the tenth defendant's application for leave, were heard on 10 August 2018. The second plaintiff attended by telephone. At her request, having regard to her age and the disadvantage she was under in attending by telephone, I gave leave to the first plaintiff to speak on her behalf.
Notice of constitutional matter
On the morning of the hearing, the second plaintiff lodged with the court a document which purported to give notice that the proceedings involved a matter arising out of the Australian Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act 1903 (Cth). The constitutional matter was expressed in this way:
The constitutional concern in this matter concerns the conflict between parliamentary privileges and the constitutional imperative, the effects of constitutional processes under ss 22, 23, 47 and s 49 Constitution and the effects of the subordinate sections of the Bankruptcy Act default judgment by registrars in the State of Western Australian Supreme Courts.
The notice included assertions that:
(1)on 1 December 2016, 'the Senate became seized of all matters associated with Sen Rod Culleton and all his staff, and by ss 22, 23, 47, 49 and 53 Constitution, overrules any lesser Court with a Judge';
(2)the decision in the Federal Court by which the first plaintiff was declared bankrupt was flawed;
(3)the plaintiffs ought to be able to file for a prerogative writ against privative rules of the court (I understand the reference is to the rules limiting time within which to apply to set aside default judgment).
The operation of s 78B of the Judiciary Act has been considered on many occasion. A comprehensive recent review is found in the decision of Ward CJ in Eq in Mao v AMP Superannuation Ltd.[1] In one of the authorities to which her Honour referred, Re Culleton, Gageler J summarised the position in this way:
Section 78B of the Judiciary Act does not, in my opinion, prevent me from dismissing so much of the summons as seeks to give effect to Senator Culleton's attempt to raise the constitutional objection to jurisdiction. French J made the point in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd that s 78B 'does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be'. To give rise to the obligation not to proceed without notice a cause pending in court must truly 'involve' a matter arising under the Constitution or involving its interpretation. As Toohey J stated in Re Finlayson; Ex parte Finlayson, in a passage quoted with approval by Gummow, Hayne and Callinan JJ in Glennan v Commissioner of Taxation, '[I]n terms of s 78B, a cause does not 'involve' a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does'. In short, the constitutional point must be real and substantial.[2]
[1] Mao v AMP Superannuation Limited [2017] NSWSC 987.
[2] Re Culleton [2017] HCA 3 [29].
The court proceeded with the hearing of the strike out applications. I was satisfied that the notice did not identify any constitutional point arising in the claim by the second plaintiff against the defendants. The hearing was concerned only with that claim, the claim by the first plaintiff having been earlier dismissed. I was also satisfied that none of the issues in these applications involve the matters identified in the notice.
The strike out applications
Before considering the applications in greater detail, I will set out some basic rules relating to court documents and pleadings, the disregard of which created difficulties for the court and the other parties.
The first is that a statement of claim must state specifically the relief or remedy which the plaintiff claims.[3]
[3] Rules of the Supreme Court 1971 (WA) O 20 r 2(1).
Second, there are formal requirements. A pleading 'must, if necessary be divided into paragraphs numbered consecutively, each allegation being so far as convenient contained in a separate paragraph'.[4] This is in addition to the requirements of O 69 r 2 for all documents filed in the court and which include the requirement that each page be numbered.[5] The statement of claim does not have numbered pages. While it has paragraphs numbered 1.1 to 1.51, that sequence is interrupted by multiple subparagraphs which are not obviously related to the preceding numbered paragraph.
[4] Rules of the Supreme Court O 20 r 7(2).
[5] Rules of the Supreme Court O 69 r 2(1)(e).
Third, every pleading must be signed.[6] Even if filed electronically, a document must be signed in accordance with O 67A r 4(7). The statement of claim is not signed.
[6] Rules of the Supreme Court O 20 r 7(5).
Fourth, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved.[7]
[7] Rulesof the Supreme Court O 20 r 8(1).
Fifth, every pleading must contain the necessary particulars of any claim, defence or other matter pleaded.[8]
[8] Rules of the Supreme Court O 20 r 13 (1).
Under O 20 r 19,
The Court may at any stage of the proceedings … order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that —
(a)it discloses no reasonable cause of action or defence, as the case may be; or
(b)it is scandalous, frivolous or vexatious; or
(c)it may prejudice, embarrass or delay the fair trial of the action; or
(d)it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
All defendants applied on the same grounds, that:
(a)the statement of claim discloses no reasonable cause of action; is scandalous, frivolous or vexatious; and may prejudice, embarrass or delay the fair trial of the action pursuant to O 20 r 19(1);
(b)further or alternatively, the statement of claim is an abuse of the process of the court pursuant to the court's inherent jurisdiction and O 20 r 19(1)(d).
On an allegation that the plea fails to disclose a reasonable cause of action, 'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable.[9]
[9] Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd [2005] WASCA 157 [54].
Pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action 'because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general'.[10]
[10] Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998) 8, 9; DM Drainage and Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170 [34].
The concept of abuse of process involves some misuse of the process of the court in a manner that has been variously described as seriously and unfairly burdensome, prejudicial or damaging, or in some way such as to bring the administration of justice into disrepute. While not intended to be limiting, there are accepted categories of abuse of process, including: proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way; proceedings which are manifestly groundless or without foundation or which serve no useful purpose; multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.[11] In Sheraz Pty Ltd v Vegas Enterprises Pty Ltd, Buss JA said:
First, a court has inherent or implied power to prevent misuse of its procedures in a manner which, although not inconsistent with the literal application of its procedural rules, would nevertheless be 'manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people'. Secondly, abuse of process extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'. Thirdly, the categories of abuse of process are not closed, and a court may exercise its power in relation to an abuse of process 'as and when the administration of justice demands'. Fourthly, the categories of conduct which have attracted the intervention of the courts on the ground of abuse of process have included successive proceedings which cause or are likely to cause 'improper vexation or oppression'.[12]
[11] See Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 [27]; Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [8].
[12] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [8] (Murphy JA & Chaney J agreeing) (citation of authorities omitted).
In considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques, including the pre-trial exchange of witness statements.[13] Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects in O 1 r 4A and 4B are often promoted by a clear and precise statement of the issues for decision.
[13] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 [8].
Pleadings and litigants in person
This case presents many of the difficulties attending the conduct of cases where a party is not legally represented. The role of the judge in civil proceedings where a party is not represented has been discussed in many authorities.[14] It is well settled that leniency may be required in relation to compliance with the procedural rules. And the court will approach an application to summarily determine a claim brought by a self-represented litigant with special care, 'to ensure that within the possibly ill-expressed and unstructured statement of claim, there is no viable cause of action'.[15]
[14] See, for example, Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129 [26] ‑ [30]; and see Tobin v Dodd [2004] WASCA 288.
[15] Nyoni v Patterson [2012] WASCA 171 [35] (Pullin JA, Buss &Murphy JJA agreeing).
But the allowances that can be made are necessarily limited, both as a matter of fairness to the other party, and because compliance with procedure may be necessary to ensure that the court can properly decide the dispute before it. Pleadings ensure a basic requirement of procedural fairness, and, to do so, must state the case sufficiently clearly to allow the other party a fair opportunity to meet it.[16] In Nyoni v Patterson, Pullin JA said:
After allowing for the disadvantage an in person litigant suffers, it is still necessary, out of fairness to defendants, that the statement of claim is drawn so that when the opponent pleads to it, the pleadings will define with clarity and precision the issues or questions which are in dispute between the parties and fall to be determined by the court. A statement of claim must state all material facts to support the claim to relief so that fair and proper notice is given to the defendants to enable them to frame and prepare their own case for trial. Such clarity and precision is also necessary to inform the court about the precise matters in issue between the parties which are to be determined by the court and which set the limits of the action.
… clear and precise pleadings are necessary because they form a permanent record of the issues and questions raised in the action and decided so as to prevent future litigation upon matters already adjudicated upon between the litigants: Opperman v The State of Western Australia [2011] WASC 25 [38] (EMHeenan J).[17]
[16] Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 286 287; Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490, 517; Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 [26].
[17] Nyoni v Patterson [36] - [37].
The application by the first, third, sixth, eighth, and ninth defendants
The statement of claim is 24 pages long, including a four page chronology and a single page list of authorities.
The prayer for relief seeks 14 orders, together with a general prayer for 'any other order the court wishes to make'.
The opening paragraph, numbered 1) seeks orders substituting new defendants for three defendants whom the plaintiffs have been unable to serve. Paragraph 1b) seeks leave for a further plaintiff to be joined. Such matters are not within the function of a statement of claim. The paragraphs numbered 1) and 1b) should be struck out.
Paragraphs 1.1 to 1.15 are, in substance, a challenge to the order made on 8 March 2018 dismissing the first plaintiff's claim. These are not matters in which the second plaintiff can claim relief, and the challenged paragraphs can give rise to no recognised cause of action.
In par 1.17, the second plaintiff appears to move beyond preliminary or introductory matters and states that she makes the further amended statement of claim 'on a three step basis'.[18]
[18] Although only two steps are identified.
The first step is a challenge to 'unsafe default judgments' in CIV 2473 of 2012. The submission on behalf of the defendants to this part of the plea is, in my opinion, unanswerable.
The action CIV 2473 of 2012 was brought by the first defendant, Permanent Custodians, 'as Trustees for and under the Master Trust Deed establishing the Rural Program'. The action was against five defendants, Elite Grains Pty Ltd, Rodney Norman Culleton, Ioanna Culleton, Ronald Norman Culleton, and Lesley Dianne Culleton. It was, in essence, a 'mortgage action', under O 62A.
While the second plaintiff was a party to the action (as fifth defendant), there was no judgment entered against her. Judgment in default of appearance was obtained against Elite Grains, as principle debtor; and against Rodney Culleton and Ioanna Culleton, as guarantors, in May 2013.
A brief chronology of events underlying this action is set out in the judgment of Martin J in Permanent Custodians Ltd v Elite Grains Pty Ltd [2014] WASC 495. [19] Relevantly for the present application:
[19] Permanent Custodians Ltd v Elite Grains Pty Ltd [2014] WASC 495 [17].
29 Aug 2012
The mortgage action (CIV 2473/2012) is commenced by the plaintiff against five named defendants.
4 Oct 2012
Default judgment is obtained and entered against only the first defendant, Elite Grains Pty Ltd (default of appearance).
28 May 2013
Default judgment is obtained by leave against second and third defendants (default of appearance).
6 Feb 2014
A chamber summons is filed seeking, on behalf of the second and third defendants, an extension of time for them to appeal and for leave to appeal against the judgment of 28 May 2013.
24 Feb 2014
Master Sanderson refuses the application for an extension of time and for leave to appeal.
3 Mar 2014
Appeal notice is filed by Rodney Culleton in the Registry of the Court of Appeal (CACV 26/2014), seeking leave for himself and Ioanna Culleton to appeal against the refusal decision of Master Sanderson.
13 Aug 2014
Rodney and Ioanna Culleton's appeal to the Court of Appeal is dismissed by reason of non‑compliance with par 2 of the orders of 22 July 2014 earlier made by Newnes and Murphy JJA, striking out the appellants' case and affording Rodney and Ioanna Culleton until 4 August 2014 to file an amended application, failing which their appeal would be dismissed.
10 Sep 2014
Interlocutory application by Rodney and Ioanna Culleton's 'summons' seeking a 'Declaration' in this action (CIV 2473 of 2012) that the orders made by Registrar Whitbread on 28 May 2013 are 'void ab initio'.
Justice Martin dismissed the application for a declaration as inherently misconceived and an abuse of the process of the court.
In 2016, Martin J heard a further application to set aside the default judgments, on this occasion brought by Ioanna Culleton (the third defendant).[20] On that occasion, Martin J continued the chronology. In particular, he recorded that on 9 February 2015, the proceedings were discontinued against the fourth and fifth defendants (that is, against the second plaintiff in this action).
[20] Permanent Custodians Ltd v Elite Grains Pty Ltd[No 2] [2016] WASC 238.
Martin J accepted that the challenge to the default judgment was 'theoretically open'. His Honour dismissed the application, however, holding that the judgment was regularly obtained;[21] there was no satisfactory explanation for the three year delay in seeking to set it aside; and, most importantly, there was no identified reasonably arguable defence.[22]
[21] Permanent Custodians Ltd v Elite Grains Pty Ltd [No 2] [21].
[22] Permanent Custodians Ltd v Elite Grains Pty Ltd [No 2] [65].
No application was brought by Elite Grains to set aside the judgment against it. It was subsequently put into liquidation.
Against that background, the plea challenging the 'unsafe default judgments' cannot stand.
First, the second plaintiff is a stranger to the judgments in question.
Second, as a stranger, the second plaintiff is seeking to re-litigate issues which were determined by Martin J in 2014 and 2016. In State of Western Australia v Cunningham [No 2],[23] Murphy and Mitchell JJA set out a series of propositions regarding the nature of abuse of process, derived from the reasons in Sheraz v Vegas Enterprises Pty Ltd:
1.Inherent or implied power exists to prevent misuse of the court's procedures in a manner which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation or would bring the administration of justice into disrepute among right-thinking people.
2.Abuse of process extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment.
3.Categories of abuse of process are not closed and the court may exercise its power as and when the administration of justice demands.
4.An abuse of process may arise where there are successive proceedings which are vexatious or unjustifiably oppressive, or which threaten the integrity of the administration of justice.
5.It would be a scandal to the administration of justice if a litigant were to be permitted by changing the form of the proceedings to set up the same case again in circumstances where the same question had previously been disposed of.
6.A court may invoke principles of an abuse of process to prevent attempts to litigate an issue which could and should have been litigated in earlier proceedings, as well as to prevent attempts to re-litigate an issue which has, in substance, been litigated and determined in earlier proceedings.
7.The focus in applying the principles of abuse of process should be on matters of substance and not form.
[23] The State of Western Australia v Cunningham [No 2] [2017] WASCA 197 [50]; citing Sheraz v Vegas Enterprises Pty Ltd [8] - [20], [118] - [134], [151].
Third, the present proceedings, in challenging the default judgments, is the third action seeking to do so, five years after they were entered. I am satisfied that it is an abuse of process. The defendants, in their written submissions, have accurately described the conduct in bringing the claims through the second plaintiff, following the first plaintiff's bankruptcy and the dismissal of the first plaintiff's action, as a 'device'. The court should not permit its processes to be misused in this manner.
That conclusion applies also to 'step 2 (the Guarantors)' in the statement of claim. The allegations extend to the service of the writ on the second plaintiff, the validity of a power of attorney held by a Mr Davis, the conduct of the hearing before the registrar, and the conduct of the first defendant as Trustee under a Master Trust Deed. But, to the extent that I can discern a claim for relief behind the various contentions, it appears again to be a challenge to the entry of the default judgments in 2013, and, perhaps, to the writ on which judgment was entered.
There is no step expressly identified as 'step 3'. The statement of claim contains various assertions regarding the conduct of the defendants and their legal representatives. But none of these assertions appear to be related to any relief to which the second plaintiff is, or claims to be, entitled.
For example, in paragraphs 1.42 to 1.44, the second defendant pleads an 'unsolicited offer' to place the liabilities of Elite Grains into the personal names of Rodney and Ioanna Culleton. The plea, as I understand it, is that the offer was not accepted. There is no plea that the second plaintiff was in any way party to the proposed new arrangements, or that she suffered any loss or damage as a result.
Looking at the whole of the plea, it is not possible to identify a cause of action that the second plaintiff may prosecute against this group of defendants. It is difficult to be more specific when, looking at a plea that extends over 18 pages, I can identify no coherent statement of a claim and no viable cause of action. It is not simply that the statement of claim is poorly structured and expressed. It identifies no legal wrong suffered by the second plaintiff.
The challenges to the second plaintiff's plea include that it may prejudice, embarrass or delay the fair trial of the action. That complaint is made out. The defendants attempted to identify, within the plea, the allegations that related to them. That exercise assisted me considerably in determining these applications. But it tended, in some measure, to mask how difficult it is to discern just what the second plaintiff is claiming.
It is not possible to identify particular paragraphs that should be struck out as embarrassing. The plea as a whole can be described as not reasonably intelligible, raising many immaterial or irrelevant issues, and failing to state a case with reasonable particularity. It should be struck out as a whole.
The application by the tenth defendant
There are references to the tenth defendant in the course of the plea, generally asserting that the tenth defendant, and others, caused injury to the first plaintiff by selling assets to which they (and the other defendants) had no legal right.
The claim against the tenth defendant is also separately pleaded in paragraphs numbered 1(i) to (vii), at the end of the statement of claim. The second plaintiff alleges that on 17 December 2013, the tenth defendant was appointed as receivers over the farming land of the guarantors. The second plaintiff alleges that the tenth defendant 'threw the second defendant off the property and unlawfully took control of all the assets that were no held as security and in doing so sold the asset walk in walk out and in doing so committed larceny and permanently deprived'.[24] The following sub-paragraphs are difficult to follow. They include an allegation that the tenth defendant sold property, on the advice of the sixth defendant (ANZ Bank) as the purported mortgagee, when ANZ Bank could not lawfully do so, and despite warnings.
[24] Paragraph 1. I infer the reference to the second defendant is to Mr Culleton, the second defendant in the proceedings in which default judgments were entered.
No orders are sought against the tenth defendant, except to the extent they might come within the general relief in proposed order 4: 'Order the trial to be heard on the merits and fresh evidence'.
In submissions in support of the strike out application, the tenth defendant makes assertions of fact which might support a summary judgment application. The current application, however, is concerned only with the adequacy of the pleadings. At its highest, the statement of claim alleges that the tenth defendant was appointed as receiver over the farming land of the guarantors. The second plaintiff was one of the guarantors. The second plaintiff does not specifically allege that the tenth defendant was at any time appointed as receiver or manager over any property in which she held an interest, or to which she was entitled to possession, and does not allege unlawful conversion of any of her property.
The claim against the tenth defendant is embarrassing in failing to state a case with any particularity. Further, the facts pleaded would not entitle the second plaintiff to any relief against the tenth defendant, and none is actually claimed.
The tenth defendant was out of time in its application to strike out. The explanation given, and supported on affidavit,[25] is that it was not immediately apparent to the tenth defendant whether an application was necessary when the application by the other defendants might address the entirety of the further amended statement of claim.
[25] Affidavit of Kirsty Honor Louise Sutherland, sworn 12 June 2018.
I am satisfied that I should extend time. In short, the proposed claim is so defective that the interests of justice are better served by dealing with the whole of the matter. I do not believe that it could be in the interests of justice to proceed to trial, or indeed to use the resources of the parties and the court in pre-trial processes, on the plea currently before the court.
The application by the eleventh defendant
Similar considerations apply to the application by the eleventh defendant to strike out the claim against it. There is no relief sought against it in favour of the second plaintiff, and no facts are pleaded which would entitle the second plaintiff to any such relief.
The prayer for relief
I have already referred to some of the orders sought. Others demonstrate that the action - nominally brought by the second plaintiff - is in truth the first plaintiff's action. The relief sought is not directed to the interests of the second plaintiff. But the second plaintiff seeks orders for the return of assets to the first plaintiff (order 5); and an order 'to go behind the judgment' (order 7) which, given the reference to Ramsay Health Care Australia Pty Ltd v Compton,[26] can only be a reference to proceedings in which the first plaintiff was declared bankrupt. Other orders relate to Elite Grains Pty Ltd (order 3, order 11, order 13, order 14).
[26] Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 91 ALJR 803.
Conclusion
The further amended statement of claim dated 27 April 2018 will be struck out in full.
The second plaintiff cannot be given leave to re-plead any claim that:
(1)challenges the default judgment entered in 2013 against Elite Grains, the first plaintiff and Ioanna Culleton;
(2)challenges the bankruptcy or the consequences of the bankruptcy of the first plaintiff;
because such pleas would be an abuse of process.
More generally, the further amended statement of claim did not set out any factual basis on which the second plaintiff would be entitled to relief. While the court must exercise special care in summarily disposing of an action by an in person litigant, I am unable to find a viable cause of action available to the second plaintiff in the circumstances set out in her plea.
I will enter judgment for the first, third, sixth, eighth, ninth, tenth, and eleventh defendants dismissing the claim by the second plaintiff.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZW
ASSOCIATE TO THE HONOURABLE JUSTICE ALLANSON22 AUGUST 2018
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