Dart v Norwich Union Life Australia Limited (ACN 006 783 295)
[2005] FCA 221
•10 FEBRUARY 2005
FEDERAL COURT OF AUSTRALIA
Dart v Norwich Union Life Australia Limited (ACN 006 783 295) [2005] FCA 221
SYDNEY RONALD DART, SHIRLEY NORMA DART AND FREDERICK WILLIAM DART v NORWICH UNION LIFE AUSTRALIA LIMITED (ACN 006 783 295), VYNOTAS PTY LTD (ACN 007 093 601), JONES LANG LASALLE (QLD) PTY LIMITED (ACN 010 411 140) Formerly JLW Qld AND ROBERTS NEHMER MCKEE (A FIRM) Formerly Roberts Leu North
Q 203 OF 2004
DOWSETT J
10 FEBRUARY 2005
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 203 OF 2004
BETWEEN:
SYDNEY RONALD DART
FIRST APPLICANTSHIRLEY NORMA DART
SECOND APPLICANTFREDERICK WILLIAM DART
THIRD APPLICANTAND:
NORWICH UNION LIFE AUSTRALIA LIMITED (ACN 006 783 295)
FIRST RESPONDENTVYNOTAS PTY LTD (ACN 007 093 601)
SECOND RESPONDENTJONES LANG LASALLE (QLD) PTY LIMITED (ACN 010 411 140) Formerly JLW Qld
THIRD RESPONDENTROBERTS NEHMER MCKEE (A FIRM)
Formerly Roberts Leu North
FOURTH RESPONDENTJUDGE:
DOWSETT J
DATE OF ORDER:
10 FEBRUARY 2005
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The statement of claim be set aside.
2. The application be dismissed.
4. The notice of motion be dismissed.
5. The motion to stay the liquidation of the company be dismissed.
6.The affidavits of the applicants filed on 25 November 2004, 17 January 2005 and two affidavits filed on 1 February 2005 be sealed up and not opened other than pursuant to an order made by a Judge of the Court or the High Court.
7.The applicants pay the respondents’ costs of the motions and of the action.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 203 OF 2004
BETWEEN:
SYDNEY RONALD DART
FIRST APPLICANTSHIRLEY NORMA DART
SECOND APPLICANTFREDERICK WILLIAM DART
THIRD APPLICANTAND:
NORWICH UNION LIFE AUSTRALIA LIMITED (ACN 006 783 295)
FIRST RESPONDENTVYNOTAS PTY LTD (ACN 007 093 601)
SECOND RESPONDENTJONES LANG LASALLE (QLD) PTY LIMITED (ACN 010 411 140) Formerly JLW Qld
THIRD RESPONDENTROBERTS NEHMER MCKEE (A FIRM) Formerly Roberts Leu North
FOURTH RESPONDENT
JUDGE:
DOWSETT J
DATE:
10 FEBRUARY 2005
PLACE:
BRISBANE
REASONS FOR JUDGMENT
In these proceedings, the respondents seek to strike out the statement of claim delivered on behalf of the applicants and to dismiss or stay the proceedings generally. The proceedings arise out of property dealings between the applicants and a company, Mystic Crystals Franchises Australia Pty Ltd (the “company”) on the one hand, and the various respondents on the other, concerning retail premises in Townsville. The dealings took place between late 1994 and 1998. It seems that the company had, for most of that period, owned a business name, “Mystic Crystals”. A business was carried on under that name. One might reasonably infer that the company was carrying on that business. However the applicants assert that they were doing so, at least for some of that period. I should say that the second applicant has not appeared today, and I have declined to allow the first applicant to appear on her behalf. The third applicant has appeared. I proceed upon the basis that the second applicant has not appeared. However, as the issues concerning each applicant are the same, that will make no difference to the outcome.
It seems that on 20 October 1994, the company and the second respondent entered into an agreement for lease of the relevant retail premises. At some time thereafter, the company and the applicants became concerned about the premises. They say that they were induced to enter into the agreement for lease, or to cause the company to enter into that agreement by representations made as to the amount of foot traffic past the premises, and that they came to doubt the truth of those representations.
In any event, on 13 March 1995, the company asserted that it doubted its financial capacity to comply with the lease and asked the second respondent to permit the present applicants to take over responsibility for it. The applicants assert that as a result of that letter and subsequent events, there was some “rearrangement”, to use a neutral word, of the leasing arrangements, and that they became the tenants in lieu of the company. That view has not found favour in subsequent litigation, but I will return to that matter at a later stage. In any event, on 30 August 1995, the company executed a lease over the premises. The applicants now assert that the company executed the lease as a result of undue commercial pressure placed upon them.
There has been substantial prior litigation between the parties in both the Supreme Court and in this Court. In all cases, the applicants’ claims have been struck out. To be fair to them, I should say that they have been without legal advice. In those circumstances, they faced substantial difficulty in formulating their claims. Nonetheless the courts must extend procedural fairness to all parties. That a party is unrepresented cannot justify the denial of procedural fairness to others.
Most recently, in this Court, Spender J, struck out a statement of claim. The statement of claim raised most of the issues which the applicants currently seek to ventilate, save for one, namely, the assertion that undue commercial pressure was exerted upon them in order to force the company to execute the lease. I will deal with that matter subsequently. The decision of Spender J was upheld on appeal. There are a number of aspects of the judgment of the Full Court to which I should draw attention.
Firstly, the applicants had asserted that on or after 30 March 1995, the parties had agreed that the applicants, rather than the company, should be the tenant. The Full Court concluded that on the face of the evidence, it was impossible to maintain that assertion. The Court pointed out that the company’s execution of the lease on 30 August posed considerable difficulties in establishing such a case. Secondly, the Full Court considered that the statement of claim was defective for a number of reasons, particularly having regard to its failure to distinguish between claims made against the various respondents and on behalf of the various applicants. Thirdly, the Full Court observed at [47] and [48] of its reasons, that:
‘… the continued use so made of the processes of the Court, without apparent prospect of achieving an unobjectionable pleading, and the disregard of the judicial assistance that has been given, can now properly be categorised as giving rise to an unfair and oppressive use of the processes of the Court: c.f. Walton v Gardiner (1993) 112 ALR 289 at 298-299.
While it has been proper and appropriate in both the Supreme Court proceedings and then the proceedings in this Court, to give the appellants, as unrepresented litigants the opportunity to re-plead, the primary judge committed no error in failing further to extend that opportunity to the appellants. His Honour could properly conclude in all the circumstances “that the action ought to be brought to an end”: cf Munnings v Australian Government Solicitor (1994) 120 ALR 586 at 589.’
The decision of the Full Court, which I must respect, establishes that further prosecution of claims arising out of the dealings between the parties between 1994 and 1998 would be an abuse of process. With the exception of the one matter to which I have referred, namely the allegation of undue commercial pressure in connection with the lease, the present statement of claim raises no issue which had not been previously raised. No serious attempt has been made to address the shortcomings referred to by the Full Court and by Spender J. I would seriously undermine the decision of the Full Court if I were to allow these proceedings to continue, other than with respect to the question of “commercial pressure”.
As to that question, it is of some importance that this allegation has not been previously made. The only explanation for that, given from the bar table, is that the applicants intended to raise it at the trial. If the issue was to be ventilated at the trial, it should have been raised in the pleadings. In any event, the question of undue influence or undue commercial pressure leading to the execution of the lease, is probably a point which can only be taken by the company. It has been in liquidation for some years. There is no question of its taking the point. In those circumstances, there seems to be no reason why the applicants should be allowed to revisit these issues under the guise of addressing this arguably new issue.
The applicants also referred at some length to documents which, they say, show that previous documents in these proceedings have been forged. I need only say that I am far from convinced of that. I need go no further. In the circumstances the statement of claim will be set aside and the application dismissed.
I should add that at the outset, the applicants filed an outline of proposed amendments to the statement of claim. I have considered them and do not think that they could in any way save the situation. Whilst I appreciate that the applicants may feel very strongly about this matter, its history is such that no good purpose would be served by allowing leave to appeal. I refuse the application.
The motion will be dismissed. I order that the applicants pay the respondents’ costs of the motions and of the action.
The motion to stay the liquidation of the company will be dismissed. I order the applicants to pay the respondent’s costs of the motion.
There will be an order that the affidavits of the applicants filed on 25 November 2004, 17 January 2005 and two affidavits filed 1 February 2005 be sealed up and not opened other than pursuant to an order made by a Judge of the Court or the High Court.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 17 March 2005
Counsel for the First Applicant: The First Applicant appeared in person. Counsel for the Second Applicant: The Second Applicant did not appear. Counsel for the Third Applicant: The Third Applicant appeared in person. Counsel for the First and Second Respondents: Mr A J Moon Solicitor for the First and Second Respondents: Connolly Suthers Counsel for the Third and Fourth Respondents: Mr B Porter Solicitor for the Third Respondent: Flower & Hart Solicitor for the Fourth Respondent: Brian Bartley & Associates Date of Hearing: 10 February 2005 Date of Judgment: 10 February 2005
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