Donaldson v Suffolk Investments Pty Ltd
[2015] WASC 481
•15 DECEMBER 2015
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | DONALDSON -v- SUFFOLK INVESTMENTS PTY LTD [2015] WASC 481 |
| CORAM | : CHANEY J | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : JOHN RAWSON DONALDSON |
Applicant
AND
SUFFOLK INVESTMENTS PTY LTD
Respondent
Catchwords:
Practice and procedure - Abuse of process - Attempt to litigate again issues determined in earlier proceedings between the same parties
Legislation:
Nil
Result:
Action dismissed
[2015] WASC 481
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | Mr S J Penrose |
Solicitors:
| Applicant | : | In person |
| Respondent | : | Tottle Partners |
Case(s) referred to in judgment(s):
Donaldson v Suffolk Investments Pty Ltd [2015] WASC 236
Donaldson v Suffolk Investments Pty Ltd [No 2] [2015] WASC 262
Jeffery & Katauskas v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239
CLR 75
Reichel v Magrath (1889) 14 App Cas 665
[2015] WASC 481
CHANEY J
CHANEY J: By an originating summons filed on 23 October 2015, the applicant sought orders pursuant to O 26A r 4 and r 6 of the Rules of the Supreme Court 1971 (WA) for pre-action discovery by the respondent of certain books and financial records of the respondent. The applicant also sought orders for inspection of those documents.
2 Previously, on 30 March 2015, the applicant lodged an originating
summons for pre-trial discovery by the respondent. That summons became action CIV 1461 of 2015. The orders sought in CIV 1461 of 2015 were substantially the same orders as are sought in this matter. CIV 1461 of 2015 was dealt with by Beech J. On 1 July 2015, Beech J published reasons dealing with objections to an affidavit sworn by the applicant in support of the originating summons (March affidavit) - see Donaldson v Suffolk Investments Pty Ltd [2015] WASC 236. His Honour upheld objections to four paragraphs of the March affidavit being [5], [6], [11] and [12]. Those paragraphs were struck out. The respondent's objections to Mr Donaldson's affidavit were otherwise overruled.
3 Subsequently, by reasons delivered on 21 July 2015, Beech J
dismissed the application for pre-action discovery: see Donaldson v Suffolk Investments Pty Ltd [No 2] [2015] WASC 262. He did so on the basis that nothing in the March affidavit was capable of supporting an objective finding that the applicant may have a cause of action against the respondent.
4 The respondent now seeks to have these proceedings dismissed as an
abuse of process on the basis that the issues raised in the application have already been litigated and determined and the applicant is therefore estopped from making this further application. Mr Donaldson's response is that additional documents are attached to his affidavit in support of this application (October affidavit) which were not included in the March affidavit and, on that basis, this application differs from the earlier application. He submits that the court should now conclude that he may have a cause of action against the respondent.
5 As already noted, the orders sought in CIV 1461 of 2015 are in
substantially identical terms to the orders sought in these proceedings. Each application was supported by an affidavit. Beech J struck out [5], [6], [11] and [12] of the March affidavit. He found that the affidavit did not otherwise satisfy the requirements of O 26A r 4, and in particular that the affidavit fell well short of being sufficient to establish that Mr Donaldson may have a cause of action against the respondent.
[2015] WASC 481
CHANEY J
6 Attached to the respondent's submissions was a schedule which
illustrates the difference between the October affidavit and the March affidavit. That schedule accurately records the contents of the two affidavits. A copy of that schedule is attached to these reasons. It can be seen that [5], [6] and [11] are repeated, with some minor amendments, in the October affidavit.
7 It can be noted that attachments F, G and H were not attached to the
March affidavit. They are the additional documents that Mr Donaldson submits demonstrate that he may have a cause of action. As I understand his oral submissions, he says that the cause of action arises from the fact that offers have been made to purchase his interest in the respondent, but the respondent is refusing to provide documents that would enable him to assess the value of his interest. His affidavit refers to a possible cause of action under s 232 of the Corporations Act 2001 (Cth).
8 Attachment F to the October affidavit contains a proposal in relation
to the applicant's children receiving a share of a superannuation fund, and an email discussing the possible value of the applicant's share in the respondent. Nothing in those documents assists in the objective determination of the existence of any cause of action. At best they are simply offers which, it can be assumed, were not accepted. Attachment G comprises a single page of notes to the financial statements of the respondent for the year ended 30 June 2014. The attachment is not referred to in the text of the affidavit. Attachment H is a document entitled 'Donaldson Super Fund Share Portfolio'. It lists certain shares and their values. It provides no support for any objective identification of any potential cause of action against the respondent.
9 It is well accepted that multiple or successive proceedings which
cause or are likely to cause improper vexation or oppression comprise one category of conduct which will attract the intervention of the courts so as to prevent abuse of its process - see Jeffery & Katauskas v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 [27]. Courts will prevent re-litigation of matters involving the same questions as have already been dealt with in earlier proceedings even if the subsequent proceedings are brought in some different form.
In Reichel v Magrath (1889) 14 App Cas 665 (Reichel), Lord Halsbury LC said (at 668):
I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be
[2015] WASC 481
CHANEY J
permitted by changing the form of the proceedings to set up the same case
again …I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure.
11 There is, in substance, no difference between these proceedings and
the proceedings brought in CIV 1461 of 2015. CIV 1461 of 2015 was heard and determined. It is not open to the applicant to bring what is, in substance, the same application, and therefore the proceedings should be dismissed on the basis that they constitute an abuse of process.
12 There is no reason that costs should not follow the event. There
should be an order that the applicant pay the respondent's costs to be
taxed.13 Subject to consideration of any submissions which the parties may
wish to make as to the form of the order, which submissions should be made within seven days of the delivery of these reasons, there will be orders that:
1. The proceedings be dismissed. 2. The applicant pay the respondent's costs of the action to be taxed.
[2015] WASC 481
CHANEY J
SCHEDULE 1
| Para | Change | CIV 1461 of 2015 / CIV 2689 of 2015 |
| 1. | No. | I am a shareholder in Suffolk Investments PTY LTD ('the Respondent'). |
| 2. | No. | I swear this affidavit in support of my originating summons for potential litigation discovery from the Respondents. |
| 3. | No. | I have asked Jeff Nolan and Hartleys from early 2013 to keep all Suffolk Investments PTY LTD records since 2005. |
| 4. | Yes. | Mid 2013 after my fathers passed (feb 2013) Glen Giles (Taylor Smart) laughed at me and stated Taylor Smart were 'well connected in the Supreme Court and Taylor Smart, Jeff Nolan and Jemma Hector said under no circumstances would I receive any disclosure from Suffolk Investments PTY LTD, Peter Nevin (Taylor Smart) and Jeff Nolan have maintained this view for 2.5 years. They all, including Jemma Hector (Director) also have said on numerous occasions if I wanted money I had to sell my shareholding in Suffolk Investments at a 200915 valuation of which I can not verify the valuation. They all will not allow me as a shareholder to independently let a licensed valuer view the book and accounts. |
| 5. | Yes. | Between 2004 and 2009 the Directors of Suffolk Investments PTY LTD and the accountant 'Barry Cook' (Jeff Nolan's current associate) were putting me under duress with threats to sign documents I had no understanding of at the time were in fact ATO tax avoidance documents fraud. Making me state in writing the Directors were not in a position to repay loans to the company and as such they were to be written off as bad loans. Also signing away property's to my brother as a Director at significantly under market valuation to avoid stamp duty and other fees. Once I received advice it was clearly deliberate tax avoidance intentionally misleading the ATO I refused to be a part of it and asked both the Directors to repay the ATO monies. (Judge Maxwell Supreme Court NSW 'whatever way you look at it, it is tax fraud, Dallhold Investments - Alan Bond). |
| 6. | Yes. | I believe the money may have been repaid at my insistence at a later date and the books 'cooked' 2008 to cover it up. |
| I believe I have a cause of action against the 'Company Suffolk Investments'. |
[2015] WASC 481
CHANEY J
| 8. | Yes. | I verily believe money and property was removed out of 'the company' between 2005 to 2009 and perhaps to the present by the Directors John Wayne Donaldson, Tom Donaldson and then accountant Barry Cook while my father was in a vulnerable, mentally and physically sick state. This is being covered up by the current Directors Jeff Nolan and Jemma Hector. My father often spoke of extensive property syndicates and extensive blue chip shareholdings the company is currently making no reference to. |
| 9. | Yes. | It is not disputed my father as a Director of Suffolk Investments was a very sick man for his last 15 years with extensive medical reports (records) clearly stating 'chronic alcoholic-1998', 'chronic brain disease 2006 (more than likely much longer)', 'chronic liver disease 2002', 'frontal lobe damage 2007', 'numerous falls-heavy knocks to head-cant remember things-2002 to 2013'. My father never stopped drinking excessively and experiencing medical problems up to his death. 100+ plus standard drinks of wine per day from 1996. |
| 10. | No. | Jeff Nolan and Jemma Hector were appointed as Directors while my father was very sick and Jeff Nolan and/or Taylor Smart will not provide details or company minutes on Jeff Nolan and Jemma Hectors appointments. |
| 11. | Yes. | In January 2013 Anne Durack advised me it was well known to some that my father was used and manipulated in his vulnerable, sick later years. Anne Durack also advised me I was entitled to full disclosure on Suffolk Investments PTY LTD and my income now that my father was deceased. |
| 12. | No. | In November 2014 Alan Camp advised me in writing I was entitled to full disclosure on Suffolk Investments PTY LTD and my income for the last 5 years. Also in 2013 Rob Nash and Leo Tsanki also advised me I was entitled to full disclosure on Suffolk Investments PTY LTD and my income. They are all very respected Barristers. |
| 13. | Yes. | Since 1993, I have owned 40,000 ordinary and 8000 F class shares and have not received my income ever from 'the company' only ad-hoc dividends at the Directors discretion and they are now not paying any. I have been an original shareholder in Suffolk Investments PTY LTD since 1975 formally John Holdings). |
| 14. | No. | I honestly believe I may have a legal cause of action against the Respondents pursuant to section 232 of the Corporations Act 2001. |
[2015] WASC 481
CHANEY J
purchased half of the Bedford St property.
| 16. | No. | The current and previous Directors of 'the company' will not let me verify the transactions of Bedford St from 'the company' and/or seek market valuations. |
| 17. | No. | The current Directors will not let me view any of 'the company's accounts to verify its income, assets, loans, debts, transactions, tax returns, correct valuations, income owed to shareholders, etc etc. The annual reports I have received are all unsigned and can not be verified. |
[2015] WASC 481
CHANEY J
payment of the 50% (Suffolk Investments) of Bedford St
Nedlands to past Director Tom Donaldson;
(n) all Suffolk Investments cheque butts since 1 July 2005;
(o)
all property and/or other trusts associated with Suffolk Investments and John Wayne Donaldson from 2005;
| 19. | Yes. | Pursuant to Order 26A Rules 4 and 6 of the Rules of the Supreme Court, within 7 days of the Applicants request, the Respondents: |
(a) allow the Applicant to inspect any or all of the documents in the list; (b) provide copies of any or all of the documents in the list to the Applicant. (c) the respondents pay the Applicants income from his ownership in Suffolk PTY LTD since 1 July 2007. allow the Applicant to inspect transfer documents of Bedford St and payment.
(d)
the respondents pay the Applicants independent accounting valuation of Suffolk Investments from Suffolk Investments PTY LTD, accounts.
(e)
the Supreme Court approve a subpoena to Hartley's for all Suffolk Investment PTY LTD Chess Sponsored Holding Statements, Superannuation accounts and any and all Trusts associated with 'the company' and John Wayne Donaldson on a year by year basis, including all dividend statements, and dividend roll overs from 2005, for 'the company';
| 20. | No. | The Respondents (Directors) and/or their lawyers Taylor Smart refuse to provide me with copies of the documents I seek and/or any relief I seek. |
[2015] WASC 481
CHANEY J
| 7. | Yes. | The property at 12 Bedford St Nedlands has since been sold to my brother Tom Donaldson at a reduced market valuation and I can not verify payment or any details. Giving a clear cause of action against the company. |
| 15. | No. | Based on my readings on 24 February 1992, John Wayne Donaldson (Director) owned the Bedford St property and it was not mortgaged. On 28th february 1992 JWD obtained a mortgage over the Bedford St property through 'the company'. On 2005, Thomas Donaldson as a Director and John Wayne Donaldson (acting for 'the company') each |
| 18. | Yes. | I am unable to trust previous documents due to my father's long term brain disease, frontal lobe damage, chronic alcoholism etc etc to determine whether or not I have a cause of action against 'the company without reviewing and obtaining legal advice regarding 'the Respondents conduct and company documents: |
(a)
signed tax returns for each of the financial years since 1 July 2005 'the company';
(b)
minutes of all Directors meetings and appointments since 1 July 2005 for 'the company';
(c)
minutes of all annual general meetings since 1 July 2005 for 'the company';
(d) payments of Directors fees since 1 July 2005 for 'the company';
(e) payments of dividends to any shareholders since 1 July 2005 for 'the company'; (f) loans to any of the respondents officers, shareholders and details of repayments (including JLB) or entities related to them since 1 July 2005 for 'the company';
(g)
all sharemarket Chess Sponsored Holding Statements for Suffolk Investments PTY LTD on a year by year basis from 1 July 2005 for 'the company';
(h)
all listed share portfolio dividend statements and roll overs since 1 July 2005 for 'the company';
(j)
all bank statements for Suffolk Investments PTY LTD and its entities since 1 July 2005 for 'the company';
(k)
all superannuation audited accounts on a year by year basis including year by year Chess Sponsored Holding Statements held by Suffolk Investments PTY LTD since 1 July 2005;
(l)
all accounting and legal fees paid and owed by Suffolk Investments PTY LTD since 1 July 2005 for 'the company';
(m)
pay the applicants income (minus dividends paid) from the 8.5% the applicant owns in Suffolk Investments PTY LTD, exclusive of 'the company's Directors legal fees from 1st July 2007; provide all documentation concerning the transfer and
| * | Yes. | INDEX: | ||||
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| C. Attachments; Certificate of title for the Bedford St property. D. Email, Directors & Taylor Smart refusing disclosure. | ||||||
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| H. Superannuation Account unverified |
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