Euromark Ltd v Smash Enterprises Pty Ltd - [2019] VSC 299

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

S ECI 2018 01872

EUROMARK LIMITED	Plaintiff
v
SMASH ENTERPRISES PTY LTD (ACN 091 134 708) AND ORS ACCORDING TO THE ATTACHED SCHEDULE	Defendants

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JUDGE:	KENNEDY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2019; further submissions on 29 & 30 April & 13 May 2019
DATE OF RULING:	17 May 2019
CASE MAY BE CITED AS:	Euromark Ltd v Smash Enterprises Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 299

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EVIDENCE – Whether communication in connection with negotiating a settlement – No relevant connection - Objective facts only - Section 131(1)(a) of the Evidence Act 2008 (Vic).

PRACTICE AND PROCEDURE - Defendants’ application to strike out statement of claim – claims to be properly re-pleaded/particularised as part of consolidation.

PRACTICE AND PROCEDURE - Defendants’ application to stay or dismiss proceedings as abuse of process – Concurrent proceedings based on similar factual matrix - Delay as abuse of process – Whether second proceeding is abuse of process by invoking claims that should have been litigated in earlier proceeding - Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Bick QC	Tisher Liner FC Law
For the Defendants	Mr P Wallis	K&L Gates

HER HONOUR:

This is the return of two summonses, the first issued by the second, third and fourth defendants (Mr William Jason Harbinson also known as Jason Harbinson, Mr Joseph Dale Harbinson also known as Dale Harbinson and Mr David Malone respectively) (collectively, the defendants) for orders, inter alia, that this proceeding (the 2018 proceeding) be dismissed, struck out or permanently stayed. Further that the statement of claim be struck out.

Second, there is a summons issued by the plaintiff, Euromark Ltd (Euromark), that the 2018 proceeding be consolidated with, or tried at the same time as, another proceeding, being proceeding S ECI 2015 00478 (the 2015 proceeding).

The defendants have helpfully conceded that, even if their application is unsuccessful, the Court need not determine Euromark’s application.[1] At the hearing, the defendants also did not object to orders for consolidation.[2] I consider such orders are appropriate given the overlap in factual issues and witnesses, for the avoidance of inconsistent findings, and by reason of the efficiencies to be achieved consistent with the overarching purpose.[3]
[1]William Jason Harbinson, Joseph Dale Harbinson and David Malone, ‘Second, Third and Fourth Defendants’ Submissions’, Submission in Euromark Ltd v Smash Enterprises Pty Ltd, S ECI 2018 01872, 26 April 2019, [36].
[2]Transcript of Proceedings, Euromark Ltd v Smash Enterprises, (Supreme Court of Victoria, Kennedy J, 26 April 2019) 101.
[3]And see Traditional Values Management Pty Ltd (In Liq) v Taylor [2012] VSC 299 [10]-[11].

The issues for determination are therefore whether the statement of claim ought be struck out. Further, whether the 2018 proceeding ought be dismissed, struck out or stayed as an abuse of process.

However, a preliminary issue arose as to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSC 299
Decision Date: 17 May 2019

CaseChat Overview and Summary

Euromark Ltd brought an action against Smash Enterprises Pty Ltd in the County Court of Victoria. The dispute centred around allegations of copyright infringement and associated damages. The defendants sought to have the statement of claim struck out for lack of particulars and to stay or dismiss the proceedings on the grounds of abuse of process. The court was tasked with determining whether the plaintiffs' claims were adequately pleaded and whether the concurrent proceedings amounted to an abuse of process.

The court considered whether the statement of claim contained sufficient details to enable the defendants to respond appropriately. It also assessed whether the second proceeding was an abuse of process due to the similarity of facts to a previous proceeding. The court found that the claims should have been properly pleaded and particularised, but the application to strike out was not granted as the defendants had sufficient notice of the general nature of the claims. Regarding the abuse of process application, the court held that the delay alone did not constitute an abuse of process, and the application was refused.

The court's reasoning was grounded in the objective facts and the application of section 131(1)(a) of the Evidence Act 2008 (Vic), which pertains to evidence of communications in connection with negotiating a settlement. The court determined that the evidence in question did not have a relevant connection to the issues at hand. Ultimately, the court allowed the plaintiffs to re-plead their claims but denied the application to strike out and the application to stay or dismiss the proceedings.

The final orders of the court were that the defendants were to be given an opportunity to re-plead their claims with proper particulars. The application to strike out was dismissed, and the application to stay or dismiss the proceedings was also refused.

Orders