FEDERAL COURT OF AUSTRALIA
Fuller v Toms [2013] FCA 1422
Citation: Fuller v Toms [2013] FCA 1422 Parties: DONALD FULLER v STEPHEN NORMAN TOMS, CHARLES ERNEST BRIGHT, BRETT HEADING, PHILLIP TOYNE, AUSTRALIAN AGRICULTURAL COMPANY LIMITED, DONALD JOHN MACKAY, STEPHEN EDWARD LONIE, PETER HUGHES, NICHOLAS BURTON-TAYLOR, CHRISTOPHER IVAN ROBERTS, ARUNAS POVILAS PALIULIS, ABDUL SAMAD BIN HAJI, DATO' SABRI AHMAD, DONALD GORDON MCGAUCHIE, DAVID DICKSON FARLEY, J WHITEMAN, KERRIE PARKER, JULIA SLOMAN, PHILIP BEALE, DAVID R CONNOLLY, TROY SETTER, ELDERS LIMITED, STEPHEN GERLACH, LESLIE PETER WOZNICZKA, MALCOLM GEOFFREY JACKMAN, THOMAS BODLEY KEENE, STUART ALEXANDER BLACK and DAVID CHARLES CROMBIE File number: WAD 332 of 2012 Judge: BARKER J Date of judgment: 19 December 2013 Catchwords: PRACTICE AND PROCEDURE – interlocutory application to strike out statement of claim – whether statement of claim defective – general principles of pleading – whether Court’s jurisdiction to make order under s 37AO Federal Court of Australia Act 1976 (Cth) triggered – what orders under s 37AO appropriate Legislation: Corporations Act 2001 (Cth)
Federal Court of Australia Act 1976 (Cth) s 37AM(1), s 37AO, s 37AO(1)(a), s 37AO(2)(c), s 37AO(3)
Trade Practices Act 1974 (Cth)Federal Court Rules 2011 (Cth) R 6.02, R 16.02(1)(b), R 16.02(1)(d), R 16.21(1), R 16.42, R 16.43, R 39.03(2)
Fair Trading Act 1989 (Qld)
Fair Trading Act 2010 (WA)
Limitation Act 2005 (WA) s 15
Limitation of Actions Act 1974 (Qld) s 10AA
Vexatious Proceedings Act 2008 (NSW) s 8(1)(a)Cases cited: Ashby v Commonwealth (No 4) [2012] FCA 1411; (2012) 209 FCR 65
Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Fuller v Toms [2012] FCA 27
Fuller v Toms [2012] FCAFC 155
Fuller v Toms & Ors [2010] QCA 283
Fuller v Toms (No 2) [2012] FCA 103
Jones v Cusack (1992) 109 ALR 313
Toms & Ors v Fuller [2009] QSC 415
Toms & Ors v Fuller [2010] QCA 73Date of hearing: 15 April 2013 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 81 Counsel for the Applicant: The Applicant appeared in person Counsel for the First, Second, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth, Twenty-Sixth, Twenty-Seventh and Twenty-Eighth Respondents: Mr K Barlow QC Solicitor for the First, Second, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth, Twenty-Sixth, Twenty-Seventh and Twenty-Eighth Applicants: King & Wood Mallesons
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 332 of 2012
BETWEEN: DONALD FULLER
ApplicantAND: STEPHEN NORMAN TOMS
First RespondentCHARLES ERNEST BRIGHT
Second RespondentBRETT HEADING
Third RespondentPHILLIP TOYNE
Fourth RespondentAUSTRALIAN AGRICULTURAL COMPANY LIMITED
Fifth RespondentDONALD JOHN MACKAY
Sixth RespondentSTEPHEN EDWARD LONIE
Seventh RespondentPETER HUGHES
Eighth RespondentNICHOLAS BURTON-TAYLOR
Ninth RespondentCHRISTOPHER IVAN ROBERTS
Tenth RespondentARUNAS POVILAS PALIULIS
Eleventh RespondentABDUL SAMAD BIN HAJI
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- Fuller v Toms [2013] FCA 1422
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- [2013] FCA 1422
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CaseChat Overview and Summary
The Court found that the applicant's pleadings were deficient in several respects. The allegations concerning breaches of the Corporations Act were either not properly pleaded or irrelevant to the losses claimed to have occurred in 2008 and 2009. The Court also noted that the applicant's submissions contained irrelevant commentary rather than solely pleading material facts. The Court rejected the applicant's argument that the interlocutory application was an abuse of process, finding that the respondents' application was a legitimate attempt to have the proceeding dismissed for failing to state a cause of action. The Court held that the applicant's claims were either improperly pleaded or irrelevant, leading to the conclusion that the statement of claim should be struck out and the proceeding dismissed.
As a result of the Court's decision, the statement of claim was entirely struck out, the proceeding was dismissed, and the applicant was ordered to pay the respondents' costs. Additionally, the Court imposed an order preventing the applicant from initiating any further proceedings against the respondents without obtaining leave from the Court. This decision underscores the importance of properly pleading causes of action and the consequences that can follow when pleadings are found to be deficient or irrelevant.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In [243]-[254], the applicant alleges various breaches of the Corporations Act 2001 (Cth) (Corporations Act). These paragraphs are substantially similar to [104]-[112] and [143]-[149] of the proposed substituted statement of claim. Those paragraphs were previously struck out on the basis that, while the applicant could potentially bring an action alleging loss resulting from breach of the continuous disclosure obligations of AACo and Elders (if properly pleaded, which was not the case), he could not bring an action with respect to alleged breaches of the other named provisions of the Corporations Act: Fuller v Toms [2012] FCA 27 at [48]-[52]. For similar reasons, I am of the view that [243]-[254] of the current statement of claim should be struck out. In particular, I consider [243], which alleges loss resulting from breach of the continuous disclosure obligations of AACo and Elders, to still be deficiently pleaded: compare Fuller v Toms [2012] FCA 27 at [52]. In [255]-[275], the applicant appears to allege fraudulent accounting on the part of the respondents. These paragraphs are substantially similar to [198]-[209] and [214]-[219] of the proposed substituted statement of claim. Those paragraphs were previously struck out on the grounds they contained irrelevancies and inadequately pleaded the causes of action alleged: Fuller v Toms [2012] FCA 27 at [68]-[69]. I see no reason why [255]-[275] of the current statement of claim should not also be struck out. The analysis in [276]-[312] addresses alleged fraudulent accounting in 2011 and 2012. These paragraphs are thus irrelevant to the facts and losses alleged to have occurred in 2008 and 2009. The next section, [313]-[317], provides a background on young cattle and how to deal with them. These paragraphs do not plead material facts. The final section, [318]-[320], is illustrative of many of the problems with the statement of claim as a whole. These paragraphs provide commentary rather than only pleading material facts. The applicant filed lengthy submissions in opposition to the respondents’ interlocutory application. The applicant submits that the interlocutory application is an abuse of process. Seeking to rely on Ashby v Commonwealth (No 4) [2012] FCA 1411; (2012) 209 FCR 65 (Ashby), the applicant alleges that the respondents’ legal representatives have made a number of false and unsupported allegations under absolute privilege. The applicant also contends that the respondents have failed to mention what he alleges to be material facts, being:·the applicant’s right to commence an action against the 1st to 4th respondents within a specified time, which was a condition of these respondents being granted leave to discontinue their defamation suit against him in the Supreme Court of Queensland;·that two of the corporate respondents had conceded in an earlier proceeding that the applicant did have reasonable causes of action against them; and·his right to commence and prosecute the current proceeding as a consequence of the prior proceeding being struck-out in an interlocutory decision.