Fuller v Toms

Case [2013] FCA 1422

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 73
Date 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
Applicant
AND:

STEPHEN NORMAN TOMS
First Respondent

CHARLES ERNEST BRIGHT
Second Respondent

BRETT HEADING
Third Respondent

PHILLIP TOYNE
Fourth Respondent

AUSTRALIAN AGRICULTURAL COMPANY LIMITED
Fifth Respondent

DONALD JOHN MACKAY
Sixth Respondent

STEPHEN EDWARD LONIE
Seventh Respondent

PETER HUGHES
Eighth Respondent

NICHOLAS BURTON-TAYLOR
Ninth Respondent

CHRISTOPHER IVAN ROBERTS
Tenth Respondent

ARUNAS POVILAS PALIULIS
Eleventh Respondent

ABDUL SAMAD BIN HAJI

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AGLC
Fuller v Toms [2013] FCA 1422
Case
[2013] FCA 1422
Decision Date

CaseChat Overview and Summary

In Fuller v Toms, the Federal Court was tasked with deciding the fate of a claim filed by the applicant against several respondents. The applicant had a history of litigation with the respondents, including a prior defamation suit that was ultimately discontinued. The current proceeding involved allegations of breaches of the Corporations Act 2001 and fraudulent accounting, which the respondents sought to have dismissed. The legal issues at the heart of this case revolved around the sufficiency of the applicant's pleadings, particularly whether they adequately stated causes of action under the Corporations Act and whether they contained irrelevant or non-pleading material. The Court had to determine if the applicant's claims were properly pleaded and relevant to the proceedings, as well as whether the interlocutory application by the respondents was an abuse of process.

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

For the reasons which follow, the Court would strike out the statement of claim, dismiss the proceeding and order that the applicant pay the costs of the respondents. The Court would also make an order that the applicant must not start or continue any other proceeding in the Court against any of the respondents without the leave of the Court.BACKGROUND The applicant and various of the respondents have a history of litigation in the courts in Australia, including the Federal Court. It is worth outlining this history in some detail. On 27 March 2009, the 1st to 4th respondents filed a claim and statement of claim in the Supreme Court of Queensland, commencing a defamation proceeding, proceeding BS3234/2009, against the applicant. On 30 March 2009, the applicant filed a document titled “Initial Response to the Claim”. On 15 April 2009, the applicant filed a document titled “Conditional Notice of Intention to Defend and challenges to jurisdiction and court location and counter-claim”. On 30 April 2009, the 1st to 4th respondents filed an application seeking orders, inter alia, that the documents titled “Initial Response to the Claim” and “Conditional Notice of Intention to Defend and challenges to jurisdiction and court location and counter-claim” be struck out. On 5 May 2009, the applicant filed a document titled “Amended Conditional Notice of Intention to Defend and Challenges to Jurisdiction and Court Location and Counter-Claim”. On 11 May 2009, P Lyons J heard the 1st to 4th respondents’ application, together with an application that had been filed by the applicant, and:·granted the orders sought by the 1st to 4th respondents;·struck out the “Amended Conditional Notice of Intention to Defend and Challenges to Jurisdiction and Court Location and Counter-Claim”; and·ordered that the applicant pay the 1st to 4th respondents’ costs on each application. On 6 July 2009, the applicant filed an amended defence and counter-claim. However, on 24 July 2009, P Lyons J, on the application of the 1st to 4th respondents:·struck out the applicant’s amended defence and counter-claim;·ordered that the applicant have until 24 September 2009 to file any further amended defence or further amended defence and counter-claim, but be required to obtain leave first; and·ordered that the applicant pay the 1st to 4th respondents’ costs. On 4 September 2009, the 1st to 4th respondents filed a notice of discontinuance. On 10 September 2009, the applicant filed an application seeking leave to file a further amended defence and counter-claim. On 18 December 2009, P Lyons J refused leave to the applicant to file a further amended defence and counter-claim and granted the 1st to 4th respondents leave to discontinue: Toms & Ors v Fuller [2009] QSC 415. On 11 January 2010, the applicant filed a notice of appeal. On the application of the 1st to 4th respondents, on 26 March 2010 the Queensland Court of Appeal ordered that the applicant provide security of the 1st to 4th respondents’ costs of the appeal: Toms & Ors v Fuller [2010] QCA 73.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

No other order is necessary in these circumstances. CONCLUSION AND ORDERS For these reasons, the appropriate orders are that:1.The statement of claim filed in this proceeding be entirely struck out.2.The proceeding be dismissed.3.Pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth), the applicant must not start or continue any other proceeding in the Court against any of the respondents without the leave of the Court.4.The applicant pay the respondents’ costs of the proceeding, to be taxed if not agreed.

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.