Fuller v Toms

Case [2012] FCA 27

FEDERAL COURT OF AUSTRALIA

Fuller v Toms [2012] FCA 27

Citation: Fuller v Toms [2012] FCA 27
Parties: DONALD FULLER v STEPHEN NORMAN TOMS, CHARLES ERNEST BRIGHT, BRETT HEADING, PHILLIP TOYNE, AUSTRALIAN AGRICULTURAL COMPANY LIMITED, DONALD J MACKAY, STEPHEN LONIE, PETER HUGHES, NICK BURTON-TAYLOR, CHRIS ROBERTS, ARUNAS PALIULIS, ABDUL SAMAD BIN HAJI ALIAS (DATUK ABDUL SAMAD), DATO' SABRI AHMAD, DONALD GORDON MCGAUCHIE, DAVID FARLEY, J WHITEMAN, KERRY PARKER, J SLOMAN, PHILIP BEALE, DAVID R CONNOLLY, TROY SETTER, ELDERS LIMITED, STEPHEN GERLACH, LES P WOZNICZKA and MALCOLM JACKMAN
File number: WAD 322 of 2011
Judge: BARKER J
Date of judgment: 1 February 2012
Catchwords: PRACTICE AND PROCEDURE - application to strike out application and statement of claim – leave to amend current originating application – leave to file a substituted statement of claim – application for legal counsel – referral certificate – substituted service
Legislation: Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) s 18, s 18(1)
Competition and Consumer Act 2010 (Cth) s 227, s 236, s 238
Corporations Act 2001 (Cth) s 79, s 109X(2), s 180(1), s 181, s 182(1), s 183(1), s 184(1), (2) and (3), s 286(1), s 295(4), s 295A(2), s 296, s 297, s 299A(1), s 344(1), s 674(2)(c)(ii), s 1317DA, s 1317E, s 1317E(1)(ja), s 1317E(1)(jaa)‑(jg), s 1317HA(1), s 1317J(3A)
Trade Practices Act1974 (Cth) s 52
Federal Court Rules 2011 (Cth) R 4.12, R 4.12(1), R 4.12(2), R 4.13, R 8.06, R 10.01, R 10.23, R 10.24, R 16.02(1)(b), R 16.02(1)(d), R 16.42, R 16.43, Div 4.2
Federal Court Rules 1974 (Cth) O 80 r 4(1)
Defamation Act 2005 (Qld)
Defamation Act 2005 (WA)
Fair Trading Act 1989 (Qld)
Fair Trading Act 2010 (WA)
Limitation Act 2005 (WA) s 15
Limitation of Actions Act 1974 (Qld) s 10AA
Cases cited: Combis (Trustee) v Spottiswood [2011] FCA 1082
Laurie v Carroll (1958) 98 CLR 310
Plenty v Dillon (1991) 171 CLR 635
Ricegrowers Co-Operative Ltd and Seatide Pty Ltd v ABC Containerline Nv, Med Containerline Antwerp Nv, Maritime Carriers Luxembourg SA and Den Norske Bank (Luxemborg) SA [1996] FCA 657
Rivera v Minister for Home Affairs [2008] FCA 1
Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319
Date of hearing: 19 December 2011
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 121
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Fifth and Twenty-Second Respondents: Mr KA Barlow SC
Solicitor for the Fifth and Twenty-Second Respondents: Mallesons Stephen Jaques

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 322 of 2011
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 J MACKAY
Sixth Respondent

STEPHEN LONIE
Seventh Respondent

PETER HUGHES
Eighth Respondent

NICK BURTON-TAYLOR
Ninth Respondent

CHRIS ROBERTS
Tenth Respondent

ARUNAS PALIULIS
Eleventh Respondent

ABDUL SAMAD BIN HAJI ALIAS (DATUK ABDUL SAMAD)
Twelfth…

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AGLC
Fuller v Toms [2012] FCA 27
Case
[2012] FCA 27
Decision Date

CaseChat Overview and Summary

The case of Fuller v Toms involved an application by the plaintiff, Fuller, to amend the initiating application and statement of claim in a proceeding against Toms and others. The application was heard in the Federal Court of Australia, where the Court was required to decide several legal issues. The primary issue was whether the proposed substituted statement of claim met the requirements of a pleading to which the respondents could reasonably be expected to plead in defence. The Court also needed to consider whether Fuller should be granted leave to file a further proposed substituted statement of claim, given that he had already had multiple opportunities to present a properly pleaded statement of claim. Furthermore, Fuller requested a referral certificate to enable him to engage pro bono counsel, raising the question of whether the Court could issue such a certificate under the current Federal Court Rules.

The Court found that the proposed substituted statement of claim did not constitute a pleading to which the respondents could be expected to plead in defence, largely upholding the objections raised by AACo and Elders. Given the nature of these objections, the Court considered whether Fuller should be granted leave to file a further proposed substituted statement of claim. While acknowledging the need for finality in proceedings, the Court also recognised the possibility of a properly pleaded statement of claim in certain areas. The Court decided to hear from the parties on whether to grant leave to replead and, if so, whether it should be on terms. The Court also concluded that it would not issue a referral certificate under the current Rules, as the referral power had been unqualified by the previous rule's requirement that it be in the interests of the administration of justice to do so.

In light of these findings, the Court made several orders. Firstly, it refused leave to Fuller to amend the initiating application and to file a substituted statement of claim in accordance with the documents attached to his affidavit. Secondly, the matter was relisted to enable the Court to hear from the parties on the appropriate orders in consequence of the refusal and in relation to costs. Thirdly, the interlocutory application for an order for substituted service was dismissed. Lastly, the Court determined that it would not issue a referral certificate. The entry of these orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. Leave is refused to the applicant to amend the initiating application and to file a substituted statement of claim in accordance with the documents to that effect attached to his affidavit filed 5 October 2011.

2. The matter be relisted on Friday 10 February 2012 at 10:45 am to enable the Court to hear from the parties as to orders that should be made in consequence of the preceding order and in relation to costs.

3. The interlocutory application of the application for an order for substituted service filed 3 August 2011 be dismissed.

4. The Court determines that it will not issue a referral certificate under R 4.12.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DONALD J
The proposed substituted statement of claim is not a pleading to which the respondents can be expected to plead in defence.CONCLUSION ON STRIKE OUT APPLICATION The result then is that I would refuse leave to the applicant to file the proposed substituted statement of claim having regard to the objections taken by AACo and Elders which I have largely upheld. Because of the nature of these objections a question arises whether the applicant should be granted leave to file a further proposed substituted statement of claim. I will hear from the parties in that regard. On the one hand, there must be finality to proceedings at some point. The applicant has had the opportunity on two occasions to file a properly pleaded statement of claim. He has, at the Court’s encouragement, endeavoured to obtain legal assistance in this regard, but has failed in his attempts. He has indicated that he approached a litigation funder at one point but they were not prepared to underwrite his case. To permit the applicant to keep trying to produce an adequate document in accordance with the requirements of the Rules, may unreasonably be considered to require the corporate respondents’ continued involvement in this proceeding. There is also a question whether the applicant can remedy the deficiencies identified. It is not the Court’s function to undertake the drafting exercise on behalf of the applicant; nor should the Court allow itself to undertake this function indirectly. The action belongs to the applicant, not the Court. On the other hand, consideration of these reasons may leave open the possibility of a pleading in a proper form in some areas, for example, as a stand‑alone action against the corporate respondents based on breach of the continuing disclosure obligation imposed on a publicly listed company by s 674(2) of the Corporations Act, if not other causes of action and perhaps depending on what loss the applicant would complain of. Accordingly, I will hear from the parties as to whether because to replead, if it is sought, should be refused or granted, and if granted whether it should be on terms. QUESTION OF CERTIFICATE FOR LEGAL ASSISTANCE The applicant has been unable to obtain legal assistance in connection with the presentation of his case. He inquires whether the Court might grant him a referral certificate for the engagement of pro bono counsel. Division 4.2 of the Rules deals with Court referral for legal assistance, R 4.12(1) provides that the Court “may” refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9. It may be noticed that the current Rules only relatively recently replaced the former Federal Court Rules 1974 (Cth) (old Rules). Under the old Rules, the Court also had the power to make a referral for legal assistance, but the equivalent rule to current R 4.12(1), namely O 80 r 4(1), qualified the referral power by providing that the Court may make the referral “if it is in the interests of the administration of justice to do so”. That qualification no longer exists.

Ratio Decidendi

Legal Principle Established

Established by: DONALD J

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