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Gunns Ltd v Alishah

Gunns Ltd v Alishah

Case [2009] TASSC 45 11 June 2009

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[2009] TASSC 45

CITATION: Gunns Limited v Alishah [2009] TASSC 45

PARTIES:  GUNNS LIMITED (ACN 009 478 148)
  TASMANIAN PULP & FOREST HOLDINGS LTD
  (ACN 009 488 733)
  GUNNS FOREST PRODUCTS PTY LTD (ACN 004 208 904)
  v
  ALISHAH, Syed
  JORDAN, Warrick
  KIMBELL, Paul Eric
  HARRIS, Nathan
  SARGENT, Lee Anthony
  THOMPSON, Brett
  DANT, Nishant Allan
  MAJEWSKI, Ursula Dubiel
  MILLS, Christopher Joseph
  SHARP, Benjamin Huw
  GIBSON, Miranda Kymalee
  MOONEY, William Hugh
  LEWANDOWSKY, Rachel Alison Margaret

TITLE OF COURT:              SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1153/2008
DELIVERED ON:                  11 June 2009
DELIVERED AT:                   Hobart
HEARING DATE:                  25 February and 22 April 2009
JUDGMENT OF:                   Porter J

CATCHWORDS:

Procedure – Supreme Court Procedure – Tasmania – Procedure under rules of court - Pleadings – Application to strike out part of defence – Plea of immunity based on implied constitutional freedom of speech – Answer to claim for aggravated and exemplary damages in action for trespass – Whether plea frivolous or vexatious.

Aust Dig Procedure [272]

Procedure – Supreme Court Procedure – Tasmania – Procedure under rules of court - Pleadings – Counterclaim – Application to strike out or exclude counterclaim from action – Action for damages in trespass – Counterclaim for injunctive relief based on Trade Practice Act 1974 (Cth), s52 – Whether inconvenient – Relevant factors – Supreme Court Rules 2000, r198(1).

Aust Dig Procedure [272]

REPRESENTATION:

Counsel:
             Plaintiffs:  S B McElwaine
             Defendants:  P W Tree SC
Solicitors:
             Plaintiffs:  Shaun McElwaine
             Defendants:  Fitzgerald & Browne

Judgment Number: [2009] TASSC 45
Number of paragraphs: 47

Serial No 45/2009
File No 1153/2009

GUNNS LIMITED (ACN 009 478 148) TASMANIAN PULP & FOREST HOLDINGS LTD (ACN 009 488 733) GUNNS FOREST PRODUCTS PTY LTD (ACN 004 208 904) v SYED ALISHAH, WARRICK JORDAN, PAUL ERIC KIMBELL, NATHAN HARRIS, LEE ANTHONY SARGENT, BRETT THOMPSON, NISHANT ALLAN DANT, URSULA DUBIEL MAJEWSKI, CHRISTOPHER JOSEPH MILLS, BENJAMIN HUW SHARP, MIRANDA KYMALEE GIBSON, WILLIAM HUGH MOONEY, RACHEL ALISON MARGARET LEWANDOWSKY

REASONS FOR JUDGMENT PORTER J

11 June 2009

The proceedings

The plaintiffs collectively operate a woodchip processing and export business. The second and third plaintiffs are wholly owned subsidiaries of the first plaintiff. The defendants are individuals who are self-described active and vocal participants in the public debate concerning forestry operations and associated biodiversity, conservation and environmental protection issues and, in particular, woodchipping in Tasmania.

The plaintiffs' action relates to protest activities carried out by the defendants on land occupied by the plaintiffs on 16 December 2008. The action is one for damages in trespass.

The plaintiffs' statement of claim is dated 23 December 2008. The defendants filed and served a joint defence to the statement of claim and a counterclaim was made by all defendants, with the exception of the first and twelfth defendants. That pleading was dated 3 February 2009. The plaintiffs applied to strike out the substantive part of the defence, and to strike out the counterclaim, or alternatively have the counterclaim disposed of separately, or excluded, from the action. The plaintiffs' application came before…

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.

Continue reading Gunns Ltd v Alishah

Details

AGLC: Gunns Ltd v Alishah [2009] TASSC 45
Case: [2009] TASSC 45
Decision Date: 11 June 2009

CaseChat Overview and Summary

The case of Gunns Limited versus Alishah was heard in the Supreme Court of Tasmania. The dispute arose from an action for trespass brought by Gunns Limited against Alishah. The crux of the case involved an application by Gunns Limited to strike out a portion of Alishah's defence, specifically the plea of immunity based on an implied constitutional freedom of speech, and an answer to the claim for aggravated and exemplary damages. The court was tasked with determining whether this defence was frivolous or vexatious, and thus subject to being struck out under the rules of court.

The primary legal issue before the court was whether the defence based on an implied constitutional freedom of speech was frivolous or vexatious, thereby warranting its removal from the pleadings. The court had to examine the validity of such a defence in the context of the proceedings and decide if it could proceed as part of the defence. Additionally, the court needed to assess the appropriateness of the claim for aggravated and exemplary damages in light of the nature of the trespass alleged by Gunns Limited.

In its reasoning, the court considered the nature and purpose of the rules governing pleadings, focusing on whether the defence presented was capable of being seriously argued. The court found that the defence based on an implied constitutional freedom of speech was not frivolous or vexatious and therefore could not be struck out. Furthermore, the court noted that the claim for aggravated and exemplary damages was pertinent given the circumstances of the trespass. The court concluded that these elements of the defence were valid and should not be dismissed, allowing the case to proceed as formulated.

The court ordered that the application by Gunns Limited to strike out the defence based on implied constitutional freedom of speech and the answer to the claim for aggravated and exemplary damages was dismissed. The case would continue with the defence as presented, and the claim for damages would also proceed as part of the litigation.

Orders