I Cook Foods Pty Ltd v Greater Dandenong City Council
[2024] VSC 496
•27 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 05525
BETWEEN:
| I COOK FOODS PTY LTD (ACN 094 392 060) and IAN WILLIAM COOK | Plaintiffs |
| v | |
| GREATER DANDENONG CITY COUNCIL & ORS (according to the attached Schedule) | Defendants |
---
JUDGE: | Goulden AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 April 2024 |
DATE OF RULING: | 27 August 2024 |
CASE MAY BE CITED AS: | I Cook Foods Pty Ltd v Greater Dandenong City Council |
MEDIUM NEUTRAL CITATION: | [2024] VSC 496 |
---
PRACTICE AND PROCEDURE — Abuse of process — Rule 23.01(1) Supreme Court (General Civil Procedure) Rules 2015 — Misfeasance in public office claims against first defendant dismissed shortly before trial by consent and without adjudication on the merits in earlier proceeding — Malicious prosecution claim foreshadowed in earlier proceeding against first defendant but never joined to that proceeding — First plaintiff party to earlier proceeding — Second plaintiff was not party to earlier proceeding — Second plaintiff sufficiently connected through control as sole director of the first plaintiff — First defendant was a defendant in earlier proceeding, but the second and third defendants were not parties — No abuse of process in the circumstances.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Ribbands | Defteros Lawyers |
| For the Defendants | Mr C Winneke KC and Ms H Douglas | Maddocks |
TABLE OF CONTENTS
The Defendants’ Application
Background
The Parties
The Events Underlying the Proceedings
Claims Made in the Proceedings and the Procedural History
Pleaded claims by ICF against the Council in the ICF Proceeding
January 2022 Amendment Application – Malicious Prosecution Claim Sought To Be Added
Second Amendment Application to add Particulars concerning Prosecution of Food Act Charges and Allegation of Bad Faith in respect of the Misfeasance Claim
Malicious Prosecution referred to in ICF’s Opening Submissions
ICF Proceeding as between ICF and the Council dismissed by consent
Conduct on behalf of ICF following the Dismissal and the Commencement of this Proceeding
The Power to Summarily Dismiss or Stay Proceedings as an Abuse of Process
The Application of the Principles on Abuse of Process to the Present Case
HER HONOUR:
In this proceeding, the defendants apply by summons dated 13 February 2024 for orders that the proceeding be summarily dismissed, or alternatively, permanently stayed, pursuant to r 23.01(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). The defendants also seek their costs.
The Defendants’ Application
The plaintiffs commenced this proceeding by writ and statement of claim filed on 23 November 2023. The plaintiffs allege malicious prosecution and misfeasance in public office against the defendants, claiming damages, including exemplary or aggravated damages.
The defendants contend this proceeding is an abuse of process, being an attempt to re-litigate claims that were, in the course of the proceeding S ECI 2020 02728 (‘ICF Proceeding’),[1] either:
(a)settled as between the first plaintiff, I Cook Foods Pty Ltd (‘ICF’) and the first defendant, Greater Dandenong City Council (‘Council’) to this proceeding; or
(b)otherwise, initially drafted, foreshadowed and abandoned by ICF.
[1]S ECI 2020 02728 was originally between I Cook Foods Pty Ltd (ACN 094 392 060) as plaintiff (being the same entity that is the first plaintiff in this proceeding), the State of Victoria and the City of Greater Dandenong (being the first named defendant in this proceeding).
The defendants contend the events that gave rise to the ICF Proceeding are the same events giving rise to this proceeding, and the claims made in it were either raised or ought to have been raised in the ICF Proceeding. They also contend that the proceedings involve the same actors – that is, there is an identity of parties as between the first plaintiff and the first defendant, and the additional parties are all natural persons through whom ICF and the Council relevantly acted. In particular, the second plaintiff, Ian Cook, is ICF’s sole director (and occupied that role before and for the duration of the ICF Proceeding); and the second and third defendants, Leeanne Johnson and Elizabeth Garlick respectively, are two employee officers of the Council.
The defendants claim that given the history of litigation arising from these same factual circumstances and involving the same actors, it would be oppressive to them if this proceeding is permitted to continue, and it would bring the administration of justice into disrepute.
In light of these contentions, the events underlying the ICF Proceeding and this proceeding, the claims made or sought to be made and the involvement of the various parties in each, warrant careful recitation.
Background
The Parties
ICF commenced the ICF Proceeding and is the first plaintiff in this proceeding. Mr Cook was not a party to the ICF Proceeding (nor did he ever seek to be joined), but he is the second plaintiff in this proceeding. Mr Cook is ICF’s sole director.[2] Mr Cook has given evidence in this proceeding that as its director, he instructed solicitors on behalf of ICF to commence the ICF Proceeding. He thereafter engaged and instructed ICF’s legal representatives in the conduct of that proceeding, including the interlocutory applications made to join the Council as a defendant and to raise additional claims against it.
[2]Affidavit of Ian William Cook sworn 11 March 2024, [3] (‘Cook Affidavit’).
ICF joined the Council as the second defendant to the ICF Proceeding,[3] approximately eight months after it was commenced.[4] The Council is the first defendant in this proceeding. Neither Ms Johnson, nor Ms Garlick, were defendants in the ICF Proceeding. However, the claims against the Council in the ICF Proceeding for misfeasance in public office were premised on the alleged conduct of Ms Johnson and Ms Garlick, for which the Council admitted vicarious lability.[5] At the time of the events giving rise to these proceedings, Ms Johnson was employed as the Co-ordinator of Public Health and Ms Garlick as an Environmental Health Officer at the Council. It is again alleged in this proceeding that the Council is vicariously liable for their conduct.
[3]The first defendant being the State of Victoria.
[4]Cook Affidavit [4]; Affidavit of Michelle Elizabeth Dixon sworn 7 February 2024, [7], [21] (‘First Dixon Affidavit’).
[5]First Dixon Affidavit, [8] and Exhibit MED-1, 35–36. The Defence to the Amended Statement of Claim is exhibited to the First Dixon Affidavit, Exhibit MED-1, 29–40.
The Events Underlying the Proceedings
Both the proceedings arise out of the same unfortunate events, which I have summarised below drawing largely from his Honour McDonald J’s reasons in I Cook Foods Pty Ltd v State of Victoria.[6]
(a)In February 2019, ICF was operating its longstanding business making ready to eat meals for a large number of local government authorities, nursing homes and private hospitals. One of ICF’s private hospital customers was the Knox Private Hospital.
(b)On 4 February 2019, an 86 year old woman died whilst an inpatient at the Knox Private Hospital. During her hospitalisation, meals provided to her included sandwiches which had been made at ICF’s premises in Dandenong. The patient’s death certificate recorded listeria meningoencephalitis as a significant condition contributing to her death.
(c)At the request of the State, samples of food made at ICF’s premises were taken for testing.
(d)At the further request of the State, the Council inspected ICF’s premises. On 19 February 2019, following one such inspection, Ms Garlick made an order under ss 19(1) and 19(2) of the Food Act 1984 (‘Food Act’) requiring 37 corrective actions to be taken to restore the ICF premises to a clean and sanitary condition (‘Clean Order’). Ms Garlick also issued a food safety direction under s 19W of the Food Act directing Mr Cook, as proprietor of ICF, to take specified record keeping compliance steps by 18 March 2019 (‘Food Safety Order’).
(e)On 21 February 2019, the State’s then-acting Chief Health Officer made orders under the Food Act requiring ICF to cease production immediately. Those orders had an immediate prejudicial effect on ICF’s business, such that it never resumed trading after that date.
(f)The Council subsequently charged ICF and Mr Cook with 48 offences each under the Food Act. Ms Johnson was the named informant in those prosecutions. All of the charges were ultimately withdrawn.
[6][2023] VSC 654.
Claims Made in the Proceedings and the Procedural History
In the ICF Proceeding, ICF alleged that it had suffered loss and damage by reason that the Council engaged in misfeasance in public office, relying upon the Council’s vicarious liability for the conduct of Ms Johnson and Ms Garlick in respect of, and following, Council’s inspections of ICF’s premises.
In early 2022, ICF foreshadowed amendments to its pleading,[7] amongst others, to introduce a claim for malicious prosecution against the Council, by reason of ICF and Mr Cook having been charged with a total of 96 offences under the Food Act (which were subsequently withdrawn). However, it removed these foreshadowed malicious prosecution amendments shortly prior to the hearing of its application for leave to amend.
[7]First Dixon Affidavit, Exhibit MED-1, 201–278. The proposed amendments were included in the draft further amended statement of claim attached to the summons filed on 18 January 2022 seeking, inter alia, leave to amend.
In June 2023, ICF sought, unsuccessfully, to amend its pleading to supplement its misfeasance claim against the Council by alleging the Clean Order and Food Safety Order were invalid relying upon, amongst other things, allegations that Ms Johnson and Ms Garlick ‘caused [the Council] to instigate 96 charges against ICF and Ian Cook personally, based in part on the 37 matters set out in the [Clean Order]’.[8]
[8]First Dixon Affidavit, Exhibit MED-1, 649.
In this proceeding, ICF and Mr Cook seek damages for alleged losses sustained as a result of:
(a)in the case of ICF, what it alleges was:
(A)a malicious prosecution by the Council, Ms Johnson and Ms Garlick in charging ICF with 48 offences under the Food Act, which charges were subsequently withdrawn;
(B)misfeasance in public office by the Council, Ms Johnson and Ms Garlick, relying upon the conduct of Ms Johnson and Ms Garlick in respect of, and following, Council’s inspections of ICF’s premises, and in initiating the prosecution against it;
(b)in the case of Mr Cook, what he alleges was:
(A)a malicious prosecution by the Council, Ms Johnson and Ms Garlick in charging him with 48 offences under the Food Act, which charges were subsequently withdrawn; and
(B)misfeasance in public office by the Council, Ms Johnson and Ms Garlick, relying upon the conduct of Ms Johnson and Ms Garlick in respect of, and following, Council’s inspections of ICF’s premises, and in initiating the prosecution against him.
The defendants submit that the current proceeding is an abuse of process essentially because of the overlap in claims, arising from the same underlying events and involving the same actors, which were prosecuted in the ICF Proceeding and which claims were then settled or abandoned, such that the conduct of the current proceeding is oppressive to the defendants and brings the administration of justice into disrepute. Without yet descending into a detailed comparison of the pleadings in each proceeding, the overlap in claims can be summarised as follows.
(a)The claim in paragraph 13(a)(B) above is said to be an attempt to re-litigate the claim previously made against the Council in the ICF Proceeding as set out in paragraph 10. To the extent that this claim seeks to involve the two defendants not party to the ICF Proceeding, the defendants say that the Council admitted vicarious liability for their conduct upon which the claim was premised. This claim as made in the ICF Proceeding was dismissed by consent with no order as to costs.
(b)The claim in paragraph 13(a)(A) above is said to be an attempt to re-litigate:
(A)the claim that ICF foreshadowed making against the Council in the ICF Proceeding as set out in paragraph 11, which claim it then consciously abandoned; and
(B)the substance of the claim which was sought to be added by ICF as set out in paragraph 12, which was later disallowed.
(c)The claims in paragraphs 13(b)(A) and (B) are said to replicate ICF’s claims in paragraphs 10, 11 and 12 as made, or foreshadowed or attempted, respectively, in the ICF Proceeding and so are claims that ought reasonably to have been made by Mr Cook in the ICF Proceeding, including because he was ICF’s sole director instructing ICF’s legal representatives at the time.
Pleaded claims by ICF against the Council in the ICF Proceeding
The amended statement of claim filed on 18 February 2021 to effect the joinder of the Council to the ICF Proceeding alleged that the Council engaged in misfeasance in public office on the basis of its vicarious liability for the alleged conduct of Ms Johnson and Ms Garlick during, and following, Council’s inspections of the ICF premises. Amendments were made, and sought to be made, to that amended statement of claim. The final form of the pleading containing the claim against the Council prior to its agreed dismissal was the Further Amended Statement of Claim (‘ICF FASOC’) filed on 14 November 2022.[9]
[9]First Dixon Affidavit, Exhibit MED-1, 158–192.
The relevant pleaded allegations of misfeasance in public office in the ICF FASOC were that:
(a)Ms Garlick and Ms Johnson were officers and agents of the Council, and acted with its actual or implied authority in administering the Food Act; [10]
[10]First Dixon Affidavit, Exhibit MED-1, 173–176 [39]–[41].
(b)on 18 February 2019, Ms Garlick carried out an inspection of ICF’s premises in her capacity as an ‘Authorized Officer’ under the Food Act and an agent of the Council;[11]
[11]First Dixon Affidavit, Exhibit MED-1, 177 [42]–[43].
(c)during the 18 February 2019 inspection, Ms Garlick did not wear a body worn camera, planted a live slug at ICF’s premises and prepared a handwritten report of her inspection;[12]
[12]First Dixon Affidavit, Exhibit MED-1, 177 [44].
(d)Ms Garlick subsequently told Ms Johnson that she found a live slug at ICF’s premises and provided her with a copy of her written report;[13]
[13]First Dixon Affidavit, Exhibit MED-1, 177 [45].
(e)Ms Johnson formed the view that the ICF premises was not fit for food production and directed Ms Garlick to issue the Clean Order and the Food Safety Order under the Food Act, in circumstances where those orders were not supported by Ms Garlick’s written report and were based on an observation (i.e., the presence of a live slug) that did not occur;[14]
(f)on 20 February 2019, and again on 21 February 2019, Ms Johnson and Ms Garlick inspected ICF’s premises in their capacities as Authorized Officers under the Food Act and agents of the Council;[15]
(g)prior to or around 23 February 2019, Ms Johnson and/or Ms Garlick gave a copy of the Council’s Clean Order and Food Safety Order to DHHS, along with a food safety audit report and an inspection report from 2015 which identified safety issues in relation to ICF;[16]
(h)the provision of the food safety audit and inspection reports from 2015 was intentionally misleading in that the safety issues identified by those reports had subsequently been remedied;[17]
(i)on 21 February 2019, Ms Johnson told an officer of DHHS that she had attended ICF’s premises and found its cleaning practices to be unsatisfactory and that a closure order should be issued to shut down food production at the ICF premises, which report(s) were intentionally or recklessly misleading as, among other things, ICF had satisfactory cleaning practices in place;[18]
(j)the then-acting Chief Health Officer was influenced by the Council’s Clean Order and Food Safety Order, the 2015 safety audit and inspection reports and the information provided by Ms Johnson in making the decision to shut down ICF’s operations;[19]
(k)Ms Garlick, in preparing her written report and providing it to Ms Johnson and/or the DHHS, acted maliciously and/or with reckless indifference, and with the intention of closing ICF down;[20]
(l)Ms Johnson made intentionally or recklessly misleading statements to the DHHS, and acted maliciously and/or with reckless indifference, and with the intention of closing ICF down;[21]
(m)as a result, ICF suffered loss and damage;[22] and
(n)the Council was vicariously liable for the acts and omissions of Ms Garlick and Ms Johnson.[23]
[14]First Dixon Affidavit, Exhibit MED-1, 177 –179 [46]–[53].
[15]First Dixon Affidavit, Exhibit MED-1, 179–180 [54]–[57].
[16]First Dixon Affidavit, Exhibit MED-1, 180–181 [59]–[60A].
[17]First Dixon Affidavit, Exhibit MED-1, 181 [61].
[18]First Dixon Affidavit, Exhibit MED-1, 181–184 [62]–[63].
[19]First Dixon Affidavit, Exhibit MED-1, 184 [64].
[20]First Dixon Affidavit, Exhibit MED-1, 184–185 [65].
[21]First Dixon Affidavit, Exhibit MED-1, 185 [66].
[22]First Dixon Affidavit, Exhibit MED-1, 185 [67].
[23]First Dixon Affidavit, Exhibit MED-1, 185 [68].
January 2022 Amendment Application – Malicious Prosecution Claim Sought To Be Added
Mr Cook deposes that in January 2022 (shortly before the initial trial date), ICF’s then legal advisers suggested ICF amend its statement of claim to include a claim for malicious prosecution against the Council. Mr Cook further deposes that although ICF made an application to amend, it did not pursue those particular amendments by which ICF had sought to articulate the malicious prosecution claim.
In the draft proposed amended pleading filed with the summons dated 18 January 2022,[24] the claim foreshadowed as a malicious prosecution claim by ICF (and not Mr Cook) against the Council (relying upon its vicarious liability for the conduct of Ms Johnson) was based upon the allegations that:
[24]First Dixon Affidavit, [25] and Exhibit MED-1, 201–278.
(a)on or about 23 May 2019, Ms Johnson falsely and maliciously and without reasonable or probable cause charged:
(A)ICF with 48 separate offences under the Food Act; and
(B)ICF’s sole director, Mr Cook, with 48 separate offences under the Food Act;[25]
(b)were set out in paragraphs [44]–[49], [50]–[53], and [65]–[66] of the ICF FASOC concerning Ms Garlick and Ms Johnson’s conduct;[26]
(c)Ms Johnson and/or Ms Garlick altered body cam footage and photographs taken during their inspections that were included in the prosecution brief, and that another Council officer influenced a witness (also another Council officer) to amend her witness statement to include observations of the ICF premises that were never made by her and were incriminating;[27]
(d)on or about 3 October 2019, Ms Johnson and/or the Council withdrew all charges against ICF and Mr Cook;[28]
(e)the conduct of Ms Johnson and/or the Council contributed to ICF’s loss and damage.[29]
[25]First Dixon Affidavit, Exhibit MED-1, 240 [123].
[26]First Dixon Affidavit, Exhibit MED-1, 240 [124].
[27]First Dixon Affidavit, Exhibit MED-1, 240 [125].
[28]First Dixon Affidavit, Exhibit MED-1, 240 [126].
[29]First Dixon Affidavit, Exhibit MED-1, 240 [127].
There were other proposed amendments to the draft amended pleading beyond those seeking to articulate ICF’s malicious prosecution claim for which leave was also sought. The Council opposed the application. In advance of the directions’ hearing scheduled for 31 January 2022, the Council filed the affidavit of its solicitor, Siobhan Sheppard, which, in so far as it concerned the malicious prosecution claim, complained that the allegations had only been raised on the eve of trial when the matters the subject of the allegations had been the focus of extensive prior media reporting, police investigations and parliamentary inquiry.
On 3 February 2022, the Council’s solicitors sent a letter to ICF’s solicitors setting out the Council’s reasons for opposing the proposed amendments. In respect of the malicious prosecution claim, the letter criticised the lack of adequate explanation for seeking to raise the allegations a year after the Council had been joined as a defendant. It asserted that the claim would lengthen the trial ‘considerably’,[30] and complained about the adequacy of the pleaded allegations.
[30]First Dixon Affidavit, Exhibit MED-1, 199.
On 15 February 2022, ICF delivered a revised proposed amended pleading from which the allegations of malicious prosecution set out above had been removed. The only explanation given for this revision in the covering letter from ICF’s lawyers was as follows:
We refer to previous correspondence and have considered the matters raised by you and have made substantial amendments to our proposed FASOC, and enclose a final draft…[31]
[31]First Dixon Affidavit, Exhibit MED-1, 389.
ICF pressed its application in respect of a substantial number of its other proposed amendments.[32] The Court disallowed certain of the proposed amendments. Following an unsuccessful appeal by ICF, the form of amended pleading for which leave was given became the ICF FASOC.
[32]At the directions’ hearing on 31 January 2022, Baker JR had made orders vacating the imminent trial date in the ICF Proceeding.
Mr Cook deposes that ICF removed the malicious prosecution claim because its introduction into the ICF Proceeding did not serve to add anything to ICF’s overall claim for damages, which it primarily pursued against the State of Victoria. He further deposes that the ICF Proceeding was dragging on, ICF had ongoing losses and, because he was personally funding the legal proceeding, he wanted it to be brought to trial at the earliest opportunity. ICF’s solicitor subsequently became unwell, and it changed representation several times, including engaging new counsel.
Second Amendment Application to add Particulars concerning Prosecution of Food Act Charges and Allegation of Bad Faith in respect of the Misfeasance Claim
On 9 June 2023, ICF filed a fresh summons, by which it sought, inter alia, leave to file a proposed second further amended statement of claim.[33] By the proposed amendments, ICF sought to plead, amongst other things, and in further support of its case of misfeasance in public office against the State and the Council, that the Clean Order and the Food Safety Order made by Ms Garlick were invalid by reason of being beyond power and, further and alternatively, made in bad faith, and affected by actual or apprehended bias, giving rise to jurisdictional error.[34] The conduct alleged to demonstrate Ms Garlick’s bad faith in the second proposed amended pleading was that:
(a)on 18 February 2019, Ms Garlick attended ICF’s premises and planted the live slug, photographed the slug and prepared her handwritten report on the state of ICF’s premises citing the presence of the slug;
(b)in May 2019, Ms Garlick, wrongfully and without a proper basis, and together with Ms Johnson, caused 96 charges to be laid against ICF and Mr Cook;
(c)Ms Garlick doctored or caused to be doctored the slug photograph;
(d)Ms Garlick included the doctored slug photograph in the prosecution brief; and
(e)on 3 October 2019, the Council unequivocally withdrew all 96 charges against ICF and Mr Cook.
The invalidity of the orders made by Ms Garlick was said to undermine the validity of the closure order ultimately made by the then-acting Chief Health Officer.
[33]In the Cook Affidavit at [11], Mr Cook describes this as an application ‘to raise a claim for malicious prosecution’, and at [14], describes the effect of the dismissal of ICF’s application as being that ‘ICF had not been able to pursue its claim for malicious prosecution’. However, these descriptions do not fully reflect the summons actually filed by ICF or of the orders made by Matthews J on the application.
[34]First Dixon Affidavit, Exhibit MED-1, 634–716. The second further amended statement of claim was exhibited to the Affidavit of Lucy Kate Evans affirmed on 9 June 2023 in support of the summons filed by the plaintiff on that day.
ICF argued, in support of its application, that the pleaded amendments were necessary to ensure the real controversy could be determined at the trial of the ICF Proceeding and to establish the necessary elements of the pleaded misfeasance in public office claim against each defendant. It submitted that the amendments did not seek to revive any allegation of malicious prosecution, but rather served to particularise the allegation of bad faith. ICF further submitted that the amendments were not so extensive as to necessitate the vacation of the trial date for reasons including that, although the legal argument regarding the invalidity of Ms Garlick’s Clean and Food Safety Orders was new, the facts and circumstances regarding the making of those orders had been pleaded in paragraphs [42]–[69] of the ICF FASOC.
The defendants opposed ICF’s application on the grounds that the amendments would require further discovery and evidence, and permitting them would necessitate the vacation of the trial date (then scheduled for 24 July 2023) in circumstances where no adequate explanation was provided for the delay in raising the allegations, especially those which had previously featured in ICF’s earlier amendment application. In this regard, the Council contended that the particulars which referred to Ms Garlick and/or Ms Johnson having caused the prosecution of ICF and Mr Cook on 96 charges in the absence of reasonable and probable cause, effectively sought to re-introduce a claim for malicious prosecution that ICF abandoned in mid-February 2022.
Justice Matthews heard ICF’s application in the ICF Proceeding on 20 and 23 June 2023. Her Honour made orders dismissing the application, providing brief reasons for her decision in ‘Other Matters’ to her orders made on 23 June 2023.[35] The orders summarise the parties’ submissions as set out above. Her Honour stated, at paragraph III of ‘Other Matters’, that her ‘main reason’ for dismissing the application was ‘that [allowing] it would mean that the trial date would have to be vacated’.[36] At paragraph EEE of ‘Other Matters’, her Honour states:
… In respect of the abandoned amendments, ICF submits that previously abandoning proposed amendments does not present a barrier to them being raised now, that it is different say to trying to revive allegations which were previously struck out. That may well be the case, but it does beg a fairly obvious question: what is the explanation for seeking to include those amendments now when ICF clearly turned its mind to them around 18 months ago and then abandoned them over a year ago? I accept the submissions of the State and the Council in this regard. ICF may be right that the prosecution of ICF and Mr Cook may be being used differently in the [proposed second further amended statement of claim] than what [it] was in the [18 January 2022 application], but that is not significant. What is significant is that the same factual matters to support the malicious prosecution allegation are now sought to be relied upon as an instance of the bad faith allegation, and that requires additional discovery and evidence as the Council submits.[37]
[35]Order of Matthews J in I Cook Foods Pty Ltd v State of Victoria (Supreme Court of Victoria, S ECI 2020 02728, 23 June 2023). The order of Matthews J dated 23 June 2023 is exhibited to the First Dixon Affidavit, Exhibit MED-1, 776–787.
[36]First Dixon Affidavit, Exhibit MED-1, 786 [III]; Order of Matthews J in I Cook Foods Pty Ltd v State of Victoria (Supreme Court of Victoria, S ECI 2020 02728, 23 June 2023), [III].
[37]First Dixon Affidavit, Exhibit MED-1, 785 [EEE]; Order of Matthews J in I Cook Foods Pty Ltd v State of Victoria (Supreme Court of Victoria, S ECI 2020 02728, 23 June 2023), [EEE].
Malicious Prosecution referred to in ICF’s Opening Submissions
Despite there being no claim for malicious prosecution in the ICF Proceeding, ICF’s submissions in opening referred, at paragraph [44], to:
Ms Johnson as the informant for [the Council] initiated a prosecution containing approximately 96 charges against ICF and Ian Cook personally in the Magistrates [sic] Court. [The Council] unequivocally withdrew all charges in open court at hearing.[38]
[38]First Dixon Affidavit, Exhibit MED-1, 797.
ICF Proceeding as between ICF and the Council dismissed by consent
About a month after ICF’s unsuccessful amendment application and following mediation, ICF and the Council agreed to orders that the proceeding (as between them) be dismissed and that each party bear its own costs. Neither party gave any release.
Mr Cook deposes in this proceeding that ICF agreed to the dismissal principally because of the desirability of removing the distraction of pursuing a claim against the Council when its primary claim was against the State, and so as to contract the issues for trial with consequential costs and time savings. Mr Cook also deposes to being out-resourced by two governmental bodies and to his concern at the prospect of engaging in a prolonged trial with both. He gives evidence that, having been out of business for more than four years, ICF had limited capacity to fund the proceeding and was entirely dependent on Mr Cook personally raising funds in circumstances where he had already borrowed to pay some of ICF’s costs.
It is uncontroversial between the parties that ICF’s claim against the Council was not determined by the Court. Justice McDonald made orders by consent on 25 July 2023 dismissing the ICF Proceeding as between ICF and the Council.
As between ICF and the State, the ICF Proceeding continued to judgment. Justice McDonald delivered his reasons for judgment on 13 November 2023, which judgment is published as I Cook Foods Pty Ltd v State of Victoria.[39]
[39][2023] VSC 654.
Conduct on behalf of ICF following the Dismissal and the Commencement of this Proceeding
Neither ICF nor Mr Cook kept secret their intentions to commence a malicious prosecution claim against the Council following the dismissal of the ICF Proceeding as between ICF and the Council. In various media interviews and reports in late 2023, ICF and Mr Cook, or persons authorised to speak on behalf of them, are quoted as set out below.
(a)In an article in the Herald Sun on 26 July 2023, an ICF spokesman said:
ICF is about to immediately launch new proceedings against the [Council] on a new legal basis … The new case against council is malicious prosecution and it will be all about the slug.[40]
[40]The article entitled ‘I Cook Foods drops high-profile “slug gate” legal case against Dandenong Council’ published in the Herald Sun on 26 July 2023 is exhibited to the First Dixon Affidavit, Exhibit MED-1, 807–809.
(b)In an article in the Dandenong Star on 26 July 2023, Mr Cook said:
‘… This is not over by a long shot…
…
[ICF] settled with Council yesterday IN THIS CASE ONLY.’
ICF would launch a new civil case against the council for ‘malicious prosecution’.[41]
[41]The article entitled ‘Case not over: I Cook’s new “malicious prosecution” claim’ published in the Dandenong Star on 26 July 2023 is exhibited to the First Dixon Affidavit, Exhibit MED-1, 810–812.
(c)In a post on X (formerly Twitter) on 26 July 2023, Mr Ben Cook,[42] is quoted as follows:
[42]Mr Cook’s son.
Our action against the Dandy Council is not over. New advice to let Council out of the current case and then sue them in a separate case was the best way forward, Council didn’t know the 2nd case was coming but they do now it doesn’t stop here …[43]
(d)In an interview on Sky News on 27 July 2023, Mr Cook said:
…we were advised to let the City of Greater Dandenong out as a tactical thing… surprised Dandenong took the bait…every intention on taking them on in a more appropriate forum for malicious prosecution…[44]
(e)In an article in the Herald Sun on 3 August 2023, Mr Cook said:
Once [the ICF Proceeding] is out of the way, says Cook, he is going to personally reissue a fresh set of claims against Dandenong Council employees for malicious prosecution.[45]
[43]First Dixon Affidavit, Exhibit MED-1, 813.
[44]First Dixon Affidavit [50]. The link to the Sky News interview is exhibited to the First Dixon Affidavit, Exhibit MED-1, 814.
[45]First Dixon Affidavit [51]. Although, the article described as being entitled ‘Slug Gate: Let the legal games begin’, 3 August 2023, Herald Sun, is not exhibited to the affidavit.
By letter dated 22 August 2023, the Council’s solicitors wrote to ICF’s solicitors referring to the media statements extracted above. The letter explained why any new proceeding would likely be met with an application by the Council to have it dismissed or stayed on the basis of abuse of process. The letter stated:
It is clear that your client’s proposed malicious prosecution claim would raise the same controversy about Ms Garlick’s inspection of the ICF Food Premises on 18 February 2019 and the observations of Ms Garlick that informed the 37 specified steps in the Clean Order, including the allegation that Ms Garlick planted the slug. Indeed, Mr Cook and the unnamed ICF spokesman have said as much in their recent media statements (eg “The new case against council…will be all about the slug” and “the slug… represented four of the charges”). These were central issues in the Proceeding, and both parties filed expert evidence in relation to these matters.[46]
[46]First Dixon Affidavit, Exhibit MED-1, 818.
Mr Cook deposes in this proceeding that following completion of the trial against the State of Victoria on 1 September 2023, he considered the pursuit of a malicious prosecution claim against the Council, which proceeding would include a claim by him personally as both he and ICF had been charged with 48 offences each under the Food Act. Mr Cook instructed his lawyers to draw the statement of claim against the Council to allege malicious prosecution. He deposes that he ‘was keeping [his] options open as [he] was aware of the possibility that ICF’s claim for damages in the first proceeding [against the State] might not be successful.’[47] When that occurred, Mr Cook deposes, the ‘possibility of pursing [sic] the Council for damages for malicious prosecution became all the more important from the perspective of myself and ICF.’[48]
[47]Cook Affidavit [20].
[48]Cook Affidavit [22].
ICF and Mr Cook commenced this proceeding, in which they allege malicious prosecution and misfeasance in public office, on 23 November 2023. On 13 February 2024, the defendants made this application.
The Power to Summarily Dismiss or Stay Proceedings as an Abuse of Process
Rule 23.01(1) of the Rules provides:
(1) Where a proceeding generally or any claim in a proceeding—
(a) is scandalous, frivolous or vexatious; or
(b) is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
This rule gives effect to the inherent jurisdiction of the Court, apart from the Rules, to stay or dismiss a proceeding that is an abuse of process. The jurisdiction to dismiss or stay proceedings as an abuse of process is one to be exercised in exceptional cases, or sparingly with the utmost caution.[49] The burden on the defendants in making this application, and of satisfying the Court, is a heavy one.[50]
[49]Kermani v Westpac Banking Corporation (2012) 36 VR 130, 153 [97] (Robson AJA, Neave and Harper JJA agreeing), citing Jago v District Court (NSW) (1989) 168 CLR 23, 76 (Gaudron J); Williams v Spautz (1992) 174 CLR 509, 529 (‘Williams’).
[50]Williams 529, 542.
What constitutes an abuse of process is insusceptible of precise or closed formulation.[51] The concept is inherently broader and more flexible than an estoppel and can be invoked in any ‘circumstances in which the use of the court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute’.[52] It is informed, in part, by similar considerations of finality and fairness in litigation.[53] Thus, the assertion of rights or the raising of issues in successive proceedings can simultaneously be an estoppel and/or constitute an abuse of process.[54] Yet, where the technical features of an estoppel are absent – for example, where the party making a claim was neither a party nor a privy of a party to the earlier claim – the making of a claim in a successive proceeding may nevertheless be precluded as an abuse of process where that claim ought reasonably to have been made or raised for determination in the earlier proceeding.[55]
[51]Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, 518–519 [25] (French CJ, Bell, Gageler and Keane JJ), citing Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 262 [1], 265 [9].
[52]Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, 518–519 [25] (French CJ, Bell, Gageler and Keane JJ) (‘Tomlinson’).
[53]Tomlinson 518 [24] (French CJ, Bell, Gageler and Keane JJ).
[54]Ibid 519 [26] (French CJ, Bell, Gageler and Keane JJ).
[55]Ibid.
While there is no need for subsequent proceedings to be between the same parties or their privies, there must be some relevant connection between the parties or other ‘special factor’,[56] which supports the conclusion that the claims ought to have been made in the earlier proceeding. In Kermani,[57] the Court of Appeal held that the subsequent plaintiff’s indirect interests were at stake in the earlier proceeding because she was the sole director and shareholder of one of the corporate parties. She had detailed knowledge of the claims made in the earlier proceeding as the person instructing the lawyers on behalf of the company she controlled, and accordingly, she ought reasonably to have joined her claims to the earlier proceeding.[58] In Angeleska,[59] the Court of Appeal cited the extensive involvement of the new plaintiff in the earlier proceeding, and her knowledge of the claims, as a ‘special factor’ – that is, she acted as a litigation guardian for her husband (plaintiff), gave evidence as a witness in his case, cross-examined all of the witnesses called by the defendants and drafted the submissions.[60] In Re HIH Insurance Ltd (in liq),[61] Brereton J described the requisite connection as ‘sufficient identification’ between parties, such as where one party controls the other.[62]
[56]Angeleska(Known as Slaveska) v State of Victoria (2015) 49 VR 131, 174 [157], citing Kermani v Westpac Banking Corporation (2012) 36 VR 130, 157 [112] (Robson AJA, Neave and Harper JJA agreeing); Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245, 265 [114] (Handley JA); Ann Street Mezzanine Pty Ltd (in liq) v Beck (2009) 175 FCR 532, 542 [34]–[35].
[57]Kermani v Westpac Banking Corporation (2012) 36 VR 130 (‘Kermani’).
[58]Kermani 161–162 [136]–[138] (Robson AJA, Neave and Harper JJA agreeing).
[59]Angeleska (Known as Slaveska) v State of Victoria (2015) 49 VR 131 (‘Angeleska’).
[60]Angeleska 179 [175].
[61]Re HIH Insurance Ltd (in liq);De Bortoli Wines (Superannuation) Pty Ltd v McGrath (2014) 101 ACSR 1.
[62]Ibid 18–19 [59].
Whether there is an abuse depends upon the circumstances of the case, and the focus of the analysis is ultimately on the substance of the subject proceedings, rather than their form.[63] Merely because a right or issue ‘could’ have been raised in an earlier proceeding, does not mean it ‘should’ have been. As was observed by the House of Lords in Johnson v Gore Wood & Co (a firm),[64] to decide to stay a proceeding as an abuse of process involves:
a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.[65]
In Kermani, Robson AJA described the guiding considerations as oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice.[66] There need not be a subjective intention to abuse the court’s processes,[67] although its presence would be relevant. Rather, what is assessed is the objective effect of the continuation of the action on public and private interests.[68]
[63]Angeleska 173–174 [156].
[64][2002] 2 AC 1 (‘Johnson’).
[65]Johnson 31.
[66]Kermani 154 [97(14)] (Neave and Harper JJA agreeing).
[67]Angeleska 174 [157].
[68]Ibid.
In Kermani and Angeleska, the earlier proceedings had been heard and determined by the Court on their merits. However, and exemplifying the fact that instances of abuse are not susceptible of closed formulation, the authorities demonstrate that determination of the earlier proceeding on the merits is not a pre-requisite to finding an abuse.[69] In UBS,[70] the High Court held there was an abuse even in circumstances where there had been no prior determination of the factual merits of the underlying claims in the earlier proceeding in the New South Wales Supreme Court (‘NSWSC’) and a fair trial remained possible.
[69]See, eg, Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, where the abuse of process lay in the significant delay which made the fair trial of the proceeding impossible, even though there was no determination on the facts in the earlier proceeding.
[70]UBS AG v Tyne (2018) 265 CLR 77 (‘UBS’).
In UBS, two of the parties to an earlier proceeding in the NSWSC discontinued their claims, with those of the remaining, related party, later being permanently stayed on the basis of res judicata arising from the judgment of a foreign court (and hence without determination of the factual merits in the NSWSC). Subsequent to the permanent stay being granted in the NSWSC proceeding, the two plaintiffs who had discontinued their claims in that forum, sought to reagitate them by pursing proceedings in the Federal Court. The new proceeding arose from the same facts and made essentially the same allegations as previously made by those plaintiffs (and the related entity) in the NSWSC proceeding. On an application by the defendant, UBS, the Federal Court granted a permanent stay of the proceeding as an abuse of process. The decision was reversed on appeal, before the stay was re-instated by the High Court.
The plurality of Kiefel CJ, Bell and Keane JJ found that there was unjustifiable oppression, even to a large corporate defendant such as UBS. The plurality determined that the oppression was to be found not only in the delay in resolution of the dispute and the inevitability of increased costs, but at its core, in the vexation of UBS being required to deal again with claims that should have been resolved in the NSWSC.[71] UBS had been engaged in litigation in the NSWSC with an entity subject to the directing mind and will of Mr Tyne who, together with another entity over which he also exercised control, were the discontinuing plaintiffs. Chief Justice Kiefel, Bell and Keane JJ accepted that the discontinuing plaintiffs’ claims ‘should’ have been litigated in the NSWSC proceeding, and held that it would be:
… to hark back to a time before this Court’s decisions in Aon and Tomlinson and the enactment of s 37M of the [Federal Court Act] to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the ‘just, quick and efficient’ resolution of litigation ...[72]
In holding that allowing the litigation to proceed will also bring the administration of justice into disrepute, the plurality concluded:
For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation … is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys...[73]
[71]UBS 100 [58] (Kiefel CJ, Bell and Keane JJ).
[72]UBS 96 [45] (Keifel CJ, Bell and Keane JJ).
[73]UBS 100 [59] (Keifel CJ, Bell and Keane JJ).
The Application of the Principles on Abuse of Process to the Present Case
In considering the application of the general principles to the circumstances of the present proceeding, I have had regard to the oral and written submissions of the parties. I have also had regard to the affidavit material filed by each party.
I accept the defendants’ submissions that complete identity of parties is not required to establish an abuse. I further accept that there is a sufficient connection between the plaintiffs. They are sufficiently identified because Mr Cook, as he himself admits, at all times controlled ICF, as its sole director, and the conduct of the ICF Proceeding, and had knowledge of the claims ICF made in that proceeding. He controls ICF in this proceeding, which he joins personally. Likewise, there are connections between the defendants. In the ICF Proceeding, the conduct for which it was asserted the Council was vicariously liable was the conduct of Ms Johnson and Ms Garlick, all of whom are the named defendants in this proceeding.
The defendants submit that one of the circumstances relevant to my assessment is that the claims in the ICF Proceeding and in this proceeding are substantially the same, particularly ‘taking into account the abandoned and disallowed amendments’.[74] The defendants submit that a comparison between the filed pleadings and proposed pleadings in each proceeding shows that ‘in virtually every respect the allegations mirror or are equivalent to substantially the claims made in the earlier proceeding, starting with the parties’.[75] I have undertaken a comparison of the relevant pleadings and proposed pleadings with the assistance of the defendants’ submissions and the First Dixon Affidavit. There is obvious and extensive overlap if the malicious prosecution claim, which was proposed and then withdrawn, is included in the analysis. Even Mr Cook concedes some of the overlap in his affidavit. Much of that symmetry is unsurprising given the various claims have their origins in the events which occurred in and around February 2019. Each proceeding necessarily includes allegations which establish the context in which the events unfolded from that time, such as the death of the patient, the taking of samples from ICF’s premises, the testing of those samples and the results, the inspections by the Council and the fact of the creation of the various reports and the making of various orders following those inspections. The overlap goes further, particularly when the proposed amended pleadings are considered. The facts relevant to the pleading of the misfeasance claim in the ICF proceeding (eg, the allegation that Ms Garlick planted a live slug and cited its presence in her report),[76] and other facts specifically relevant to the proposed pleading of malicious prosecution in the ICF proceeding (eg, that Ms Johnson/ Ms Garlick tampered with evidence),[77] are also substantially identical to those facts that have been pleaded in this proceeding in the misfeasance and malicious prosecution claims respectively.
[74]Defendants’ Submissions filed on 4 April 2024, 9 [28].
[75]Transcript of Proceedings, I Cook Foods Pty Ltd (ACN 094 392 060) v Greater Dandenong City Council (Supreme Court of Victoria, S ECI 2023 05525, Goulden AsJ, 23 April 2024) T23.4–T23.7 (‘Transcript’).
[76]This allegation pleaded at [44] in the Further Amended Statement of Claim filed on 14 November 2022 in the ICF Proceeding, and exhibited to the First Dixon Affidavit, Exhibit MED-1, 177 [44], is similar to the pleadings at [16]–[17] in the Statement of Claim filed in this proceeding on 23 November 2023..
[77]This allegation pleaded at [125] in the Proposed Further Amended Statement of Claim attached to the 18 January 2022 Summons filed in the ICF Proceeding, and exhibited to the First Dixon Affidavit, Exhibit MED-1, 240 [125], is similar to the pleadings at [33] and [39] in the Statement of Claim filed in this proceeding on 23 November 2023.
However, as the cases reveal, a connection between parties and an overlap in issues is not sufficient. Those matters might serve to answer the question whether the claims ‘could’ have been brought in the earlier proceeding, but not whether they ‘should’ have been. To determine if there is an abuse, the Court must undertake ‘a broad, merits-based judgment’,[78] taking into account all of the circumstances, where the ‘guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice’.[79]
[78]Johnson 31.
[79]Kermani 154 [97(14)] (Robson AJA, Neave and Harper JJA agreeing).
In determining whether there is unjustifiable oppression, in the circumstances of this case, it is relevant to my assessment that, although considered and advanced for a matter of weeks in ICF’s proposed amended pleadings, the malicious prosecution claim never featured in any filed pleading in the ICF Proceeding. The Council opposed the proposed amendments which raised malicious prosecution in the ICF Proceeding on each occasion on which they were foreshadowed. Given the amendments were either not pursued or disallowed, in the event, the Council never had to respond to that claim. Furthermore, there was no malicious prosecution claim even foreshadowed on behalf of Mr Cook personally. Whilst the malicious prosecution claims in this proceeding arise from the same underlying events and raise some of the same factual matters pleaded in the earlier proceeding in relation to misfeasance, the claims also raise different issues, which, had they been joined to the earlier proceeding, in accordance with the Council’s own contentions in that proceeding, would have required additional discovery and evidence to be filed.[80] So much so that the late proposed amendments in the ICF Proceeding, which raised certain of those facts in pursuit of the misfeasance claim, were disallowed for the primary reason that they would have necessitated vacation of the trial date. Accordingly, I do not accept that the Council is being twice, or otherwise unduly, vexed in respect of these issues.
[80]See, eg, First Dixon Affidavit [28(c)(iii)].
The misfeasance claim was litigated for far longer, and so, the Council is, to an extent being twice vexed regarding the questions of fact and law that arise in respect of that claim in this new proceeding. However, and whilst not preclusive of an abuse of process argument, the misfeasance claim was neither finally determined as against the Council or a related entity (in contrast to the circumstances in UBS), nor was there any determination on the merits of the claim (in contrast to Angeleska and Kermani). That the trial did not run reduces the extent to which the Council is being twice vexed, for none of the Council’s witnesses were required to give evidence or submit to cross-examination, and the alleged conduct of the Council was not the subject of any public examination. The duplication, such as it exists, in discovery, submissions or evidence can be capably dealt with and minimised, as the plaintiffs submit, through considered case management of this proceeding. That would likely include the making of orders permitting the use of documents disclosed in, or evidence or other information prepared for, the ICF Proceeding, in this proceeding.
The defendants submit that the totality of the circumstances surrounding the conduct of the ICF Proceeding, including the considerable media attention it received, demonstrate that continuing this proceeding would be oppressive to them. They point to the Council’s close to three-year defence of the litigation and its having to contend with numerous interlocutory applications, a twice vacated trial date, and two mediations. Responding to interlocutory applications is a fairly ordinary incident of hard fought litigation, as are attempts at appropriate dispute resolution. Aside from these matters and its duration, the defendants do not point to any other particular or extraordinary feature of the manner of conduct of the ICF Proceeding to lend further support to their oppression argument. Certainly, this is not a case where there is any delay in the commencement of the subsequent proceeding such as to render a fair trial impossible. The plaintiffs commenced the new proceeding within months of the final determination of the ICF Proceeding against the State of Victoria, which in turn was not long after the agreed dismissal of ICF’s claims against the Council. I accept the plaintiffs’ submissions that the claims are within the applicable limitations period and the facts are still at the forefront of the minds of the parties. Whilst any delay has the potential to cause oppression and unfairness, including a diminishing of the available evidentiary record,[81] the delay in this case is not such as to create any significant unfairness for the defendants because of the diminished evidentiary value or otherwise. Once again, appropriate case management will ensure that any adverse impacts of the delay or duration of the litigation are mitigated as far as possible.
[81]See discussion in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635, 648–649 [35]–[39] (Kiefel CJ, Gageler and Jagot JJ).
The defendants also point to the psychological impact, especially upon Ms Johnson and Ms Garlick, because the lawfulness and propriety of their conduct has been at the forefront of the litigation since its commencement (even though they were not previously named defendants). The plaintiffs accept that there might be inconvenience and ‘discomfort’[82] for the defendants arising from the plaintiffs’ pursuit of this proceeding, including the duplication of costs, but they refute that any such inconvenience and discomfort reaches the level of unjustifiable oppression. I agree. In doing so, I do not seek to understate the toll, including with respect to the use of time and resources, that being the subject of litigation might exact on an entity or an individual. Participation in litigation, especially for individuals, is a highly stressful experience. However, in my view, the oppression described by the defendants does not extend unreasonably beyond the normal level of oppression, impact or inconvenience that attends all litigation. It is not, in my view, comparable to the experiences of the defendants in Angeleska, who endured eight years of stress and strain as named defendants in litigation in which the propriety of their conduct was in issue. The oppressive features of that case included a 115 day trial during which each defendant was cross-examined at length. When findings were made mostly in the defendants’ favour, the plaintiff appealed to the Court of Appeal and then, unsuccessfully, sought special leave to appeal to the High Court.[83] When the appellate procedures were exhausted, the plaintiff’s wife sought to commence a new proceeding making the same allegations against the same defendants.
[82]Plaintiffs’ Submissions filed on 16 April 2024, 4 [17].
[83]Angeleska 177 [168].
The defendants further submit that the public and private interest in the finality of litigation is adversely affected if the Court is seen to lend its procedures to the plaintiffs having a second attempt at litigating their case against the defendants when that case was dismissed by the Court by consent. As noted above, the Court’s power to stay or dismiss for an abuse of process is not limited to the circumstances in which there has been a final adjudication. Settled, discontinued or stayed cases can all give rise to circumstances in which later proceedings are an abuse of the Court’s processes. However, the fact that a case is not finally adjudicated does mean that some of the more obvious features of an abuse of process will be absent – such as where the later proceedings involve a collateral attack on factual findings made in the earlier proceeding,[84] where witnesses or parties have endured the elevated stress and strains of a lengthy trial and where the later proceeding gives rise to the risk of inconsistent determinations from an analysis of the same or similar facts.
[84]In their submissions, the defendants did point to what appeared to be a collateral attack on a single finding of McDonald J at [36] of his judgment in I Cook Foods Pty Ltd v State of Victoria [2023] VSC 654. In that paragraph, his Honour finds that Dr Sutton was not aware of the Clean Order or the Food Safety Order when he made an order on 21 February 2019 for ICF to cease production. In the statement of claim filed in this proceeding, it is alleged at [21] that Dr Sutton relied on ‘the report of an Authorised Officer of the Council’ before issuing the closure order. That allegation is subtly different to the finding, referencing (and particularising) a report of an Authorised Officer of the Council rather than the Clean Order or the Food Safety Order the subject of the finding. It appears to narrow an allegation that was included in the proposed amended pleading attached to the 18 January 2022 summons at [64], in which it was alleged that Dr Sutton relied on, or was otherwise influenced by, the Council’s Clean or Food Safety Order, the 2015 Audit Report and/or the ‘Johnson Report’ in making the closure order.
In terms of finality, the claim against the Council in the ICF Proceeding was withdrawn and was the subject of orders for dismissal before trial. The ICF Proceeding continued, but against a defendant independent of the Council. No releases were given.[85] In these important respects, this case stands in contrast to that of UBS where one plaintiff pursued its claims in the NSWSC to final determination against UBS while the other plaintiffs discontinued[86] their claims against UBS with a ‘view to bringing [the dispute] in another court after the determination’.[87] In that case, the plaintiffs sought to remove themselves from the NSWSC proceedings to avoid being bound by the outcome. Here, ICF withdrew its claim against the Council entirely. Mr Cook’s evidence on this issue, which I accept, is that ICF did so in order to focus its attention and finite resources on its pursuit of separate claims regarding the making of the closure order against an unrelated defendant, being the State of Victoria. It did not keep a claim on foot against the Council and hive off other claims against it with a view to pursuing them based upon whether that initial claim succeeded.
[85]The defendants submitted, at [18] of the Defendants’ Submissions filed on 4 April 2024, that the proceedings had ‘settled’. The plaintiffs submitted, at [3] of the Plaintiffs’ Submissions filed on 16 April 2024, that they did not settle, and instead, the claims were withdrawn and the ICF proceeding, as against the Council, dismissed by consent.
[86]Under the applicable rules of the Court (being the Uniform Civil Procedure Rules 2005 (NSW), rr 12.1–12.4), the discontinuance did not prevent the claims from being commenced and prosecuted again.
[87]UBS 98–99 [55] (Kiefel CJ, Bell and Keane JJ).
The defendants also rely on aspects of Mr Cook’s evidence to suggest a deliberateness on the part of the plaintiffs in abusing the Court’s processes, akin to that observed and condemned by the plurality in UBS as bringing the administration of justice into disrepute. In particular, the defendants submit that by not pursuing the malicious prosecution claim within the ICF proceeding in 2022 and then consenting to the dismissal of the ICF Proceeding against the Council in July 2023, Mr Cook was giving effect to a stratagem of, in his own words, ‘keeping [his] options open’,[88] to ‘have another crack at the [C]ouncil if he lost to the State.’[89] I do not accept that ICF or Mr Cook had such a stratagem, or that if they did, that it amounts to an abuse in the circumstances of this case for the following reasons.
(a)First, I do not accept that ICF or Mr Cook had any ‘stratagem’ in 2022 which could be described as ‘[h]iving off [a claim], with a view to bringing it … after the determination’ of the earlier proceeding.[90] ICF’s decision to remove the malicious prosecution allegations from its draft proposed amended pleading in February 2022 was made long before the dismissal of the ICF Proceeding. That decision is explained by Mr Cook, in evidence that I accept, as a decision to rationalise the issues before the Court in early 2022 to preserve ICF’s scarce financial resources and to enable it to pursue its primary claim against the State. I do not consider that such a decision involves any underhanded or improper use of court resources, or in itself causes improper oppression to the present defendants.
(b)Second, I am also not satisfied that there was any strategy to abuse the Court’s processes when the ICF Proceeding against the Council was dismissed by consent in July 2023 before ICF and Mr Cook then commenced this proceeding. Mr Cook gives frank evidence regarding his concerns about resources and the need to streamline the ICF Proceeding once the application to amend was dismissed by Matthews J, which eventually lead to the consensual dismissal of the ICF proceeding against the Council. Mr Cook also gives frank evidence that after the judgment was delivered in the ICF Proceeding, and having not obtained damages against the State of Victoria, his claims against the defendants here assumed an even greater importance. And of course they did. ICF’s business had ceased to operate. It had claims that it advanced against the State and the Council, seeking to recover the same heads of loss in order to compensate for the losses it alleged it had suffered by reason of the separate legal wrongs of each. Having recovered nothing from one defendant against whom its claims were adjudicated, any chance it had of recovery in respect of those heads of loss depended entirely on its successful pursuit of its other claims against the Council (and/or its officers). I do not take Mr Cook’s evidence to be anything more than an acknowledgement that, as a result of his failure to recover damages against the State, all of his, or ICF’s, eggs were now in one basket. Even if by stating that ‘[he] was keeping [his] options open’,[91] Mr Cook means that he deployed a conscious litigation tactic of separating out proceedings and claims against different defendants to spare resources, that is vastly different to the strategy so obviously (and abusively) deployed in UBS of a plaintiff (and entities he controlled) pursuing claims against the same defendant in the hope of achieving a different outcome in a different forum.
[88]Cook Affidavit [20].
[89]Transcript T3.19–T3.21.
[90]UBS 98–99 [55] (Kiefel CJ, Bell and Keane JJ).
[91]Cook Affidavit [20].
The plaintiffs submit that the decision to withdraw the claims against the Council in the ICF Proceeding, and then to re-issue them in a new proceeding, conformed with the overarching obligation to facilitate the just resolution of disputes under the Civil Procedure Act 2010 (‘CPA’). In particular, the plaintiffs submit that the removal of the claims against the Council in the ICF Proceeding saved its participation in that trial, and streamlined and confined the issues for determination against the State, reducing the duration of the trial and the attendant cost. On the contrary, the defendants submit, quoting the plurality in UBS, that the conduct of the plaintiffs in the circumstances of this case brings the administration of justice into disrepute because it is ‘the antithesis of the discharge of the duty imposed on parties to civil litigation.’[92] I am not satisfied that there has been, in this case, the kind of ‘tactical manoeuvring that impedes the “just, quick and efficient” resolution of litigation’,[93] that was deprecated in UBS. The plaintiffs may never have needed to vex the Council, Ms Garlick and Ms Johnson with a further proceeding. However, as I have explained above, I accept Mr Cook’s evidence that the plaintiffs’ claims against the Council became ‘all the more important’ when ICF’s damages claim against the State was not successful.[94] There will be some duplication of costs and time as a result of this proceeding traversing some of the same issues as those addressed in discovery made, and evidence filed, in the ICF Proceeding. However, for the reasons already given, those adverse impacts can be mitigated through careful case management. I am satisfied that the conduct of the plaintiffs in this case does not justify description as the ‘antithesis’ of the discharge of their duties as parties to civil litigation.
[92]UBS 98–99 [55] (Kiefel CJ, Bell and Keane JJ); Defendants’ Submissions filed on 4 April 2024, [38], quoting the plurality in UBS at [55].
[93]UBS 96 [45] (Kiefel CJ, Bell and Keane JJ).
[94]Cook Affidavit [22].
Overall, having taken a broad, merits based approach to the question, for the reasons set out in this ruling, I am not satisfied that in the circumstances of this case, the proceeding ought be dismissed or stayed as an abuse of process. Whilst there is an overlap of issues and a sufficient identity of parties, that only reveals that the claims could have been brought in the ICF Proceeding. For the reasons set out above in this ruling, which I recapitulate below, I am not satisfied that the claims should have been brought in the ICF Proceeding, nor am I satisfied that the administration of justice will be brought into disrepute amongst right-thinking people as a result of them now being brought in this proceeding.
(a)There is no unjustifiable oppression in so far as the defendants must now contend in substance with the malicious prosecution claims which never featured in the ICF proceeding beyond being contemplated, proposed and then either withdrawn or disallowed.
(b)Although the Council will be twice vexed to an extent in respect of the misfeasance claims causing duplication of costs, delay, stress and inconvenience for the defendants, I do not regard those impacts to be beyond the usual oppression of dealing with litigation, nor do I regard any such adverse impacts as incapable of mitigation through considered case management.
(c)The private and public interest in finality is not undermined by the commencement of this proceeding following the consensual dismissal of the ICF Proceeding in circumstances where:
(A)it involves claims that were not ever made in the ICF Proceeding;
(B)there was no determination of the claims that were made in the ICF Proceeding as between the parties;
(C)all of the claims against the Council were removed from the ICF Proceeding by reason of the dismissal; and
(D)no releases were given by either party.
(d)I do not consider there to be evidence of a deliberate abuse of process by the plaintiffs in the manner in which they have withdrawn their claims against the Council in the ICF Proceeding, both those foreshadowed and not pursued in 2022 and the misfeasance claim formally dismissed by consent in mid-2023.
(e)I am satisfied that the commencement of this proceeding in the circumstances described is not likely to give rise to a perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys.
I will order that the defendants’ summons be dismissed and that the defendants pay the plaintiffs’ costs of and incidental to this application.
SCHEDULE OF PARTIES
| S ECI 2023 05525 | |
| BETWEEN: | |
| I COOK FOODS PTY LTD (ACN 094 392 060) | First Plaintiff |
| IAN WILLIAM COOK | Second Plaintiff |
| - v - | |
| GREATER DANDENONG CITY COUNCIL | First Defendant |
| LEEANNE JOHNSON | Second Defendant |
| ELIZABETH GARLICK | Third Defendant |
2
14
0