Keenan v Bundaberg Port Authority

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FEDERAL COURT OF AUSTRALIA

Keenan v Bundaberg Port Authority [2016] FCA 134

File number: QUD 675 of 2014
Judge: REEVES J
Date of judgment: 23 February 2016
Catchwords:

PRACTICE AND PROCEDURE – application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules 2011 (Cth) – application in the alternative to strike out certain paragraphs of the further amended statement of claim under r 16.21(1)(d) and (e) of the Federal Court Rules 2011 (Cth) – where no material facts pleaded in the further amended statement of claim on various claims – whether reasonable prospects of success fully prosecuting those claims – whether amended statement of claim should be struck out in full or part

CORPORATIONS – application for leave to bring proceedings on behalf of a company under s 237(1) of the Corporations Act 2001 (Cth) – whether application satisfies all of the criteria to grant leave under s 237(2) of the Corporations Act 2001 (Cth)

Legislation:

Federal Court Rules 2011 (Cth)

Federal Court of Australia Act 1976 (Cth)

Competition and Consumer Act 2010 (Cth)

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

Corporations Act 2001 (Cth)

Trade Practices Act 1974 (Cth)

Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth)
Cases cited:

Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641

Charmae Investments Pty Ltd v Australia and New Zealand Banking Group Ltd [1991] ATPR 41-063

Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728

Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2001] FCA 173

Dowling v Commonwealth Bank of Australia [2008] FCA 59

Gaertner v Dharah Gibinj Aboriginal Medical Service Aboriginal Corporation [2013] FCA 1330

Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1969) 92 WN (NSW) 199

Kilcran, in the matter of Allco Finance Group Limited (Receivers and Managers Appointed) (In Liquidation) v Gothard [2014] FCAFC 6

Krajniw v Newman (No 2) [2015] FCA 673

Mulhern v Bank of Queensland [2015] FCA 44

NEC Information Systems Australia Pty Ltd v Lockhart (unreported, Supreme Court of New South Wales, 8 June 1990)

Newhart Developments Ltd v Co-operative Commercial Bank Ltd [1978] QB 814

Oswal v Burrup Fertilisers Pty Ltd (ACN 095 441 151) (Receivers and Managers Appointed) (2013) 295 ALR 708; [2013] FCAFC 9 (Oswal)

Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50

Phillips Oysters Pty Ltd v National Australia Bank Ltd (unreported, Federal Court of Australia, 13 November 1992)

Pottie v Dunkley (2011) 82 ACSR 561; [2011] NSWSC 166

Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Swansson v RA Pratt Properties Pty Ltd (2002) 42 ACSR 313; [2002] NSWSC 583

Vinciguerra v MG Corrosion Consultants Pty Ltd (2010) 79 ACSR 293; [2010] FCA 763

White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511
Date…
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Details
Case
[2016] FCA 134
Decision Date

CaseChat Overview and Summary

In Keenan v Bundaberg Port Authority, the applicant, Mr Keenan, sought summary judgment and to strike out certain paragraphs of the further amended statement of claim. The respondent, Bundaberg Port Authority, opposed these applications. The legal issues before the court were whether Mr Keenan had reasonable prospects of successfully prosecuting his claims and if the amended statement of claim should be struck out in full or part. Additionally, the court had to determine whether Mr Keenan's application for leave to bring proceedings on behalf of Coral Coast Mariculture Pty Ltd satisfied all criteria under the Corporations Act 2001.

The court found that Mr Keenan had failed to meet four of the five criteria required for leave to commence the proceedings under the Corporations Act. As a result, his application for leave was dismissed. Regarding the summary judgment application, the court held that Mr Keenan had no reasonable prospects of success in relation to several claims against the respondents. It was noted that Mr Keenan had made three attempts to produce a proper statement of claim, and he was self-represented. The court emphasised the need for caution in summarily determining proceedings and the distinction between form and substance issues in pleadings. Ultimately, the court ruled that summary judgment should be entered against Mr Keenan for certain claims, while allowing him to amend and refile his misleading and deceptive conduct claim against the first respondent.

The court ordered that Mr Keenan's application for leave to bring proceedings on behalf of Coral Coast Mariculture Pty Ltd be dismissed, with costs. Summary judgment was entered against Mr Keenan in favour of the second and third respondents, as well as the first respondent for specific claims. The further amended statement of claim was struck out, and Mr Keenan was given leave to file a further statement of claim within 28 days. Additionally, Mr Keenan was ordered to pay the costs of the second and third respondents, and the first respondent for the claims upon which summary judgment had been ordered.

Orders

Orders of the court

1. The applicant’s interlocutory application filed 30 July 2015

(a) to bring this proceeding on behalf of Coral Coast Mariculture Pty Ltd pursuant to s 237 of the Corporations Act 2001 (Cth); and

(b) to join Coral Coast Mariculture Pty Ltd as the second applicant in this proceeding under r 9.05 of the Federal Court Rules 2011 (Cth)

be dismissed, with costs.

2. Summary judgment be entered against the applicant in favour of the second and third respondents under s 31A of the Federal Court of Australia Act 1976 (Cth).

3. Summary judgment be entered against the applicant in favour of the first respondent with respect to his contract claim as pleaded at [32]–[33] of his further amended statement of claim; his duty of care claim as pleaded at [34]–[36] of his further amended statement of claim; and his unconscionable conduct claim as pleaded at [39]–[41] of his further amended statement of claim.

4. The whole of the applicant’s further amended statement of claim otherwise be struck out under r 16.21(1) of the Federal Court Rules 2011 (Cth).

5. The applicant be given leave to file a further statement of claim provided he does so within 28 days.

6. The applicant pay the costs of the second and third respondents in this proceeding and of the first respondent with respect to the claims upon which summary judgment has been ordered in its favour.

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

For these reasons, I consider that Mr Keenan has failed to discharge his onus with regard to four of the five criteria prescribed in s 237(2). His s 237 application for leave to commence this proceeding on behalf of Coral Coast must therefore be refused.THE PORT AUTHORITY’S SUMMARY JUDGMENT APPLICATION I turn next to the Port Authority’s summary judgment application. The principles applicable to such an application have recently been outlined by me in a number of decisions: see Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 (Cassimatis) at [15]–[30]; Krajniw v Newman (No 2) [2015] FCA 673 at [9]–[13]; and Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [8]–[11]. I will apply those principles in this application but, in the interests of brevity, I will not reiterate them here. However, it is appropriate to add that, in reaching the conclusions set out below I have taken account of the following diverse and countervailing factors:(a)the caution one should employ before summarily determining a proceeding: see Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] and [60] and Cassimatis at [50];(b)the need to distinguish between whether the true concern is one of form or one of substance – by this I mean whether Mr Keenan has a cause of action that is not properly pleaded, or whether he has no cause of action at all: see Spencer at [23], White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511 at [50] and Cassimatis at [46];(c)in addition to the circumstances outlined in Cassimatis at [47]–[49], summary judgment under s 31A of the Federal Court Act is justified where a party completely fails to identify any valid claim or cause of action or fails to provide any factual materials that could amount to such: see Mulhern v Bank of Queensland [2015] FCA 44 at [60]–[61] per Gleeson J and Dowling v Commonwealth Bank of Australia [2008] FCA 59 at [30] per Reeves J;(d)related to the two factors identified immediately above, this is Mr Keenan’s third attempt to produce a proper statement of claim; and(e)finally, Mr Keenan is self-represented, although there are obvious limitations to this consideration most obviously fairness to the three respondent parties. On the last factor, it is worth adding that experience shows that for every self-represented litigant who has a valid claim, there are many, many, more who do not. And, in the process of defending the claims lodged by the large latter group, the unfortunate respondents concerned very often devote considerable time and resources to that exercise without, in the vast majority of cases, being able to rely upon a costs order to compensate them. That is so because one concomitant of self-representation is almost invariably impecuniosity. For the following reasons, I consider that summary judgment should be entered against Mr Keenan in relation to all the claims he has made against the second and third respondents; and in relation to the unconscionable conduct, negligent misrepresentation and breach of contract claims he has made against the first respondent. With respect to his remaining claim against the first respondent, his misleading and deceptive conduct claim, I consider his further amended statement of claim should be struck out and he should be given a further opportunity to plead the material facts necessary to make out that claim.

Ratio Decidendi

Legal Principle Established

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