Knorr v CSIRO & Ors

[2012] VSC 83

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 6715

ANDREW KARL KNORR

Plaintiff

v

COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION (CSIRO)

FOREST AND WOOD PRODUCTS RESEARCH AND DEVELOPMENT CORPORATION (FWPRDC)

COMMONWEALTH OF AUSTRALIA

BORAL TIMBER (BORAL LIMITED) (ACN 008 421 761)
and ALLEN TAYLOR & COMPANY LIMITED
(ACN 000 003 056)

UNIVERSITY OF TASMANIA ARBN 055 647 848 (UTAS)

MALLESONS STEPHEN JAQUES (MALLESONS)

FOREST AND WOOD PRODUCTS AUSTRALIA LIMITED (ACN 127 114 185) (FWPA)

MBAC CONSULTING GROUP PTY LTD (ACN 126 232 746) (MBAC)

STATE OF VICTORIA (STATE)

First Defendant

Second Defendant

Third Defendant

Fourth Defendant

Fifth Defendant

Sixth Defendant

Seventh Defendant

Eighth Defendant

Ninth Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2012
DATE OF JUDGMENT:	9 March 2012
CASE MAY BE CITED AS:	Knorr v CSIRO & Ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 83

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PRACTICE AND PROCEDURE – Pleadings – Statement of Claim – Failure to plead material facts – Failure to properly particularise material facts – Pleading embarrassing – Pleading likely to delay the fair trial of the proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr J.P. Slattery	Clayton Utz
For the Second Defendant	No appearance
For the Third Defendant	Ms E. Strong SC with Mr I. Horak	Australian Government Solicitor
For the Fourth Defendant	Mr J.P. Moore	Ashurst Australia
For the Fifth Defendant	Mr R.H.M. Attiwill	Perry Maddocks Trollope
For the Sixth Defendant	Mr J.S. Mereine	King & Wood Mallesons
For the Seventh Defendant	Mr M. Attard	Monahan + Rowell
For the Eighth Defendant	Mr C. Forster	Moray & Agnew
For the Ninth Defendant	Dr M.J. Collins SC with Ms R.L. Enbom	Victorian Government Solicitor’s Office

HIS HONOUR:

1. The rules of pleading require every pleading to contain in a summary form a statement of all the material facts on which the party pleading relies, but not the evidence by which those facts are to be proved.  Additionally, the rules require each allegation so far as practicable to be contained in a separate paragraph.

1. Pleadings should be as brief as is consistent with clarity.  Whilst brevity is of secondary importance when compared with clarity and precision, in an extreme case, a pleading may be struck out for prolixity.  As has been said repeatedly, the parties in any litigation are under a duty to cooperate with the Court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his or her own conclusions about the merits of the case.  Neither parties nor courts have unlimited resources.

1. In the case of a statement of claim, pleading all the material facts means pleading all the facts necessary to constitute a complete cause of action.  No more.  No less.

1. Again, as has been repeatedly stated, the material facts relied on should be stated precisely and briefly.  As a rule, they should be arranged in chronological order.  Only the material facts should be stated, and statements of fact which are not necessary are liable to be struck out.  Again, evidence by which material facts are to be proved should not be pleaded.

1. In addition to the pleading rules I have just described, each pleading must contain the necessary particulars of any fact or matter pleaded.  The ultimate aim of pleading rules is the definition with precision of the issues between the parties.  The rules facilitate the just, economic and efficient disposition of litigation:  they are no mere technicality.  As has been repeatedly said, they serve very important purposes so far as the proper determination of disputes is concerned.

1. On 12 December 2011, the plaintiff issued the writ in this case against nine defendants.  The statement of claim endorsed on the writ contains 378 paragraphs, many of which are more than half a page of single-spaced typing and some of which run for pages.  The statement of claim appears to relate to nine documents which have been published at various times.  Complaint is made that the documents are “false documents” and that “statements with false and derogatory meanings” have been made.  Many high level allegations as to “responsibility for”, or “involvement in”, the publication of these documents and statements are made.  At various points throughout the statement of claim, there are headings, such as “False statements and meanings”, “Defamation”, “False statements are injurious falsehoods”, “false statements and breach of statutory duty and misfeasance in public office”, “False statements and fraud and the statute of limitations and other defences” and “Equity”.

1. By summons filed 9 February 2012, the sixth defendant seeks to have the various paragraphs referable to it in the statement of claim struck out pursuant to rule 23.02;  alternatively, pursuant to the inherent jurisdiction of the Court.  The grounds relied upon are that the paragraphs:

(a)disclose no cause of action;

(b)are scandalous, frivolous or vexatious;

(c)may prejudice, embarrass or delay the fair trial of the proceeding;  and/or

(d)are otherwise an abuse of the process of the Court.

1. Additionally, the sixth defendant seeks summary judgment pursuant to s 63 of the Civil Procedure Act;  alternatively, pursuant to rule 23.03;  alternatively, pursuant to the inherent jurisdiction of the Court.

1. By summons filed 28 February 2012, the third defendant seeks to have the whole of the statement of claim struck out against it pursuant to rule 23.02.  The grounds relied upon are the same as the grounds relied upon by the sixth defendant.  In the alternative, the third defendant seeks an order that it cease to be a proper party to the proceeding pursuant to rule 9.06(a).

1. By summons filed 1 March 2012, the first defendant also seeks an order that the statement of claim be struck out against it.  The grounds relied upon are the same as those relied upon by the sixth and third defendants.  In the alternative, the first defendant seeks an order for proper particulars of a large number of the paragraphs of the statement of claim.

1. This morning, other defendants have joined in (on notice to the plaintiff) the applications to strike out the statement of claim and/or to seek judgment against the plaintiff.

1. The statement of claim is manifestly defective.  It fails to comply with any of the ordinary rules of pleading.  Permitting a trial to proceed on the basis of it would undoubtedly prejudice, embarrass and delay the fair trial of the proceeding.  It is not appropriate to go through every paragraph of the statement of claim and identify its manifest defects.[1]  The simple point is that there must be another statement of claim in which there is adherence to the rules of pleading so that each party can know with precision the causes of action and material facts alleged against it.

   [1]Gunns Limited v Marr [2005] VSC 251, [56]-[60] (Bongiorno J, as his Honour then was).

1. That said, some of the more egregious defects should be noted.  For present purposes, three will suffice:

(a)the fifth and sixth sentences of paragraph 2 plead:

“This statement of claim is written as if the plaintiff is the only plaintiff but with it being clear as to the interests of Radial if so added as second plaintiff.  From time to time, Radial is referred to in this statement (sic).  At other times and as appropriate the word ‘plaintiff’ can be takes (sic) as meaning Andrew Karl Knorr and Radial.”

(b)In paragraph 42, it is pleaded:

“In the way that the plaintiff’s reputation and standing would be enhanced by expert and scientific findings that the plaintiff’s claims about the technology were right, the plaintiff’s reputation was damaged by false findings that were derogatory of the technology.  In the plaintiff’s circumstances, such acts as the making of statements with false and derogatory meanings, would naturally lead to the making by certain persons of conclusions about the plaintiff, such as the conclusion that the plaintiff:

(a) is wrong

[and then another 43 sub-paragraphs are pleaded]”.

(c)In paragraph 51, it is pleaded:

“This matter is pleaded to the greatest extent possible or required in equity as well as law and in full accordance with section 29 of the Victorian Supreme Court Act 1986.  It is pleaded that in matters where the plaintiff may be disadvantaged by law as a result of the position of the plaintiff, and, with the plaintiff being in that position fully or partially as the result of acts of certain of the defendants, then equity should prevail.”

1. More broadly, there is a general failure throughout the pleading to supply dates and plead acts or omissions with sufficient particularity to enable the defendants to know the various cases made against them.  Further, there are paragraphs which do not plead material facts – but rather, attempt to plead in an anticipatory way matters which might defeat defences which may or may not be taken by a defendant. Many of the sentences in the statement of claim are no more than high level conclusionary propositions, without any underlying material facts in support. Additionally, in some instances it is clear that the reader needs to be aware of unstated background facts before there can be any proper understanding of the particular sentence or proposition.  Further, whatever might be said of the pleaders’ attempt to comply with the rules of pleading generally, insofar as the plaintiff’s case relies upon any cause of action in defamation, there does not appear to have been any attempt to comply with what are well known rules of pleading in that field of the law.[2]

   [2]See generally Franchise Central v Fairfax Media [2011] VSC 379, [21]-[25] and the authorities referred to therein.

1. At base, the statement of claim is a largely impenetrable document.  If the statement of claim was allowed to stand, there is a very real likelihood that its form and terms would simply generate endless debate about the scope and ambit of the plaintiff’s claims.  In that sense, it is clearly embarrassing and would clearly delay a fair trial.  Whilst one does not need to have resort to the provisions of the Civil Procedure Act 2010 in order to determine the defendants’ present applications, that Act underlines the inappropriateness of allowing this proceeding to go forward on the present statement of claim. The statement of claim fails to comply with the rules in the various very significant respects to which I have referred. It does not allow the defendants to know the cases they must meet. Causes of action are not pleaded in any recognised way. Further, allowing the statement of claim to stand would be likely to add significantly to the cost and length of any trial Accordingly, it will be struck out.

1. To the extent that any defendant seeks relief beyond the striking out of the statement of claim, that relief will be denied at this stage as premature. One cannot know whether summary judgment ought be granted to any defendant or whether any defendant should be removed from the proceeding until a proper statement of claim complying with the rules is filed and served.[3]

   [3]Cf Manderson M&F Consulting v Incitec Pivot Ltd [2011] VSCA 444, [32]-[33] (Redlich JA and Judd AJA).

1. In the result, the order of the Court will be that the plaintiff’s statement of claim is struck out.