Knorr v CSIRO & Ors (No 2)
[2012] VSC 268
•20 June 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
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) 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 STATE OF VICTORIA (STATE) | First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant Seventh Defendant Eighth Defendant Ninth Defendant |
---
JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2012 | |
DATE OF JUDGMENT: | 20 June 2012 | |
CASE MAY BE CITED AS: | Knorr v CSIRO & Ors (No 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 268 | |
---
PRACTICE AND PROCEDURE – Pleadings – Statement of Claim – Failure to plead material facts – Failure to properly particularise material facts – failing to plead or particularise fraud properly – Pleading embarrassing – Pleading likely to delay the fair trial of the proceeding – Pleading manifestly defective – Supreme Court (General Civil Procedure) Rules 2005, rule 23.02.
PRACTICE AND PROCEDURE – Application for summary judgment – Whether proceeding has no real prospects of success – Whether proceeding has no real prospects of success against particular defendants – Supreme Court (General Civil Procedure) Rules 2005, rules 23.01 and 23.03 – Civil Procedure Act 2010, ss 62 and 63.
PRACTICE AND PROCEDURE – Amendment – Application to join additional plaintiff – Application to join company as additional defendant – Company not represented by a lawyer – Worldwide Enterprises Pty Ltd v Silberman & Anor (2010) 26 VR 595 applied.
---
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 D.A Klempfner | Colin Biggers & Paisley |
| For the Eighth Defendant | Mr S. Krischock | Moray & Agnew |
| For the Ninth Defendant | Dr M.J. Collins SC with Ms R.L. Enbom | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
This proceeding was issued on 12 December 2011. On 9 March 2012, I struck out the plaintiff’s statement of claim.[1] I did so because the statement of claim was manifestly defective,[2] it failing to comply with any of the ordinary rules of pleading.
[1]Knorr v CSIRO & Ors [2012] VSC 83.
[2]Ibid, [12].
In striking out the plaintiff’s statement of claim, I concluded that:
(a)permitting a trial to proceed on the basis of it (the statement of claim as then pleaded) would undoubtedly prejudice, embarrass and delay the fair trial of the proceeding;
(b)there had been 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;
(c)there were paragraphs which did not plead material facts – but rather, attempted to plead in an anticipatory way matters which might defeat defences, which may or may not have been taken by a particular defendant;
(d)many of the sentences in the statement of claim were no more than high level conclusionary propositions, without any underlying material facts in support;
(e)insofar as the plaintiff’s case relied upon causes of action and defamation, there did not appear to have been any attempt to comply with well known rules of pleading in that field of law; and
(f)at base, the statement of claim was a largely impenetrable document which, if allowed to stand, would be likely to generate endless debate about the scope and ambit of the plaintiff’s claims against the defendants.
At the time I struck out the statement of claim, I gave the plaintiff leave to re-plead. On 25 April 2012, the plaintiff filed an amended statement of claim. While the statement of claim that was struck out contained 378 paragraphs, the amended statement of claim contains 618 paragraphs. Following the service of the amended statement of claim, each of the defendants (except the second defendant, which no longer exists) issued applications seeking to strike out the amended statement of claim. Some defendants have also sought judgment in their applications.
The plaintiff resists the various applications made by the defendants. Additionally, the plaintiff has filed and served an application to join a company, Radial Corporation Limited, as an additional plaintiff, and to file and serve a further amended statement of claim in which Radial is named as a second plaintiff. The proposed further amended statement of claim has the same number of paragraphs as the amended statement of claim, but is 59 pages longer.
The parties’ applications
By summons filed 29 May 2012, the first defendant sought orders as follows:
(1)The amended statement of claim be struck out as against the first defendant pursuant to rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2005, or alternatively the inherent jurisdiction of the Court, on the grounds that it:
(a)discloses no cause of action;
(b)is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; or
(d)is otherwise an abuse of the process of the Court.
(2)The plaintiff not be permitted to file a further amended statement of claim as against the first defendant without the leave of the Court.
(3)The plaintiff pay the first defendant’s costs of and incidental to this summons.
By summons filed 29 May 2012, the third defendant sought relief of the same kind as that sought by the first defendant. Additionally, the third defendant sought an order that it “ceased to be a party to the proceeding pursuant to rule 9.06(a) … as it is not a proper or necessary party”.
By summons filed 28 May 2012, the fourth defendant sought orders as follows:
(1)The proceeding be summarily dismissed as against the fourth defendants[3] in accordance with:
(a)rules 23.01 and 23.03 of the Supreme Court (General Civil Procedure) Rules 1995 (sic, 2005); and/or
(b)section 62 of the Civil Procedure Act 2010; and/or
(c)the inherent jurisdiction of the Court.
(2)In the alternative to order (1), the amended statement of claim be struck out against the fourth defendant in accordance with rule 23.02 and/or the inherent jurisdiction of the Court on [the same grounds as are relied upon by the first defendant].
(3)An order that the plaintiff pay the fourth defendant’s costs.
[3]It is to be remembered that the plaintiff has identified the fourth defendant as two companies.
By summons filed 12 June 2012, the fifth defendant seeks an order striking out the statement of claim on the same grounds as relied upon by the defendants to which I have already referred. The fifth defendant also seeks an order for its costs.
By summons filed 28 May 2012, the sixth defendant seeks orders as follows:
(1)Paragraphs 98-108, 308 to 359, 536-583, 591-600 and 611-618 of the plaintiff’s amended statement of claim dated 25 April 2012 be struck out pursuant to rule 23.02 or alternatively the inherent jurisdiction of the Court, upon the grounds that each:
(a)discloses no cause of action;
(b)is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of this proceeding;
(d)is otherwise an abuse of process of the Court.
(2)The plaintiff is not allowed to file or serve, and is hereby restrained from filing or serving, a statement of claim in this proceeding against the sixth defendant without the leave of a judge of this Court.
(3)Leave pursuant to paragraph (2) above is to be sought by a written application setting out the full basis on which leave is sought and the full basis of the claim for the relief sought in the proposed statement of claim against the sixth defendant.
(4)No oral hearing will take place in regard to such an application for leave, which will be determined without notice to the sixth defendant, unless the judge otherwise directs.
(5)Alternatively to paragraphs 1 to 4 above, there be summary judgment for the sixth defendant pursuant to section 63 of the Civil Procedure Act, alternatively rule 23.03, alternatively the inherent jurisdiction of the Court.
(6)The time within which the sixth defendant is to deliver a defence, if necessary, be extended to a date 30 days after the hearing and determination of this application.
(7)The plaintiff pay the sixth defendant’s costs of this application.
By summons filed 29 May 2012, the seventh defendant seeks orders in its favour in the same terms as those sought by the fifth defendant.
By summons filed 5 June 2012, the eighth defendant seeks orders striking the amended statement of claim out against it on the same grounds as relied upon by the other defendants; an order that the proceeding be summarily dismissed as against the eighth defendant (alternatively, an order that the plaintiff not be permitted to file a further amended statement of claim against the eighth defendant without the leave of the Court); the costs of this application; and to agitate an issue concerning costs that were reserved when the plaintiff’s original statement of claim was struck out.[4]
[4]An issue concerning the reservation of the costs of some defendants on the occasion when the original statement of claim was struck out (9 March 2012) was also sought to be agitated by other defendants (see specifically, the submissions of the fifth and ninth defendants), notwithstanding the absence of any specific paragraph in their applications seeking relief of the kind expressly sought in the eighth defendant’s summons. However, and in any event, at the hearing of the present applications I expressed the view that the costs, of those defendants that were reserved by the order made on 9 March 2012, would continue to be reserved at this stage. For present purposes, it is sufficient to say that I remain of this view.
By summons filed 6 June 2012, the ninth defendant seeks orders striking out “paragraphs 12c with particulars (sic) (2); 16 and particulars (1)(a)(b); 24(a); 30 and particulars; 31 and particulars (1)(2)(3)(4); 35; 40 f with particulars (5); 41; 42; 43 a, d with particulars (a)(b)(c)(d); 44 and particulars (1)(2); 54 h with particulars (sic) (6); 97 and particulars (2); 305 a and b; 399; 402-412 and [the] particulars therein; 414; 434-478; 487; 504; 535; 574; 583; 607 and particulars (sic) (2); 610; 614; 616 and particulars (sic) e of the amended statement of claim”; summary judgment in its favour; and costs.
By summons filed 14 June 2012, the plaintiff applied on his own behalf (and purported to apply on behalf of Radial Corporation Limited) for orders as follows:
“1.That Radial Corporation Limited ACN 113 966 653 (Radial) be added as Plaintiff to Supreme Court action SCI 2011 6715 under Rule 9.06(b) of the Supreme court (General Civil Procedure) Rules 2005 (Vic).
2.That Radial be added a party to the action under Supreme Court (General Civil Procedure) Rules 2005 (Vic) Rule 18.02 with Knorr as the First Plaintiff representing Radial as the Second Plaintiff.
3.Alternatively, that Radial be added as a plaintiff in the proceedings in away (sic) deemed appropriate by the Court.
4.That Andrew Karl Knorr be allowed to take the required steps (including this step) in relation to this action and be allowed to act on behalf of Radial as allowed under Part 2F.1A of the Corporations Act 2001 with the steps being those necessary and required to bring the matter before the Court to a close.
5.That the Draft Further Amended Statement of Claim that includes Radial as plaintiff be accepted and filed, or accepted and filed after being further changed as directed by the Court, or as allowed by Supreme Court (General Civil Procedure) Rules 2005 (Vic) Rule 9.11 (or any other way allowed by the Court). The Draft FASOC has been filed as Exhibit K7 in accordance with Rule 9.07 as a document in support of the affidavit showing Radial’s interest in the questions in the proceedings.
6.That no part of the Amended Statement of Claim be struck out, or no summary judgement be given against the Plaintiff until discovery takes places.
7.That no part of the ASOC be struck out, or no summary judgement be given against the Plaintiff as related to time and limitations period as according to Hodgson v Amcor Ltd; Amcor Ltd v Barnes [2010] VSC 204 at [61]-[79] per Emerton J.
8.That no costs be awarded to the Defendants in relation to the current applications.
9.Alternatively, that any costs awarded against the Plaintiff be reserved.
10.That no taxation of costs takes place until the matter is complete as according to Rafferty v Time 2000 West Pty Ltd (No 3) [2009] FCA 727 at [20] per Besanko J.
11.Any further or other order as the Court sees fit.”
In response to this summons, by summons filed 14 June 2012, the sixth defendant sought an order that the application for the joinder of Radial Corporation Limited as a party to the proceeding “be stayed unless and until it retains the services of a legal practitioner”. In support of this application, the sixth defendant relied upon rule 1.17(1)[5] and the Court of Appeal’s decision in Worldwide Enterprises Pty Ltd v Silberman.[6]
[5]Which provides that “except where otherwise provided by or under any Act or these Rules, a corporation, whether or not a party, shall not take any step in a proceeding save by a solicitor”.
[6](2010) 26 VR 595.
The strike-out applications
The amended statement of claim must be struck out. It is manifestly defective. The criticisms of the original statement of claim which I have summarised above are equally applicable to the amended statement of claim.
It is apparent from the amended statement of claim that the plaintiff wishes to plead various conspiracies, the tort of deceit, causes of action in defamation, injurious or malicious falsehood, fraud, breaches of contract, claims founded on allegations of illegal or unlawful conduct causing damage, the tort of inducing breach of contract, causes of action described as “unlawful means torts”,[7] causes of action based upon actions alleged to have caused breaches of contract and s 52 of the Trade Practices Act (as it then was). However, nowhere in the amended statement of claim can one find an identified cause of action pleaded in compliance with the rules of pleading. The following statement made by Perram J (while dealing with what a court might expect of represented parties), in Stewart & Ors v Deputy Commissioner of Taxation,[8] is apposite:
“[33] I should say that I regard the current and proposed forms of pleading as being well below the Plimsoll line of competence which this court is entitled to expect of parties with representation. The pleading, in particular, is filled with irrelevancies and allegations which reveal the absence either of comprehension or application or both. The task of identifying what, if any, case the applicants have has been very much hampered by the pleadings put forward on their behalf, which is, of course, precisely the opposite effect which pleadings are intended to achieve (see: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517 per Isaacs and Rich JJ; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J; Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd[2004] FCAFC 48 at [148] per Black CJ, French and Tamberlin JJ). Anyone who seeks to wrestle with the mysteries of the proposed further amended statement of claim will see that it is more akin to a Chinese puzzle box than a succinct statement of the applicants’ cases.”
[7]Cf A.I. Enterprises Limited & Anor v Bram Enterprises Limited & Anor [2012] NBCA 33, [1].
[8](2010) 267 ALR 637, 645-6 [33].
While there are many parallels between the defects in the pleading in Stewart and the present case, I should say that it is the lack of specific and identified (or identifiable) material facts that should be pleaded by the plaintiff, and then which might be pleaded to by a defendant, that is the feature of the plaintiff’s amended statement of claim. This is particularly so in relation to the multiple and high level pleas of fraud and conspiracy made by the plaintiff, which pleas have been made without either appropriate underlying material facts, or without any proper or specific (and necessary) particulars.
Central to the plaintiff’s claim are claims for defamation and/or malicious or injurious falsehood in respect of a number of documents. In particulars under paragraph 11 of the amended statement of claim, the plaintiff identifies, as follows, nine documents and the paragraphs of the amended statement of claim in which alleged “falsities” and “defamations” in respect of them are pleaded:
Short Name Number Falsities Defamations
RADCON Report Document 1 [479]-[481] [482]-[488]
PN006.96 Document 2 [489]-[497] [498]-[505]
Boral Report Document 3 [506]-[517] [518]-[525]
PN04.3002 Document 4 [526]-[528] [529]-[535]
PN05.2016(1)(2)(3) Document 5 [536]-[574] [575]-[583]
Washusen Email Document 5e [584]-[590] [584]-[590]Mallesons Letter Document 6 [591]-[595] [596]-[600]
MBAC Report Document 7 [601]-[603] [604]-[610]
ensis Link Article Document 8 [611]-[611] [612]-[614]
In particulars under paragraph 9 of the amended statement of claim, the initial times of publication of these nine documents is alleged to be, respectively, January 1993, July 1997, 1997 or 1998, May 2005, December 2005 – June 2006, December 2005, July 2007, May 2006 and March 2007. There then follows the embarrassing plea that documents 2, 4, 5, 5e, 6, 7 and 8 were either “first published in the six years prior to 12 December 2011” or were “available for download from the internet within that time period”.
If one goes to the identified paragraphs in the amended statement of claim in relation to the contents of these documents and the alleged “falsities” and “defamations” associated with them, one is left to puzzle just what the plaintiff’s claims in respect of these documents might be. The amended statement of claim is devoid of any pleading of a usual kind which might be understood by a defendant or the Court. Ordinarily, in defamation (or malicious or injurious falsehood) proceedings, one expects to see:
(a)a precise pleading identifying the publication in respect of which complaint is made;
(b)a specific pleading as to the time of, and circumstances in which, publication of the impugned matter was made;
(c)an allegation that the relevant matter was published of and concerning the plaintiff (together with concise and necessary particulars of identification); and
(d)appropriate pleas as to the meanings said to be conveyed by the relevant matter (identifying the particular words relied upon if the matter in respect of which complaint is made is of any significant length).
This minimum standard is not met in the plaintiff’s amended statement of claim. Instead, the amended statement of claim is replete with high level, prolix, repetitive generalisations. By way of example as to the high level and inappropriately generalised nature of the pleading, in paragraph 12 of the amended statement of claim it is pleaded:
“Each one of documents 1 to 8 contains deliberately inserted false and misleading statements that are fraudulent statements, with the claim of fraud for each statement based on the fact of there being:
(a) no proper basis for the false statement as made;
(b) evidence available to each statement maker that would reasonably and properly have led to the making of an alternate proper conclusion, statement of finding;
(c) motive or incentive for each of the makers of the fraudulent statements to make the fraudulent statement.”
Similarly, in a claim for breach of contract, one ordinarily expects to find a pleading identifying the contract, when it was entered into, the particulars of the entities who are parties to it, the substance of its relevant terms, precise allegations as to breach and allegations concerning any damage sustained and causation. However, that is not the way of the plaintiff’s present pleading. For example, in paragraph 41 of the amended statement of claim, it is alleged (without particulars):
“The first defendant acted unlawfully by breaching a term of the contract or agreement under which the Redcon Report must have been prepared for the ninth defendant by inserting false and unscientific statements and findings into the report.”
No particulars of the contract, its parties, its terms or its formation are given in the amended statement of claim. The matter is compounded when one goes to paragraph 118 of the amended statement of claim (the last paragraph dealing specifically with the first defendant) where one finds the following pleaded:
“Claims as related to damages are at [616] and associated paragraphs.”
Two points may immediately be made (even though they are not of great significance when on considers some of the more serious defects, to which I will come later in this judgment). First, the “associated paragraphs referred to in paragraph 118 are not identified. Secondly, if one goes to paragraph 616, one finds this paragraph provides:
“All the actions detailed in this statement of claim carried out by and in the name of each of the defendants has caused and contributed to the causing of damage to the plaintiff and the business interests of, and associated with, the plaintiff.”
Particulars of paragraph 616 are then provided in the following terms:
“An overview of damage caused by the making of false statements includes but is not limited to, such facts as:
(a) The devaluing, damaging and destruction of the plaintiff’s intellectual property and the assignee’s intellectual property.
(b) The damaging and the destruction of the plaintiff’s reputation as an inventor and entrepreneur.
(c) The damaging of the plaintiff’s business reputation and standing relative to employment and remuneration opportunities.
[then follows sub-paragraphs (d) – (s) and (t)(ii) – (xiii), which are not necessary to set out here]
While one could go through the amended statement of claim setting out further objectionable paragraph after objectionable paragraph,[9] nothing would be gained from adopting such a course. As has been said many times that where a pleading is particularly bad (as this one is), it is not appropriate to go through every paragraph of the pleading to identify its manifest defects.[10] It is sufficient to say that, for the reasons given herein and the reasons given in respect of the original statement of claim, the amended statement of claim must be struck out.[11]
[9]See for example paragraphs 355 to 359 of the amended statement of claim.
[10]See for example Gunns Limited v Marr [2005] VSC 251, [56]-[60] (Bongiorno J, as his Honour then was).
[11]See further, Knorr v CSIRO & Ors [2012] VSC 83.
The conclusion that the amended statement of claim must be struck out is one which is arrived at long before one gets to paragraph 618. Even without paragraph 618, there could be no other conclusion that the statement of claim must be struck out. However, paragraph 618 should be set out as a particularly egregious form of pleading which is to be discouraged. That paragraph provides:
“A separate document to this statement of claim containing certain and selected information about technical aspects and analysis of the documents and issues related to this matter and that may contain the plaintiff’s views on that analysis is/will be supplied prior to the matter going to trial so as to facilitate decision-making in regard to this matter.”
I turn now to the relevant applications.
The application to join Radial Corporation
To date, the plaintiff (who does not have legal qualifications) has shown himself unable to prepare a pleading which satisfactorily identifies his causes of action and plead the material facts (and only the material facts) relied upon in support of these causes of action. In my view, it would be a wrong exercise of discretion to allow the plaintiff to make this proceeding (non-compliant as it has been to date with ordinary and well known pleading principles) more complicated by joining Radial Corporation and advancing such claims as the plaintiff might seek to advance on its behalf. The position might be different if the plaintiff was able to produce a statement of claim that complied with relevant pleading rules and authority.
In Worldwide Enterprises Pty Ltd v Silberman,[12] the Court of Appeal considered the operation of rule 1.17, which requires (except where otherwise provided by or under any Act or the Supreme Court (General Civil Procedure) Rules 2005) a corporation not to take any step in a proceeding save by a solicitor. As the Court noted, rule 2.04 enables a court to dispense with the requirements of rule 1.17 in an appropriate case. The Court held that in determining whether there are circumstances which warrant a departure from rule 1.17, the following matters were relevant:
[12](2010) 26 VR 595.
“(i) the manner in which the case has progressed at the time that the application is made;
(ii) the manner in which the case can proceed in the future without a solicitor;
(iii) the complexity of the issues involved in the case;
(iv) whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice;
(v) whether the case can be conducted in an orderly and responsible fashion without a solicitor;
(vi) whether there are financial considerations which would inhibit a company from obtaining legal representation;
(vii) the stage which the case has reached;
(viii) whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company; and
(ix) what effect, if any, permitting a company to appear without a solicitor will have on court resources and, particularly, the effect upon other litigants in the Court List.”[13]
[13]Ibid, [41].
In discussing this issue, Bongiorno JA said:[14]
“As far as the principal argument is concerned as to his personally representing the plaintiff, I add only the following: the wisdom of the rule requiring a corporation to be represented before the court by a legal practitioner was amply demonstrated here by the difficulties Mr Goodman had in presenting a concise, focussed argument in what were relatively straightforward matters before this court. Overall, he addressed the court for more than three hours on an immense volume of material which he had collected. It is precisely such prolixity which is one of the problems the rule was made to prevent. If it became common, the courts would be unable to cope. Incorporation confers many benefits on those connected with a company. It also imposes some burdens, one of which is that, in litigation, a company must normally be represented by a lawyer.”
[14]Ibid, [75].
Having considered the matters identified in Worldwide Enterprises Pty Ltd v Silberman,[15] I am not persuaded to exercise the Court’s discretion to permit the joinder of Radial Corporation in circumstances where it will not be represented by a qualified legal practitioner – but rather will be represented by the plaintiff. Indeed, each of the matters referred to by the Court of Appeal in the Worldwide Enterprises case tells against an exercise of discretion permitting Radial Corporation to be joined as a party where it is not represented by a solicitor.
[15](2010) 26 VR 595.
The applications for summary judgment
Some of the applications for summary judgment relied upon affidavit evidence purporting to show that the plaintiff’s claim as pleaded could not succeed. Other defendants sought summary judgment on the basis that two (and now potentially three) unsuccessful attempts at pleading the plaintiff’s case should be enough to bring the matter to an end.
While the fourth and the ninth defendants only sought summary judgment on the basis that the plaintiff had already been given sufficient opportunities to plead his claims, the sixth and the eighth defendants (in addition to these arguments) relied on affidavit evidence showing that the claims against them had no real prospects of success. Before dealing with the more general argument, I turn to consider the positions of the second, sixth and eighth defendants.
The position of the second defendant
It is common ground that the second defendant no longer exists. Indeed, the plaintiff pleads as much in paragraph 119 of the amended statement of claim. In that paragraph, the plaintiff asserts that the second defendant was “a body that ceased to function in 2007 after the taking of certain actions including the passing of the Forestry Marketing and Research and Development Services (Transitional and Consequential Provisions) Bill 2007 (sic)” and “an entity that was capable of suing and being sued”.
Notwithstanding these pleas, claims are made against the second defendant in the amended statement of claim. Then, in paragraph 362 of the amended statement of claim, the plaintiff pleads that the seventh defendant is the successor of the second defendant, the obligations of which (the seventh defendant) “include contractual, financial and legal obligations of the second defendant”. Further, by paragraph 363 of the amended statement of claim, the plaintiff pleads “matters related to the second defendant for which the seventh defendant are liable are detailed at [119]-[169] and related paragraphs”.
Put shortly, there is simply no basis for commencing any proceeding against the now non-existent second defendant. Any leave to re-plead that might be given to the plaintiff will be given on the basis that there is no leave to re-plead a claim against the now non-existent second defendant.
The sixth defendant’s application for summary judgment
As part of its application for summary judgment, the sixth defendant relied upon affidavit evidence putting in issue the party to whom conduct at a meeting was directed and the party to whom representations that are in issue were directed. There is considerable force in the sixth defendant’s application for summary judgment on the basis set out in the affidavit relied upon.[16] However, the short point is that the plaintiff’s pleading is so bad that I am, at this stage, unable to conclude that the plaintiff has no real prospect of success against the sixth defendant.
[16]Affidavit of Sarah Jane Weinberg sworn 8 June 2012.
That said, the plaintiff’s pleading against the sixth defendant and the affidavit relied upon by the sixth defendant collectively show some of the hallmarks of a case that may have no real prospect of success. At this stage, it is sufficient to say that, subject to what I will say below, I am not yet persuaded that the plaintiff’s claim against the sixth defendant should be summarily dismissed because it has no reasonable prospects of success.[17]
[17]Cf Manderson M & F Consulting v Incitec Pivot Limited [2011] VSCA 444, [32]-[33] (Redlich JA and Judd AJA).
The eighth defendant’s application for summary judgment
Much of what I have said about the sixth defendant’s application for summary judgment is apposite in respect of the eighth defendant’s application for summary judgment. Like the sixth defendant’s application, the eighth defendant’s application is not without force.
Principally, the eighth defendant complains that the document in respect of which it is sued is a document that was prepared by another company that no longer exists. However, the plaintiff pleads that the eighth defendant benefited from acting as if the relevant document (document 7) “was theirs as it added to the eighth defendant’s standing and worth”.[18] While there is much to be said for the eighth defendant’s criticisms of the pleading against it, it is possible that the plaintiff might have some cause of action in defamation against the eighth defendant on the basis identified by Isaacs J in Webb v Bloch.[19] In that case, his Honour approved the following statements:[20]
“All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication …”
“[F]or all persons who concur, and show their assent or approbation to do an unlawful act, are guilty …”[21]
[18]Amended statement of claim, paragraph 395.
[19](1928) 41 CLR 331.
[20]Ibid, 364.
[21]See further, R v Gutch (1829) M & M 432, 437; 173 ER 1214, 1216; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 647 [180]; John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485, 503 [89]; Ayan v Islamic Coordinating Council of Victoria Pty Ltd [2009] VSC 119, [26].
Again, like the pleading against the sixth defendant (and, indeed, all defendants), the plaintiff’s current pleading is so bad that one cannot conclude, at this stage, that the plaintiff has no real prospect of success. However, as I have already said above, that position might change in the event of another unsatisfactory pleading being put forward by the plaintiff.
I turn now to consider the more general summary judgment application made primarily by the fourth and ninth defendants (and supported generally by other defendants).
Should the plaintiff’s proceeding be dismissed?
In Udowenko & Ors v Chief Executive Officer and Board of Directors of St George Bank – A Division of Westpac Banking Corporation & Ors (No 2),[22] Johnson J struck out what was only the second version of a statement of claim, refused leave to re-plead and dismissed the proceeding. In so doing, his Honour said:[23]
[22][2011] NSWSC 1122.
[23]Ibid, [111]-[124].
“[111] The question then arises as to whether there should be an opportunity to replead. Courts allow opportunities, within reason, to litigants to refine and replead in circumstances where pleadings are struck out. However, that does not apply in every case, and it does not operate so that pleading after pleading is struck out, with the court providing yet another opportunity. That approach would fly in the face of the provisions of the Civil Procedure Act 2005 to which I have made mention.
[112] The court does not sit for the purpose of hearing lengthy and repetitive submissions, by reference to pleadings which have not materially improved despite an earlier judgment of the court. It seems to me that the position which I foreshadowed in my earlier decision has come to pass. At [63], I made it entirely clear that the court ‘cannot and will not stand by and allow variations on the current theme to be advanced, which continue to fail to comply with the requirements of pleadings’. I said, as well (at [68]), that if Mr Udowenko ‘continues to take the view that the Plaintiffs’ pleading ought be drawn in a way that does not comply with the UCPR, then the outstanding application to dismiss the proceedings for want of prosecution may fairly and squarely arise’.
[113] The question whether leave is granted to replead is a related question. It comes down to this: at this point in the litigation, should the court’s discretion be exercised to allow a further opportunity to the Plaintiffs to file an amended pleading? The history of this matter, the occasions before Davies J and what are now two hearing days before me provide the court with no confidence that, if leave was granted, the position would be any better next time.
[114] In my view, the appropriate order, in the exercise of discretion, is that leave to replead ought be refused, and I will, in due course, make that order.
Should the Proceeding Be Dismissed for Want of Prosecution?
[115] That brings me to the application to dismiss for want of prosecution. In one sense, having struck out the Further Amended Statement of Claim and refused leave to replead, that will be the end of the matter. The question is whether, in the circumstances of this case, a further order should be made.
[116] The submissions of Mr Newton concerning the deficiencies of the Further Amended Statement of Claim with respect to his client have considerable force, and I accept them. I accept, as well, the submissions of Mr Hutchings with respect to the pleading against the Second Defendant.
[117] Should the court take the exceptional step of dismissing the proceedings for want of prosecution? I said in the judgment of 29 July 2011 (at [56]) that this question was not dependent on how long has passed while the proceedings have been on foot. Nor is it dependent upon there being a lengthy period of inaction on the part of a party. One can have a case such as this where, although the proceedings have been on foot for some 13 months (on one view not a long period), that when one looks at what has happened in that time and what has not happened, it can be seen that the proceedings have not moved to first base, let alone beyond it.
[118] The Plaintiffs have still not filed a properly pleaded initiating process. There is no reasonable prospect, in my view, that if given time they will do so. In one sense, this is an unusual and exceptional state of affairs. Having been called upon twice to consider the state of this litigation, I am satisfied that this describes accurately the current state, and the future prospects of this litigation.
[119] Mr Udowenko can point to the fact that, from the Plaintiffs’ perspective, a lot of paper has been generated. The problem is that what has been done simply has not complied with, and ignores, the requirements of the law.
[120] I am conscious that the power to order dismissal of proceedings for want of prosecution should not be lightly exercised: Fleet v New South Wales[2009] NSWSC 75 at [15]. On the other hand, as I observed at [18] of my earlier judgment, the court should exercise that power if there is a proper basis for it, and will bear in mind the requirements on all litigants to comply with obligations under the Civil Procedure Act 2005 and the UCPR.
[121] The concept of proceedings being dismissed without a hearing is not a novel one. The provisions in ss 56–61 Civil Procedure Act 2005, when applied in a context such as this, may lead to such an outcome. As Campbell J (as his Honour then was) said in Szczygiel v Peeku Holdings[2006] NSWSC 73 at [7]–[13], this complex of statutory provisions in s 56–61 Civil Procedure Act 2005 means that it is within the specific intent of the statutory framework, in which the court conducts its business, that it can on occasions be appropriate to dismiss proceedings, even though there has not been a hearing on the merits, in circumstances where there has been a failure to comply with directions.
[122] In my view, this is the reality of the present litigation. Directions have been made, most recently by me on 29 July 2011, which identified clearly the problems and the principles to be applied to overcome those problems.
[123] As I have said, Mr Udowenko has not looked at the UCPR. The other Plaintiffs have never come to court and, from what he has said, there is a question as to the level of their understanding as to what is actually happening in these proceedings.
[124] The fundamental problem is that, if the proceedings are left on foot, in my view, there will be no progress. What will occur will be contrary to the requirements of the Civil Procedure Act 2005 . I am satisfied, in the unusual circumstances of this case, that dismissal for want of prosecution is warranted and that such an order ought to be made.”
In an affidavit affirmed 14 June 2012, the plaintiff deposed:
“5. The interconnected nature of this matter gives reason to support my contention that no party should be allowed to walk away from this matter until discovery takes place and the relationship between the each (sic) defendant and the effect of those relationships and acts related to those relationship can be ascertained. The importance of discovery can be considered next to the acts of the first defendant (CSIRO) in refusing access to documents under FOI that should simply have shown they were right and Radial and I were wrong.
6. Similarly the act of the third defendant (Commonwealth) in denying it was negligent in any way may easily be made now, but may not easily be made after discovery. An example of this relates to Radial’s complaints made to people in authority. If a policeman went up to a robber and said words such as ‘did you rob the bank’ and the robber said ‘no’ and the policeman took his word for it, the policeman could at least be acting negligently. A similar scenario may emerge between the third defendant and first defendant. The seriousness of the matter then depends on the nature and falseness of any reply and the basis on which the reply was accepted. The matter as to communications between the first defendant and third defendant is related to the matter of the sixth defendant’s affidavit dated 8 June 2012 (the affidavit).”
In an earlier paragraph of this affidavit (paragraph 3), the plaintiff appears to accept the possibility that the amended statement of claim (at least insofar as it relates to the eighth defendant) “may be defective in some way”. However, the plaintiff’s argument in respect of all the defendants’ applications is that none of them should be entertained (or allowed to succeed) until after discovery. The problems with such an approach are manifest. As was said by Byrne J in Pizzey Noble Pty Ltd v HD Fowles,[24] the practice of parties alleging breaches of every conceivable type in general terms and then waiting to see whether some fact will emerge in discovery is an abuse of the pleading process.
[24][1994] 1 VR 371, 375.
There is much to be said for the defendants’ submissions that the plaintiff should not be given leave to re-plead and there should be summary judgment in their favour. As was recently said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd & Anor:[25]
“A self-represented litigant cannot be allowed forever to stand behind the shield of his own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the Court’s already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices”.
[25][2012] VSCA 97, [36].
That said, and without foreclosing any argument or submission the plaintiff (or any other party) might make on a future hearing of this matter, I am prepared to give the plaintiff one further opportunity to plead an intelligible case in compliance with the rules of pleading against those of the first and third to ninth defendants as the plaintiff wishes to pursue. Again, without foreclosing the possible acceptance of submissions the plaintiff might make on the next occasion, I should say that in all likelihood, unless the plaintiff produces a further amended statement of claim which is intelligible, enables the relevant defendants to know the cases they have to meet and is limited to pleading (in accordance with the rules and authorities in the relevant area) the material facts (and only the material facts) relied upon, together with particulars of each material fact as required by the rules, then there is every likelihood that the plaintiff will not be permitted to file and serve the document, and that there will be summary judgment for the defendants.
In saying that I am prepared to give the plaintiff one further opportunity to plead an intelligible case against the defendants, I do not propose to give the plaintiff leave to re-plead. Rather, I propose to permit the plaintiff to make an application to file and serve a further amended statement of claim and/or to join Radial Corporation. Again, without wishing to foreclose the prospect of being persuaded to take a different course on the return of any such application, it is unlikely that I would permit the joinder of Radial unless there was a solicitor prepared to act for it in the proceeding. Further, in the absence of some relevant change in the status of the body that was the second defendant, I do not expect the plaintiff will, in any application to file and serve a further amended statement of claim, seek to file a document claiming relief against the non-existent second defendant.
Further, I should say that in any application the plaintiff might care to make in accordance with the order I am about to pronounce, detailed consideration will need be given to Order 13 of the Supreme Court (General Civil Procedure) Rules 2005, the authorities concerning Order 13 and the authorities concerning the proper pleading of the various causes of action the plaintiff wishes to advance (including specifically the authorities concerning the pleading of defamation cases).[26]
[26]See generally Franchise Central & Ors v Fairfax Media & Anor [2011] VSC 379, [20]-[25] and the authorities referred to therein.
Additionally, I should say for the sake of completeness, there is much to be said for the defendants’ submissions concerning the widespread unparticularised pleading of fraud throughout the amended statement of claim. Such a course is, as numerous authorities have stated, improper. Further, it seems that the allegations of fraud are made largely to overcome perceived Limitation of Actions Act defences. In most (if not all) of these cases, the plea appears to be based upon misconceived notions of the proper construction and application of s 27 of the Limitation of Actions Act 1958.
If a cause of action the plaintiff wishes to rely upon is statute barred, then so be it. This fact does not relieve the plaintiff from properly pleading the cause of action with precision, and in a way that would enable the defendants to know the case pleaded against them. In the event that the plaintiff ultimately obtains leave to file and serve a further amended statement of claim, and in the event that a defendant pleads a limitation defence, consideration can then be given by the plaintiff to the question of pleading any section of the Limitation of Actions Act or any doctrine which the plaintiff contends answers the defence pleaded.
Finally, I note that in the amended statement of claim there are references to parts of the statement of claim that were struck out on 9 March 2012.[27] The original statement of claim was struck out. No part of it survives. Upon the making of the order I am about to make, the same may be said of the amended statement of claim. Similarly, the proposed further amended statement of claim now has no status. In any application for leave to file and serve a further amended statement of claim, no reference should be made to any paragraph in any of these previous documents. Any proposed new version should be a stand alone version.
[27]See, for example, the particulars under paragraph 337 of the amended statement of claim, where paragraphs [320] to [331] of the original statement of claim are referred to.
The third defendant’s rule 9.06(a) application
I turn now to the third defendant’s application for an order under rule 9.06 that it cease to be a party to the proceeding on the basis that it is not a proper or necessary party. The short answer to this application is that it is premature at this stage. The state of the plaintiff’s pleadings in this case do not enable me to draw any conclusion as to whether the third defendant is or is not a proper party to this proceeding. In the event that the plaintiff ultimately obtains leave to file and serve a proper and compliant further amended statement of claim, the third defendant may ventilate this issue again.
Conclusion
The orders I will make are:
(1)The amended statement of claim is struck out.
(2)The plaintiff’s application for leave to file and serve the draft further amended statement of claim and to join Radial Corporation Limited as the second plaintiff is refused.
(3)The plaintiff file and serve any further application for leave to file and serve a further amended statement of claim and/or to join Radial Corporation Limited as the second plaintiff by 4.00pm 15 August 2012.
(4)The plaintiff pay:
(a)the first defendant’s costs of and incidental to its summons filed 29 May 2012;
(b)the third defendant’s costs of and incident to its summons filed 29 May 2012;
(c)the fourth defendant’s costs of and incidental to its summons filed 28 May 2012;
(d)the fifth defendant’s costs of and incidental to its summons filed 12 June 2012;
(e)the sixth defendant’s costs of and incidental to its summonses filed 28 May 2012 and 14 June 2012;
(f)the seventh defendant’s costs of and incidental to its summons filed 29 May 2012;
(g)the eighth defendant’s costs of and incidental to its summons filed 5 June 2012;
(h)the ninth defendant’s costs of and incidental to its summons filed 6 June 2012; and
(i)the defendants’ costs of and incidental to the plaintiff’s summons filed 14 June 2012.
14
6
0