Michael, S.S. and J.M. v Monitronix Ltd

[1989] FCA 843

JUDGMENT No. ..% 43...2..,=

C A T C H W O R D S

PRACTICE AND PROCEDURE - pleadings - motion to strlke Out action - misleading and deceptive conduct - failure to disclose a cause of action - vexatious proceeding - abuse of process - similar proceedings in the Supreme Court - Federal Court action stayed - applicants to proceed in Supreme Court - motion dismissed.

SHAWKY SHAfEEK MICHAEL and JOYCE MARY MICHAEL V MONITRONIX LIMITED, BERNARD WILLIAM RIDGEWAY, DAVID CHRISTOPHER NICOLSON, GRAHAM CHARLES SYLVESTER

No. WAG 126 of 1989

FRENCH	J .
PERTH

23 NOVEMBER 1989

IN .THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)
GENERAL DIVISION	) NO. WAG 126 of 1989

B E T W E E N :  SHAWKY SHAFEEK MICHAEL and
JOYCE MARY MICHAEL

Applicants

and

MONITRONIX LIMITED

First Respondent

BERNARD WILLIAM RIDGEWAY
DAVID CHRISTOPHER NICOLSON

GRAHAM CHARLES SYLVESTER

Second Respondents

MINUTE OF ORDER

JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	23 NOVEr-IBER 1989
WHERE MADE:	PERTH
THE COURT ORDERS THAT:

1.         The proceedings be stayed until further order.

2.         The motion be otherwise dismissed.

3. .	The costs will be-reserved with liberty to apply.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)
GENERAL DIVISION	) No. WAG 126 of 1989
B E T W E E N :	SHAWKY SHAFEEK MICHAEL and JOYCE MARY MICHAEL

Applicants

and

MONITRONIX LIMITED

First Respondent

BERNARD WILLIAM RIDGEWAY
DAVID CHRISTOPHER NICOLSON

GRAHAM CHARLES SYLVESTER

second Respondents

CORAM:  FRENCH J.
23 November 1989

EX TEHPORE REASONS FOR JUDGMENT

The respondents move to strike out this action as vexatious and an abuse of process. I do not thlnk it appropriate to accede to that motlon, but have concluded that the actlon should be stayed. The applicants concede that the matters of which they complain in Dr. Mlchael's affidavit filed on 25 October

.the.same matters of fact as cognate proceedings in the Supreme	1989 in support of their application, arise substantially out of
Court. Examinatlon of the most recent statement of claim in the Supreme Court supports the vlew that those proceedings, like these, are primarily concerned wlth the circumstances surrounding his employment and subsequent dismissal from the office of managing director of Monitronix Limited.

In attempting to seek redress in that Court for what he

. .sees as breach of his contract and that which the first respondent is said to have had with his wife, and for statements made in the Industrial Relations Commission and company minutes, Dr. Michael has experienced difficulty in formulating a statement of claim which discloses a cause of action. It is common ground that some five attempts at formulating a statement of claim in the Supreme Court have resulted in successful strike out motions. It is conceded that a slxth attempt will result in a similar order belng made by consent. Dr. Wichael feels a sense of frustration, which is understandable from this series of failed endeavours to get his case under way in the Supreme Court. In the end, however, the functlon of pleadings, whether in the Supreme Court or in this Court, is to requlre a party to identify the material facts upon which he relles and thereby the cause of action that he asserts so that the other party and the Court may know with some precision what is to be determined. If a pleading fails to do that, then it is not the fault of the court or the objecting party. It may be that it indicates some fundamental dlfflculty with the cause of action upon which the applicant seeks to proceed. And that difficulty would arise in this Court because if the action that Dr.)Mlchael has foreshadowed in hls application and supported by	his affidavit were to go ahead, he. would almost certainly be	dlrected to file a statement of clalm. It is also clear that thls
dispute ought to be resolved in one court and not in two. For that reason the applicants would either be faced with the prospect of bringing their contract and other claims, if any, in this court along with the Trade Practices claim, or proceeding with all claims in the Supreme Court.
I am not prepared to say, at this stage, that on the materials in Dr. Michael's affidavit there may be no cause of action under the Trade Practices Act 1974. There is a suggestion in particular that there have been misleading statements made in materials submitted to the Industrial Relations Commission. That may well face the difficulties to which Miss Pitt refers in saying that such statements are, in essence, pleadings and should not attract the operation of the Trade Practices Act. But that proposition involves questions of law whlch I would not think it proper to resolve on an application for a summary disposition where the matter has not been fully argued. It is conceded in any event, that the affidavit filed by Dr. Mlchael does allege breaches of contract. On that basis, it would not be appropriate to strike the proceeding out for failure to disclose a cause of action. Nor do I think that I should treat it as vexatious or an abuse of the process of the court. The preferable course is for the appllcants to proceed in the Supreme Court. The process in that jurisdiction of reaching for a pleading that defines a cause of action has gone through a considerable reflning up to thls point. The matter has been commenced in that court and it is possible for the appllcants to introduce their Trade Practices claims there. Indeed, the respondents have indicated through

.

counse1,that they would not object to such claims belng introduced	subject to there being a cause of action. In the circumstances
the appropriate and convenient course would be for the claim to be raised in those proceedings.
I propose therefore to stay this application -1ndefinltely. If circumstances should change in such a way as to justlfy the reactivation of these -proceedings, then Dr. Michael may come back and apply to this court but such an application will not be lightly entertained unless it is shown that efforts have been made to bring the matter within the jurisdiction of the Supreme Court and that for some combination of circumstances he cannot get a trlal or be heard in that court on those issues. In so saying, I am assumlng there is some cause of action and am not disposing summarily of that question. If there is a Trade Practices action available, its proper formulation can be
considered at the time that a further pleading is filed.

Now the orders I propose to make are:

1.    That the proceedings be stayed until further order.

2.    The motion be otherwise dismissed.

3.    The costs will be reserved with llberty to apply.

I certify that this and the preceding

three (3) pages are a true -copy

of the Ex Tempore Reasons for Judgment

of his Honour Justice French.

Date:

3 3 / 7 C ' ~ > ' r L . r /7Yy

Dr. S.S. Mlchael appeared on behalf of the Applicants.

Counsel for the Respondent: Ms. G.S. Pltt

Solicltors for the Respondent: Northmore Hale Davy & Leake

Date of Hearing: 23 November 1989 Date of Judgment: 23 November 1989