Redmeat Pty Ltd v Australian Meat Holdings Pty Ltd

[2010] QSC 276

SUPREME COURT OF QUEENSLAND

CITATION:

Redmeat Pty Ltd v Australian Meat Holdings Pty Ltd and Ors [2010] QSC 276

PARTIES:

REDMEAT PTY LTD
ACN 064838982
(plaintiff)

v

SWIFT AUSTRALIA PTY LTD (FORMERLY AUSTRALIA MEAT HOLDINGS PTY LTD
ACN 011062338
(first defendant)

and

CONAGRA FOODS INC
(second defendant)

and

LEROY LOCHMAN
(third defendant)

FILE NO/S:

BS 3937 of 2006

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

11 June 2010 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2010 

JUDGE:

Daubney J

ORDER:

1. Proceeding BS 3937 of 2006 is dismissed.
2. The plaintiff shall pay the defendant’s costs (including any reserved costs) of and incidental to the proceeding.
3. I give leave to Swift Australia Pty Ltd, Conagra Foods Inc and Leroy Lochmann, pursuant to section 5(2) of the Vexatious Proceedings Act 2005, to apply for an order under section 6 of that Act.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – where the defendants have brought applications for the proceeding to be struck out as an abuse of process and on the basis that the pleaded claim is fundamentally defective – where the claim is for contravention of the Trade Practices Act and for damages for negligent misstatement – where there is no plea of detrimental reliance in support of the cause of action – where related proceedings had been dismissed – where the plaintiffs conduct of the proceeding can be classified as oppressive and vexatious – whether the proceeding should be struck out as an abuse of process 

Althaus & Anor v Australia Meat Holdings Pty Ltd & Anor [2009] QSC 005, cited
Althaus & Anor v Australia Meat Holdings P/L & Anor [2009] QCA 221, cited
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited

COUNSEL:

J Althaus for the plaintiff, with leave
AM Pomerenke for the first defendant
S Doyle, SC for the second and third defendants

SOLICITORS:

The plaintiff was self represented
Allens Arthur Robinson for the first defendant
Clayton Utz for the second and third defendants

HIS HONOUR:  There are a number of applications before me
today.  The first with which I'll deal are applications by the
defendants for the proceeding to be struck out.

A first matter to deal with in considering that application is
the complaints by the defendants of the complete inadequacy of
the pleading proposed to be relied on by the plaintiff in the
current proceeding.  That pleading (which as drafted assumes
the inclusion of a second plaintiff, but that is a matter with
which I need not presently be concerned) is exhibited to an
affidavit of John Edmond Althaus sworn 3 May 2010 and filed 6
May 2010.

Counsel for the second and third defendants submitted that the
claims sought to be pursued against the second and third
defendants, as would be articulated in that pleading, are
fundamentally defective.  The only causes of action sought to
be pursued against the second and third defendants in this
proceeding are claims for contravention of the Trade Practices
Act and for damages for negligent misstatement.  It was
submitted that the pleading is fundamentally defective because
it contains no plea of detrimental reliance on the part of the
plaintiff for the purposes of supporting either or both of the
claims made under the Trade Practices Act and for negligent
misstatement.  Further, and in any event, there is a claim as
against the third defendant for accessorial liability in
reliance on section 75B of the Trade Practices Act, which is
completely unparticularised.

In the course of argument I invited Mr Althaus, who appeared
today for the plaintiff, to point me to the pleas of
detrimental reliance which supported the claims made under the
Trade Practices Act and in negligent misstatement.  He was
unable to do so.  There simply are no such pleas contained in
the pleading.  Accordingly, those are fundamental defects so
far as those causes of action are concerned.  Moreover, the
pleading is completely unparticularised so far as the
accessorial liability claim against the third defendant is
concerned.  It fails in any way to advance the elements
required for such a cause of action and in particular fails to
meet the long established requirement of the necessity to plead and demonstrate knowledge of falsity of the alleged
representations and intentional participation in a
contravention of the Trade Practices Act.

So far as the first defendant is concerned, claims are advanced both under the Trade Practices Act and for negligent
misrepresentation. Those pleaded claims are bad for the same
reason that I have just articulated with respect to the claims
against the second and third defendants, namely, there is a
complete absence of a pleading of detrimental reliance.

The plaintiff also seeks to pursue a claim for breach of
contract against the first defendant.  That is founded in a
confidentiality deed said to have been entered into in June
1994. But that agreement is one in the same as that which was
expressly referred to and relied on in prior proceedings
between inter alia Redmeat Pty Ltd and Swift Australia Pty Ltd

(i.e. the identical parties to those with which I am concerned
in this application).  That proceeding was number BS 7975 of
2004 and that 1994 agreement was relied on as a basis for the
claim articulated in the 2004 proceeding for breach of the
duty of confidence.

Those proceedings were dismissed by Chesterman JA in a
judgment delivered by his Honour on 2 February 2009 - [2009]
QSC 5. I record in passing that the Court of Appeal struck out an appeal against Chesterman JA's judgment - see [2009] QCA 221. In striking out that appeal from the judgment of
Chesterman JA, Keane JA (as his Honour then was), with whom
McMurdo P and M Wilson J agreed, said:  "13.  The plaintiff's notice of appeal ranges widely over many grievances, but does not defend their pleading from the allegations of deficiency which led to the action being terminated.  Nor do the plaintiffs seek to cure those deficiencies.  Indeed, the plaintiffs barely address those deficiencies, preferring to emphasise the contention that the deficiencies in the plaintiffs' pleading are the fault of others, principally the lawyers who have previously represented them. But, as I have noted, the plaintiffs' statement of claim was struck out because of deficiencies in their pleading which, in an adversarial system, are inevitably the responsibility of the plaintiffs.

...16.  The arguments advanced for the plaintiffs fail to come
to grips with the fundamental point that they must bear
responsibility for the formulation and presentation of their
case, and that the vice which led to the termination of their
action was their longstanding failure, despite many opportunities afforded to them, to present a sufficient and
coherent pleading of the facts said to entitle the plaintiffs
to the relief they seek.

...20.  The Court is always anxious to ensure that plaintiffs
who do not have the benefit of legal representation should
have every opportunity to present a viable claim if they have
one.  The Court is always reluctant to strike out an appeal
where the defects may be explicable by the inability of a
layman to articulate a reasonable argument.  That having been
said, however, unrepresented plaintiffs cannot be allowed to
abuse the processes of the Court by using them as a vehicle
for oppression or as an instrument of vexation."

An application for special leave to appeal to the High Court
against the Court of Appeal's decision to strike out that
appeal was refused on the 9th of December 2009.

In any event, returning to the breach of contract claim
against the first defendant sought to be articulated in the
2006 proceeding, it seems to me that this claim is at least
subject to an Anshun estoppel and ought not be permitted to be
pursued in the 2006 proceeding.  There is really nothing
surprising about that conclusion.  Indeed, the notion that the
fate of the 2006 proceedings would rise or fall on the outcome
of the decision by Justice Chesterman previously made was
properly accepted by the learned senior counsel who appeared
on a directions hearing before Justice Chesterman as long ago
as the 18th of December 2006.

For all of those reasons, therefore, it seems to me that the

cases sought to be articulated by the plaintiff against each

of the first, second and third defendants in the pleading to

which I have referred are unmaintainable.

The fundamental question for present purposes moreover is

whether the 2006 proceedings should now be struck out as an

abuse of process.  There are, it seems to me, numerous bases

for doing so.

So far as the first defendant is concerned, the continuation

of these proceedings does, I think, amount to Redmeat bringing

successive proceedings against the first defendant in

circumstances redolent of improper vexation and oppression.

Similarly with respect to the proceedings against the second

defendant and the third defendant.

In the judgment of Chesterman JA in [2009] QSC 5, his Honour said:

"74.  In a very real sense the plaintiffs' persistent,

incompetent and ineffectual attempts to describe a case

against the defendants is an abuse of process.  It is not, I

think, an exaggeration to describe the conduct of the action

by the plaintiffs as scandalous.  The attempts are a misuse of

the rules which permit and control the institution of

proceedings; and subject the defendants to repeated, defective

processes which they must answer or apply to strike out.

There is a responsibility on plaintiffs and those who advise

them to put their cases in proper form and get on with them.

These plaintiffs have been signally unable to discharge that

responsibility.  The time for indulgence has passed. They must

suffer the consequences of their own failures.

75.  There is, moreover, prejudice to the defendants in having

to stand ready to resist a further attempt by the plaintiffs

to extract substantial sums of money from them.  There is that

general prejudice of which McHugh J spoke in Brisbane South

Regional Health Authority v. Taylor (1996) 186 CLR 541 at

552 and the more particular prejudice identified by AMH. Of

five former employees named in the statement of claim, one has

died and two have been dismissed in circumstances which

disincline them to assist AMH in the litigation.  The other

two have left in less acrimonious circumstances but are not

within AMH's control and may not assist."

Those observations by his Honour seem to me apply with equal

force in the present case.  Moreover, it is apparent that

Redmeat (by Mr Althaus) will go to extreme lengths to seek to

frustrate the procedures of this and other Courts.  That

preparedness to frustrate the procedures of this and other

Courts manifests itself, inter alia, in a refusal to be bound

by the Court's decisions.

In the submissions put before me, there were several

submissions made by Mr Althaus to the effect that this Court

lacks jurisdiction to deal with these matters and to raise a

serious doubt as to the nature of this Court's inherent

jurisdiction.  I ruled on his arguments in that respect in the

course of argument simply by describing them as nonsense.  I

do not propose to elaborate any further on those reasons.

Moreover, the preparedness to frustrate the procedures of this

and other Courts was exemplified by the delivery, after the

refusal by the High Court of special leave to appeal in the

2004 proceedings, of a so-called "Notice of Continuance", a

document unknown in the rules or procedure of this Court or

the High Court of Australia, but being one by which Mr Althaus

sought to somehow preserve and keep alive the 2004 proceedings

which were by that stage undoubtedly as dead as a doornail.

Indeed, that same lack of acceptance of the Court's process is

seen in the preface to the general submissions which

Mr Althaus put to me for the purposes of today's applications

by which he purported to submit that the applications made and

the submissions submitted were done so "with all rights

reserved for previous and future matters with issues arising

from BS 7975/04 [those being the proceedings that have

previously been dismissed], and BS 3937/06, BS 6809/06 and

BS 7481/06 [those two being proceedings connected with a

charge which Mr Althaus had somehow procured to be registered

over the first defendant's assets in the United States], and

CA 3136/06 and CA 2181/09 and are not prejudiced in any

jurisdiction by this filing, and all Court filings arising

from those matters are herein and included and made part

hereof for the Court record."

I do not propose to say anything more about the lack of

appreciation of Mr Althaus and Redmeat Pty Ltd both of the

jurisdiction of this and other Courts of this country and of

the finality of decisions made when judgments are given.

A further reason for applying the observations made by

Chesterman JA with equal, if not stronger, force to the

present case, is the fact that there has been a comprehensive

failure on the part of the plaintiff to observe the

requirements of Uniform Civil Procedure Rule 5 to proceed with

this matter in an expeditious way.  There is, moreover,

manifest prejudice to the defendants in respect of the current

proceeding, that being the same prejudice to which reference

was made by Chesterman JA in paragraph 75 of his previous

judgment.  In addition, the defendants have been put to many

hundreds of thousands of dollars in costs in defending this

and the related proceedings in circumstances which are clearly

redolent of vexation.

I find myself in full agreement with the sentiment expressed

by Chesterman JA when disposing of the 2004 matter.  In

respect of the 2006 proceeding, enough is enough. It will be

dismissed.

...

HIS HONOUR:  There will be the following orders:

1. Proceeding BS 3937 of 2006 is dismissed.

1. The plaintiff shall pay the defendant's costs (including

any reserved costs) of and incidental to the proceeding.

...

HIS HONOUR:  I further give leave to Swift Australia Pty Ltd,

Conagra Foods Inc and Leroy Lochmann, pursuant to section 5(2)

of the Vexatious Proceedings Act 2005, to apply for an order

under section 6 of that Act.

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