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Sims v Jooste & Ors

Sims v Jooste & Ors

Case [2016] FCCA 1343 9 June 2016

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMS v JOOSTE & ORS

[2016] FCCA 1343

Catchwords:
PRACTICE AND PROCEDURE – Interim application for summary dismissal of substantive application – whether jurisdiction – whether no reasonable prospect of success – whether frivolous, vexatious, scandalous or an abuse of process.

COSTS – Indemnity costs – whether indemnity costs to be awarded.

Legislation:

Acts Interpretation Act 1901 (Cth), s.15C
Australian Human Rights Commission Act 1986 (Cth), ss.46PH(2), 46PO(1)
Competition and Consumer Act 2010 (Cth)

Corporations Act 2001 (Cth), ss.9, 180, 180, 181, 182, 184, 1315, 1317DA 1317E, 1317H, 1317HA, 1317J, 1317DA, 1317HA, 1337B, 1337C, 1337D, 1337E
Criminal Code Act 1995 (Cth)
Director of Public Prosecutions Act 1983 (Cth), s.9(1) and (5)
Evidence Act 1906 (WA)
Evidence Act 1995 (Cth)
Fair Work Act 2009 (Cth), s.678

Federal Circuit Court of Australia Act 1999 (Cth), ss.8, 10, 14, 17A, 18, 53, 79(2) and (3)
Federal Circuit Court Rules 2001 (Cth), r.13.10

Trade Practices Act 1974 (Cth), ss.6, 51, 52, 82 [Part IV]
Workplace Relations Act 1996 (Cth)

Cases cited:

Alfaro v Crown Commercial Cleaning Pty Ltd & Anor [2012] FMCA 478
Arturi v Zupps Motors Pty Ltd (1980) 49 FLR 283; (1980) 33 ALR 243
Associated Leisure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 QB 450
Ample Source International Limited BVICN 1575638v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors(No. 6) [2011] FCA 1484; (2011) 285 ALR 488
Australian Securities and Investments Commission v Neolido Holdings Pty Ltd & Ors [2006] QCA 266
Austwhim Resources NL v Jenlor Ltd (unreported, Supreme Court of Western Australia, Master Seaman, 23 November 1987, Library No. 6973)
Beck & Anor v Spalla & Anor [2005] FCAFC 82; (2005) 142 FCR 555; (2005) 223 ALR 21
Belmont Finance Corp Ltd v Williams Furniture [1979] Ch 250; [1978] 3 WLR 712; [1979] 1 All ER 118
Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5; (2003) 215 CLR 374; (2003) 77 ALJR 623; (2003) 195 ALR 609
Cass v Kingston Capital Ltd [2010] FMCA 762
Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561
Davy v Garrett [1877] 7 ChD 473
Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; (2005) 79 ALJR 755; (2005) 214 ALR 92
Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No. 2) (1987) 16 FCR 410; (1987) 75 ALR 271

Ejueyitsi v Bond University [2012] FMCA 872

Fencott v Muller (1983) 152 CLR 570; (1983) 57 ALJR 317; (1983) 46 ALR 41
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397
Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75; (2009) 83…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Sims v Jooste & Ors [2016] FCCA 1343
Case: [2016] FCCA 1343
Decision Date: 9 June 2016

CaseChat Overview and Summary

The Supreme Court of Western Australia, presided over by Judge Antoni Lucev, considered an interim application for summary dismissal of a substantive application. The applicant, Sims, sought to have the respondent's (Jooste & Ors) substantive application dismissed.

The central legal issues before the Court were whether it possessed the jurisdiction to summarily dismiss the substantive application, and if so, whether the application had no reasonable prospect of success, or was frivolous, vexatious, scandalous, or otherwise an abuse of process. Additionally, the Court was required to determine whether indemnity costs should be awarded.

Judge Lucev reasoned that the Court had the inherent jurisdiction to dismiss proceedings that were an abuse of process. Applying the principles established in cases such as *Dey v Victorian Railways Commissioners* and *General Steel Corporation Ltd v Commissioner for Railways (NSW)*, the Court assessed whether the respondent's application was so lacking in merit that it could be said to have no reasonable prospect of success. The Court found that the respondent's application was not frivolous, vexatious, scandalous, or an abuse of process, and therefore dismissed the application for summary dismissal. Consequently, the Court ordered that the costs of the application for summary dismissal be reserved.

Orders