Stewart v Paladin Aus Pty Ltd (ACN 144 000 573)

Case [2020] SASC 244

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

STEWART v PALADIN AUS PTY LTD (ACN 144 000 573) & ORS

[2020] SASC 244

Judgment of The Honourable Justice Stanley

23 December 2020

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES - GENERALLY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - OTHER CASES AND MATTERS

Ian Duncan Stewart (the applicant) has brought proceedings claiming very substantial damages for breach of contract and other remedies alleged to arise from his employment by the Paladin Group of companies between January 2013 and 14 November 2019.  Paladin Aus Pty Ltd (the first respondent) is a company registered in Australia.  Paladin Group Ltd (the second respondent) is a company registered in Hong Kong.  Paladin Solutions PNG Ltd (the third respondent) is a company registered in Papua New Guinea.  Paladin Holdings PTE Ltd (the fourth respondent) is a company registered in Singapore.  The applicant alleges that the Paladin Group was, and is, controlled by Craig Thrupp.

By an interlocutory application the respondents seek an order that the action brought by the applicant against Paladin Group Ltd, Paladin Solutions PNG Ltd and Paladin Holdings PTE Ltd be permanently stayed pursuant to UCR 12.1.  In the alternative, they seek an order that the whole or parts of the statement of claim be struck out pursuant to UCR 70.3, or that further and better particulars of specified paragraphs be provided pursuant to UCR 70.2.  This application is opposed.

By interlocutory application, the applicant seeks leave to join Mr Thrupp as the fifth respondent to this action, and to file and serve a second revised statement of claim.  He says this second revision addresses the majority of the respondent’s request for particulars.  This application is opposed.  The respondents submit that given the extent of the deficiencies in revision 2, leave to amend in the terms proposed should be refused and the entirety of the statement of claim should be struck out.  In the alternative if any of the impugned pleadings are not struck out, further particulars should be provided.

Held:

1. Leave is granted to the applicant to replead his second revised statement of claim. 

2. Paragraphs 17.B, 17.C, 17.E, the phrase "to the applicant's knowledge" 17.F, 27.B, the first paragraph of the particulars in 32.A, the phrase “as far as the applicant is aware” in paragraphs 34.2.3 and 35.4, paragraphs 38.A, 38.B, 38.C, 38.D, and 45 of the applicant’s second revised statement of claim are struck out. Leave is granted to the applicant to replead several of those paragraphs where necessary.  

3. The question of whether leave to amend will be granted is reserved until the applicant brings into Court a further revised statement of claim addressing the deficiencies identified in these reasons in respect of…

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AGLC
Stewart v Paladin Aus Pty Ltd (ACN 144 000 573) [2020] SASC 244
Case
[2020] SASC 244
Decision Date

CaseChat Overview and Summary

The case of Stewart v Paladin Aus Pty Ltd (ACN 144 000 573) involved a dispute between the plaintiff, Stewart, and several defendants including Paladin Aus Pty Ltd. The plaintiff sought to challenge various employment-related claims, including underpayment and other contractual disputes, against the defendants, which are all part of a larger corporate group. The court was tasked with determining whether the proceedings should be stayed and whether certain claims could be joined or if parties could be added to the suit.

The central legal issues before the court were whether the South Australian Supreme Court was the appropriate forum for the plaintiff's claims, and if the plaintiff's claims against additional parties could be joined. Specifically, the court had to consider whether it was appropriate to stay the proceedings and require the plaintiff to bring separate actions in different jurisdictions, or whether the court should allow the claims to proceed in a single forum to avoid inconsistent judgments.

The court held that it was not an inappropriate forum for the plaintiff's claims, primarily because a single determination by the South Australian Supreme Court would avoid the risk of inconsistent judgments across multiple jurisdictions. The court noted that the plaintiff, being an Australian citizen and resident in South Australia, and the defendants having directors resident in Australia, made the South Australian Supreme Court an appropriate forum. Additionally, the court found that it was in the interests of justice to refuse a stay, as the limitation periods for the plaintiff's claims in other jurisdictions could expire before the claims were resolved, potentially disadvantaging the plaintiff.

The court refused the application for a stay and directed the plaintiff to file and serve a revised statement of claim incorporating the draft claims against Mr Thrupp. The court also indicated it would hear from the parties regarding any consequential orders and the costs of the applications.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, the respondents have not discharged the onus of demonstrating that this Court is a clearly inappropriate forum. I have come to this conclusion for a number of reasons. The most salient point is that whether a stay is granted or not, the applicant’s action against the first respondent will proceed in this Court. The effect of the respondents’ contentions is that the applicant should bring proceedings in Hong Kong against Paladin Group Ltd, proceedings in Papua New Guinea against Paladin Solutions PNG Ltd and proceedings in Singapore against Paladin Holdings Pte Ltd. The parties are in dispute as to which of the respondents was the employer of the applicant at various times, and which of several written contracts governed the terms and conditions of his employment. In these circumstances it is highly desirable that a single court determine this dispute to avoid the risk of inconsistent judgments. This Court cannot be a clearly inappropriate forum merely by virtue of the circumstance that the choice of law rules which apply would require it to apply the law of Hong Kong, Papua New Guinea and Singapore as the lex causae.[16]On the contrary, there are factors which support the Supreme Court of South Australia as being an appropriate forum, namely, the applicant is an Australian citizen resident in South Australia, each of the respondents has at least one director resident in Australia, and if Mr Thrupp is ultimately joined as a party to the action, he is an Australian citizen. Finally, if the third respondent was the applicant’s employer in the period subsequent to 1 June 2013, as asserted by the respondents, at least part of the applicant’s claim for underpayment in these proceedings is within the limitation period but will be out of time in Papua New Guinea if the applicant was required to institute proceedings in the PNG courts because his claim in this jurisdiction is stayed.[17] Where the third respondent has not proffered an undertaking not to take the limitation point in that event, the interests of justice strongly favour refusing the stay.[18] [16] Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 at [81], (2002) 210 CLR 491 at 521.[17] Frauds and Limitations Act 1988 (PNG) s 16.[18] Spirliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 487.Conclusion I would refuse the application for a stay. I would hear the parties as to the time within which the applicant should be required to file and serve a revised statement of claim incorporating the draft claims against Mr Thrupp. I would further hear the parties as to any consequential orders and the costs of these applications.

Ratio Decidendi

Legal Principle Established

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