Stewart v Paladin Aus Pty Ltd (ACN 144 000 573) - [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 which leave has been granted to replead.
4. A decision on the joinder of Mr Thrupp must await the applicant bringing into Court a further revised statement of claim that addresses the defects found with the proposed second revised statement of claim but in respect of which leave has been granted to the applicant to replead to rectify those defects.
5. With respect to the application for a stay, the respondents have not discharged the onus of demonstrating that this Court is a clearly inappropriate forum. The application is refused.
Uniform Civil Rules 2020 (SA) rr 22.1, 70.2, 70.3, referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, applied.
Henry v Henry (1996) 185 CLR 571; Puttick v Tenon Ltd (2008) 238 CLR 265, discussed.
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1994) 61 SASR 424; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; Spirliada Maritime Corp v Cansulex Ltd [1987] AC 460, considered.

STEWART v PALADIN AUS PTY LTD (ACN 144 000 573) & ORS
[2020] SASC 244
STANLEY J:
Introduction

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. The other remedies claimed are in estoppel, unconscionable conduct, and misleading and deceptive conduct. He alleges the respondents were involved in providing garrison, security and related services in the Pacific region including, from about October 2014, as a subcontractor, and from about September 2017, directly, to the Commonwealth Government, for the processing and detention offshore of refugees and asylum seekers. The applicant alleges he was employed at various times as country manager, general manager and chief executive officer. The applicant also alleges he was a shareholder in two companies within the Paladin Group and was a director of a number of companies in the Group.
Paladin Aus Pty Ltd is a company registered in Australia. Paladin Group Ltd is a company registered in Hong Kong. Paladin Solutions PNG Ltd is a company registered in Papua New Guinea. Paladin Holdings PTE Ltd is a company registered in Singapore. The applicant alleges that the Paladin Group was, and is, controlled by Craig Thrupp. Mr Thrupp is an Australian citizen resident in Bali, Indonesia.
The applicant wants to pursue a claim for damages for breach of contract against Mr Thrupp relating to the transfer of a substantial shareholding in the fourth respondent by Mr Thrupp to him.
There is an issue between the parties as to the identity of the applicant’s employer and the terms and conditions which applied to his employment. Depending on which contract or contracts are found to apply, the applicant claims for underpayment of wages, fixed bonuses, accrued leave and superannuation. The largest component of his claim relates to non-payment of a “new business” bonus calculated by reference to a percentage of net after-tax profits. The applicant alleges those profits, in an amount of nearly $135,000,000, were derived by the fourth respondent in Singapore, although the services which generated that profit were delivered in PNG pursuant to the contract to operate offshore detention facilities.
The applicant alleges that there was a contract between himself and the second and third respondents, and/or the fourth respondent, and Mr Thrupp to the effect that he would be paid the “new business” bonus even if profits were diverted from PNG to a foreign entity within the Paladin Group. This contract is described in the pleadings as the “Diversion of Profits & Maintenance of Bonus Contract” (DOP & MOB Contract).
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. The application is brought pursuant to UCR 22.1. The applicant relies upon affidavits of Janine Belinda Carroll deposed on 17 September 2020 and 20 October 2020. The application is opposed.
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. The respondents rely on affidavits of Hugh Griffin deposed on 28 August 2020, 30 September 2020 and 29 October 2020 except for the reference to Singapore in paragraph 4 of that last affidavit. This interlocutory application also is opposed.
It is convenient to commence by considering the strikeout application.
Strikeout
The respondents apply to strike out the statement of claim in whole or in part or, in the alternative, seek an order that further and better particulars of specified paragraphs be provided.
The applicant, by his second revised statement of claim (revision 2) contends he has answered the majority of the respondents’ request for particulars. Accordingly, it is also convenient to consider the application to file and serve revision 2.
The grounds upon which the Court may strike out a pleading under UCR 70.3 are (a) it does not comply with the Uniform Civil Rules; (b) it is frivolous, vexatious or an abuse of process; and (c) it does not disclose a reasonable cause of action or defence.
The courts have generally eschewed any attempt to define frivolous and vexatious. While the concepts overlap to some extent, and are sometimes treated as a single compendious concept, the former invites a focus upon whether the claim or issue is worthy of serious attention, whereas the latter invites a focus upon whether the claim or issue is being pursued for the purposes of harassing or vexing the other party.[1]
[1] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161 at [62].
The power to strike out under UCR 70.3 is directed to the applicant’s “Claim or pleading” (with the former defined as the document in the prescribed form by which an action is commenced). The focus is upon the articulation of the applicant’s case in the pleading.[2]
[2] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161 at [66].
The Court’s consideration of the nature and adequacy of the claim, as disclosed in the pleading, may require recourse to a document or documents referred to in the pleading (such as a contract) in order to make sense of the pleading. It may also require consideration of some evidence so as to enable the Court to understand the pleaded allegations in their proper context, and hence expose their inadequacy or their frivolous, vexatious or abusive character. However, it will not ordinarily require any consideration of evidence going to the underlying merits of the applicant’s claim, let alone making findings on that evidence.[3]
[3] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161 at [66]-[67].
A strikeout application may lead to an order that the relevant pleading (or part thereof) be struck out. However, as the conclusion justifying such an order is one based upon a deficiency in the pleading, and not necessarily in the case itself, the applicant is usually given an opportunity to replead[4] pursuant to UCR 70.3(2) which provides:
If the Court strikes out all or part of a document under subrule (1), it may if it thinks fit grant leave to file within a specified time an amended or substituted document rectifying the matter that caused the original document to be struck out.
[4] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161 at [69].
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. They submit that they are entitled to fair notice of the case they need to meet at trial. As things stand, the respondents contend that the applicant has simply made a number of bald allegations without identifying what is meant by those allegations or how they could apply to each respondent. The applicant has failed to plead sufficient material facts, thus rendering the pleas liable to be struck out. However, to the extent that these deficiencies are considered to arise because of a want of particulars, the Court should order that further and better particulars be provided.
The Court’s power to order better particulars is found in UCR 70.2 which provides the Court may order a party to provide better particulars of its case by either filing and serving an amended pleading which contains such particulars or by filing and serving a separate document containing such particulars. UCR 70.2 provides, amongst other things, that ordinarily the Court will only order better particulars in respect of a pleading if (a) the want of particularity results in the pleading not complying with the pleading rules in Part 7 of the UCR and (b) the party seeking the particulars will otherwise suffer substantial prejudice. However, it is apparent from the use of “ordinarily” in UCR 70.2 that the limitation imposed by the subrule is not intended to be exhaustive and the Court has a discretion to order better particulars even where either or both of these conditions are not satisfied.
I will address the respondents’ complaints in relation to the proposed second revised statement of claim.
Paragraphs 14 and 14.A plead:
14. At the time of entering into the Contract with the PNG Entity, but in respect of terms that had been agreed by late October 2012, the Applicant, the Second Respondent, the Third Respondent and the Fifth Respondent entered into a Contract (Diversion of Profits & Maintenance of Bonus Contract or DOP & MOB Contract) in respect of the diversion of profits away from PNG.
Particulars
The contract is in writing and comprised of emails dated 22 October 2012, 12.23 pm from the Fifth Respondent to the Applicant and the Applicant’s response sent on 25 October 2012, 6.59pm (the October 2012 Emails);
14.A In the alternative to paragraph 14, the DOP & MOB Contract was between the Applicant and/or the Second Respondent and/or the Third Respondent and/or the Fifth Respondent, in such combination as the Court determines.
The respondents contend that the plea alleges a contract between the applicant, the second respondent, the third respondent and Mr Thrupp. However, the applicant has not alleged or particularised how the emails sent on 22 and 25 October 2012 between the applicant and Mr Thrupp gave rise to a contract between the applicant and the second and third respondents. The same difficulty arises in paragraph 14.A.
I do not accept this submission. I consider the plea is tolerably clear that the applicant alleges the DOP & MOB Contract was entered into between the applicant, the second respondent, the third respondent and Mr Thrupp. The contract is alleged to be in writing and comprised of emails between the applicant and Mr Thrupp. The plea can only be understood on the basis that Mr Thrupp had authority to bind the second and third respondents. Whether the applicant at the trial can prove the plea is another question. The same reasoning applies in relation to paragraph 14.A.
Paragraph 17.A pleads:
17.AFurther, and in the alternative, at the time that the decision was made to divert the profits from PNG to the Fourth Respondent in late 2017, the DOP & MOB Contract was amended by implication so as to include the Fourth Respondent as the recipient of the Paladin Group Offshore Profits and as a contracting party.
Particulars
The addition of the Fourth Respondent is implied by fact based on the conduct of the parties in substituting the Second Respondent with the Fourth Respondent as the entity which would receive the Paladin Group Offshore Profits and is necessary in order to give business efficacy to the DOP & MOB Contract.
The respondents submit that the pleading is deficient due to the absence of a plea of material facts to support the conclusion that the DOP & MOB Contract was amended by implication so as to include the fourth respondent. I do not accept this submission. The particulars provided in the second revised statement of claim are sufficient to put the respondents, and in particular the fourth respondent, on notice as to the applicant’s case.
Paragraph 17.B pleads:
17.BIn the alternative to paragraph 17.A a new DOP & MOB Contract was entered into in late 2017 by the Applicant and the Fourth Respondent which contained:
a. the same parties as pleaded in paragraph 14, together with the Fourth Respondent;
b. the same terms as pleaded in paragraph 15;
The respondents submit that the plea is a bald allegation that a new contract was entered into in late 2017 by the applicant and the fourth respondent without pleading the factual circumstances by which the parties to the new DOP & MOB Contract entered into that contract. In my view that submission must succeed. There is no plea alleging the facts and circumstances in reliance upon which it is alleged that a new DOP & MOB Contract was entered into in late 2017 by the applicant and the fourth respondent. I would strike out the plea in paragraph 17.B but allow the applicant to replead if he can identify the facts relied upon.
Paragraph 17.C pleads:
17.CIn the further alternative to paragraphs 17.A and 17.B, even if the Fourth Defendant was not a party to any contract with the Applicant (which he denies), it is obliged to ensure that the Applicant’s employer is able to pay the Applicant’s entitlements, inclusive of bonuses pursuant to the intercompany arrangement referred to in subparagraphs 16.4.
The respondents submit that this plea suffers from the same defect. It does not allege how it is said that the fourth respondent was obliged to ensure that the applicant’s employer was able to pay the applicant’s entitlements pursuant to the intercompany arrangements referred to in paragraph 16.4 if it was not a party to any contract.
The applicant accepts that the reference in paragraph 17.C to paragraph 16.4 is an error. It should reference paragraph 16.5. Paragraph 16.5 pleads that the DOP & MOB Contract was supported by an arrangement in existence at all material times between the respondents whereby the entity in the Paladin Group which was in receipt of the profits of the contracts with the Australian Government made payments to the third respondent to ensure it could meet its obligations to employees, including the applicant, engaged to deliver services in connection with those contracts with the Australian Government.
The applicant contends that paragraph 17.C is a plea in effect of an indemnity. The indemnity relies upon the plea in paragraph 16.5. In my view the pleading is defective. If the case pleaded is an indemnity in reliance upon the plea in paragraph 16.5, that should be made express. The factual basis for the grant of an indemnity to the fourth respondent by the other respondent companies should be expressly pleaded. I would strike out paragraph 17.C but permit the applicant to replead the claim that the fourth defendant is liable on the basis of an indemnity.
Paragraphs 17.E and 17.F plead:
17.EIn breach of the DOP & MOB Contract as amended, or as pleaded in paragraph 17.B, the Fourth Respondent has not itself paid the Applicant’s employee entitlements, including the new business bonus.
17.FThe Fourth Respondent has not, to the Applicant’s knowledge, provided funds to enable the Applicant’s employer to pay the Applicant’s employee entitlements, including the new business bonus.
These pleas are, in part, consequential. Subject to two matters, if the defects in the pleas in paragraphs 17.B and 17.C are rectified that would cure the deficiencies of which the respondents complain in relation to paragraphs 17.E and 17.F. If the defects in 17.B and 17.C are not rectified then the pleas in 17.E and 17.F must be struck out. The first of the two matters is that, as was conceded by the applicant, the plea in paragraph 17.E is ambiguous. It is not intended to be limited to a contractual obligation agreed between the fourth respondent and the applicant. It is the applicant’s case that all the respondents contracted with him to pay the new business bonus as pleaded in Part 1 of revision 2. However, this seems inconsistent with the applicant’s submission that paragraph 17C is a plea of an indemnity i.e. an indemnity between the respondents rather than a contract or contracts between the applicant and the respondents. In any event, the plea in paragraph 17.E must be struck out. I also would give leave to the applicant to replead paragraph 17.E. The repleaded paragraph must avoid the inconsistency I have identified. The second matter is the plea in paragraph 17.F predicated on the applicant’s knowledge. Insofar as it premises the plea on the applicant’s knowledge, it is defective. The applicant’s knowledge is irrelevant. If the pleas in paragraphs 17.B, 17.C and 17.E are rectified I would nonetheless strike out the phrase “to the applicant’s knowledge”. There is no need to replead this paragraph.

Paragraph 32.A pleads:
32.AIn breach of the Implied Term of Good Faith under the Contract with the Australian Entity the First Respondent did not give consideration to the Applicant's entitlement to a Discretionary Bonus or, alternatively, the discretion was not exercised in good faith.
Particulars
As far as the Applicant is aware none of the Respondents, including the First Respondent gave any active consideration at all as to whether to pay the Applicant a bonus.
If the First Respondent did give the question of a bonus consideration, then following discovery, the Applicant may provide further particulars as to whether the discretion was exercised in good faith in circumstances where he says he fulfilled the requirements of his position and made a significant contribution to the profitability of the Paladin Group.
The respondents submit that the plea “as far as the applicant is aware” is defective. As with the plea in paragraph 17.F, I accept that a plea premised on the applicant’s knowledge or awareness is bad. The applicant’s awareness is irrelevant. What is relevant is whether the respondents acted in breach of any term of good faith by failing to consider whether the applicant was entitled to a bonus. However, there is a further defect in this plea that overtakes the error in the plea of awareness. The defect is the plea in the particulars that “none of the respondents, including the first respondent, gave any active consideration at all as to whether to pay the applicant a bonus”. The respondents submit that this plea is defective because the only respondent who could have been under an obligation to give consideration to the applicant’s entitlement to a discretionary bonus was the first respondent. Accordingly, the plea by way of particulars that none of the respondents gave any active consideration at all whether to pay the applicant a bonus can only be relevant to the first respondent. I accept this submission. The only relevant plea would be that the first respondent did not give any active consideration at all whether to pay the applicant a bonus. I would strike out the first paragraph of the particulars pleaded in paragraph 32.A. I would give leave to the applicant to replead that paragraph addressing both of the defects.
The same defect afflicts paragraphs 34.2.3 and 35.4. I would strike out from the particulars the phrase “as far as the applicant is aware”. There is no need to replead these paragraphs.
Paragraph 38.A to 38.D pleads:
38.AThe Respondents represented in the October 2012 Emails, and on a continuing basis afterwards, that the Applicant would be paid his bonus in respect of new business in PNG in the event that the profits were earned by any entity within the Paladin Group, irrespective of whether it was his employer (October 2012 Representation).
38.BThe Applicant has relied upon the October 2012 Representation to his detriment by agreeing to be employed, remaining in employment and working long hours and spending considerable time away from his family in order to attend to his duties, and further in signing the Alleged Contract with the Singapore Entity.
38.CIn the circumstances of paragraphs 28, 29, 36.1, 38(a) and 38(b) it would be unconscionable for the Respondents to resile from the October 2012 Representation, and/or for them to deny the DOP & MOB Contract and/or deny that a bonus is payable to the Applicant.
38.DThe Applicant seeks declaratory relief as set out in paragraph 45 below in order to put him in the position he would be if the Respondents made good on the representation.
The respondents submit that these pleas are vague and embarrassing. The respondents submit that it is not clear how it is said that they and Mr Thrupp made the October 2012 Representation given that the October 2012 emails relied upon by the applicant were between the applicant and Mr Thrupp, and the first respondent is not even alleged to have been a party to the DOP & MOB Contract at the time those emails were sent. Further, no material facts have been pleaded and no particulars have been provided to support the assertion that the respondents made the representation alleged in paragraph 38.A on a “continuing basis”.
The respondents also submit that the allegation at paragraph 38.C appears to advance multiple different estoppel cases, one relating to the October 2012 Representation; another relating to the DOP & MOB Contract; and another relating to simply a “bonus” being payable to the applicant, when only the October 2012 Representation is the subject of the other pleas related to estoppel. The detrimental reliance plea at paragraph 38.B is expressly limited to the October 2012 Representation.
The respondents submit that the allegations at paragraph 38.D are wholly oblique. It refers simply to “the representation” without specifying which representation is being identified. This ambiguity is compounded by the multiple different cases apparently advanced in paragraph 38.C.
Finally, the respondents submit that the allegation at paragraph 38.D is nonsensical. It is there pleaded that the applicant seeks the declaratory relief set out in paragraph 45. However, paragraph 45 contains a plea that the Transfer Representations were misleading in breach of s 18 of the Australian Consumer Law. It is also not clear what relief the applicant actually seeks in paragraph 38.D in respect of the alleged estoppel i.e. whether in fact it seeks injunctive relief or an order for payment of a sum of money.
In my view there is merit in the respondents’ submission.
Paragraph 38.A pleads that the respondents represented that the applicant would be paid the new business bonus in the event that the profits were earned by any entity within the Paladin Group, irrespective of whether it was his employer, and that this representation was made in the October 2012 emails and on a continuing basis afterwards. It is unclear the basis upon which it is pleaded that such a representation was made by the first respondent given that it is not pleaded to be a party to the DOP & MOB Contract. The factual basis upon which it is pleaded that the representation was made on a continuing basis after October 2012 is not clear. This defect is compounded by the plea in paragraph 38.D by which the applicant seeks declaratory relief in order to put him in the position he would have been if the respondents made good on the “representation”, given the definition in paragraph 38.A of the “October 2012 Representation”. The applicant conceded that these pleas are defective. The applicant concedes that the reference in paragraph 38.D to paragraph 45 is in error. The reference should be to paragraph 49. I would strike out paragraphs 38.A, 38.B, 38.C and 38.D. I would give leave to the applicant to replead these matters in a way that remedies the defects.
Paragraph 39 pleads:
39.In the period mid 2018 until August 2018 the Fifth Respondent and the Applicant entered into a contract pursuant to which:
39.1 The Fifth Respondent as soon as practicable would transfer to the Applicant 30% of the Fifth Respondent-shares in the Fourth Respondent for the nominal price of SNG$1 per share;
39.2 That the dividends of the Fourth Respondent would be paid 80% to the Fifth Respondent and 20% to the Applicant up until 30 June 2018 and 50% thereafter;
39.3 The Applicant (who at the time wished to resign) would remain employed in the management of the Paladin Group for a period of up to 12 months to facilitate a period of transition and to enable the Applicant to leave the business without any serious disruption to management of the Paladin Group.
Particulars
The contract is wholly oral and the result of a meeting which took place at the Realm Hotel in Canberra.
The terms were offered by the Fifth Respondent, accepted by the Applicant and the parties shook hands after the terms were agreed.
The respondents submit that the plea in paragraph 39 is vague and embarrassing. They submit that the plea is conclusory and defective as it fails to plead the effect of the discussions which are the basis for the plea of the entry into an oral contract. I do not accept this submission. The paragraph pleads the effect of the contract and the circumstances in which the parties entered into it. It gives the fifth respondent fair notice of the case he has to meet. There is no requirement that the actual words spoken be pleaded.
Paragraph 45 pleads:
45.The Transfer Representations were misleading, or liable to mislead, and in breach of s 18 of the ACL because the Fifth Respondent did not transfer the shares in the Fourth Respondent. To the extent that the Transfer Representations were as to a future matter, the Fifth Respondent did not have reasonable grounds to make them because he did not in fact intend to transfer the shares.
There is a definition in paragraph 43 of the Transfer Representations which is a representation by Mr Thrupp that he would transfer to the applicant 30 per cent of his shares in the fourth respondent for a nominal price and that the applicant would receive 50 per cent of the dividends declared by the fourth respondent from 30 June 2018.
The respondents submit that the plea is defective because it alleges that the representations were misleading because Mr Thrupp did not transfer the shares in the fourth respondent. In addition, the paragraph pleads that to the extent that the Transfer Representations were as to a future matter, Mr Thrupp did not intend to transfer the shares.
I accept the respondents’ submission that it is not a proper plea of misleading and deceptive conduct to plead that a representation as to a future fact or matter is misleading because the fact or matter did not subsequently occur. On the other hand, I do not accept the respondent’s submission that it is bad to plead that a representation made as to the occurrence of a future event is misleading because, at the time the representation was made, the representor did not intend to make good the representation in the future. I would strike out the plea in paragraph 45 but I would give leave to the applicant to replead the allegation in a way that remedies the defect.
Paragraph 46 pleads:
46.The Applicant has suffered loss by reason of the contraventions as he remained in employment in the Paladin Group but did not receive the benefit of the transfer of shares in the Fourth Respondent.
The respondents submit that the basis of the plea as to loss is bad in law. The respondents contend that the plea is one of expectation loss which is not available under the Australian Consumer Law. I do not accept this submission. It is not a point to be decided on a strikeout application. The distinction between a claim for expectation loss and reliance loss is complex and arguments as to the maintenance of such claims are ill-suited to a strikeout application.[5] In my view the respondents are given fair notice of the basis of the applicant’s claim.
[5] Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1994) 61 SASR 424 at 433.
In their written submissions the respondents also submit that the second revised statement of claim fails to address deficiencies in paragraphs 27.B, 35.3, 36.4, 37, 38 and 49.3.
The respondents complain that the plea in paragraph 27.B fails to particularise how and when the matters alleged were “ultimately agreed”. In my view there has been an attempt in revision 2 to address this complaint. However, the attempt has not been successful as the identification of the ultimate agreement to the proposal is pleaded to have occurred in the final written contract referred to in paragraph 22, but there is no paragraph 22. I would strike out paragraph 27.B but grant leave to the applicant to replead to rectify the defect.
The respondents submit that paragraph 35.3 fails to plead or particularise how the second respondent has failed to pay the applicant “his full entitlement of the Salary” under the “Alleged Contract with the HK Entity”. The applicant has sought to address this in revision 2 by pleading that particulars and quantification of the underpayment shall be provided by way of an expert accounting report. Obviously that amended plea does not address the deficiency, at least until such time as the expert accounting report is provided. As I have not heard submissions on this matter, I do not know whether the accounting report has been obtained, or if it has not been obtained when it might be expected to be received. In the circumstances I am not prepared to strike out the plea at this stage but the applicant is on notice that he must provide adequate particulars of the allegation or the plea is likely to be struck out for failing to give the respondents fair notice of the applicant’s claim.
The respondents contend that the plea in paragraph 36.4 is defective for failing to plead or particularise how a term of mutual trust and confidence and/or good faith was implied into his employment contract. In my view the proposed plea in revision 2 addresses this deficiency.
The respondents contend that the plea in paragraph 37 that the collateral contract was amended does not plead or particularise how or when the alleged collateral contract was amended. I do not accept this submission. The proposed plea in revision 2 addresses this complaint by substituting for the reference to the collateral contract reference to the DOP & MOB Contract as pleaded in paragraphs 15 to 17.F of revision 2.
The respondents contend that the plea in paragraph 38 of an estoppel is defective. An attempt has been made to address this complaint in paragraphs 38.A to 38.D. As I have ordered those pleas be struck out and repleaded, it is unnecessary to consider this submission further.
The respondents submit that the plea in what is now paragraph 49.3 of revision 2 fails to plead any material facts in support of a claim for an indemnity. As I have indicated, the applicant will need to plead expressly the indemnity claim and I have granted leave for him to do so.
In the circumstances I do not accede to the respondents’ submission that leave to amend in terms of revision 2 should be refused. Given I have granted the applicant leave to replead revision 2, I would reserve the question of whether leave to amend will be granted until the applicant brings into Court a further revised statement of claim addressing the deficiencies identified in these reasons in respect of which leave has been granted to replead.
Joinder of Mr Thrupp
The applicant seeks to join Mr Thrupp as a respondent to the action. As has been identified, the claims sought to be brought against Mr Thrupp arise from a multi-party agreement between the applicant and Mr Thrupp and the second, third and fourth respondents, to the effect that, if the Paladin Group determined to direct profits away from the PNG Contract, the applicant would remain entitled to the new business bonus; breaches of an oral agreement for the transfer of shares in the fourth respondent and payment of dividends to the applicant; and a misleading and deceptive conduct claim in relation to Mr Thrupp’s representation that he would transfer shares and pay dividends to the applicant.
The applicant submits that the factual matrix surrounding his claims against Mr Thrupp are so intertwined with his claims against the first to fourth respondents that the joinder of Mr Thrupp is appropriate to ensure that all aspects of the dispute regarding the applicant’s employment are resolved expeditiously and a multiplicity of proceedings is avoided.
Mr Thrupp opposes joinder. He opposes joinder on grounds that relate to the deficiencies in the pleadings of the claims against him. He submits that the defects are so serious that the leave sought by the applicant to amend to replead the statement of claim in revision 2 will be refused. Without a proper pleading of the claims against him no basis exists for his joinder.
For the reasons set out above, it is premature to determine whether that submission should be accepted or rejected. A decision on the joinder of Mr Thrupp must await the applicant bringing into Court a further revised statement of claim that addresses the defects I have found with the proposed revision 2 but in respect of which I have granted leave to the applicant to replead to rectify those defects.
Stay
I turn to consider the stay application. The Court has inherent jurisdiction to stay a proceeding in whole or in part where the Court is clearly an inappropriate forum for the proceedings.[6] This jurisdiction is discretionary and is part of the Court’s broader jurisdiction to stay a proceeding where its continuation is oppressive, vexatious or an abuse of process.[7] The Court also has the power to stay a proceeding in whole or in part where it is in the interests of justice to do so pursuant to UCR 12.1. This power is commensurate with the inherent jurisdiction of the Court. The applicant for a stay bears the onus of establishing that the Court is clearly an inappropriate forum.[8]
[6]    Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55, (1990) 171 CLR 538 at 554; Henry v Henry [1996] HCA 51, (1996) 185 CLR 571; Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10, (2002) 210 CLR 491; Dow Jones & Company Inc v Gutnick [2002] HCA 56, (2002) 210 CLR 575; Puttick v Tenon Ltd [2008] HCA 54, (2008) 238 CLR 265.
[7]    Puttick v Tenon Ltd [2008] HCA 54 at [29], (2008) 238 CLR 265 at 277.
[8]    Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55, (1990) 171 CLR 538 at 564-565; Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32, (1988) 165 CLR 197 at 247-248.
The respondents seek an order staying the proceedings against the second, third and fourth respondents on the basis that the Supreme Court of South Australia is a clearly inappropriate forum for proceedings against each company. The respondents contend this is so because the companies are not incorporated in this State, are not registered as foreign companies in Australia, do not trade in this State and the rights and liabilities of the parties will be decided according to the law of other countries, namely, China (Hong Kong), Papua New Guinea and Singapore. South Australia is the least appropriate of the four possible fora. The only party with any connection is the applicant. To the extent that these claims are to be prosecuted, they should be prosecuted in Hong Kong, Papua New Guinea and Singapore respectively, once the applicant’s claim against the first respondent is heard and determined. Indeed, on the applicant’s case, they need only be prosecuted if the applicant’s claim against the first defendant fails.
In Voth v Manildra Flour Mills Pty Ltd[9] Mason CJ, Deane, Dawson and Gaudron JJ analysed the principles relevant to the exercise of the Court’s discretion to stay a proceeding on the basis the Court is clearly an inappropriate forum for the dispute. They said:[10]
Before we refer to the judgments of the majority in Oceanic Sun, we should state very briefly what we take to be the common ground between them. First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised "with great care" or "extreme caution".
[citation omitted]
[9] [1990] HCA 55, (1990) 171 CLR 538.
[10] [1990] HCA 55, (1990) 171 CLR 538 at 554.

In Henry v Henry[11] Dawson, Gaudron, McHugh and Gummow JJ explained that a court will be considered a clearly inappropriate forum if continuation of the proceedings in that court would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious in the sense of productive of serious and unjustified trouble and harassment.[12]
[11] [1996] HCA 51, (1996) 185 CLR 571.
[12] [1996] HCA 51, (1996) 185 CLR 571 at 587.
In Puttick v Tenon Ltd[13] French CJ, Gummow, Hayne and Kiefel JJ said:[14]
In Voth v Manildra Flour Mills Pty Ltd, the Court held that a defendant will ordinarily be entitled to a permanent stay of proceedings instituted against it and regularly served upon it within the jurisdiction, if the defendant persuades the local court that, having regard to the circumstances of the particular case, and the availability of an alternative foreign forum to whose jurisdiction the defendant is amenable, the local court is a clearly inappropriate forum for determination of the dispute. The reasons of the plurality in Voth pointed out that the focus must be “upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum”.
[citations omitted]
[13] [2008] HCA 54, (2008) 238 CLR 265.
[14] [2008] HCA 54 at [27], (2008) 238 CLR 265 at 276-277.
In deciding whether the Supreme Court of South Australia is a clearly inappropriate forum, the Court is not engaged in a balancing exercise. Rather, the respondents must satisfy the Court that a trial in this State would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious, i.e. productive of serious and unjustified trouble and harassment.[15]
[15] Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 at [78], (2002) 210 CLR 491 at 520-521.
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.