Suda Ltd v Sims (No. 3)

Case [2014] FCCA 2127


FEDERAL CIRCUIT COURT OF AUSTRALIA

SUDA LTD v SIMS (No.3) [2014] FCCA 2127

Catchwords:
PRACTICE AND PROCEDURE – Application to dismiss Repleaded Reply and Counterclaim – whether no reasonable prospects of success – whether frivolous or vexatious in nature – whether otherwise an abuse of process – whether same or similar issues as alleged in other proceedings – Anshun estoppel.

COSTS – Whether costs payable on an indemnity basis – whether unreasonable act or omission.

Legislation:

Crimes Act 1900, s.124
Evidence Act 1995 (Cth)
Fair Work Act 2009 (Cth), ss.570(2)(a) and (b), 678
Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 17A, 79(2) and (3)
Federal Circuit Court Rules 2001 (Cth), rr.13.10, 21.02
Workplace Relations Act 1996 (Cth), s.824(2)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian and International Pilots Association v Qantas Airways Ltd (No. 3) (2007) 162 FCR 392; [2007] FCA 879
Barnden v Tadrosse (No.2) [2013] FCCA 744
Blair v Curran (1939) 62 CLR 464
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287

Butorac v Win Corporation Pty Ltd [2009] FCA 1503

Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143
Egglishaw v Australian Crime Commission (2007) 164 FCR 224

Ejueyitsi v Bond University [2012] FMCA 872
Fortron Automotive Treatments Pty Ltd v Jones (No. 2) [2006] FCA 1401
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397

Genovese v BGC Construction Pty Ltd (No.2) [2007] FMCA 601
Jackson v Goldsmith (1950) 81 CLR 446
Klages (WA) Pty Ltd v Walker (No.2) [2007] FMCA 2138
Michael Wilson & Partners Limited v Nicholls & Ors (2011) 244 CLR 427; [2011] HCA 48
Pao On v Lau Yiu Long [1980] AC 614
Pegasus Leasing Limited v Cadoroll Pty Limited & Ors (1996) 59 FCR 152
Port of Melbourne Authority v Anshun Proprietary Ltd (1981) 147 CLR 589
Rana v Libraries Board of Australia (No.2) [2008] FMCA 1037
Roscorla v Thomas (1842) 114 ER 496
Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159
Rowe v Emmanuel College [2013] FCA 939
Roy Galvin & Co Pty Ltd v Ives [2013] FCCA 1645
Sims v Jooste QC [2013] WASCA 245
Sims v Suda Ltd [2014] WADC 7
Sims v Suda Ltd [2014] WASC 3
Spalla v St George Motor Finance Ltd (No. 6) [2004] FCA 1699
Spencer v The Commonwealthof Australia (2010) 241 CLR 118; [2010] HCA 28
Suda Ltd v Sims [2013] FCCA 1833
Suda Ltd v Sims (No.2) [2014] FCCA 190
Westpac Banking Corporation & Ors v Eltran Pty Ltd & Ors (1987) 14 FCR 54
Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 722; [2004] FCA 51
Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC…

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AGLC
Suda Ltd v Sims (No. 3) [2014] FCCA 2127
Case
[2014] FCCA 2127
Decision Date

CaseChat Overview and Summary

In *Suda Ltd v Sims (No. 3)*, the Supreme Court of Western Australia considered an application by the defendant, Sims, to dismiss the plaintiff's, Suda Ltd's, repleaded reply and counterclaim. Sims argued that these pleadings had no reasonable prospect of success, were frivolous or vexatious, or otherwise constituted an abuse of process, particularly in light of alleged similarities to issues raised in other proceedings. The court also addressed the question of whether costs should be awarded on an indemnity basis due to an alleged unreasonable act or omission.

The central legal issues before the court were whether Suda Ltd's repleaded reply and counterclaim were so lacking in merit as to warrant dismissal under the relevant rules of court, and whether the doctrine of *Anshun* estoppel applied to preclude Suda Ltd from pursuing these claims. Additionally, the court had to determine if Sims had established grounds for an indemnity costs order.

Justice Lucev found that Suda Ltd's repleaded reply and counterclaim did not meet the threshold for dismissal. The court reasoned that the pleadings, while potentially raising complex and overlapping issues with other litigation, did not demonstrate a complete absence of a reasonable prospect of success. The judge applied the principles governing applications to strike out pleadings, emphasizing that such applications are a drastic remedy and should only be granted in clear cases. The court also considered the *Anshun* estoppel principles, concluding that the current proceedings did not fall within their ambit to the extent that dismissal was warranted. Regarding costs, the court found that while there were points of contention, the conduct of Suda Ltd did not amount to an unreasonable act or omission that would justify an order for indemnity costs.

The application to dismiss the repleaded reply and counterclaim was dismissed. The court ordered that the costs of the application be costs in the cause.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Legal Principle Established

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