The Aslan Group LLC v Pepperstone Group Limited
[2018] VCC 51
•7 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL CASES LIST
Case No. CI-17-00211
| THE ASLAN GROUP LLC & ORS | Plaintiffs |
| v | |
| PEPPERSTONE GROUP LIMITED & ORS | Defendants |
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JUDGE: | His Honour Judge Cosgrave | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2018 | |
DATE OF RULING: | 7 February 2018 | |
CASE MAY BE CITED AS: | The Aslan Group LLC & Ors v Pepperstone Group Limited & Ors | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 51 | |
REASONS FOR RULING
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Subject:REVIEW OF DECISION OF JUDICIAL REGISTRAR
Legislation Cited: Civil Procedure Act 2010 (Vic); County Court Civil Procedure Rules 2008 (Vic)
Cases Cited:Durney v Deakin University [2016] VSC 418; Knorr v CSIRO [2014] VSCA 84; Trau v The University of Sydney (1989) 34 IR 466
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Levine | O’Donnell Salzano Lawyers |
| For the Defendants | Mr T Boston | Herbert Smith Freehills |
HIS HONOUR:
Nature of application
1 By notice dated 4 December 2017 the plaintiffs sought review of the decision made by Judicial Registrar Tran on 20 November 2017. On that day, Judicial Registrar Tran made orders that the proceeding be dismissed, that the plaintiffs pay the defendants costs of the hearing fixed in the sum of $10,000 and that the plaintiffs otherwise pay the defendants’ costs of the proceeding to be taxed on a standard basis in default of agreement.
2 The application was made pursuant to Order 84 of the Count Court Civil Procedure Rules 2008 (Vic) (“the Rules”).
3 The Plaintiffs seek a review of the order on the following grounds:
(a) The Judicial Registrar erred in permitting the defendants’ application to dismiss the proceeding based on the one day’s late filing of the draft further amended statement of claim to proceed as a general application (without notice of several areas they planned to attack) to dismiss the proceeding based on the entire process of the proceeding and the Civil Procedure Act 2010 (Vic) (“CPA”).
(b) The Judicial Registrar erred in basing her decision on a misunderstanding of Rule 24.06 of the Rules and its application to the order she made.
(c) The Judicial Registrar erred in her finding of the number and relevance of the various drafts of the statement of claim.
(d) The Judicial Registrar erred in her finding of the length and relevance of the proceeding to the date of dismissal.
(e) The Judicial Registrar erred in failing to properly take into account the illness and unexpected death of the former solicitor who was a sole practitioner and the consequences thereof, including the delayed actions of the Legal Services Board and its manager and the difficulties of the new solicitor in taking over the proceeding.
(f) The Judicial Registrar erred in her finding that the defendants would suffer prejudice in being at risk in recovering costs against the plaintiffs when the defendants had raised an application for security for costs but not proceeding with it.
(g) The Judicial Registrar erred in failing to properly take into account the prejudice to the plaintiffs in dismissing the proceeding far outweighed any inconvenience to the defendants.
(h) The Judicial Registrar erred in the exercise of her discretion in dismissing the entire proceeding and failing to permit the plaintiffs to file and serve an additional draft further amended statement of claim.
Background
4 In January 2017 the plaintiffs issued a writ endorsed with a statement of claim against the defendants.
5 On 13 February 2017 the defendants filed an appearance.
6 On 16 February 2017 the defendants wrote to the plaintiffs referring amongst other things to defects in the claim and inviting the plaintiffs to terminate the proceeding immediately.
7 On 27 April 2017 the plaintiffs provided the defendants with an amended statement of claim (which was dated 27 March 2017).
8 At a hearing on 1 May 2017 Judicial Registrar Tran made orders striking out both the plaintiffs’ statement of claim dated 18 January 2017 and its amended statement of claim dated 27 March 2017. The Court gave leave for the plaintiffs to provide a draft amended claim to the defendants by 2 June 2017 with any application to file the amended claim to be made by 13 June 2017. Any further application of this kind was to be heard on 19 June 2017.
9 On 2 June 2017 the defendants received a draft amended statement of claim (dated 19 May 2017). The defendants wrote to the plaintiffs on 6 June 2017 pointing out various deficiencies in the pleading.
10 On 13 June 2017 the plaintiffs provided the defendants with another version of the amended claim (also dated 19 May 2017).
11 On 19 June 2017 Judicial Registrar Tran refused the plaintiffs leave to file and serve the amended statement of claim given to the defendant on 13 June 2017.
12 The Court further provided that the plaintiff was required to serve a further draft amended statement of claim by 4pm on 31 July 2017. Any application for leave to file and serve an amended statement of claim was to be made by 21 August 2017 and the proceeding was listed for a further directions hearing on 11 September 2017. This was the time at which any application for leave to file an amended statement of claim was to be heard and determined.
13 In August 2017 the plaintiffs’ former solicitor, a sole practitioner, died unexpectedly.
14 On 8 September 2017 Mr Christopher Dale of O’Donnell Salzano Lawyers (“OSL”) informed the defendants that he had taken over this matter for the plaintiffs. He provided signed minutes of consent orders dealing with the immediate disposition of the matter.
15 As a result of those consent orders, on 8 September 2017 Judicial Registrar Tran made orders pursuant to which:
(1) the plaintiffs were required to serve on the defendants’ solicitors a further draft amended statement of claim by 4pm on 6 October 2017;
(2) any application for leave to file and serve the further draft amended statement of claim was to be made by 20 October 2017.
(3) the proceeding was dismissed if the plaintiffs did not serve on the defendants solicitors a further draft amended statement of claim by the stated date;
(4) the proceeding was listed for a further directions hearing on 30 October 2017 at which time any application for leave to rely upon the further amended statement of claim was to be heard and determined.
16 On 6 October 2017 the defendants received a further draft amended statement of claim.
17 By letter dated 16 October 2017 the defendants advised the plaintiffs that they objected to the new pleading on a variety of grounds including that the pleading did not disclose a cause of action, failed to address either satisfactorily or at all the criticisms made by the Court in respect of the earlier versions of the claim, included much irrelevant material and contained serious unparticularised allegations of fraud without disclosing a proper basis for those allegations.
18 By letters dated 16 October and 20 October 2017 the plaintiffs’ solicitor Mr Dale advised the defendants that he was considering the criticisms of the proposed new pleading.
19 On 20 October 2017 the plaintiffs made application to the Court for leave to file a further amended statement of claim.
20 On 24 October 2017 the defendants wrote to OSL indicating they had received no substantive response to their letter of 16 October 2017 and sought confirmation that the plaintiffs intended to apply for leave to rely upon the further amended statement of claim dated 6 October 2017.
21 By email dated 24 October 2017 Mr Dale advised the defendants’ solicitors that OSL was further revising the draft proposed pleading consequent upon some of the issues raised by the defendants. He said that OSL would forward the revised draft once it was completed.
22 On 27 October 2017 Mr Dale emailed the defendants’ solicitors to advise that OSL required additional time to complete the second draft of the proposed pleading and to check it with the plaintiffs. He sought to adjourn the directions hearing. The defendants agreed to the request for an adjournment.
23 On 30 October 2017 Judicial Registrar Tran made orders by consent inter alia that:
(1) the directions hearing listed 30 October 2017 was vacated;
(2) by 4pm on 8 November 2017 the plaintiffs were required to send an email to the associate to the Judicial Registrars and the defendants’ solicitors attaching a further draft amended statement of claim and an application for leave to file and serve that claim;
(3) if the plaintiffs failed to comply with minute 2, then the defendants were at liberty to apply by email to the Judicial Registrar without further notice to the plaintiffs for the proceeding to be dismissed and any ancillary orders;
(4) the proceeding was listed for further directions on 20 November 2017 at which time any application under minute 2 would be heard and determined.
24 By email on 8 November 2017 Mr Dale contacted the defendants’ solicitors advising that he had been trying to obtain final instructions on the draft pleading from someone on Norfolk Island but due to difficulties with internet telecommunications, he was unable to obtain those instructions. He advised that there was no mobile telephone system available on Norfolk Island and he was restricted to a landline service. In the circumstances, he sought an extension of the deadline in Judicial Registrar Tran’s 30 October 2017 order until 4pm on 9 November 2017.
25 In response to a query from the defendants’ solicitors, Mr Dale advised that the person whom he wished to consult was John Walsh, a barrister who had represented the plaintiffs throughout the matter and who had substantial knowledge of the proceeding. Ultimately, the defendants refused to consent to any extension of time.
26 At about 5:30pm on 8 November 2017 the plaintiffs made application by email from OSL for an extension of time in respect of minutes 2 and 3 of the orders made by Judicial Registrar Tran on 30 October 2017.
27 At about 3:51pm on 9 November 2017 Mr Dale served on the defendants’ solicitors a copy of the most recent draft of their proposed further amended statement of claim. Later that day, the defendants’ solicitors sent Mr Dale an email which included the defendants’ cross-application to the Court seeking orders that the proceeding be dismissed and the plaintiffs pay the defendants’ costs.
28 On 20 November 2017 Judicial Registrar Tran heard the plaintiffs’ application for the extension of time and the defendants’ application for the dismissal of the proceeding and ordered that:
(a) the proceeding be dismissed;
(b) the plaintiffs pay the defendants’ costs of the hearing including preparation on an indemnity basis fixed in the sum of $10,000.
(c) the plaintiffs otherwise pay the defendants’ costs of the proceeding on a standard basis to be taxed in default of agreement.
29 On 4 December 2017 the plaintiffs issued their application for review of the Judicial Registrar’s orders.
Basis of review
30 The plaintiffs submitted that the review should be conducted by way of a hearing de novo because the powers of the judge conducting the review are consistent with the making of an original decision. The reviewing judge is authorised to exercise all the powers and discretions of the court with respect to the subject matter of the review and may confirm or set aside the order made by the Judicial Registrar or make such further other orders as may be necessary.[1] Depending upon the circumstances, the reviewing judge can permit the parties seeking review to rely upon further affidavit material which was not before the Judicial Registrar. [2]
[1]County Court Civil Procedure Rules 2008 (Vic), r.84.02(5)(a)(b).
[2]County Court Civil Procedure Rules 2008 (Vic), r.84.02(6). The applicant may seek leave to submit further evidence with leave from the reviewing Judge.
31 The defendants contended that the review was not a de novo hearing. They said that the rules of the County Court were different from those in the Supreme Court and as a matter of construction, a review under Rule 84.02 was not ordinarily available without an error in the orders made by the Judicial Registrar. However, the defendants submitted that, because the review was not a hearing de novo the court was not required to, but could, further review orders where no error is identified.
32 In conducting a review, this court is authorised to confirm, set aside or vary the challenged orders and make such other orders as it considers necessary.
33 For present purposes, I do not need to make a final determination on this dispute between the parties. I am content to consider the review on the basis most favourable to the plaintiffs and treat the review as a de novo hearing.
Review
34 On the material before me, I reach the same conclusion as that reached by Judicial Registrar Tran.
35 I examine each of the review grounds relied upon by the plaintiffs.
36 As to ground (a), the plaintiffs contended that the objectives of the CPA would be thwarted by dismissing a proceeding simply on the basis of a delay of one day in sending an email. This construction mischaracterises the situation by focusing too narrowly on an isolated event devoid of context.
37 There is no doubt that the court is required to have regard to the provisions of the CPA when exercising its powers. In particular, the CPA requires courts to give effect to the overarching purpose of the CPA when exercising their powers.[3] The overarching purpose described in the CPA is the facilitation of the just, efficient, timely and cost effective resolution of the real issues in dispute.[4] When making orders or giving directions, the court is to further the overarching purpose by having regard to objects including inter alia:[5]
[3]Civil Procedure Act 2010 (Vic), s.8(1).
[4]Civil Procedure Act 2010 (Vic), s.7(1).
[5]Civil Procedure Act 2010 (Vic), s.9(1)(a) – (f).
· the just determination of the civil proceeding;
· the efficient conduct of the business of the court;
· the efficient use of judicial and administrative resources;
· minimising delay between commencing of civil proceeding and its listing for trial;
· the timely determination of the civil proceeding.
In so acting, the court may have regard to matters such as the degree of promptness with which the party has conducted the proceeding, including the degree to which a party has been timely in undertaking interlocutory steps in the proceeding.[6]
[6]Civil Procedure Act 2010 (Vic), s.9(2)(c).
38 The CPA therefore refers to a number of matters which the court is to take into account in reaching decisions and making orders. It is not limited to a single isolated event namely, being late in complying with an order. In this context of deciding whether or not to grant the plaintiffs relief, in my view, the court should look at the circumstances of the proceeding as a whole and make a decision based on that broader context. For example, I consider that it is relevant to take into account that:
· the proceeding has been on foot since about 18 January 2017;
· the plaintiffs have yet to file a statement of claim which discloses a cause of action and satisfies the Rules;
· the court has already struck out several statements of claim and others have been withdrawn or not relied upon after discussions between the parties;
· both the defendants in correspondence and the court in two of its rulings have provided the plaintiffs with detailed guidance regarding the defects in the pleadings to date and the matters which require attention in order to produce a valid statement of claim;
· in circumstances where the proceeding has been on foot for about 1 year and the plaintiffs are yet to produce a statement of claim which complies with the Rules (notwithstanding the assistance and/or advice given by the court and the defendants) it strongly suggests that the plaintiff has no cause of action;[7]
[7]Trau v The University of Sydney (1989) 34 IR 466 at 475.
· the plaintiffs are not conducting this litigation in an efficient manner and are not using the judicial and administrative resources of the Court in an efficient manner; and
· the proceedings have been unnecessarily drawn out due to the manner in which the plaintiffs have conducted themselves and there has been excessive delay between the commencement of the proceeding and the listing for trial. Almost invariably, cases issued in the Commercial Division of this Court are listed for trial within about six months of the first administrative mention. The dilatory behaviour of the plaintiffs in this case has brought about delay of remarkable duration.
39 When this broader context is taken into account and the Court has regard to sections 7 – 9 inclusive of the CPA, the decision refusing a further indulgence to the plaintiffs is in my view entirely reasonable. Especially is this the case when one takes into account the futility of the exercise and the cost consequences.
40 As to ground (c), the plaintiffs said that they had one statement of claim struck out on 1 May 2017 and leave was refused to file a second statement of claim on 19 June 2017 and again on 20 November 2017. In addition, there had been discussions between the parties about the adequacy of various statement of claims and these discussions had led to revisions and changes as anticipated in previous orders of the Judicial Registrar.
41 In my view, there is no substance to this ground. It is highly relevant that, over a lengthy period of time, the plaintiffs have not produced a statement of claim which complies with the rules of court. As referred to earlier in this ruling, on 1 May 2017 the Court made orders striking out the plaintiffs’ claim dated 18 January 2017 and its amended claim dated 27 March 2017. The Court granted the plaintiffs leave to apply to the court to rely upon a third draft amended claim. The plaintiffs forwarded the draft claim to the defendants who wrote a letter to the plaintiffs pointing out numerous deficiencies in the pleading. On 13 June 2017 the defendants received another proposed amended claim (the fourth). On 19 June 2017 the Court refused leave for the plaintiffs to file the fourth amended statement of claim and gave leave to the plaintiffs to provide the defendants with a proposed fifth draft amended claim by 31 July 2017. The plaintiffs did not forward that draft within the time specified. On 8 September 2017 the parties agreed to orders whereby the plaintiffs were to provide the defendants with a fifth proposed amended claim by 6 October 2017. This claim was provided but again, the defendants wrote to the plaintiffs on 16 October 2017 setting out the various deficiencies in that draft document. Although on 20 October 2017, the plaintiffs filed an application seeking leave to file the fifth proposed amended claim, on 24 October 2017 the plaintiffs indicated that they were preparing a sixth further amended claim.
42 By email sent at 4.54pm on 24 October 2017, the defendants wrote to Mr Dale to complain about the course of action proposed by the plaintiffs. The email noted that they did not consent to the plaintiffs so acting because:
· it was contrary to the recent orders made by the Court; and
· it prejudiced the defendants because it made it difficult to prepare properly for the hearing scheduled for the following Monday when the plaintiffs intended not to pursue the application for leave to rely upon the fifth proposed amended statement of claim but instead, to seek leave in relation to a sixth version of the amended statement of claim which they had not served on the defendants.
The defendants’ email concluded with them advising that, if the plaintiffs wished to make application to file a sixth proposed amended statement of claim, then the defendants would agree if the plaintiffs signed the minutes of order attached to the email.
43 The plaintiffs agreed to the orders proposed by the defendants and on 30 October 2017, Judicial Registrar Tran made the orders set out at paragraph 23 above.
44 In my opinion, the succession of defective pleadings is relevant and significant. Especially when one has regard to the guidance provided by the Court to the plaintiffs in its orders of 1 May 2017 and 19 June 2017, and the detailed complaints made in correspondence by the defendants, the plaintiffs’ inability to produce a statement of claim which complied with the Rules supported the notion that the plaintiffs had no claim. In any event, the plaintiffs’ conduct of the proceedings was dilatory and produced the extensive delay referred to earlier.
45 As to grounds (d) and (e) the plaintiffs submitted that the proceeding had been issued on 18 January 2017 and the first court hearing date was 1 May 2017. The plaintiff said there were delays in the hearing arising from the death of the plaintiffs’ former solicitor.
46 Due to the introduction of the CPA, the obligations of parties involved in litigation and their legal practitioners have changed. Both they and the court must be mindful of the obligations upon them and the court needs to be aware of various statutory matters to be taken into account in making decisions. One such factor is delay in the progress of a claim through the legal system and the consequences both for the particular litigants and other litigants using the judicial system.[8] The court must be astute to pursue and promote the overarching purpose.
[8]Civil Procedure Act 2010 (Vic), s.9(1)(c),(e),(f).
47 In relation to the death of the prior solicitor and its consequences, I accept that the solicitor was a sole practitioner and that there would necessarily be some delay and inconvenience arising from his unexpected death. I also accept that the Legal Services Board did not appoint an administrator of the practice until 20 September 2017 and as a result, Mr Dale possibly did not receive the file until after that date (although there is no evidence about this matter). However, it is clear that:
· the proceeding was issued in January 2017;
· the plaintiffs’ previous solicitor, Mr Nelson, died on 15 August 2017, about eight months after the case began. Almost invariably, the trial date for an action commenced in January 2017 would have been already set by August that year (either as the initial trial date or if the initial trial date had been vacated due to the slow progress of the case, a new date would have been set);
· the plaintiffs were represented by the same barrister throughout the proceeding;
· Mr Dale is an experienced litigation solicitor and agreed to the orders made by Judicial Registrar Tran on 8 September 2017 and 30 October 2017. If there were concerns about meeting the scheduled times due to communication problems with Norfolk Island (or indeed anything else), the plaintiffs’ solicitors could and should have raised these concerns before the day upon which the material part of the latter orders took effect.
48 The plaintiffs’ claim on this point was not assisted by the absence of evidence from the plaintiffs about when the solicitors first began trying to contact the barrister on Norfolk Island, why other forms of communication like fax could not be used when landline communication was apparently available, the date at which the telecommunication provided to Norfolk Island changed and the practical consequences for bandwidth and connectivity which followed. Further, it did not help the plaintiffs’ position that their barrister, Mr Walsh, played down the gravity of the communication issue by saying that there was a slight difficulty receiving emails on Norfolk Island.
49 Nor was it apparent when Mr Dale obtained the plaintiffs’ file from Mr Nelson’s office. But again, having filed a notice to act on about 8 September 2017, if Mr Dale were facing a problem in doing what was necessary to properly advance the proceeding, I would have expected him to raise this issue earlier and to seek a timetable which better suited his needs.
50 As to ground (f), it is my view that the Court was entitled to consider as part of its assessment of the prejudice each party might suffer depending on the orders made, the question of the plaintiffs’ impecuniosity.
51 In the hearing before Judicial Registrar Tran on 20 November 2017, the plaintiffs’ counsel said that the plaintiffs were impecunious – albeit this was allegedly due to the defendants. This means that while the defendants have been put to the cost of considering and commenting upon the various proposed versions of the statement of claim served by the plaintiffs, they are most unlikely to recover any of these costs as, in the usual course, they would expect to. Given the numerous versions of the claim pleaded, the multiple Court hearings and the conduct of the matter to date, I am confident that the costs would be significant.
52 As a matter of principle, a Court is entitled to consider whether it is appropriate for a plaintiff to prolong a proceeding at the cost of the defendant in circumstances where there is no sound basis to believe that the plaintiff has a substantive claim. Overall, the apparent absence of an arguable claim makes it more reasonable to prevent the continuation of the litigation and the consequential ongoing and irrevocable loss which the defendants would suffer.
53 Whether or not the defendants began and then discontinued a claim for security for costs is a separate point. Security for costs applications require the court to consider a number of factors. However, such an application does not derogate from the present scenario in which the plaintiffs are causing the defendants to incur substantial expenditure dealing with a succession of defective claims. Moreover, the defendants will not recover their wasted expenditure and the plaintiffs, more than one year after issuing proceedings, are unable to produce a claim which satisfies the Rules.
54 I note that even in the review application, the plaintiffs neither referred to, nor provided to the Court sworn evidence as to the substance and bona fides of their alleged claim. Nor did they raise or seek to put before the Court any amended pleading which addressed the defects referred to in the prior correspondence from the defendants and Court orders.
55 As to ground (g), the Court plainly must consider the prejudice which each party could suffer depending upon the outcome of the application. On the one hand, the prejudice to the defendants is clear if the present process continues. At this point, no one can say when the plaintiffs will produce a compliant statement of claim and, assuming they eventually do, how competently and expeditiously they will conduct the balance of the proceeding. However, the plaintiffs’ actions to date are not encouraging.
56 On the other hand, at a fundamental level, there is no sound reason for the Court to consider that the plaintiffs have an arguable claim against the defendants. If they did, one might have expected that the plaintiffs would have articulated such a claim by now and moved to seek the relief to which they claim an entitlement.[9] While it undoubtedly would be a major prejudice to shut the plaintiffs out from continuing the proceeding, if there is a reasonable basis for the conclusion there is no valid claim, then the notional prejudice is significantly diminished.
[9]Trau v The University of Sydney (1989) 34 IR 466 at 475.
57 This aspect of the case involves balancing a known and certain prejudice against a theoretical but unlikely prejudice. I consider that where:
· the plaintiffs have not at any time put forward a compliant claim – even after receiving guidance from the Court and constructive criticism from the defendants;
· the proceeding has been on foot for a lengthy period, one in which the plaintiffs have had ample opportunity to put forward a case, and after propounding six versions of a proposed amended statement of claim, they still have not done so;
· the defendants are facing ongoing substantial and irrecoverable costs,
the defendants will suffer the greater prejudice if the case is not stopped. If, at this point, the plaintiffs cannot allege an arguable case which complies with the Rules, then there is a solid basis for believing that they do not have a valid complaint.
58 As to ground (h), I commented earlier how at the review hearing before me, the plaintiffs made no mention of seeking to rely upon another version of the claim, the plaintiffs did not put forward any claim before me and the plaintiffs adduced no evidence setting out the factual basis for any claim they might seek to bring against the defendants if given leave.
59 As to ground (b), the plaintiffs contend that the Judicial Registrar misconstrued the operation of rule 24.06 of the Rules. The plaintiffs argued that this provision enabled a court to set aside a self-executing order, an order in which the applicant did not appear, or an order which was made in an administrative capacity. However, it was said that this rule had no application where the order in question resulted from a contested hearing at which the applicant appeared. In any event, it was said there could be no basis to set aside the order here because there had been a hearing on the merits and a judgment delivered.
60 Judicial Registrar Tran expressed the view that if there were a judgment entered against the plaintiffs, its effects could be ameliorated by the operation of rule 24.06 – the court could set aside or vary the order.
61 I make no specific finding on this issue. Because this is a review, I can, in effect, set aside the earlier decision if I think that it is warranted. Because my opinion is that, in all the circumstances, the review should fail, I do not need to address the merits of this point.
62 In considering the review de novo, I accept that the Court is not limited to a consideration of the grounds of review set out by the plaintiffs in the review application. However, these grounds provide a useful springboard for considering the range of factors which the Court could properly take into account in performing the review. The plaintiff raised no other substantive issues in its application for review.
Conclusion
63 In summary, I have concluded that the plaintiffs’ application for review of Judicial Registrar Tran’s orders made on 20 November 2017 should be dismissed for the following reasons:
(a) The sixth proposed amended statement of claim which was before Judicial Registrar Tran remains a pleading with serious defects. At pages 74-87 of the transcript of the 20 November 2017 hearing, Judicial Registrar Tran examined the various problems with the pleading. I agree, essentially for the reasons she set out, that it would not be appropriate to allow a party to rely upon a pleading in that form. In the circumstances, it would be futile to extend time to apply to the Court to rely upon such a claim.[10] The position here is similar to that in Knorr v CSIRO,[11] where the Court of Appeal upheld the decision by Justice Beach to refuse the plaintiff’s application for leave to file and serve a second draft further amended statement of claim and dismissed the proceeding. The trial judge identified a variety of problems in the pleading including the different ways in which it did not comply with the Rules of Court. As His Honour said at [21]:
[10]See the comments in a different context at Durney v Deakin University [2016] VSC 418 at [60].
[11][2014] VSCA 84.
“The proposed further amended statement of claim is as defective as its predecessors. While any individual sentence in it is capable of being understood, it fails to achieve the objective of identifying in some coherent and understandable way the precise claims and causes of action upon which the plaintiff relies against each defendant. As with the plaintiff’s original statement of claim, the proposed further amended statement of claim is almost completely impenetrable. If the plaintiff was permitted to file and serve the proposed amended statement of claim, the high probability is that the document itself would generate endless debate about the scope and ambit of the plaintiff’s claim against the defendants.
Wrestling with the proposed further amended statement of claim in an attempt to pin down with any sort of precision the content of the plaintiff’s claims is a fruitless and unrewarding exercise … .”
Similar comments could be made about the present case.
(b)Given the state of the pleading and the history of the matter, the proceeding could not properly go forward. In all likelihood, if the action continued, the plaintiffs would deliver unsatisfactory pleadings which would not form a fair or reasonable basis to conduct a trial. This is unfair both to the defendants and the Court – the former cannot know the case it has to meet and the Court would be devoting scarce resources to a poorly prepared and conducted case.
(c)To continue the proceeding would be inconsistent with the overarching purpose laid down in the CPA. Given the history of the matter, I am not confident that the plaintiffs will ever articulate a proper claim. They have had ample opportunity to do so but it is not in the interests of justice that they be allowed to continue – it is an imposition on the defendants when they are forced to grapple with multiple versions of a defective claim without any prospect of recovering the extensive costs incurred. It is also unfair to the Court and other litigants that the plaintiffs should be able to take up so much judicial time and resources for no useful purpose.
(d)The prejudice to the defendants in continuing the case is greater than the prejudice to the plaintiffs in dismissing it when the claims in the sixth proposed version of the statement of claim have no realistic prospect of success (as contemplated in section 63 of the CPA) and there is no reason, given the opportunities granted and guidance given to the plaintiffs, to think they have a valid claim. The plaintiffs’ prejudice is more illusory than real if there is no claim. But the defendants’ prejudice is manifest and ongoing.
Orders
64 Subject to hearing from the parties I propose to make the following orders:
(a) The plaintiffs’ application for review of the decision made by Judicial Registrar Tran on 20 November 2017 is dismissed.
(b) The plaintiffs pay the defendants’ costs of and incidental to the application for review, such costs to be taxed on a standard basis in default of agreement.
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