The State of Western Australia v Hemp Resources Ltd - [2009] WADC 120

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- HEMP RESOURCES LTD [2009] WADC 120

CORAM: REGISTRAR KINGSLEY

HEARD: 6 AUGUST 2009

DELIVERED : 18 AUGUST 2009

FILE NO/S: CIV 334 of 2009

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Plaintiff
AND
HEMP RESOURCES LTD
Defendant

Catchwords:

Practice - Summary judgment application - Turns on own facts

Legislation:

Nil

Result:

Judgment entered for the plaintiff

Representation:

Counsel:

Plaintiff: Ms P A Martino
Defendant: In Person

Solicitors:

Plaintiff: P A Martino
Defendant: Not applicable

Case(s) referred to in judgment(s):

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Jones v Stone [1894] AC 122
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd & Ors (1976) WAR 109

REGISTRAR KINGSLEY: The plaintiff, under the name Department of Agriculture and Food Government of Western Australia, operated a research station at Kununurra. In or about April 2008 Gae Plunkett, a representative for the plaintiff, and Colin Steddy, a representative for the defendant, entered into an agreement whereby the plaintiff agreed to provide to the defendant research support services such as land preparation, planting, fertilising, irrigation and the harvesting of industrial hemp, for the purposes of trialling the seeding rate and type of varieties of hemp seed, in consideration for the defendant paying a fee to the plaintiff for the services.
The plaintiff pleads that prior to July 2008 the plaintiff provided services to the defendant, and rendered an invoice in the sum of $77,502. 78 plus goods and services tax of $7,750.28. The plaintiff pleads the defendant has not paid the plaintiff the total sum of $85,252.06.
The plaintiff goes on to plead that, prior to and after November 2008, the plaintiff again provided services to the defendant in accordance with the agreement and rendered an invoice in the sum of $78,923.38 plus goods and services tax of $7,892.34. The plaintiff pleads the defendant has not paid the total of that invoice. Thus the plaintiff claims the sum of $172,068.78, inclusive of GST, for the services provided by the plaintiff to the defendant pursuant to the agreement.
The plaintiff has brought an application pursuant to O 14 Rules of the Supreme Court 1971 seeking summary judgment. The application for summary judgment is supported by the affidavit of Gae Maree Plunkett sworn 1 May 2009. The affidavit of Plunkett verifies the elements of the cause of action and exhibits the relevant documentation.
The defendant through its representative Kim Raymond Hough, in an affidavit sworn 20 July 2009, opposes the application. Hough deposes that the work was done by the plaintiff and "was of a high standard and efficient". At par 13 of his affidavit Hough acknowledges the costs associated with the work.
Hough deposes that Chinese and Canadian varieties of hemp seed were planted at Kununurra in July 2008. Subsequently Hough gave instructions to Gae Plunkett to destroy the Canadian varieties and to plough those into the ground to avoid cross‑pollination of the Chinese variety, that had proved itself a far superior variety of hemp.
Hough deposes that the Canadian varieties were cut down but not ploughed and deposes that they developed new shoots, continued growing and went on to flower. This potentially created a cross‑pollination issue with the Chinese variety. Hough deposes that he sent some hemp pollen to Murdoch University to analyse the DNA and to see if there was any cross pollination. However, Hough deposes that the research scientist at Murdoch University had been overloaded with work and unable to identify the protein for possible DNA anomalies.
Hough annexes to his affidavit a counterclaim which alleges misleading and deceptive conduct by the plaintiff causing the defendant loss and damages. In essence Hough alleges that the plaintiff authorised another company to import industrial hemp seed in breach of an exclusive arrangement between the Yunman Industrial Hemp Company and the defendant, Hough deposes the plaintiff was aware of the exclusive agreement. In the counterclaim the defendant goes on to give particulars of what is alleged as dishonest and misleading conduct.
The summary judgment procedure is a peculiar proceeding intended only to apply to cases where they can be no reasonable doubt that a plaintiff is entitled to judgment (Jones v Stone [1894] AC 122 at 124). The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried (Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99). Where the plaintiff has satisfied all the requirements of O 14 to give it prima facie the right to an order, the burden shifts to the defendant to satisfy the Court why judgment should not be given against it (Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd & Ors (1976) WAR 109 at 110). The defendant merely needs to depose to facts which give rise to an arguable defence. The defendant must show on affidavit that there is some triable issue, either in fact or law; that it has an arguable defence or a defence on merits. The defendant's affidavit must condescend upon particulars by giving such definite facts pointing to the basis upon which the defendant alleges its right to defend arises (Moscow Narodny Bank at 110 and 113).
Bearing these legal authorities in mind, and noting Hough's affidavit that he regards the work of the plaintiff as of the highest standard, I am of the opinion that the defendant has not shown any arguable issue to warrant that leave to defend be granted. Whilst Hough raises an issue in relation to cross‑pollination of the Chinese variety of hemp, that issue does not go anywhere. There are no facts to support the contention, and Hough makes no positive assertion that the Chinese hemp variety have been contaminated. In the end that allegation is a bare allegation only.
The defendant had a contract for services to be performed with the Department of Food and Agriculture. That contract has been performed and services rendered, but the defendant has failed to pay for those services. Any perceived grievance the defendant has is, in my opinion, unrelated to the plaintiff's claim for the provision of services.
Accordingly I enter judgment for the plaintiff against the defendant in the sum of $172,069.78 inclusive of goods and services tax, together with interest on that sum at the rate of 6 per cent annum from 10 February 2009 to the date of judgment. I also order that the defendant pay the plaintiff's cost of the action including the costs of the O 14 application to be taxed if not agreed. I have not referred to the question of leave as it was not in issue, but for the sake completeness, the plaintiff has leave to bring the application out of time.