Toms v. Fuller

[2009] QSC 232

[2009] QSC 232

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

P LYONS J

No 3234 of 2009

STEPHEN NORMAN TOMS	Plaintiff
and
DONALD FULLER	Defendant

BRISBANE

..DATE 11/05/2009

ORDER

HIS HONOUR:  The plaintiffs have sued the defendant in

defamation for a number of publications alleged to have been

made by the defendant relating to their role in the

preparation of reports for Australian Agro Agricultural

Company Ltd.  The defendant has filed a conditional Notice of

Intention to Defend which includes a cross-claim.  He now

makes an application for the transfer of the action to the

Federal Court.

The application is based on section 5 subsection 1 of the

Jurisdiction of Courts Cross-Vesting Act 1987. The relevant

provision is found in section 5 subsection 1 paragraph (b).

In essence, it identifies a number of matters to which the

Court is to have regard and, if having done so, the Court is

satisfied that it is more appropriate that the proceedings be

determined by, in this case, the Federal Court, then this

Court must transfer the proceedings to that Court.

The first relevant consideration is whether, in the opinion of

this Court, apart from legislation such as the Cross-Vesting

Act, the relevant proceeding, or a substantial part of the

relevant proceeding, would have been incapable of being

instituted in the Supreme Court and capable of being

instituted in the Federal Court.  The plaintiff's claim is for

defamation.  It is accepted by the defendant that that claim

can be brought in the Supreme Court.

So far as the cross-claim is concerned, it is difficult at

this stage to clearly identify its nature, but it seems to be

a claim which, if maintainable, can be maintained in this

Court.  Indeed, the defendant, in his oral submissions, has

accepted that this Court has jurisdiction to deal with his

cross-claim.

The second matter to which regard is to be had is the extent

to which matters for determination in the action are matters

arising under or involving questions as to the application,

interpretation or validity of a law of the Commonwealth and

not within the jurisdiction of this Court, apart from

jurisdiction under the Courts Cross-Vesting Act or other

similar legislation.  It is clear that the plaintiff’s action

is not based on a law of the Commonwealth.  It is not by any

means clear whether the cross-claim is a cross-claim which is

based on Commonwealth legislation, although it may ultimately

involve questions as to the application, and possibly

interpretation, of a law of the Commonwealth.

The third matter to which regard must be had is the interests

of justice.  In that context, I have been referred to the

decision of the High Court in BHP Billiton Ltd v. Schultz

[2004] 221 Commonwealth Law Reports 400.  That case dealt with

the application of similar legislation from New South Wales

and South Australia.  A number of the members of the Court

made reference to Spilyarda Maritime Corporation and Vancellex

Ltd [1987] AC 460. One of the matters identified in that

decision as being of considerable significance in this context

is the identification of the natural forum, being that with

which the action has the most real and substantial connection:

see BHP Billiton at paragraph 170.  The determination of the

natural forum will be based upon a consideration of connecting

factors described in Spilyarda, as including matters of

convenience and expense, such as the availability of

witnesses, the places where the parties respectively reside or

carry on business, and the law governing the relevant

transaction.  Further, the factors are said to be legion, and

it is difficult to find clear guidance as to how they are to

be weighed: see BHP Billiton at 18.

In the present case, the plaintiff is a Queensland based

company.  Two of its directors are in Queensland.  The

defendant's cross-claim is based on allegations of fraud and

falsity in reports relating to the number of cattle on

properties of AA Co.  Those properties are in Queensland and

in the Northern Territory.  I have previously mentioned that

the publications the subject of the claim occurred in New

South Wales and Victoria.  They were also, to some extent, in

Queensland.

I note that the defendant resides in Perth and that he has, at

least for today's proceedings, had difficulties in making an

arrangement for a video conference link to the Supreme Court

from Perth.  I also note his submission that the plaintiff's

choice of venue in which to commence proceedings is to be

regarded as irrelevant.  He also states that the reports which

led to the publications the subject of the claim were received

by him in Western Australia.

There are obviously some competing considerations.  However, I

am not satisfied that it is more appropriate that the action

be determined by the Federal Court, whether in Brisbane or

elsewhere, and accordingly, I refuse to make an order under

section 5 subsection 1 of the Jurisdiction of Courts

Cross-Vesting Act 1987.

...

HIS HONOUR:  This action was commenced by a claim by the

plaintiffs which is essentially for damages for defamation.

It arises out of a number of publications by the defendant

which the plaintiffs say alleged that they had been misleading

or deceptive in reports to the Australian Stock Exchange and

the Australian Securities and Investment Commission.

The defendant alleges that his statements are true and that

the plaintiffs have been in breach of provisions of the

Corporations Law in making the reports. He now seeks an order

that the Australian Securities and Investment Commission be

added as a party to these proceedings.

In his oral submissions he contended that this was necessary

so that the Commission perform its statutory role.

The rule which regulates joinder of parties is rule 69 subrule

(1), the relevant paragraph being paragraph (b).  The first

question is whether the presence of the Commission is

necessary to enable the Court to adjudicate effectively and

completely on all matters in dispute in the proceedings.

No relief is sought against the Commission.  No issue has been

identified which would require the presence of the Commission

to enable the Court to adjudicate effectually and completely

on any matter in dispute in the proceedings.

The alternative basis for joinder is that the presence of the

Commission would be desirable, just and convenient to enable

the Court to adjudicate effectually and completely on all

matters in dispute connected with the proceeding.  It is

obvious that this ground is a broader ground for joinder.  It

has been the subject of consideration by the Courts in recent

years.

One reason for joining a party under this ground is that the

party is likely to be affected by a decision which is the

subject of the proceedings in which the joinder is sought (see

Leda Holdings Pty Ltd v. Caboolture Shire Council [2006] QCA

41).

There is no reason to think that a decision in these

proceedings would affect the Commission in such a way that it

should have been given the opportunity to be heard before the

decision was made.  The mere fact that it may be desirable,

just and convenient for an entity to be joined in proceedings

is not sufficient to warrant joinder under this ground.  A

commercial interest is, accordingly, not sufficient to warrant

such joinder (see Coolum Properties Pty Ltd v. Bunnings Group

Limited and Maroochydore Shire Council [2007] QCA 299).

The ground must be understood by reference to all of the

expressions found in it, one of which is the presence of that

party is desirable, just and convenient, "to enable the Court

to adjudicate effectively and completely on all matters in

dispute connected with the proceeding."  (see Pine Rivers

Shire Council v. Queensland Heritage Council [2005] QPEC 77).

Nothing has been suggested to me to demonstrate that the

presence of the Commission is desirable, just and convenient

to enable the Court to adjudicate on all matters in this

action.

Another potential basis for joinder under this ground is the

"case management" basis referred to in Atwell Pty Ltd v. VJC

Drilling Services Pty Ltd [2007] QSC 140. There has been no

suggestion of an action against the Commission which is

sufficiently closely connected with these proceedings to

involve considerations of case management.

In Macquarie Bank v. Lin [2002] 2 Qd.R. 188 this ground was

considered by Holmes J (as her Honour then was).  Her Honour

took a broad view of the operation of the ground in the sense

that she held that joinder would be permitted because it would

be just and convenient to determine an issue in the case not

only between the parties who were initially joined but also as

between some additional party.

In this case the issues which may perhaps be of some interest

to the Commission are the allegations made by the defendant

about the conduct of the plaintiffs.  It is not a case,

however, in my view, where it is desirable that the Commission

be bound by the determination of those matters.

If the defendant is successful, notwithstanding the high level

of proof that might be required because of the nature of the

allegations, it remains the case that the proceedings will be

determined on the civil standard.  A prosecution by the

Commission would involve proceeding on the criminal standard

and, in any event, may require the Commission to take into

account matters which would not be determinative of the case

which the defendant seeks to advance.

If, on the other hand, the defendants' case is unsuccessful,

there are obvious public interest reasons why it is

undesirable why the Commission should be bound by that

outcome.  For example, it may subsequently come into

possession of information which would warrant a prosecution

notwithstanding the finding made in the defendant's case.

Beyond that, as Mr Bradley of counsel who appears for the

Commission points out, it is highly undesirable that an entity

such as the Commission be put in a position where it is

expected to contest allegations in a case between parties and

be bound by the outcome when it has statutory functions to

perform and statutory discretions to exercise.  Indeed, some

of the relief sought is that certain matters be referred to

the Commission no doubt for the purpose of enabling it to

carry out the tasks assigned to it by the legislature.

It is, in my view, quite undesirable that it be called upon to

participate in this litigation in advance of performing those

functions.

I, accordingly, dismiss the application for the joinder of the

Commission.

...

HIS HONOUR:  An application was made to join the Commission as

a party to these proceedings.  That application failed.  No

reason has been advanced as to why the usual rule as to costs

should not apply in this case.

I, therefore, order that the defendant pay the Commission's

costs of the application to join the Commission to be assessed

on the standard basis.

...

HIS HONOUR:  This is an application principally to strike out

an amended Conditional Notice of Intention to Defend and

Counterclaim which includes some other material.  The relevant

document was filed on the 5th of May 2009.

It is apparent from the oral submissions and the written

submissions made on behalf of the defendant that the defendant

does not have a clear understanding of matters which establish

a claim or a defence relevant to the litigation against him or

to what he appears to be attempting to raise by way of

counterclaim.  The consequence is that there has been little,

if any, attention to the need to plead material facts or

indeed the other rules of pleading which are set out in the

rules.

It may be useful to note some examples.  Paragraphs 1 through

to 15 by and large contain assertions, sometimes in a rather

folksy tone, about steps taken by the defendant to improve his

pleading and about some other matters which are not

particularly relevant to the defence to the claim.

Paragraph 19 responds in three lines to some 48 paragraphs of

the Statement of Claim.  Those paragraphs contain allegations

of imputations said to be found in publications as well as of

the defamatory nature of those imputations and the effect of

the publications on each of the plaintiffs.

The response in paragraph 19 is to deny them but in a way that

is at best ambivalent.  They are denied on grounds which seem

to accept the allegations but to raise matters of defence

without setting out the facts - that is the material facts -

which would justify those defences.  The paragraph is, in my

view, quite embarrassing in the technical sense.

There are a number of other matters which can be the subject

of substantial criticism in the pleading.  I do not propose to

go through them in detail.  It is, however, rather clear that

much of the material which follows from paragraph 21 onwards

does not attempt to identify the material facts.  It may

possibly be evidence which would go to establish material

facts in the case in due course, but that does not mean that

it is properly included in the pleading.  I note in particular

paragraph 59 which contains an allegation against a person not

a party and which is not in any sense material to the matters

raised in the case.

This does not seem to me to be a case where it is appropriate

to identify a few paragraphs which are properly pleaded or

which approach an acceptable standard of pleading.  I

acknowledge that the defendant has chosen to represent himself

and to prepare his own pleading, but at the end of the day it

is important that issues be properly identified and that all

parties and the Court have a fair and proper chance to

understand the true nature of the case and to deal with it in

an orderly fashion.

Accordingly, I propose to order that the document be struck

out together with some earlier documents which it seems common

ground should be struck out but to permit the defendant the

opportunity to replead.

...

HIS HONOUR:  I will initial this draft and I'll make an order

in terms of it and I'll have that placed with the papers.

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