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Supreme Court of Victoria Decisions |
Last Updated: 22 September 2006
AT MELBOURNE
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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Courts – practice and procedure – striking out statement of claim – 714 paragraphs – 20 defendants – embarrassing pleading – conclusionary words inappropriate in a pleading – too many allegations against too many defendants – multiple conspiracies – difficulty of interlocutory processes and trial – injustices to defendants – inconvenience of multiple allegations against large number of defendants – RSC rr 9.04, 23.01, 23.02.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiffs
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EMA Legal
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For the First, Third, Fourth and Fifth Defendants
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Phillips Fox
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For the Second and Sixth Defendants
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Mr D. Beach SC, with
Mr S. O’Meara |
Maurice Blackburn Cashman
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For the Seventh, Eighth, Ninth, Fourteenth, Fifteenth, Sixteenth and
Seventeenth Defendants
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Mr M. Dreyfus QC with
Mr M. Gronow and Mr C. Thomson |
Herbert Geer and Rundle
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For the Tenth and Eleventh Defendants
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Mr L. Maher
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Wisewoulds
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For the Twelfth Defendant
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Mr T. Mitchell
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Fitzgerald & Browne, Hobart
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For the Thirteenth and Eighteenth Defendants
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Mr N. Murdoch
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Maurice Blackburn Cashman
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For the Nineteenth Defendant
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Mr J. Burnside QC, with
Ms J. Benson |
Norton White
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For the Twentieth Defendant
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Mr B. Walters SC with
Mr N. Russell |
Coadys
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1 On 18 July 2005 the Court refused the plaintiffs leave to file an amended statement of claim in this proceeding, which was commenced by writ on 13 December 2004. Leave was granted to the plaintiffs, however, to produce a new statement of claim to be referred to as Version 3, taking into account the judgment in respect of Version 2. That judgment sets out the pleading history of this case up to 18 July 2005, and the reason Version 2 was not permitted to be filed and the principles of law and procedure applied in reaching that conclusion. It is published in the Court's published judgments.[1] Accordingly the matters set out in it do not need to be repeated.2 The statement of claim originally filed with the writ in this proceeding was of 216 pages containing 529 paragraphs. Version 2 which was not permitted to be filed was of 360 pages and an unknown number of paragraphs because of the numbering system used. Version 3 of the statement of claim which was filed on 15 August 2005 is of 221 pages together with a separate table of contents and glossary of terms. It contains 714 paragraphs. That document which is the subject of this application to strike it out will be referred to in this judgment as V3. Almost immediately after it was filed objection was taken to V3, both as to its form and to its substance, by many of the 20 defendants named in it.
3 To attempt to minimise the cost and inconvenience occasioned by an interlocutory application by 20 defendants with similar but not identical interests the Court devised a procedure whereby the nineteenth defendant was appointed dux litis to settle a common argument in support of an application to strike V3 out and for consequential orders on behalf of all defendants willing to participate. Directions were given as to a conference between defendants, the filing of common grounds of objection to V3 and subsequently an outline of a common argument. This procedure did not preclude any defendant from presenting argument additional to the common argument if he, she or it wished. In the event a common argument was produced although a number of defendants also presented auxiliary arguments of their own.
4 After introductory paragraphs (1 to 36), V3 is divided into nine separate sections, each dealing with claims against various defendants in various combinations, concerning alleged protest actions against the plaintiffs and in particular the first plaintiff. The first five of these sections allege tortious conduct and conspiracies in respect of events said to have occurred at the first plaintiff's Triabunna Mill (two actions), Lucaston Mill, Styx forest coupe and Hampshire Mill, all of which are in Tasmania. One section concerns an allegation of defamation in respect of the maintenance by the first plaintiff of a woodchip pile in Burnie, another concerns alleged action by some defendants to prevent the first plaintiff receiving an environmental award, another concerns allegations of interference with the first defendant's Japanese business, and yet another concerns allegations of interference with the first defendant's relationship with various banks. Finally, in similar vein to earlier versions of the statement of claim, there are a number of paragraphs which seek to set up an overarching claim against a number of defendants referred to as, "The Campaign against Gunns." Various economic torts are pleaded including interference with trade and business, and conspiracy to injure and claims of vicarious liability by way of agency are sought to be set up.
5 The common argument specified five grounds of objection to V3:
1. That it doesn't comply with a condition upon which leave to replead was granted, namely that it had to be drawn without reference to either of its predecessors, and that, contrary to the judgment of 18 July 2005 it pleads allegations of agency in a formulaic manner;2. That knowledge is inadequately pleaded in 12 specific instances in contravention of RSC r 13.10(3);
3. That the pleading is embarrassing:(a) because it is too long;
(b) because it is inadequately particularised;(c) because it is speculative or fishing in crucial areas;
(d) because of its formulaic allegations of agency; and
(e) because of its inadequate pleading of knowledge in various places.
4. That the "Campaign against Gunns" plea will embarrass or delay the fair trial of the action because of the way it is pleaded as it brings together in one action matters which should be the subject of separate proceedings; and
5. The joinder of so many parties on so many causes of action is "inconvenient" within the meaning of RSC r 9.04.
6 In developing the common argument on behalf of all defendants, counsel for the nineteenth defendant analysed V3 by reference to its immediate predecessor. He pointed out that 397 paragraphs of V3 are identical to paragraphs in V2, and a further 239 paragraphs are only slightly modified. He produced a comprehensive table setting out this analysis.7 The plaintiffs sought to meet this argument by construing the judgment of 18 July 2005 in a different way to that contended for by the defendants; that is to say by contending that leave to replead was unconditional.
8 This argument is to a large extent pointless. There was no formal condition placed upon the plaintiff's pleading of V3. It was made clear in the July 2005 judgment that the form and content of a pleading is a matter for a party, not the Court. Insofar as that judgment commented on the appropriate contents of V3 it was being or trying to be constructive not prescriptive. The enquiry which needs to be had now is not whether the pleader took up the Court's suggestions, but rather whether an intelligible and appropriate pleading has been produced. The answer to that enquiry requires consideration of the other arguments put by the defendants and the plaintiff's answers to those arguments, as well as general consideration including those set out in the Court’s judgment of 18 July last year.
9 The common argument criticises the plaintiff's pleading of agency. Counsel referred to a number of examples. Typically, when it appears in V3 the plea is of agency simpliciter supported by particulars as to the alleged agent being an employee of or a volunteer with one of the corporate defendants. It resorts to a formula to define volunteer, which definition appears to be repeated in identical terms each time it is mentioned. To that extent the plea is formulaic, but provided it pleads appropriate facts it will not on that account be bad as a pleading. Repetition may be able to be criticised as being indicative of prolixity, but not as being bad as a pleading in itself, provided it is intelligible.
10 A more significant criticism of the pleading of agency is that in common with many other allegations in V3, it often resorts to conclusionary nouns and verbs. For example, in those paragraphs where the word volunteer is defined the definition includes the words "protest activities", whatever that means. Paragraph 502, referred to in the common argument, is replete with conclusionary nouns and verbs: "campaigner", "protest activities", "co-ordinates", "directed", "encouraged", "supported" are all used. Such words are weasel words; they tend to conceal more than they reveal. Whether they are being deliberately used for that purpose or not, they are embarrassing in a pleading because the opposite party cannot be certain as to what facts are being alleged against him. "Protest activities" could include boycotting a product or burning down a sawmill. The first would be generally legally neutral; the second a crime and a tort. Nor could the Court at trial determine appropriately the relevance, and hence the admissibility, of evidence by reference to a pleading employing such words. Similar conclusionary nouns and verbs can be found throughout the pleading.
11 The common argument criticises V3's pleading of agency as also being prolix and overly-complicated. It refers to a definition in Paragraph 697 of the "Campaign against Gunns defendants" and points to a confusing re-definition in Paragraphs 705-706. Tracking through this confusion is possible and if it was the only difficulty confronting a defendant in this pleading it might not matter all that much. In the context of a pleading containing more than 700 paragraphs it assumes greater significance. RSC r 13.10 requires particulars of knowledge to be specifically pleaded. The common argument points to 12 places in which knowledge is allegedly pleaded inappropriately in V3. It complains that adequate particulars have not been given.
12 In Paragraphs 45, 140, 264, 337 and 428 knowledge is alleged concerning the existence of contracts of employment between workers and their employers. In practical terms the particulars supplied in the context of the allegations made are adequate. It is hardly necessary for a plaintiff to provide extensive particulars of contracts of employment of workers in a timber mill to put a defendant on notice that those workers work pursuant to contracts and that they are not volunteers. From the fact that they work at the mill the inference is inescapable that they do so pursuant to a contract of employment.
13 In Paragraphs 181, 445 and 482 the allegation of knowledge relates to a person who said she was "locked on" to a piece of equipment when she was not. As, again, knowledge would be an inescapable inference from the facts alleged if they are proved, no further particulars are necessary.
14 Paragraph 488 alleges knowledge in certain defendants as to the entity which maintained a woodchip pile in Burnie. Again, as a matter of practical reality, if the facts alleged in the succeeding three paragraphs are proved the pleaded knowledge will be proved as an inescapable inference from those facts. A similar comment can be made about the pleading of knowledge included in Paragraph 514.
15 Some pleadings of knowledge however are inadequate. Paragraph 542 alleges knowledge by some defendants of the first plaintiff's Japanese business activities. But the Japanese business activities of which it is alleged the nominated defendants had knowledge are pleaded in the widest of terms. What were the plaintiff's Japanese business interests? What did the defendants know? The particulars supplied are unenlightening.
16 Similarly, the first plaintiff's dealings with its bankers are pleaded in very general terms in Paragraph 639. In Paragraph 640 it is alleged that certain defendants knew of these dealings. Again, the particulars are inadequate because the information of which it is alleged the defendants were aware is itself too general.
17 Finally, the common argument criticises the pleading of knowledge as one of a number of alternatives, as occurs in a number of places in V3. There is force in this criticism, but again pleading in this manner is not inappropriate per se. It is just that in this case it further confuses an already extremely complicated case.
18 The common argument raises the question of embarrassment in the technical legal sense, that is to say that the statement of claim does not apprise the defendants comprehensively of the case each of them has to meet, such that they can plead to and answer it.
19 In summary, the argument is that a statement of claim involving 20 defendants relating to a large number of separate events, an even larger number of meetings, conversations and arrangements, and resulting in allegations of an even larger number of torts, is, of itself, embarrassing. This is so, runs the argument, even if each defendant could by a process of close analysis of the 714 paragraphs in the statement of claim (and what was said to be 2217 paragraphs of further and better particulars) find out something about a case or cases against him, her or it.
20 As well as criticising the length of V3 and the alleged inadequacy of particulars provided of the various allegations made, the common argument says that the pleading is speculative and fishing in crucial areas. Counsel referred to a number of cases: Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Limited[2]; Spatialinfo Pty Ltd v Telstra Corporation Limited[3] and in particular to a judgment of Brennan J in WA Pines Pty Ltd v Bannerman[4] where His Honour cited Melbourne Home of Ford Pty Ltd v Trade Practices Commission & Bannerman[5] and Cox v Journeaux (No. 2)[6].
21 The plaintiffs have answered these criticisms by submitting that a narrative approach to setting out their case was necessary because of its complexity and because of the lengthy period over which the alleged events occurred. They say that they are entitled to seek to prove a relationship between those various actions as enabling inferences to be drawn against various of the defendants. They referred to authorities said to justify this approach: Beach Petroleum N.L. v Johnson[7]; BWK Elders v Westgate Wool Company Pty Ltd[8] and Pancontinental Mining Limited v Posgold Investments Pty Ltd[9].
22 As far as the pleading being fishing is concerned, they submit that they are entitled to prove their case by evidence obtained through discovery and interrogation.
23 It is fundamental to the proper conduct of civil litigation that a defendant be apprised of the case he, she or it has to meet with precision and with such degree of specificity and clarity as will enable a case to be prepared on that defendant's behalf. The judgment of 18 July 2005 dealt with this very issue in some detail. Version 2 of the plaintiff's statement of claim was inadequate in that respect and was struck out. V3 is an improvement on V2 but it is still embarrassing as a statement of claim. This is at least partly because a fundamental problem with this litigation, which has been evident since the proceeding commenced, is that too much has been sought to be alleged against too many defendants in the one proceeding. This has led to a number of apparently insoluble problems, the first of which is that of embarrassment. At least if those problems are soluble, the plaintiffs to this proceeding have not solved them.
24 The fact that a defendant has to grapple with a document as long as V3 with perhaps a further 2000 or so paragraphs of particulars, is, in itself, embarrassing. The search for the case made against a single individual is a daunting one for trained litigation lawyers. It would be extremely difficult ever to be completely certain that an important allegation had not been overlooked or that the case was understood as intended. An individual defendant is at an even greater disadvantage.
25 There are other obstacles in the way of justice posed by litigation such as this. They derive from the sheer magnitude of the case and its effect on interlocutory processes and, of course, on the trial itself. If, as the plaintiffs submit and as appears from the allegations of conspiracy which are made in respect of most of the individual events alleged in the pleading, they will have to try to prove some of their case by the processes of discovery and interrogation, those processes themselves will be of enormous proportions. The potential, if not the certainty of their being productive of delay, vexation and ultimately injustice to some of the defendants cannot be overlooked. The cost to individual defendants of dealing with a case which concerns not only that defendant, but 19 others at the same time, will be extremely burdensome. Even if a defendant is ultimately successful he, she or it will have to fund their part of the litigation before they recover any costs from the plaintiffs. Whilst this may be so in every piece of litigation, the burden is made far greater here by the enormity of the case and the number of other defendants.
26 As far as the trial of this proceeding is concerned, informed speculation on the hearing of this application by counsel for the nineteenth defendant suggested that any trial would take a year or more. Although counsel for the plaintiff put the trial length at something less than that, experience shows that conspiracy trials tend to be of inordinate length. This is the experience in the criminal jurisdiction and there there is usually only one conspiracy charge. That is why such trials are now a rarity and are strictly controlled by statute, requiring the personal fiat of the Director of Public Prosecutions before they are instituted[10]. It is accepted that such trials have a tendency to blow out inordinately, even if there is only one count of conspiracy. In this case there are a very large number of separate conspiracies pleaded and an overarching conspiracy involving almost all of the defendants.
27 One of the injustices inherent in the trial of a proceeding as complex as this, is that every defendant has to be concerned with the whole trial, even if he, she or it was involved in but a small aspect of one of the many cases sought to be made.
28 It is not necessary to go as far as labelling this proceeding as an abuse of the Court's process to justify an order that it not be permitted to proceed further in its present form. The Court has power both under the Rules of the Supreme Court and inherently to ensure that its processes do not become a source of injustice themselves. It may do this by whatever interlocutory order is necessary from ordering necessary amendments to a pleading to, in an extreme case, terminating the proceeding.
29 In Hamilton v Oades[11] Deane and Gaudron JJ said:
"The inherent power of the court to control and supervise proceedings includes the power to take appropriate action to prevent injustice. See Cocker v Tempest[12]. In the case of the Supreme Court of New South Wales that power is confirmed by s 23 of the Supreme Court Act 1970 (NSW) which states that the "Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales": see Riley McKay Pty Ltd v McKay[13]; Jackson v Sterling Industries Ltd[14]. The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories: Jackson v Sterling Industries Ltd[15]; Tringali v Stewardson Stubbs and Collett Ltd[16].
30 In this context injustice is not simply a question of the purpose or motive for the relevant proceedings being instituted, but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms 'oppressive' and 'vexatious' are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice. Those terms respectively convey in appropriate context, the meaning that the proceedings are 'seriously and unfairly burdensome, prejudicial or damaging' and 'productive of serious and unjustified trouble and harassment'[17].31 Many other arguments were put by counsel who put the common argument as to why the pleading if allowed to stand, will be productive of injustice to the defendants. They do not need to be canvassed here, nor do the arguments in response to them by the plaintiffs. Delay as well as embarrassment, the inconvenience to individual defendants amounting to injustice, and legal objections to the pleading of conspiracies when cognate torts are also alleged, were all argued. In particular, objection was taken to the "Campaign against Gunns" conspiracy as being itself a conspiracy to commit a number of other conspiracies and thus mere surplusage and inappropriate. There is much in this argument.
32 Another argument was based on the constitutional guarantee of free speech in relation to government and political matters derived from the High Court decision in Lange v Australian Broadcasting Corporation[18]. All of these arguments were answered by arguments from the plaintiff, but it is neither necessary nor useful to rule on them to reach a firm conclusion that this statement of claim cannot be allowed to stand in its present form. A similar conclusion can be reached with respect to the additional arguments put by individual defendants and the plaintiff's answers to those arguments as well.
33 All of the defendants sought the striking out of V3. Some of them went further and sought that judgment be entered for them against the plaintiffs, thus terminating this proceeding forever. However, as was pointed out in the previous judgment, the plaintiffs have made a series of serious allegations about individual acts of tortious behaviour by various defendants in several sections of V3. They must be given an opportunity of bringing those allegations before the Court in an intelligible and appropriate form, properly and economically pleaded. Many of them amount to criminal offences, some of them serious, and it would be an injustice to the plaintiffs to enter judgment against them and thus shut them out from litigating those allegations. The right to due process is mutual.
34 Whether the plaintiffs attempt to litigate those matters in this proceeding, or by bringing individual separate proceedings in respect of each event is entirely a matter for them and their advisors. However, whatever they do they will need to radically alter the way they have pleaded this case to date.
35 In the meantime, the defendants will be protected against further vexation in that V3 will be struck out and the proceeding will be stayed pending an ex parte application by the plaintiffs for leave to proceed in whatever manner they may be advised. However, to ensure that this matter does not languish unresolved for an inordinate period, should the plaintiffs make no such application by 19 October 2006, the defendants will have leave to apply for such further relief, including relief as to the costs of the proceeding, as they may be advised. The costs of this application, that is to say the application to strike out V3, will be dealt with at 2.15 pm on Monday 9 October 2006.
36 Accordingly the Court will make the following orders:
1. That Version 3 of the plaintiff’s statement of claim in this proceeding be struck out.
2. That this proceeding be stayed until further order, such order to be sought on application by the plaintiffs, in the first instance without notice to the defendants.
3. That in the event that the plaintiffs do not make such an application by 19 October 2006, the defendants have leave to make application for such relief, including relief as to the costs of this proceeding, as they may be advised.
4. That the question of the costs of this application be stood over until 2:15 pm on 9 October 2006.
- - -SCHEDULE OF PARTIES
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No. 9575 of 2004
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BETWEEN:
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GUNNS LIMITED
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Firstnamed Plaintiff
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ROBIN SIMONS
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Secondnamed Plaintiff
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HEATHER SIMONS
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Thirdnamed Plaintiff
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- and -
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ALEXANDER MARR
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Firstnamed Defendant
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GEOFFREY LAW
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Secondnamed Defendant
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RUSSELL HANSON
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Thirdnamed Defendant
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LEANNE MINSHULL
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Fourthnamed Defendant
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HEIDI DOUGLAS
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Fifthnamed Defendant
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THE WILDERNESS SOCIETY INC.
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Sixthnamed Defendant
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ADAM BURLING
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Seventhnamed Defendant
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LOUISE MORRIS
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Eighthnamed Defendant
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SIMON BROWN
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Ninthnamed Defendant
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ROBERT BROWN
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Tenthnamed Defendant
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MARGARET PUTT
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Eleventhnamed Defendant
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HELEN GEE
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Twelfthnamed Defendant
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BEN MORROW
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Thirteenthnamed Defendant
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LOU GERAGHTY
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Fourteenthnamed Defendant
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NEIL FUNNELL
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Fifteenthnamed Defendant
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BRIAN DIMMICK
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Sixteenthnamed Defendant
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HUON VALLEY ENVIRONMENT CENTRE INC.
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Seventeenthnamed Defendant
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PETER PULLINGER
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Eighteenthnamed Defendant
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FRANK NICKLASON
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Nineteenthnamed Defendant
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DOCTORS FOR NATIVE FORESTS INC.
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Twentiethnamed Defendant
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[1] [2005] VSC 251[2] (1952) 72 WN (NSW) 250.
[4] [1980] FCA 79; (1980) 41 FLR 175 at 190.
[5] (1979) ATPR 40-107.
[6] [1935] HCA 48; (1935) 52 CLR 713.
[7] (1991) 105 ALR 456.
[9] [1994] FCA 983; (1994) 121 ALR 405 at 414 per Beaumont J.
[10] S 321 et seq. Crimes Act 1958.
[11] [1989] HCA 21; (1989) 166 CLR 486 at 502.
[12] (1841) 7 M & W 502, at pp 503-504 [151 ER 864, at p 865].
[13] [1982] 1 NSWLR 264.
[14] [1987] HCA 23; (1987) 162 CLR 612 at 617.
[15] Ibid. at 639.
[16] (1966) 66 SR (NSW) 335 at 340, 344.
[17] Oceanic Sun Line Special Shipping Company Inc. v Faye [1988] HCA 32; (1988) 165 CLR 197 per Deane J.
[18] [1997] HCA 25; (1997) 189 CLR 520.
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