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Toms v Fuller

 

[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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Editorial Notes

  • Published Case Name:

    Toms v Fuller

  • Shortened Case Name:

    Toms v Fuller

  • MNC:

    [2009] QSC 232

  • Court:

    QSC

  • Judge(s):

    P Lyons J

  • Date:

    11 May 2009

Litigation History

No Litigation History

Appeal Status

No Status