Redmeat Pty Ltd v Australian Meat Holdings Pty Ltd
[2010] QSC 276
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Redmeat Pty Ltd v Australian Meat Holdings Pty Ltd[2010] QSC 276
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Redmeat Pty Ltd v Australian Meat Holdings Pty Ltd[2010] QSC 276
Redmeat Pty Ltd v Australian Meat Holdings Pty Ltd[2010] QSC 276
SUPREME COURT OF QUEENSLAND
CITATION: | Redmeat Pty Ltd v Australian Meat Holdings Pty Ltd and Ors [2010] QSC 276 |
PARTIES: | REDMEAT PTY LTD ACN 064838982 (plaintiff) v SWIFT AUSTRALIA PTY LTD (FORMERLY AUSTRALIA MEAT HOLDINGS PTY LTD ACN 011062338 (first defendant) and CONAGRA FOODS INC (second defendant) and LEROY LOCHMAN (third defendant) |
FILE NO/S: | BS 3937 of 2006 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 11 June 2010 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 June 2010 |
JUDGE: | Daubney J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – where the defendants have brought applications for the proceeding to be struck out as an abuse of process and on the basis that the pleaded claim is fundamentally defective – where the claim is for contravention of the Trade Practices Act and for damages for negligent misstatement – where there is no plea of detrimental reliance in support of the cause of action – where related proceedings had been dismissed – where the plaintiffs conduct of the proceeding can be classified as oppressive and vexatious – whether the proceeding should be struck out as an abuse of process Althaus & Anor v Australia Meat Holdings Pty Ltd & Anor [2009] QSC 005, cited Althaus & Anor v Australia Meat Holdings P/L & Anor [2009] QCA 221, cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited |
COUNSEL: | J Althaus for the plaintiff, with leave AM Pomerenke for the first defendant S Doyle, SC for the second and third defendants |
SOLICITORS: | The plaintiff was self represented Allens Arthur Robinson for the first defendant Clayton Utz for the second and third defendants |
HIS HONOUR: There are a number of applications before me today. The first with which I'll deal are applications by the defendants for the proceeding to be struck out.
A first matter to deal with in considering that application is the complaints by the defendants of the complete inadequacy of the pleading proposed to be relied on by the plaintiff in the current proceeding. That pleading (which as drafted assumes the inclusion of a second plaintiff, but that is a matter with which I need not presently be concerned) is exhibited to an affidavit of John Edmond Althaus sworn 3 May 2010 and filed 6 May 2010.
Counsel for the second and third defendants submitted that the claims sought to be pursued against the second and third defendants, as would be articulated in that pleading, are fundamentally defective. The only causes of action sought to be pursued against the second and third defendants in this proceeding are claims for contravention of the Trade Practices Act and for damages for negligent misstatement. It was submitted that the pleading is fundamentally defective because it contains no plea of detrimental reliance on the part of the plaintiff for the purposes of supporting either or both of the claims made under the Trade Practices Act and for negligent misstatement. Further, and in any event, there is a claim as against the third defendant for accessorial liability in reliance on section 75B of the Trade Practices Act, which is completely unparticularised.
In the course of argument I invited Mr Althaus, who appeared today for the plaintiff, to point me to the pleas of detrimental reliance which supported the claims made under the Trade Practices Act and in negligent misstatement. He was unable to do so. There simply are no such pleas contained in the pleading. Accordingly, those are fundamental defects so far as those causes of action are concerned. Moreover, the pleading is completely unparticularised so far as the accessorial liability claim against the third defendant is concerned. It fails in any way to advance the elements required for such a cause of action and in particular fails to meet the long established requirement of the necessity to plead and demonstrate knowledge of falsity of the alleged representations and intentional participation in a contravention of the Trade Practices Act.
So far as the first defendant is concerned, claims are advanced both under the Trade Practices Act and for negligent misrepresentation. Those pleaded claims are bad for the same reason that I have just articulated with respect to the claims against the second and third defendants, namely, there is a complete absence of a pleading of detrimental reliance.
The plaintiff also seeks to pursue a claim for breach of contract against the first defendant. That is founded in a confidentiality deed said to have been entered into in June 1994. But that agreement is one in the same as that which was expressly referred to and relied on in prior proceedings between inter alia Redmeat Pty Ltd and Swift Australia Pty Ltd
(i.e. the identical parties to those with which I am concerned in this application). That proceeding was number BS 7975 of 2004 and that 1994 agreement was relied on as a basis for the claim articulated in the 2004 proceeding for breach of the duty of confidence.
Those proceedings were dismissed by Chesterman JA in a judgment delivered by his Honour on 2 February 2009 - [2009] QSC 5. I record in passing that the Court of Appeal struck out an appeal against Chesterman JA's judgment - see [2009] QCA 221. In striking out that appeal from the judgment of Chesterman JA, Keane JA (as his Honour then was), with whom McMurdo P and M Wilson J agreed, said: "13. The plaintiff's notice of appeal ranges widely over many grievances, but does not defend their pleading from the allegations of deficiency which led to the action being terminated. Nor do the plaintiffs seek to cure those deficiencies. Indeed, the plaintiffs barely address those deficiencies, preferring to emphasise the contention that the deficiencies in the plaintiffs' pleading are the fault of others, principally the lawyers who have previously represented them. But, as I have noted, the plaintiffs' statement of claim was struck out because of deficiencies in their pleading which, in an adversarial system, are inevitably the responsibility of the plaintiffs.
...16. The arguments advanced for the plaintiffs fail to come to grips with the fundamental point that they must bear responsibility for the formulation and presentation of theircase, and that the vice which led to the termination of their action was their longstanding failure, despite many opportunities afforded to them, to present a sufficient and coherent pleading of the facts said to entitle the plaintiffs to the relief they seek.
...20. The Court is always anxious to ensure that plaintiffs who do not have the benefit of legal representation should have every opportunity to present a viable claim if they have one. The Court is always reluctant to strike out an appeal where the defects may be explicable by the inability of a layman to articulate a reasonable argument. That having beensaid, however, unrepresented plaintiffs cannot be allowed to abuse the processes of the Court by using them as a vehicle for oppression or as an instrument of vexation."
An application for special leave to appeal to the High Court against the Court of Appeal's decision to strike out that appeal was refused on the 9th of December 2009.
In any event, returning to the breach of contract claim against the first defendant sought to be articulated in the 2006 proceeding, it seems to me that this claim is at least subject to an Anshun estoppel and ought not be permitted to be pursued in the 2006 proceeding. There is really nothing surprising about that conclusion. Indeed, the notion that the fate of the 2006 proceedings would rise or fall on the outcome of the decision by Justice Chesterman previously made was properly accepted by the learned senior counsel who appeared on a directions hearing before Justice Chesterman as long ago as the 18th of December 2006.
For all of those reasons, therefore, it seems to me that the cases sought to be articulated by the plaintiff against each of the first, second and third defendants in the pleading to which I have referred are unmaintainable.
The fundamental question for present purposes moreover is whether the 2006 proceedings should now be struck out as an abuse of process. There are, it seems to me, numerous bases for doing so.
So far as the first defendant is concerned, the continuation of these proceedings does, I think, amount to Redmeat bringing successive proceedings against the first defendant in circumstances redolent of improper vexation and oppression. Similarly with respect to the proceedings against the second defendant and the third defendant.
In the judgment of Chesterman JA in [2009] QSC 5, his Honour said:
"74. In a very real sense the plaintiffs' persistent, incompetent and ineffectual attempts to describe a case against the defendants is an abuse of process. It is not, I think, an exaggeration to describe the conduct of the action by the plaintiffs as scandalous. The attempts are a misuse of the rules which permit and control the institution of proceedings; and subject the defendants to repeated, defective processes which they must answer or apply to strike out. There is a responsibility on plaintiffs and those who advise them to put their cases in proper form and get on with them. These plaintiffs have been signally unable to discharge that responsibility. The time for indulgence has passed. They must suffer the consequences of their own failures.
75. There is, moreover, prejudice to the defendants in having to stand ready to resist a further attempt by the plaintiffs to extract substantial sums of money from them. There is that general prejudice of which McHugh J spoke in Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 at 552 and the more particular prejudice identified by AMH. Of five former employees named in the statement of claim, one has died and two have been dismissed in circumstances which disincline them to assist AMH in the litigation. The other two have left in less acrimonious circumstances but are not within AMH's control and may not assist."
Those observations by his Honour seem to me apply with equal force in the present case. Moreover, it is apparent that Redmeat (by Mr Althaus) will go to extreme lengths to seek to frustrate the procedures of this and other Courts. That preparedness to frustrate the procedures of this and other Courts manifests itself, inter alia, in a refusal to be bound by the Court's decisions.
In the submissions put before me, there were several submissions made by Mr Althaus to the effect that this Court lacks jurisdiction to deal with these matters and to raise a serious doubt as to the nature of this Court's inherent jurisdiction. I ruled on his arguments in that respect in the course of argument simply by describing them as nonsense. I do not propose to elaborate any further on those reasons.
Moreover, the preparedness to frustrate the procedures of this and other Courts was exemplified by the delivery, after the refusal by the High Court of special leave to appeal in the 2004 proceedings, of a so-called "Notice of Continuance", a document unknown in the rules or procedure of this Court or the High Court of Australia, but being one by which Mr Althaus sought to somehow preserve and keep alive the 2004 proceedings which were by that stage undoubtedly as dead as a doornail.
Indeed, that same lack of acceptance of the Court's process is seen in the preface to the general submissions which Mr Althaus put to me for the purposes of today's applications by which he purported to submit that the applications made and the submissions submitted were done so "with all rights reserved for previous and future matters with issues arising from BS 7975/04 [those being the proceedings that have previously been dismissed], and BS 3937/06, BS 6809/06 and BS 7481/06 [those two being proceedings connected with a charge which Mr Althaus had somehow procured to be registered over the first defendant's assets in the United States], and CA 3136/06 and CA 2181/09 and are not prejudiced in any jurisdiction by this filing, and all Court filings arising from those matters are herein and included and made part hereof for the Court record."
I do not propose to say anything more about the lack of appreciation of Mr Althaus and Redmeat Pty Ltd both of the jurisdiction of this and other Courts of this country and of the finality of decisions made when judgments are given.
A further reason for applying the observations made by Chesterman JA with equal, if not stronger, force to the present case, is the fact that there has been a comprehensive failure on the part of the plaintiff to observe the requirements of Uniform Civil Procedure Rule 5 to proceed with this matter in an expeditious way. There is, moreover, manifest prejudice to the defendants in respect of the current proceeding, that being the same prejudice to which reference was made by Chesterman JA in paragraph 75 of his previous judgment. In addition, the defendants have been put to many hundreds of thousands of dollars in costs in defending this and the related proceedings in circumstances which are clearly redolent of vexation.
I find myself in full agreement with the sentiment expressed by Chesterman JA when disposing of the 2004 matter. In respect of the 2006 proceeding, enough is enough. It will be dismissed.
...
HIS HONOUR: There will be the following orders:
1. Proceeding BS 3937 of 2006 is dismissed.
2. The plaintiff shall pay the defendant's costs (including any reserved costs) of and incidental to the proceeding.
...
HIS HONOUR: I further give leave to Swift Australia Pty Ltd, Conagra Foods Inc and Leroy Lochmann, pursuant to section 5(2) of the Vexatious Proceedings Act 2005, to apply for an order under section 6 of that Act.