Wickstead v Browne (1991) 30 NSWLR 1 referred to

Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 referred to

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 referred to

Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242 referred to

Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 referred to

National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd [1995] FCA 1628; (1995) 132 ALR 514 referred to

Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 referred to

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 referred to

Walton v Gardiner [1993] HCA 77; (1993) 112 ALR 289 referred to

Munnings v Australian Government Solicitor [1994] HCA 12; (1994) 120 ALR 586 referred to

Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (3rd ed)

AIJA, Litigants in Person Management Plans: Issues for Courts and Tribunals (2001)

SYDNEY RONALD DART, SHIRLEY NORMA DART, FREDERICK WILLIAM DART v NORWICH UNION LIFE AUSTRALIA LIMITED, VYNOTAS PTY LTD, JONES LANG LASALLE (QLD) PTY LIMITED, ROBERTS NEHMER McKEE (A FIRM)

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

ROBERTS, NEHMER McKEE (A Firm) (Formerly Roberts Leu North)

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

ROBERTS, NEHMER McKEE (A Firm) (Formerly Roberts Leu North)

1 The appellants, who for convenience will be referred to as the members of the Dart family, seek to have set aside orders of a judge of this Court the principal of which (a) struck out the further amended statement of claim filed in the proceedings and (b) dismissed the proceedings.

2 Notwithstanding the practical effect of the latter order, those orders clearly were interlocutory in character such that leave to appeal was required: see Federal Court of Australia Act 1976 (Cth) s 24(1A); Little v State of Victoria [1998] 4 VR 596; Wickstead v Browne (1991) 30 NSWLR 1; though they equally were orders of such type that leave would usually be granted "if there is any doubt about the decision at first instance": Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 at [43].

3 On 22 October 2001 the primary judge granted leave to appeal against his own orders. However, that leave was of limited character. His Honour ordered that the appeal was "to be based on the grounds set out in the document styled "Notice of Appeal" filed 25 September 2001". We will refer further below to this limitation, but to appreciate its significance it is necessary to outline matters of background to this appeal.

4 The dispute between the parties has a long and much litigated history. It arose out of the circumstances in which a lease of premises in a Townsville shopping centre was entered into, and then later purportedly terminated, between the second respondent Vynotas Pty Ltd ("Vynotas") as lessor and a company controlled by the Dart Family, Mystic Crystals Franchises (Australia) Pty Ltd ("Mystic Crystals"), as lessee. The members of the Dart family actually conducted the business at the leased premises. The first respondent, Norwich Union Life Australia Ltd, is the holding company of Vynotas. The third respondent, Jones Lang Lasalle (Qld) Pty Ltd, was managing agent of the shopping centre in question. The fourth respondent, Roberts Nehmer McKee (formerly Roberts Leu & North), is a firm of solicitors who acted for Vynotas. The lease in question was executed by Mystic Crystals on 30 August 1995 in furtherance of a Deed of Agreement for Lease of Premises dated 20 October 1994 which it also had executed.

5 The first proceeding against the respondents was brought by Mystic Crystals in the Supreme Court of Queensland on 23 October 1998. All that need be said of that proceeding is that (a) a judge of the Supreme Court refused an application to join the Dart family members as plaintiffs (though they later purported to file an amended statement of claim in the proceeding which was struck out on 29 September 1999 as an abuse of process); (b) Mystic Crystals was ordered to be wound up on 21 July 1999; and (c) the proceedings were struck out as against the fourth defendant and otherwise stayed by order of de Jersey CJ on 29 September 1999.

6 The second proceeding, also initiated in the Supreme Court of Queensland against the present respondents, was brought by Mystic Crystals and the members of the Dart family. The allegations made in this proceedings were in substance the same as those made in the first proceeding. On 29 September 1999, de Jersey CJ stayed the proceeding insofar as it was brought in the name of Mystic Crystals and otherwise struck out the statement of claim and a later filed amended statement of claim.

7 The reasons his Honour ascribed for his strike out order were that:

"the new statement of claim exhibits the following relevant deficiencies: It does not distinguish in a particular way between the claims of the individual members of the Dart family; it has not distinguished in a particular way between their respective causes of action; it has not particularised the specific basis of any cause of action said to accrue to the individual members of the Dart family and it has not specified the damages which they respectively claim relating them in an appropriate way to the other elements of the causes of action upon which they would rely."

8 Leave to replead was given. A further amended statement of claim was filed. That pleading was struck out by de Jersey CJ on 28 February 2000. A comparison between this pleading and that earlier struck out revealed the same deficiencies evidenced in the earlier proceeding. Mr Sydney Dart having conceded that the Dart family had done its best to plead the matter and could not do better, de Jersey CJ ordered that the proceedings be struck out against the present first, second and fourth respondents.

9 On 13 July 2000, the Dart family commenced the present proceedings in this Court. The original statement of claim and a later amended statement of claim, both of which (with one possible exception in the latter's case) raised the same allegations as those in the second Supreme Court proceeding. The latter pleading (which superseded the former) was struck out by the primary judge on 19 September 2000. The exception related to an alleged new agreement said to have been made on behalf of the first respondent with one or more of the members of the Dart family on 22 September 1997 under which the Darts, or some of them, acquired possession of the shop. Several of the many claims made by the applicants depended upon their being either the occupiers or the lessees of the shop.

10 His Honour held that at least insofar as concerned the new agreement, a possible cause of action could be gleaned from that part of the pleading relating to it, though that cause of action was not itself properly pleaded. In consequence, while ordering the statement of claim be struck out for reasons mirroring those given by de Jersey CJ, his Honour gave the applicants leave to replead a further amended statement of claim. In his reasons for judgment the primary judge stated that (at [18]):

"That statement of claim should be approached as a fresh document, and it should be limited to the cause or causes of action that the personal applicants have, arising out of the claimed events of 22 September 1997 and later dealings."

The actual order made allowing the applicants to replead, though, did not contain this limitation.

11 A further amended statement of claim was filed on 9 October 2000. It was not such a statement of claim as was envisaged when the earlier, strike out order was made. As the primary judge observed in his reasons for judgment when acceding to the respondents' motions to strike out the new statement of claim:

"The latest statement of claim does not adopt the directions or suggestions that I made on 19 September last year. What it does do, in paragraph 2 of that statement of claim, is contend that the applicants have a right to make claims for events that occurred from 13 March 1995, it being alleged that the third respondent as leasing agent and manager of the first and second respondents assigned the lease of Shop 28 to the applicants on that day."

12 His Honour considered the matters pleaded in support of the alleged assignment and concluded as follows:

"The claims of the natural applicants depend on the contention pleaded on their behalf that they became tenants from 13 March 1995 based on the matters to which I have referred. That contention is untenable.

Apart from this one aspect of the matter, the grounds on which I struck out the second last statement of claim remain. Apart from the basis presently propounded, and which in my opinion has no prospects of success, there has been no genuine attempt to distinguish and particularise between the individual members of the Dart family, nor to distinguish and particularise between specific causes of action which might accrue to individual members of them, nor the basis on which those specific causes of action are said to accrue. Thee has been no real attempt to identify against which specific respondents any cause of action may lie, and the bases of which any such action has not been pleaded. This applies particularly to the pleading as against the fourth respondent. There has been no real attempt to identify, with any degree of specificity, the damage which any individual member of the Dart family claims to have suffered as a consequence of whatever the causes of action that person may have against any individual respondent.

I am satisfied that as against each of the four respondents the proceedings disclose no reasonable cause of action, are frivolous and/or vexatious, and constitute an abuse of process of the Court. In all the circumstances and, in particular, the number of occasions on which opportunity to plead a proper cause of action against the respondents has been extended, I would order that as against each respondent the statement of claim filed 9 October 2000 be struck out, and further that proceedings Q 67 of 2000 in the Federal Court be dismissed."

13 Finally, and not unimportantly, in the proceedings in this Court as in the proceedings in the Supreme Court, the appellants did not have legal representation. That lack has been, and remains, a significant cause of difficulty.

14 As previously noted, the leave granted was limited to the grounds set out in the Notice of Appeal of 25 September 2001. Notwithstanding his Honour's order, the appellants filed a later Notice of Appeal that was more extensive in the matters it raised and they purported to base their appeal on it. We did not as such grant leave to amend the original notice of appeal which provided the basis of the leave given. Nonetheless, we have considered generally whether there may be arguable grounds of appeal against his Honour's decision other than those obviously contained in the 25 September Notice of Appeal.

15 The grounds in the Notice of Appeal cannot be described in short compass. In common with the Statement of Claim that they seek to defend, they are prolix and, for the most part, quite uninformative or else misconceived.

16 The first ground ascribes errors of law to his Honour in respect of six generalised matters. We refer, by way of example, to the claims that his Honour:

"(a) In respect to the applicants' statement of claim, did not consider, identify, evaluate and accurately apply to the applicants' statement of claim evidence, filed by leave of His Honour granted on 20 November 2000, in an affidavit and exhibits sworn by the First Applicant on 14 November 2000.

...

(f) Inadvertently yet seriously underestimated benefits to law, Justice, equity and the courts flowing from the applicants claims that could strengthen:

(i) Law relevant to the applicants claims,

(ii) Administration of Justice,

(iii) Protection of small business,

(iv) Economic stability of small business, should the applicants proceed and succeed in their claims."

17 For reasons we give below in relation to the strike out order made it is unnecessary to refer further to Ground 1 and the various errors it alleges.

18 Ground 2 runs for several pages. In substance it propounds findings that the primary judge should have made which would have made out the varied claims brought against the respondents. Amongst the findings it is contended should have been made is that "[a] lease had been assigned to the applicants on 13 March 1995".

19 Ground 3 contains an assertion that the two Supreme Court proceedings were not relevant to the respondents' notices of motion. It states a number of factual propositions and comments. It contains no relevant arguable ground of appeal.

20 Likewise the final ground of appeal contains no arguable ground. It refers to matters that had no bearing at all on the reasons given and orders made by the primary judge.

21 In these circumstances and recognising the disadvantage experienced by the appellants as unrepresented litigants: cf Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536; the course we have taken is to consider, first, his Honour's conclusion on the alleged 13 March 1995 assignment; secondly, the decision more generally to strike out the further amended statement of claim; and, finally, the dismissal order.

22 The second of these matters has not been the subject of specific address by the respondents other than by the fourth respondent. If we had considered that they would be prejudiced in any way by the course we have taken, we would have provided them with an opportunity to make submissions on the matter. That is not necessary. The appellants, in contrast, have filed extensive submissions in support of the statement of claim generally.

23 As the primary judge indicated, this alleged assignment was a new matter raised in the Further Amended Statement of Claim. Its object, as stated in para 2 of the pleading, was to give the applicant the benefit of causes of action based on events subsequent to 13 March 1995, seemingly, insofar as those causes of action depended on their being lessees or occupiers of the leasehold premises.

24 The primary judge concluded that the claim relating to the alleged assignment was untenable. The matter was dealt with in his reasons in the following way.

"It is one thing to allege that an agent of the lessor might strike a new agreement with the present applicants which had the effect of varying or novating the pre-existing lease arrangements between the company and the lessor. Any such contention might face real evidentiary difficulties, in particular in this case because clause 5.1 of the lease provided:

"5.1 Assignment by Lessee

The Lessee may not assign its rights under this deed."

It is quite another thing, however, to contend, as the applicants do in their latest statement of claim, that the events that occurred in about March 1995 had the effect of assigning the lease so that the company was no longer the lessee, but the three natural persons the present applicants, were. The basis for this central contention on behalf of the applicants appears from par 49 of the latest statement of claim:

"49 To ground their claim that the lease was assigned to them on 13 March 1995 the applicants' [sic] will rely on:

(i) Cheque No 371005 dated 13 March 1995, drawn on the bank account of the retail business `Mystic Crystals' (Account 3923 41022 held at the ANZ bank 114 Hugh Street, Garbutt, Queensland, 4815) in the sum of $3318.60 offered to the Third Respondent to pay rent and outgoings in relation to shop 28 Willows Shoppingtown.

(ii) A letter dated 13 March 1995 that accompanied the cheque referred to at paragraph 49(i).

(iii) Cheque butts of the bank account of the retail business `Mystic Crystals' (Account 3923 41022 held at the ANZ bank 114 Hugh Street, Garbutt, 4815) dating from 13 March 1995 through to 1998.

(iv) Bank statements of the bank account of the retail business `Mystic Crystals' (Account 3923 41022 held at the ANZ bank 114 Hugh Street, Garbutt, Queensland, 4815 dating from March 1995 through to 1998.

49 The Third Respondent:

(a) Accepted the cheque referred to at paragraph 49(i) herein.

(b) Promptly presented the cheque for payment.

(c) Did not reply to the letter referred to at paragraph 49(ii) herein.

(d) Thereafter accepted payments for rent and outgoings from the retail business `Mystic Crystals'.

50 The applicants will rely on these facts to ground claims that:

(a) The Third Respondent, agent of the First Respondent and Second Respondent created a `Legal Relationship' between the partners of the retail business `Mystic Crystals' and the First Respondent and Second Respondent.

(b) The partners of the retail business `Mystic Crystals' assumed all obligations of the lease on 13 March 1995 in lieu of `Mystic Crystals Franchises (Australia) Pty Ltd'.

(c) The partners of the retail business `Mystic Crystals' became the legal tenants of shop 28 Willows Shoppingtown with effect 13 March 1995."

In my opinion the facts pleaded are incapable of supporting the conclusion that the three applicants "became the legal tenants of Shop 28 Willows Shoppingtown with effect 13 March 1995."

25 His Honour noted that the winding up order made against Mystic Crystals was based on its non-payment of rent under the lease. He also noted Mr Sydney Dart's submission - comment was unnecessary - that by its silence Vynotas effectively assigned the lease. And he expressed the conclusion that the assignment contention was untenable.

26 The "non-assignment" clause referred to was in fact contained in the Deed of Agreement for Lease of Premises executed on 20 October 1994 between Vynotas and Mystic Crystals as lessor and lessee and by two members of the Dart family (the second and third applicants) as guarantors. The Deed provided for the formal execution of a lease. The guarantees given related (inter alia) to guaranteeing due payment by the lessee of all moneys agreed to be paid to the lessor.

27 The letter referred to in para 49(ii) of the pleading was before the primary judge. It was written by the third applicant as a director of Mystic Crystals under Mystic Crystals' letterhead. It was relevantly in terms that:

"Due to circumstances beyond our control this company may be unable to maintain its obligations under the lease referred to above.

The company seeks approval from the landlord, for the proprietors of the retail business `Mystic Crystals' that occupies the premises, to assume responsibility for the obligations of the lease.

In that respect, a cheque is attached hereto in payment of rent and outgoings.

We trust that this meets with your approval."

28 At the time of this letter the registered lease contemplated by the Deed of Agreement of 20 October 1994 had not been executed. That did not occur until 30 August 1995 with Mystic Crystals executing it as lessee. It is unnecessary here to explore the nature of the interest acquired by a lessee under an agreement for a lease: cf Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242; nor of the rules governing the assignment of such an interest: see Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, Ch 6 (3rd ed); Parkinson (ed), The Principles of Equity, Ch 13. The letter in question did not itself purport to be, or purport to evidence, an actual assignment from Mystic Crystals to the applicants. It is not couched in the language of assignment; it does not presuppose an existing assignment. It merely deals with matters preliminary to an assignment (or possibly a novation) should the lessor consent thereto.

29 It is unnecessary to consider whether underlying the appellant's claim is some species of estoppel which they could pray in aid. To the extent that they claim they became "legal tenants" it needs to be remembered that there was at the time of the letter no registered lease. More importantly any possible estoppel claim would have to confront the insurmountable hurdle (and it is not the only hurdle) that the applicants procured and/or were aware of the subsequent execution of a registered lease by Mystic Crystals on 30 August 1995.

30 The primary judge was correct in concluding that the assignment claim was untenable.

31 By way of preface, a comment should be made on the purposes of pleadings. These include to define the issues in a proceeding so that the parties may know in advance the case they have to meet: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664. A necessary precondition of this is that the pleading must disclose a reasonable cause of action against the party against whom that particular cause of action is brought and it must state all the material facts which are necessary to establish that cause of action as also the relief sought. A "reasonable cause of action" for this purpose means one with some chance of success if regard is had only to the allegations in the pleadings relied upon by the applicant: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd [1995] FCA 1628; (1995) 132 ALR 514 at 529.

32 It is not unfair to say that the sequence of statements of claim in this matter starting with that in the first proceeding in the Supreme Court, has grown and mutated in the fashion of a coral reef. The parties have changed over time as also have the claims and allegations. But the progressive changes and additions to the pleadings have done little to eliminate their fundamental deficiencies.

33 Before indicating the various causes of action propounded by the applicants it needs to be noted that one central strand in some of the claims made is that the first three respondents engaged in misleading and deceptive conduct in relation to representations made concerning foot traffic statistics for the shopping centre.

34 The pleading describes the causes of action asserted in the following fashion:

"8. The applicant's (sic) will rely on the following causes of action to ground their claims against the respondents for losses, damages, exemplary damages, costs on an indemnity basis plus interest:

(1) A cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 24 October 1997, for aiding, abetting and counselling to procure contravention of the Trade Practices Act 1974 within the meaning of section 75B of The Act by the Third Respondent producing falsified computer print outs of object movements through entrances at Willows Shoppingtown, on 21 April 1995 to mislead and deceive the applicants and to dissuade the applicants from litigation for relief and damages arising from contravention of the Trade Practices Act 1974.

(2) A second cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 24 October 1997 for misleading and deceptive conduct within the meaning of section 52 of the Trade Practices Act 1974 when existence of a "Calibration Factor" programmed into a computer to electronically multiply foot traffic statistics was disclosed to the applicants.

(3) A third cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 24 October 1997 for misleading and deceptive conduct within the meaning of section 52 of the Trade Practices Act 1974 on 21 April 1995 when the Third Respondent produced to the applicants, a computer print out of foot traffic statistics falsified by the "Calibration Factor".

(4) A fourth cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 24 October 1997 for misrepresentation within the meaning of section 53 of the Trade Practices Act 1974 on 21 April 1995 when the Third Respondent produced to the applicants, a computer print out of foot traffic statistics falsified by the "Calibration Factor".

(5) A fifth cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 24 October 1997 for unconscionable conduct at Common Law when existence of a "Calibration Factor" programmed into a computer to electronically multiply foot traffic statistics was disclosed to the applicants.

(6) A sixth cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 24 October 1997 for deceit when existence of a "Calibration Factor" programmed into a computer to electronically multiply foot traffic statistics was disclosed to the applicants.

(7) A seventh cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 20th December 1998 for unconscionable conduct within the meaning of Section 51 AC of the Trade Practices Act 1974 when the Third Respondent acting as agent of the First Respondent and Second Respondent broke and entered the applicants (sic) retail business at shop 28 Willows Shoppingtown.

(8) An eighth cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 20th December 1998 for breach of contract by rescission of the "New Legal Relationship" created on 22 September 1997 when the Third Respondent acting as agent of the First Respondent and Second Respondent broke and entered the applicants (sic) retail business at shop 28 Willows Shoppingtown.

(9) A ninth cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 20th December 1998 for Breach of promissory estoppel when the Third Respondent acting as agent of the First Respondent and Second Respondent broke and entered the applicants (sic) retail business at shop 28 Willows Shoppingtown.

(10) A tenth cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 20 December 1998 for unlawful trespass upon premises when the Third Respondent acting as agent of the First Respondent and Second Respondent broke and entered the applicants (sic) retail business at shop 28 Willows Shoppingtown.

(11) An eleventh cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 20 December 1998 for unlawful trespass upon goods when the Third Respondent acting as agent of the First Respondent and Second Respondent broke and entered the applicants (sic) retail business at shop 28 Willows Shoppingtown and removed goods, the property of the applicants.

(12) A twelfth cause of action accrued against the First Respondent, Second Respondent and Third Respondent on 20 December 1998 for unlawful conversion of goods when the Third Respondent acting as agent of the First Respondent and Second Respondent broke and entered the applicants (sic) retail business at shop 28 Willows Shoppingtown and removed, damaged, destroyed and misappropriated goods the property of the applicants.

(13) A cause of action accrued against the Fourth Respondent on 03 August 1998 for aiding, abetting and counselling to procure contravention of the Trade Practice Act 1974 when the Fourth Respondent recklessly and negligently ignored the "New Legal Relationship" created on 22 September 1997.

(14) A second cause of action accrued against the Fourth Respondent on 03 August 1998 for abuse of process and dereliction of duty to the courts in respect to administration of justice when the Fourth Respondent recklessly and negligently ignored the "New Legal Relationship" Created on 22 September 1997.

(15) A third cause of action accrued against the Fourth Respondent for abuse of process and dereliction of duty to the courts in respect to administration of justice when the Fourth Respondent continued to pursue a defence for it's (sic) clients for a purpose other than to vindicate a legal claim or right of it's (sic) client when the Fourth Respondent knew that a "New Legal Relationship" had been created on 22 September 1997.

9. The First Respondent, Second Respondent and Third Respondent, aided and abetted by the Fourth respondent caused The First Applicant, Second Applicant and Third Applicant to suffer.

(i) Loss of retail business profits,

(ii) Loss of business opportunities,

(iii) Loss of property,

(iv) Loss of goods,

(v) Damage to property,

(vi) Damage to goods,

(vii) Financial hardship,

(viii) Emotional stress,

(ix) Damages to personal and marital relationships, including breakdown of a marriage of thirty-eight years,

(x) Deterioration of lifestyles,

(xi) Damage to business credibility,

(xii) Damage to business reputations,

(xiii) Damage to credit ratings,

(xiv) Damage to future business prospects,

(xv) Destruction of a worthwhile business concept."

35 Such relief as is sought by the applicants is sought by them individually. While there is much overlap in what is sought by each of them, there is considerable difference between them in respect of the itemised sums sought by way of damages. The following is illustrative of the relief sought:

"13. The First Applicant seeks:

1. A declaration of the Court that time for the statue (sic) of limitations at section 82 of the Trade Practices Act 1974, in these circumstances, commenced to run on 24 October 1997. To declare otherwise would condone misleading and deceptive conduct.

2. Against the First Respondent, Second Respondent and Third Respondent jointly and severally and asks the Court to determine apportionment:

(a) For destruction of shop fittings and fixtures the property of the First Applicant, the estimated value of the property.

$120,000.00

(b) For damage causing loss to the value of shop fittings and fixtures the property of the First Applicant, the estimated value lost.

$ 20,000.00

(c) Loss of retail business profits being the First Applicants (sic) share in the projected profits of the retail business trading at Willows Shoppingtown as against the actual profits.

$846,060.00

(d) Loss of business opportunity being the First Applicants (sic) share of the projected earnings from expansion and growth of the applicant's business interests.

$1,440,000.00

(e) Unpaid labour applied to relocate, fabricate and construct shop fittings and fixtures and for management and administration.

$519,360.00

The First Applicant seeks $2,945,420.00

3. Plus damages and exemplary damages to be assessed by the Court for:

(A) Breach of promissory estoppel.

(B) Breach of contract.

(C) Deceit.

(D) Unconscionable conduct.

(E) Unlawful trespass upon business premises.

(F) Unlawful trespass upon goods.

(G) Unlawful conversion of goods.

(H) Aiding, abetting and counselling by the respondents to procure offences at Common law.

(I) Aiding, abetting and counselling by the respondents to avoid litigation or prosecution for offences at Common Law.

4. Plus damages, exemplary damages, costs and interest against the Fourth Respondent for abuse of process and dereliction of duty to the courts in respect to administration of justice.

5. Plus damages and exemplary damages against the First Respondent, Second Respondent, Third Respondent and Fourth Respondent and asks the Court to assess awards in accordance with, and equivalent to, maximum pecuniary penalties payable by offenders to The Commonwealth for contravention of the Trade Practices Act 1974 as defined at Part VI, Sections 75B & 76 of the Trade Practices Act 1974 for:

(A) Unconscionable conduct in contravention of section 51AC of the Trade Practices Act 1974 by the First Respondent, Second Respondent and Third Respondent.

(B) Misleading and deceptive conduct in contravention of section 52 of the Trade Practices Act 1974 by the First Respondent, Second Respondent and Third Respondent on and after 13 March 1995.

(C) Misrepresentation in contravention of section 53 of the Trade Practices Act 1974 by the First Respondent, Second Respondent and Third Respondent on and after 13 March 1995.

(D) Aiding, abetting and counselling by the respondents to procure contravention of the Trade Practices Act 1974 on and after 13 March 1995.

(E) Aiding, abetting and counselling by the respondents to avoid litigation or prosecution for contravention of the Trade Practices Act 1974 on and after 13 March 1995.

6. Costs on an indemnity basis plus interest from 05 August 1998."

36 When one turns to the body of the pleading it consists primarily of a factual narrative interspersed with assertions of fact against the various respondents (or their employees) for which no foundation is laid but to which legal consequences are attributed. There is a positive dearth of material facts pleaded to found particular causes of action against each particular respondent. The damages claims are such that one cannot discern clearly either the bases of particular claims made or whether they are being made by an applicant on his or her own account, as a partner, or (impermissibly) on account of Mystic Crystals. The claim for loss of business opportunity is illustrative of this.

37 The difficulty with the pleading is compounded by the fact that it appears to introduce, perhaps more distinctly than its immediate predecessor, what might be thought to be claims by the applicants as a partnership that are distinct from their claims as individuals. The manner in which relief is sought, though, tends to suggest to the contrary.

38 When this new dimension to the pleading is added to the deficiencies of its predecessor, it becomes apparent that no advance at all has been made in rendering the pleading a viable one. It suffers the same types of defect identified by de Jersey CJ in the second proceeding in the Supreme Court though it is now encumbered, additionally, with the overlay of claims related in some fashion to the partnership. His Honour's comments, which were mirrored in the language of the primary judge to which we have also referred, need not be repeated here. We would add that the primary judge's failure to refer to the possible partnership "claims" in the statement of claim provides no basis for interfering with his strike out order. As we have said, the injection of the partnership claims only exaggerates the deficiencies of the pleading.

39 It was properly struck out by the primary judge as disclosing no reasonable cause of action, as being frivolous and vexatious and as constituting an abuse of process.

40 One of the matters the appellants have raised by way of justification of their pleading is that they have been given insufficient judicial guidance to enable them to prepare an unobjectionable pleading.

41 The limits to the assistance a court should provide an unrepresented litigant in pleading his or her claim fall far short of the actual obligation the appellants seek to impose on a Court: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at 445-447; see AIJA, Litigants in Person Management Plans: Issues for Courts and Tribunals, 5-8 (2001). Successive judges have pointed out to them what are the deficiencies of their pleading. In the first strike out application the primary judge identified the arena in which an arguable case might lie and by so doing sought to diminish the disadvantage of the Darts as unrepresented litigants. Such guidance and assistance as has been proferred, has been ignored.

42 It is convenient to repeat the primary judge's reasons for dismissing the proceedings:

"I am satisfied that as against each of the four respondents the proceedings disclose no reasonable cause of action, are frivolous and/or vexatious, and constitute an abuse of process of the Court. In all the circumstances and, in particular, the number of occasions on which opportunity to plead a proper cause of action against the respondents has been extended, I would order that as against each respondent the statement of claim filed 9 October 2000 be struck out, and further that proceedings Q 67 of 2000 in the Federal Court be dismissed."

43 Before considering whether an appellable error is betrayed, it is necessary to refer to a number of well accepted principles of present relevance, governing this Court's exercise of its power to dismiss a proceeding summarily under O 20 r 2 of the Federal Court Rules. The power is one that must be exercised with exceptional caution: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129. Normally it should be exercised only in plain and obvious cases, where no reasonable amendment cause cure the alleged defect: National Mutual Property Services, above, at 529.

44 We would interpret the primary judge's reasons as invoking in a composite way all of the three grounds for dismissing a proceeding that are referred to in O 20 r 2 (ie no reasonable cause of action, the proceeding is frivolous or vexatious, and abuse of process). In the very distinctive circumstances of this case, they clearly interact.

45 First, the appellants, on a number of occasions (first in the Supreme Court proceeding and then in this Court), have been given some number of opportunities to amend their various statements of claim so as to disclose a reasonable cause of action against the various respondents. They have been unable to do this and there seems to be no reasonable prospect of their so doing.

46 Secondly, the first appellant conceded to de Jersey CJ in the second Supreme Court proceeding that the Dart family had then done its best to plead the matter and could not do better. What has occurred since has served only to confirm that view. Nonetheless, and possibly because Mr Sydney Dart has since commenced legal studies, they have persisted in this court in prosecuting what have proved to be successively objectionable pleadings against the same respondents, their claims against the fourth respondent in particular being clearly vexatious in character.

47 Thirdly, the continued use so made of the processes of Court without apparent prospect of achieving an unobjectionable pleading, and the disregard of the judicial assistance that has been given, can now properly be categorised as giving rise to an unfair and oppressive use of the processes of the Court: see Walton v Gardiner [1993] HCA 77; (1993) 112 ALR 289 at 298-299.

48 While it has been proper and appropriate in both the Supreme Court proceedings and then the proceedings in this Court, to give the appellants as unrepresented litigants the opportunity to replead, the primary judge committed no error in failing further to extend that opportunity to the appellants. His Honour could properly conclude in all the circumstances "that the action ought to be brought to an end": cf Munnings v Australian Government Solicitor [1994] HCA 12; (1994) 120 ALR 586 at 589.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Finn & Sundberg JJ.

The First Applicant appeared in person on his own behalf and on behalf of the Second and Third Applicants.