The Setting
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.
The Limited Leave Granted
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.