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[2012] FCA 103
Federal Court of Australia
2012-02-16
Donald J, Les P, Barker J
Original judgment source is linked above.
IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 322 of 2011
JUDGE: BARKER J DATE: 16 FEBRUARY 2012 PLACE: PERTH
the question of leave to re-plead 1 On 1 February 2012, I refused leave to the applicant to amend the initiating application in this proceeding and to file a substituted statement of claim in accordance with documents to that effect attached to his affidavit filed 5 October 2011. I then ordered that the matter be relisted on 10 February 2012 to enable the Court to hear from the parties as to the orders that should be made in consequence of the preceding order and in relation to costs: see reasons for decision in Fuller v Toms [2012] FCA 27. At [87] and [88] of the reasons I outlined the options available to the Court. 2 I heard the parties on 10 February 2012. The fifth and twenty second respondents opposed the granting of leave to further re-plead and submitted that the proceeding should be dismissed with costs. 3 The applicant opposed any dismissal of the proceedings and addressed written submissions he had filed for the purposes of the hearing on 10 February 2012. In substance, the written submissions of the applicant challenged or questioned the findings made that led to refusal of leave to amend the initiating application and to file a substituted statement of claim in the form proposed. The applicant proposed that the Court "modify" its position and address the "inadequate work" represented by the reasons. 4 In the course of the applicant orally addressing his written submissions, the Court emphasised to the applicant that the hearing was an opportunity, not to "appeal" the decision made, but to indicate to the Court whether he required the opportunity to re-plead any particular causes of action and, if so, which. 5 However, the ensuing submissions made orally by the applicant made it quite plain that the applicant simply considered the decision refusing leave to file the proposed substituted statement of claim to be wrong and that he wished to maintain the proposed claim for damages or compensation in the sum of $144 million against the respondents on the basis earlier proposed and rejected by the Court. 6 The applicant, in his oral submissions, confirmed in substance what he had asserted in his written submissions (for example at [22]) that the decision of the Court refusing leave was "misconceived", "outdated" and "procedurally unfair", and that the Court should "voluntarily recall it, with no hard feelings all round!". 7 Having regard to the terms of the written and oral submissions made on behalf of the applicant it became quite plain to the Court that the applicant did not accept the primary ruling that, in the view of the Court, the "lost opportunity" claim for $144 million was simply misconceived and not open. 8 The applicant at one point in his oral submissions suggested to the Court that if the Court was not prepared to act on his written and oral submissions then he would have no alternative but to appeal the decision and orders made on 1 February 2012. Despite the Court endeavouring to encourage the applicant to focus on the future - what causes of action, if any he might wish to re-plead - the applicant continued to focus on the past - his dissatisfaction with the decision of the Court of 1 February 2012. 9 In those circumstances, the applicant, not putting forward any other form of proposed pleading in respect of any other arguable cause of action, and insisting that he should be allowed to maintain the "lost opportunity" action against which the Court ruled, there is no alternative open to the Court but to refuse leave to re-plead and to dismiss the whole of the proceeding instituted by the applicant. 10 The Court considers there is no point in granting the applicant leave generally to re-plead a fresh proposed statement of claim. The applicant has shown an unwillingness or inability to do so. The deficiencies in the proposed statement of claim dealt with in the Court's reasons are so extensive that leave to re-plead generally should not be granted. The applicant has already had two opportunities on which to endeavour to bring his pleading into conformity with the Federal Court Rules 2011 (Cth) and to disclose a case that should be permitted to go to trial. This is not a case, in my view, of the Court preventing an applicant from running an arguable case, but a case where the primary claim (the so called "lost opportunity" case) is simply untenable. There must be some finality to proceedings in these circumstances. Respondents in the position of the respondents here cannot be obliged to continue to defend a case which is so inadequately articulated. 11 As noted in the recent reasons for decision, the applicant has had ample opportunity to obtain appropriate legal assistance to formulate a proper claim. He has been unable to obtain assistance. As explained in those reasons, I do not consider this is the sort of case where a referral certificate should be granted to enable a party to obtain pro bono legal assistance.
orders 12 I therefore would make the following orders: 1. The application for leave to file the statement of claim and amended originating application (as filed by affidavit on 5 October 2011) be dismissed. 2. The applicant pay the costs of and incidental to the application on a party/party basis. 3. The proceedings be entirely dismissed. 4. The applicant pay the costs of and incidental to the proceedings on a party/party basis. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.
Fuller
Toms