Fuller v Toms

Application to re-open 21 I observe that on 28 November 2016, Mr Fuller applied for leave to re-open to adduce further evidence. The evidence which Mr Fuller sought to adduce was an affidavit in which he commented upon aspects of the AACo 2016 annual report and the addresses given by the chairman, Mr Donald McGauchie, and the managing director, Mr Jason Strong, to the 2016 annual general meeting of shareholders of AACo. 22 The affidavit comprises comment and is inadmissible on that account. Accordingly, I decline to grant Mr Fuller leave to re-open to adduce this evidence. 23 In any event, the attempt by Mr Fuller to adduce evidence of this nature, is premature and misconceived. The reason why Mr Fuller's statement of claim was struck out and his application dismissed was because he was unable to satisfy the essential preliminary requirement of being able to formulate claims recognisable at law in a manner which complied with the pleading rules. The leading of admissible evidence for the purpose of making one's case will usually occur only once an applicant has formulated a case which discloses a claim or claims recognisable at law in a manner which complies with the pleading rules.

leave to commence the proposed application for leave to appeal 24 I now consider whether Mr Fuller should have leave to commence the proposed application for leave to appeal against orders 1 and 2 of Barker J made on 19 December 2013. 25 I do not intend to set out the history of the litigation which Mr Fuller has commenced against the respondents. The history and subject-matter of that litigation is recounted in detail in Barker J's reasons for judgment at [3]-[22], as well as the Full Court's reasons for judgment in Fuller v Toms (Full Court) at [20]. 26 Section 37AT(4) of the Federal Court Act provides: The Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding. 27 It is, therefore, necessary to consider whether the proposed application for leave to appeal against orders 1 and 2, is, or is not, a "vexatious proceeding". 28 The term "vexatious proceeding" is defined in s 37AM(1) of the Federal Court Act as follows: vexatious proceeding includes: (a) a proceeding that is an abuse of the process of a court or tribunal; and (b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and (c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and (d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 29 In Garrett, in the matter of Company One [2016] FCA 703, Charlesworth J discussed the meaning of the phrase "without reasonable ground" in subpara (c) of the definition of "vexatious proceeding" in the following terms: 9 The phrase "without reasonable ground", as used in paragraph (c) of the definition, is equivalent in meaning to the phrase "without reasonable cause". In Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh [2004] FCAFC 155 (Spotless) the Full Court considered the phrase "without reasonable cause" as it then appeared in s 347(1) of the Workplace Relations Act 1996 (Cth). The Full Court said (at [13]) that the question of whether a proceeding has been commenced without reasonable cause is to be answered as a matter of objective fact and requires an assessment of whether the proceeding is "bound to fail" or "so obviously untenable that it cannot possibly succeed", "manifestly groundless" or "bad beyond argument". In Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324, von Doussa J said (at FCR 327 [8]; IR 34): The test imposed by the expression 'vexatiously or without reasonable cause' is similar to the one applied by a court on an application for the exercise of summary power to stay or strike out proceedings: see Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 272-273 and Geneff v Peterson (1986) 19 IR 40 at 87-88. 10 The test being an objective one, it is not to the point that the applicant subjectively believes there to be a reasonable ground to institute the proceeding. 30 The judgment of Barker J of 19 December 2013, striking out the statement of claim and dismissing the proceeding, was an interlocutory judgment. It is incumbent on an applicant for leave to appeal from an interlocutory judgment to show that the judgment of the primary judge is attended with sufficient doubt to justify the grant of leave to appeal and that the applicant will suffer a substantive injustice if the judgment sought to be appealed against was wrong, but remained on foot. 31 The corporate respondents contended that in view of the observations and findings made by the Full Court (Fuller v Toms (Full Court)), the judgment of Barker J could not possibly be regarded as being attended with sufficient doubt to warrant granting leave to appeal and, therefore, Mr Fuller's proposed application for leave to appeal was bound to fail. Mr Fuller contended otherwise, and said that the observations and findings of the Full Court should carry no weight as they were preliminary observations and the Full Court had not dealt with "the substance" of his claims. 32 In order to deal with these contentions, it is necessary to have regard to the reasons for judgment of Barker J. 33 The reasons for judgment of Barker J of 19 December 2013, fall into three parts. 34 The first part ([3]-[23]), outlines the history of the proceedings which Mr Fuller has brought against the respondents in the Supreme Court of Queensland, the High Court and this Court arising from Mr Fuller's unsuccessful attempt, as part of a syndicate of potential purchasers, to acquire a shareholding in AACo. 35 The second part of the reasons for judgment ([24]-[70]), sets out the criticisms made by Barker J of the manner in which Mr Fuller has purported to plead his statement of claim. At [70] of the reasons for judgment, Barker J observed that there would be no point in granting Mr Fuller leave to re-plead a new statement of claim. Barker J went on to observe that this was the third statement of claim which Mr Fuller had filed, or attempted to file, in this Court, all of which had "serious and extensive deficiencies". Barker J said: In my view, the applicant has shown an unwillingness or inability to properly plead a case against the respondents… 36 The third part of the reasons for judgment ([71]-[80]), deals with the application by the respondents for a vexatious litigant order against Mr Fuller, or alternatively, an order staying the further conduct of the proceeding until Mr Fuller had paid the outstanding costs orders made in favour of the respondents in previous proceedings. 37 Barker J explained the basis for making the vexatious litigant order. His Honour observed that Mr Fuller had in relation to essentially the same controversy, brought five different proceedings in either this Court or the Supreme Court of Queensland and that Mr Fuller had instituted multiple proceedings which have harassed the respondents and wasted their time and costs (as well as those of the Court) by involving them in proceedings in which Mr Fuller seemed unable or unwilling to plead only relevant allegations in a proper and comprehensible manner. Barker J went on to say that he had previously considered that Mr Fuller's claim against the respondents was not on its face necessarily hopeless at that point, but subsequent events, including the pleading in that proceeding, demonstrated that Mr Fuller was simply "unable to plead a case against the respondents" but that he nevertheless continued "to agitate the same claims in a succession of cases". 38 It is apparent, therefore, that the criticisms and findings made by Barker J as to the inadequacies of Mr Fuller's attempts to plead a statement of claim were highly influential in his determination to make a vexatious litigant order in relation to Mr Fuller in order 3 of the orders which Barker J made. 39 Mr Fuller challenged, and sought to refute, the criticisms which Barker J had made of Mr Fuller's statement of claim. Because Barker J's criticisms were so influential in his decision to make the vexatious litigant order, it was inevitable that the Full Court would need to have regard to the content of the statement of claim and Barker J's criticisms thereof, in order to determine whether Barker J was justified in making those criticisms and in striking out the statement of claim and dismissing the application, as steps towards making the vexatious litigant order. 40 At [21]-[25] in Fuller v Toms (Full Court), the Full Court (Besanko, Logan and McKerracher JJ) observed: 21 When, on 9 February 2011, the High Court (Heydon and Bell JJ) dismissed Mr Fuller's application for special leave to appeal against the judgment of the Queensland Court of Appeal, that court observed (at [3]) of the papers which he had filed in support of that application: "[They] are discursive and lacking in focus. That is particularly true of the 37 grounds in the draft Notice of Appeal." That same description might be applied to the Notice of Appeal and the related supporting affidavits and submissions upon which Mr Fuller seeks to rely in this matter. 22 The notice of appeal specifies the grounds of appeal in this way: In General 1. There are many errors in the judgment which raise questions of law; many which raise questions of fact; and many which raise questions on a mixture of law and fact. These include errors of avoidance/evasion/ omission/subterfuge, half-truths, understatements, misstatements and misconstructions; and they are so intertwined that is seems artificial and pointless to try to classify many of them. The judgment as a whole is very unreliable; it is false and misleading. There are so many errors in the judgment, and such an overall lack of balance in it, that it all gives rise to an apprehension of bias; and it amounts to a miscarriage of justice. 2. The complete stating of grounds together with detailed particulars is set-out in my supporting affidavit sworn 3rd January 2014. See copy in Appendix A to my directly supporting affidavit for this application. 3. A shortened version of grounds for appeal is set out in Appendix B - the accompanying draft notice of appeal. The overall number of grounds and the essence of them remain the same. [emphasis in original] 23 The amplification of these grounds in the appendices referred to in the notice of appeal is prolix. For example, "Appendix D", though it nominally consists of 23 paragraphs, is no less than 54 pages in length. Those 54 pages consist of an amalgam of alleged deficiencies in the primary judge's judgment and related submissions, cast in extravagant terms. The notice of appeal does not comply with the requirement, found in r 36.01(2)(c) of the Federal Court Rules 2011 (Cth), that a notice of appeal must state "briefly but specifically, the grounds relied on in support of the appeal". 24 The over-arching criticism (Appendix D, paragraph 3) which Mr Fuller makes of the judgment below is: In very many instances the primary judge has improperly resorted to one or other of two divide-and-conquer subterfuges: • Ploy No 1: Focus on isolated small segment of pleadings; Make an adverse ruling as though the contents of that section is the only pleadings on the particular point; then ignore the rest of the pleadings on that point. • Ploy No 2: Focus on a large segment; find a diversionary small point or two to remark upon, good, bad or indifferent; then move on, and never again refer to the main subject matter in that large segment of pleadings. Just ignore it! His greatest ploy even before beginning to consider my fresh statement of claim (my fresh pleadings), is to avoid/evade/omit practically all mention of my fresh Form 5 Application (my fresh claim) on which my fresh pleadings are necessarily founded. [sic - emphasis and underlining in original] 25 Even though the intent of the order made by Siopis J on 24 April 2014 was that questions concerning Orders 1 and 2 of those made by Barker J on 19 December 2013 (striking out the statement of claim and dismissing the proceedings) be deferred until after the challenge to Order 3 (the vexatious litigant order) made that day had been resolved, it is inevitable, given that they formed one foundation for Order 3 and that all issues were heard together below, that some consideration must also be given to the merits of Orders 1 and 2. 41 The Full Court then went on to consider the criticisms made by Barker J of Mr Fuller's statement of claim in the context of dealing with Mr Fuller's contention that Barker J's criticisms were seriously flawed and showed that his Honour's decision was attended by apprehended bias. 42 At [28], the Full Court observed: On their face, the reasons for judgment of the learned primary judge disclose nothing more or less than an endeavour to measure the statement of claim by reference to this Court's pleading rules, followed by consideration as to whether, in light of the conclusions reached in respect of the statement of claim and earlier litigation to which Mr Fuller and some at least of the present respondents were parties, an order under s 37AO of the Federal Court Act ought to be made. The pleading rules against which the primary judge was obliged to, and did, measure the statement of claim were the general pleading rule, rule 16.02 in the Federal Court Rules and, because of the particular case which Mr Fuller sought to advance, rules 16.42 and 16.43, which are respectively directed to the pleading of fraud, misrepresentation and the like and conditions of mind. The analysis which the primary judge made of the statement of claim by reference to these rules entailed neither of the "ploys" to which Mr Fuller adverted. To the contrary, it was a thorough and careful one. A description which P Lyons J gave in Toms v Fuller [2009] QSC 415 at [15] of Mr Fuller's further amended defence and counterclaim, considered in that case, "a mixture of narrative, often flamboyantly expressed, argumentative material, and evidence" might equally well apply to the statement of claim in this case. It does violence to the pleading rules set out above. It exhibits and repeats the same vices to which Mr Fuller's attention had already been drawn by an earlier decision of this Court: Fuller v Toms (No 2) [2012] FCA 103. The conclusions reached by the primary judge provide no basis for any reasonable apprehension of bias by a fair-minded lay observer. There is no substance in the apprehension of bias ground. 43 At [38] and [39], the Full Court observed: 38 The pleading rules of the Queensland Supreme Court (see, in particular, r 149 and r 150 of the Uniform Civil Procedure Rules 1999 (Qld)) are not so different to those of this Court as to make the outcomes which Mr Fuller had experienced before P Lyons J, the Court of Appeal and the High Court irrelevant. Even prior to his institution of the first of the two original jurisdiction proceedings in this Court, Mr Fuller had well and truly been put on notice as to the inadequacies of his manner of pleading. That like inadequacies, flowing from the application of this Court's pleading rules, attended his manner of pleading was confirmed by the outcome before the Full Court in his earlier proceeding in this Court. Notwithstanding his earlier experiences, Mr Fuller persisted in that same manner of pleading and this in respect of issues already determined against him. A statement of claim may show that, having regard to earlier proceedings, a current proceeding has been "instituted" vexatiously. The filing and service of a grossly inadequate statement of claim, exhibiting like inadequacies to those already determined by earlier proceedings, may also show that a proceeding is being "conducted" vexatiously. When one looks at the history and fate of the litigation to which the primary judge referred, a conclusion that Mr Fuller had frequently instituted or conducted vexatious proceedings was not just reasonably open. It was the only conclusion correctly open. 39 The manner in which Mr Fuller has chosen to plead his notice of appeal shows that he is unable or unwilling to accept this. 44 As mentioned, Mr Fuller contended that no weight should be accorded to the Full Court's observations which criticised his statement of claim because the Full Court had in [28], premised its observations with the words "On their face". Mr Fuller also referred to the observations of the Full Court at [29] of its reasons to the effect that it was "neither necessary nor appropriate" for the Full Court to descend into the merits of the making of orders 1 and 2. These words, said Mr Fuller, demonstrated that the Full Court had "resolved nothing of substance" in relation to orders 1 and 2. Mr Fuller went on to contend that, in any event, the Full Court order refusing him leave to start an appeal against the vexatious litigant order was wrong and should never have been made. 45 In my view, the Full Court's criticisms of Mr Fuller's statement of claim cannot be dismissed in the manner for which Mr Fuller contended. 46 The Full Court endorsed the findings of the primary judge as being in accord with an appropriate measuring of the statement of claim against the rules of pleading, and the Full Court described the primary judge's analysis of the statement of claim as "thorough and careful". The Full Court then went on to find that the statement of claim did "violence to the pleading rules" and said that the description of P Lyons J of Mr Fuller's pleading in a previous proceeding, as "a mixture of narrative, often flamboyantly expressed, argumentative material, and evidence" might equally well apply to Mr Fuller's statement of claim. 47 Further, at [38] of its reasons for judgment, the Full Court observed that Mr Fuller had "persisted" in pleading in the same manner, notwithstanding that he had "well and truly" been put on notice as to the inadequacies of his manner of pleading even before he commenced the first of his two original jurisdiction applications in this Court. The Full Court went on to characterise by implication, the statement of claim which Mr Fuller had filed, and which Barker J had struck out, as "grossly inadequate", which exhibited "like inadequacies to those already determined by earlier proceedings". 48 In addition, at [21] and [39] of its reasons for judgment, the Full Court criticised the manner in which Mr Fuller had pleaded his notice of appeal as demonstrating a further instance of Mr Fuller being either unwilling or unable to give effect to the pleading rules. 49 These criticisms reflect the views of the Full Court which had before it the primary judgment, Mr Fuller's statement of claim which Barker J had struck out and Mr Fuller's proposed grounds of appeal which attempted to refute the criticisms made by Barker J of his statement of claim. Contrary to Mr Fuller's contentions, the Full Court's criticisms cannot be ignored or devalued because the Full Court did not engage in a detailed critical analysis of the statement of claim by reference to specific paragraphs in that document. It is apparent that it was unnecessary for the Full Court to do so because the defective nature of the pleading of the statement of claim was sufficiently apparent without the need to embark upon such an analysis. 50 As mentioned, among Mr Fuller's documents that were accepted for filing on 3 June 2016, was a document setting out substituted proposed grounds of appeal. Whilst the substituted proposed grounds of appeal benefits from the fact that Mr Fuller removed from the proposed grounds of appeal much of the uncomplimentary language used about the primary judge in the 54 page document which was before the Full Court, the substance of Mr Fuller's contentions are essentially to the same effect. The filing of the substituted proposed grounds of appeal does not assist Mr Fuller. This is because the criticisms made by the Full Court of the statement of claim which would be the subject of Mr Fuller's proposed application for leave to appeal, remain unaffected by the amendments and deletions which Mr Fuller has made in his substituted proposed grounds of appeal. 51 In light of the Full Court's criticisms of Mr Fuller's statement of claim referred to above, the finding that Mr Fuller has persistently refused to comply with the pleading rules and the fact that the Full Court declined to permit Mr Fuller to appeal against the vexatious litigant order, there is no prospect that a different Court would find that Barker J's decision to strike out the statement of claim and dismiss the proceeding was attended by sufficient doubt to justify granting leave to appeal from orders 1 and 2. 52 In my view, therefore, Mr Fuller's proposed application for leave to appeal against orders 1 and 2 of Barker J of 19 December 2013, falls into the category of a proceeding which is bound to fail. 53 It follows that I am not, pursuant to s 37AT(4), satisfied that the proposed application for leave to appeal against orders 1 and 2 of Barker J of 19 December 2013, is not a vexatious proceeding. Therefore, Mr Fuller's application for leave to commence the proposed application for leave to appeal against orders 1 and 2 made by Barker J on 19 December 2013, is dismissed. 54 I observe that I have had regard to Mr Fuller's proposed amended statement of claim which was filed on 3 June 2016. The proposed amended statement of claim runs to 76 pages as opposed to the 102 pages which comprised the statement of claim which Barker J struck out. However, notwithstanding this circumstance, the proposed amended statement of claim continues to suffer from the same characterisation and inadequacies described by the Full Court in Toms v Fuller (Full Court) and continues to do "violence" to the pleading rules. 55 There is a further reason why leave should not be granted to Mr Fuller to commence the proposed application for leave to appeal. This is because there are costs orders which have been made in favour of the respondents against Mr Fuller in the proceedings in the Supreme Court of Queensland which have been taxed and not met by Mr Fuller. In their submissions, the corporate respondents referred to outstanding unpaid costs orders in respect of proceedings in the Supreme Court of Queensland, totalling $111,216.94. 56 The corporate respondents also contended that Mr Fuller has not paid any of the subsequent costs orders which have been made against him in other courts. The corporate respondents contended that Mr Fuller should not be permitted leave to commence any further proceeding until he has paid the outstanding costs orders. 57 In his affidavit of 8 June 2016, Mr Fuller deposed that he had paid $15,000 as security for costs for bringing his appeal in the Queensland Court of Appeal. Mr Fuller deposed that he had paid that amount mainly by using his credit card and that he was still paying off that credit card debt. 58 In his affidavit, Mr Fuller accepted that he had not paid the costs orders, totalling $111,216.94, which have been taxed in relation to the Supreme Court of Queensland proceedings. Mr Fuller also observed that the respondents had not sought to tax the subsequent costs orders made in this Court. 59 Mr Fuller submitted that impecuniosity should not be a bar to him commencing litigation, particularly, he said, where his impecuniosity had been caused by the respondents' "alleged fraudulent conduct". Further, in his submissions Mr Fuller has said he is continuing to learn from the criticisms which have been made by judges over the years of Mr Fuller's attempts to plead a viable case against the respondents. 60 I infer from Mr Fuller's evidence that he is not able to meet the costs orders which have been taxed, let alone the costs orders that have not been taxed. In light of Mr Fuller's inability to plead a viable cause of action against the respondents, I place no weight on Mr Fuller's assertion that his impecuniosity has been caused by the respondents. Further, the administration of justice does not accommodate a circumstance whereby one party, whether indigent or not, seeks to learn how to conduct litigation at the expense of another party by bringing a succession of defective claims against that other party, and then not meeting the adverse costs orders. 61 Mr Fuller has made no suggestion as to how he intends to deal with the outstanding costs orders, other than to recognise that the respondents have been indulgent to date in not enforcing the costs orders. 62 In my view, the fact that Mr Fuller has not met any of the costs orders made against him, and has not deposed as to his willingness or ability to do so, is a further reason why leave to commence the proposed application for leave to appeal against orders 1 and 2, should be refused. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.