These proceedings were commenced by the filing of a Statement of Claim on 19 September 2016. An Amended Statement of Claim was filed on 7 April 2017. Amongst other things, the Amended Statement of Claim deleted the third and fourth plaintiffs, added a sixth and seventh plaintiff, and deleted the claims against the third defendant. The current plaintiffs, which are part of a group of related companies, now seek to discontinue the proceedings on the basis that they pay the defendants' costs as agreed or assessed. The defendants do not consent to a discontinuance on that basis. Leave to discontinue is thus required (see Uniform Civil Procedure Rules 2005 (NSW) r 12.1(1)).
The defendants submit that leave to discontinue should only be given subject to a term that the plaintiffs be prevented from claiming any relief in respect of the same cause or causes of action in any subsequent proceedings commenced in this or any other Court.
The proceedings concern certain premises on the ground and lower ground floors of the GPO Building in Martin Place that are the subject of sub-leases from the first defendant to the first, second and fifth plaintiffs. I interpolate that prior to the first defendant becoming the sub-lessor, the second defendant was in that position.
Claims are made in respect of the sub-leases to the first plaintiff (where the Atrium Cafe is located) and the second plaintiff (where the Intermezzo Restaurant is located) to the effect that the first defendant is required to make certain toilet facilities available for use by staff and customers of the cafe and restaurant. The fifth plaintiff claims that the first defendant is in breach of its obligations concerning refurbishment under the sub-lease between them.
In addition, each of the plaintiffs (including the sixth and seventh plaintiffs who are, respectively, the operators of the Atrium Cafe and the Intermezzo Restaurant) make claims under the Australian Consumer Law in respect of certain signage which is alleged to be misleading or deceptive. These claims are made against the first defendant and also the second defendant which is alleged to be the operator of the Westin Hotel located in the GPO Building.
The original Statement of Claim also contained claims that the defendants (including the then third defendant, Mr Burns) had committed the tort of intimidation by preventing, hindering or impeding staff and customers of the cafe and restaurant from using the toilet facilities. These claims were summarily dismissed on 3 March 2017.
It is relevant to note that the first, second and fifth plaintiffs previously commenced proceedings in this Court against the second defendant. Those proceedings, which were commenced on 15 June 2015, contained claims under the sub-leases about making available certain toilet facilities, and claims under the Australian Consumer Law concerning the signage. Those claims are substantially the same as those that are advanced in the current proceedings.
The earlier proceedings were settled on 7 March 2016 when the parties (including the first defendant) entered into a Deed of Release which provided, inter alia, for those proceedings to be dismissed with no order as to costs. The defendants invoked the provisions of the releases given by the first, second and fifth plaintiffs to contend that the Australian Consumer Law claims in respect of the signage should be summarily dismissed. However, on 3 March 2017, the Court declined to make such an order.
Under Uniform Civil Procedure Rules r 12.1(1), the Court has a broad, unfettered discretion to give leave to discontinue proceedings, and as to the terms upon which such leave should be given (see Trade Practices Commission v Manfal Pty Ltd (1991) 33 FCR 382 in relation to the Federal Court Rules, which decision has been applied in this Court in relation to the Uniform Civil Procedure Rules on numerous occasions such as in Levy v Bablis [2009] NSWSC 740 at [17] per Slattery J.)
In Trade Practices Commission v Manfal Pty Ltd (supra) Lee J said at 383-4:
The court will give consideration to the need to refrain from compelling a party to litigate against its will but will also consider the extent to which the proceedings have developed and whether discontinuance against one respondent may impose injustice on another respondent by removing an advantage that respondent may otherwise enjoy in the proceedings or by imposing a disadvantage. In considering the undesirability of an applicant being forced to continue litigation unwillingly, it is relevant to have regard to whether the discontinuance would make any difference to the burden of litigation undertaken by the applicant and whether the application to discontinue results from a conclusion that the litigation cannot succeed against that respondent or is inspired by other reasons.
The requirement of the Federal Court Rules that, in the absence of consent of all parties, discontinuance of litigation against a party only be permitted by leave of the court contemplates a judicial review of all relevant circumstances and the satisfaction of the court that the grant of leave is proper in all the circumstances. In some cases the court may determine that a grant of leave to discontinue should be attended with conditions and in a rare case the court may determine that the only appropriate order is to refuse the leave sought.
It is clear that the Court has power in an appropriate case to impose a term that the discontinuing party be precluded from commencing further proceedings on the same, or substantially the same, causes of action as are pleaded in the current proceedings. Such a term was imposed, for example, in C2C Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2013] NSWSC 644 (see also Heartlink Ltd v Jones (2007) 35 WAR 190; [2007] WASC 254 at [45]).
The present proceedings have reached the stage where an Amended Statement of Claim has been filed and the defendants are about to file their defences. The plaintiffs say that they wish to discontinue the proceedings to assist in building a relationship of co-operation between the parties. It appears that the plaintiffs perceive some practical improvements in the relationship more generally and "as a sign of good faith going forward", and considering the terms remaining (plus options) under the sub-leases, have instructed their solicitors to cease these proceedings.
The plaintiffs submit that in the absence of some countervailing consideration being established, the desire of the plaintiffs to discontinue and the need to refrain from compelling a party to litigate against its will would be determinative. The plaintiffs further submit that apart from conditions as to costs, there are few cases where the Court has imposed conditions upon a discontinuance that are against the will of the discontinuing party, and those cases involved circumstances different from those present here. The plaintiffs submit that the difficulties in marshalling evidence suggested by the defendants were the claims to be brought again are relatively minor and not sufficient to warrant the imposition of the condition sought. Further, the defendants are said in any event to have the protection afforded by the applicable limitations legislation.
The defendants submit that no good reason has been shown why the plaintiffs, after commencing the proceedings in September 2016, now seek to discontinue. The defendants submit that imposition of the suggested term is appropriate in circumstances where the access to toilet facilities claims and the misleading signage claims have now been brought in successive proceedings and the defendants have obtained advantages in the current proceedings, including refinement of the Statement of Claim and the order striking out the tort of intimidation claims, which advantages would not necessarily be preserved if the plaintiffs commenced further proceedings. The defendants also submit that if further proceedings were allowed, they would potentially face evidentiary difficulties due to the passage of time. It was also put that the existence of the broad releases in favour of the defendants means that the imposition of the term would not impose much of a burden upon the plaintiffs in any event. The defendants further submitted that it was undesirable and productive of uncertainty for the prospect of the claims being brought to hang over the defendants' heads. It was put that the plaintiffs have had every opportunity to bring the proceedings and prosecute them and it would be unjust if they were permitted to now bring them to an end whilst at the same time retaining the right to advance the same causes of action yet again at some time in the future. It was submitted that the circumstances of the present case were very similar to the circumstances which pertained in C2C Investments Pty Ltd v Commonwealth Bank of Australia (No 3) (supra).
The proceedings have not reached an advanced stage, although the proceedings have been hard fought on both sides up to now. I accept that it is generally undesirable to compel a party to litigate against its will. Here, the plaintiffs seek to cease the current proceedings in order to build a relationship of co-operation between the parties. I am prepared to accept that that is why the discontinuance is sought. It is, nonetheless, a reason that is presumably based on the plaintiffs' perceived commercial interests. It is not a situation where the plaintiffs have been confronted with matters that make the continuation of the proceedings impossible, difficult, or even inconvenient. There is no evidence of any such obstacles having arisen in the present case.
Whilst the proceedings have been on foot the defendants have obtained some advantages, including the striking out of the intimidation claims. I agree with the submission of the defendants that these advantages might well be lost if fresh proceedings were pursued in the future. I note, however, that in the course of submissions the plaintiffs seemed to accept that they ought not be permitted to institute further proceedings in respect of the intimidation claims. The plaintiffs nonetheless maintain that they should have the right to raise the other claims in future proceedings, at least insofar as they would be based on conduct occurring after today.
I consider that it would be undesirable for the prospect of those claims (even if limited in the way suggested by the plaintiffs) to remain following a discontinuance of the present proceedings. The evidentiary difficulties that might arise (particularly if the claims were not brought for some years) are potentially significant, as explained in the affidavit of Mr Toemoe. The prospect of the claims remaining is in my view unsatisfactory in circumstances where the first, second and fifth plaintiffs have now commenced two sets of proceedings involving the toilet access and misleading signage claims and are in a position to prosecute such claims to finality if they wish. I think the defendants' position, expressed in submissions to the effect that the plaintiffs should either run the claims now or never, is not an unreasonable position to take. The spectre of the claims being brought a third time would be productive of uncertainty and not conducive to the building or maintenance of a relationship of co-operation, as the plaintiffs wish to do.
It is also relevant to take into account that the first proceedings were terminated in circumstances involving the execution of the Deed of Release. Whilst I declined to summarily dismiss the plaintiffs' Australian Consumer Law claims on the basis that the releases given by the plaintiffs made the claims untenable, there is no doubt that the defendants possess strong arguments based on the releases to the effect that both those claims and the toilet access claims are barred.
Viewing the circumstances of the case as a whole, I have come to the conclusion that, on balance, leave to discontinue should be given on terms that include a condition that the plaintiffs not be permitted to commence any further proceedings against the defendants claiming any relief in respect of the same, or substantially the same, causes of action sought to be raised in these proceedings. Another condition of the discontinuance will be the uncontentious one that the plaintiffs pay the defendants' costs of the proceedings up to the time of the discontinuance. The Court will so order.
I grant leave to the plaintiffs to discontinue the proceedings on conditions:
1. that the plaintiffs not be permitted to commence any further proceedings against the defendants claiming any relief in respect of the same, or substantially the same, causes of action sought to be raised in these proceedings; and
2. that the plaintiffs pay the defendants' costs of the proceedings up to the time of the discontinuance.
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Decision last updated: 29 May 2017