Plaintiff v First Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant Seventh Defendant Eighth Defendant Ninth Defendant

2 In striking out the plaintiff's statement of claim, I concluded that:

(a) permitting a trial to proceed on the basis of it (the statement of claim as then pleaded) would undoubtedly prejudice, embarrass and delay the fair trial of the proceeding;

(b) there had been a general failure throughout the pleading to supply dates and plead acts or omissions with sufficient particularity to enable the defendants to know the various cases made against them;

(c) there were paragraphs which did not plead material facts - but rather, attempted to plead in an anticipatory way matters which might defeat defences, which may or may not have been taken by a particular defendant;

(d) many of the sentences in the statement of claim were no more than high level conclusionary propositions, without any underlying material facts in support;

(e) insofar as the plaintiff's case relied upon causes of action and defamation, there did not appear to have been any attempt to comply with well known rules of pleading in that field of law; and

(f) at base, the statement of claim was a largely impenetrable document which, if allowed to stand, would be likely to generate endless debate about the scope and ambit of the plaintiff's claims against the defendants.

3 At the time I struck out the statement of claim, I gave the plaintiff leave to re-plead. On 25 April 2012, the plaintiff filed an amended statement of claim. The amended statement of claim contained 618 paragraphs. Following the service of the amended statement of claim, each of the defendants issued applications seeking to strike out the amended statement of claim. Applications for judgment against the plaintiff were also made.

4 On 20 June 2012, I struck out the amended statement of claim.[3] I did so because the amended statement of claim was also manifestly defective. Many of the criticisms of the original statement of claim were equally applicable to the amended statement of claim.[4]

5 In determining whether the plaintiff's proceeding should be dismissed, I cited and gave consideration to the judgment of Johnson J in Udowenko & Ors v Chief Executive Officer of the Board of Directors of St George Bank - a division of Westpac Banking Corporations & Ors (No 2).[5] I then said:[6]

"[47] There is much to be said for the defendants' submissions that the plaintiff should not be given leave to re-plead and there should be summary judgment in their favour. As was recently said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd & Anor:[7]

'A self-represented litigant cannot be allowed forever to stand behind the shield of his own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the Court's already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices'.

[48] That said, and without foreclosing any argument or submission the plaintiff (or any other party) might make on a future hearing of this matter, I am prepared to give the plaintiff one further opportunity to plead an intelligible case in compliance with the rules of pleading against those of the first and third to ninth defendants as the plaintiff wishes to pursue. Again, without foreclosing the possible acceptance of submissions the plaintiff might make on the next occasion, I should say that in all likelihood, unless the plaintiff produces a further amended statement of claim which is intelligible, enables the relevant defendants to know the cases they have to meet and is limited to pleading (in accordance with the rules and authorities in the relevant area) the material facts (and only the material facts) relied upon, together with particulars of each material fact as required by the rules, then there is every likelihood that the plaintiff will not be permitted to file and serve the document, and that there will be summary judgment for the defendants.

[49] In saying that I am prepared to give the plaintiff one further opportunity to plead an intelligible case against the defendants, I do not propose to give the plaintiff leave to re-plead. Rather, I propose to permit the plaintiff to make an application to file and serve a further amended statement of claim and/or to join Radial Corporation. Again, without wishing to foreclose the prospect of being persuaded to take a different course on the return of any such application, it is unlikely that I would permit the joinder of Radial unless there was a solicitor prepared to act for it in the proceeding. Further, in the absence of some relevant change in the status of the body that was the second defendant, I do not expect the plaintiff will, in any application to file and serve a further amended statement of claim, seek to file a document claiming relief against the non-existent second defendant.

[50] Further, I should say that in any application the plaintiff might care to make in accordance with the order I am about to pronounce, detailed consideration will need be given to Order 13 of the Supreme Court (General Civil Procedure) Rules 2005, the authorities concerning Order 13 and the authorities concerning the proper pleading of the various causes of action the plaintiff wishes to advance (including specifically the authorities concerning the pleading of defamation cases).[8]"[9]

6 In the result, on 20 June 2012, I struck out the amended statement of claim and made an order that the plaintiff file and serve any further application for leave to file and serve a further amended statement of claim and/or to join Radial Corporation Limited as a second plaintiff by 4.00pm, 15 August 2012. Subsequently, on the application of the plaintiff, I extended the time for making such an application to 4.00pm on 12 September 2012.

7 On 11 September 2012, the plaintiff filed a summons seeking:

(a) an order that Radial Corporation Limited be added as a plaintiff;

(b) an order that Radial Corporation be permitted to take steps in this proceeding by its director, the plaintiff; and

(c) that the plaintiff have leave, either by himself or with Radial Corporation Limited, to file and serve a further amended statement of claim in the form of Exhibit K18 to an affidavit sworn by the plaintiff in support of this application.

8 The plaintiff no longer seeks to pursue a claim against the non-existent second defendant. That said, each of the first and third to ninth defendants resists the plaintiff's applications. Each submits that the application to file the proposed further amended statement of claim should be refused, that the application to join Radial Corporation should be refused, and that the proceeding should be dismissed.[10]

9 The proposed further amended statement of claim contains 814 paragraphs. Unlike its shorter predecessors, it runs to some 388 pages. Then follow three annexures: first, annexure A headed "Radial Commercialisation Opportunities and Attempts Directly Impacted by PN05.2016"; annexure B, a letter dated 10 December 2008; and annexure C, a letter dated 12 October 2006.

10 The proposed further amended statement of claim is as defective as its predecessors. While any individual sentence in it is capable of being understood, it fails to achieve the objective of identifying in some coherent and understandable way the precise claims and causes of action upon which the plaintiff relies against each defendant. As with the plaintiff's original statement of claim, the proposed further amended statement of claim is almost completely impenetrable. If the plaintiff was permitted to file and serve the proposed amended statement of claim, the high probability is that the document itself would generate endless debate about the scope and ambit of the plaintiff's claim against the defendants.

11 Wrestling with the proposed further amended statement of claim in an attempt to pin down with any sort of precision the content of the plaintiff's claims is a fruitless and unrewarding exercise. For example, the reference in paragraph 25 to "opposite and contradictory claims" is undefined. That said, this allegation is built upon in paragraph 30 - where the following is pleaded:

"The initial making of the opposite and contradictory claims occurred at the time of the height of what has been dubbed 'the forest wars'. At a simplistic and extreme level the forest wars were between hardline industry-based native forest harvesting supporters and hardline 'plantations only no native forest harvesting' environmentalists."

"The forest wars continue. By way of example in Victoria the debate or fight over resource for the Maryvale Pulp and Paper Mill (formerly owned by Amcor and now Nippon Paper as Australian Paper) and conflict related to logging in native forest and Melbourne's water catchments continue. This conflict has spilt into the courts."

"32. Radial Claims, and this action, are based on the fact of Radial Technology:

1. being a natural and logical industrial advance with:
2. the advantages provided by the advance, and the way the advantage is provided, being of a nature that makes the advantages and the way the advantage is provided evidence to an expert or scientists acting with diligence in relation to any statement or evaluation made by them or done by them.

The Nature of Claims that are Opposite and Contradictory to Radial Claims

33. Each of the claims and representations that are opposite and contradictory to Radial Claims are false claims and representations (the False Claims)

34. Each of the false claims has no basis in logic or fact.

35. Each of the False Claims is made as a statement of fact or as being based on a fact or facts.

36. Each of the False Claims is a bare assertion and ipse dixit.

PARTICULARS

(1) The False Claims and their meanings and representations and the nature of the falsities are defined relative to Statements 1 to 69.

(2) Within the meaning of the words as provide by The Free Online Legal Dictionary: "[Latin, He himself said it.] An unsupported statement that rests solely on the authority of the individual who makes it."

37. The False Claims are fabricated findings, conclusions, statements or implications made:

1. without explanation, and
2. deliberately with a knowledge of their falsity and baselessness; or

1. with a reckless indifference to their truth or accuracy.

38. None of the False Claims are provided with or accompanied by basis or proof, and, all requests that have been made for the basis and proof have been rejected or ignored.

PARTICULARS

(1) The 21 July 1997 Radcon Knorr request to CSIRO Northway for information on the basis of the claim in PN006.96 that Radial Technology recovery was average and the request for details as to the sawing trial results to which the radial recoveries were compared to establish that the radial recovery was average.

(2) The Document 5e email request as detailed at paragraph 202(b) relative to Statements 18 and 19.

(3) The Knorr FOI request requesting that CSIRO provided the basis and figuring used by CSIRO to confirm that Radial and Knorr made false and misleading claims about Radial Technology."

14 The proposed further amended statement of claim goes on in this vein for page after page - sometimes making detailed allegations, sometimes making allegations at a very high level of generalisation, and often without dates or other rudimentary facts which might enable the reader to understand what cause of action was being alleged (and by reference to what material facts). For example, paragraphs 95 to 97 are pleaded as followed:

"95. In 1995 Knorr commenced discussions with Boral Timber in regard to Boral Timber adopting Radial Technology for use in its sawmills. The approach was a normal commercial approach.

PARTICULARS

The various approaches and communications were had between Knorr and Boral Timber. Letters between Knorr and Boral Timber Managing Director Mr Keith Sullivan and later letters.

96. Others with an environmental issue in Boral Timber's logging of old growth forests and in encouraging a better use of forest resources supported or lobbied Boral Timber regarding Radial Technology. Certain parties were interested to get Boral Timber out of native forest logging and into processing plantation timber. Those with an active interest in Radial Technology included Boral Green Shareholders, Greenpeace and individuals.

PARTICULARS

(1) Communications between one Vince Englart and Boral Timber's Mr Peter Law (Law).

(2) Letter dated 14 February 1997 to Englart from Darren Gladman of Greenpeace.

97. Greenpeace supported Radial Technology timber being used in the Sydney 2000 Olympics and Knorr viewed this as an added incentive for Boral Timber to adopt Radial technology.

PARTICULARS

(1) Greenpeace recommendations relative to Radial technology are included at Page 3 of Analysis Document 2 or can be viewed at 6.9-6.11 of "Sourcing Timber for the 2000 Olympic Games in Sydney Greenpeace Australia April 1995" at http://www.skeptictank.org/treasure/GP5/TIMBER.TXT

(2) An Australian National University "future of the timber industry" circa 1996 that comments on Radial technology and Greenpeace's recommendations relative to Radial Technology is available for viewing at www.timbercase.net or online at http://fennerschool-associated.anu.edu.au/fpt/hwd/Future.html."

15 As a further example of these sorts of deficiencies, in paragraph 168 there is an allegation that "the basis on which RTA entered into the PN05.2016 research project is detailed in the Detailed Project Proposal (DPP) (as prepared by CSIRO and agreed to by FWPRDC) and confirmed by the PN05.2016 Project Work Plan (PWP) (as agreed to between CSIRO and FWPRDC and as provided by FWPRDC to Radial (Knorr) and RTA (McEvoy))". Then, in paragraphs 169 and 170 it is pleaded:

"169. The DPP and PWP detailed the elements of a contract and the promises, expectations and obligations created under that contract.

170. Each of CSIRO, FWPRDC, RTA (with Radial in mind) and Radial entered into the PN05.2016 contract in expectation of a return and benefit from that contract."

16 A little later on in paragraph 172 it is pleaded "When Radial was established each of CSIRO, FWPRDC, RTA and Radial acted as if Radial was a party to the contract".

17 As the High Court noted recently in Fortescue Metals Group Ltd v Australian Securities and Investments Commission & anor,[11] one of the fundamental requirements for a fair trial is that a party making allegations of contravention of law must identify the case which it seeks to make and do that clearly and distinctly. The proposed further amended statement of claim (like its predecessors) does not do that. The failures of the proposed further amended statement of claim to comply with basic pleading rules are manifest. I have already catalogued these failures in the two earlier judgments in this proceeding. I do not propose to do this again.

18 What I have said already is sufficient to show that the plaintiff's application to file and serve the proposed further amended statement of claim must be refused. I turn now to the application to join Radial Corporation.

19 In Knorr v CSIRO & ors (No 2),[12] I said in respect of the then current application to join Radial Corporation:

29. To date, the plaintiff (who does not have legal qualifications) has shown himself unable to prepare a pleading which satisfactorily identifies his causes of action and plead the material facts (and only the material facts) relied upon in support of these causes of action. In my view, it would be a wrong exercise of discretion to allow the plaintiff to make this proceeding (non-compliant as it has been to date with ordinary and well known pleading principles) more complicated by joining Radial Corporation and advancing such claims as the plaintiff might seek to advance on its behalf. The position might be different if the plaintiff was able to produce a statement of claim that complied with relevant pleading rules and authority.

30. In Worldwide Enterprises Pty Ltd v Silberman,[13] the Court of Appeal considered the operation of rule 1.17, which requires (except where otherwise provided by or under any Act or the Supreme Court (General Civil Procedure) Rules 2005) a corporation not to take any step in a proceeding save by a solicitor. As the Court noted, rule 2.04 enables a court to dispense with the requirements of rule 1.17 in an appropriate case. The Court held that in determining whether there are circumstances which warrant a departure from rule 1.17, the following matters were relevant:

"(i) the manner in which the case has progressed at the time that the application is made;

(ii) the manner in which the case can proceed in the future without a solicitor;

(iii) the complexity of the issues involved in the case;

(iv) whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice;

(v) whether the case can be conducted in an orderly and responsible fashion without a solicitor;

(vi) whether there are financial considerations which would inhibit a company from obtaining legal representation;

(vii) the stage which the case has reached;

(viii) whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company; and

(ix) what effect, if any, permitting a company to appear without a solicitor will have on court resources and, particularly, the effect upon other litigants in the Court List."[14]

1. In discussing this issue, Bongiorno JA said:[15]

"As far as the principal argument is concerned as to his personally representing the plaintiff, I add only the following: the wisdom of the rule requiring a corporation to be represented before the court by a legal practitioner was amply demonstrated here by the difficulties Mr Goodman had in presenting a concise, focussed argument in what were relatively straightforward matters before this court. Overall, he addressed the court for more than three hours on an immense volume of material which he had collected. It is precisely such prolixity which is one of the problems the rule was made to prevent. If it became common, the courts would be unable to cope. Incorporation confers many benefits on those connected with a company. It also imposes some burdens, one of which is that, in litigation, a company must normally be represented by a lawyer."

32. Having considered the matters identified in Worldwide Enterprises Pty Ltd v Silberman,[16] I am not persuaded to exercise the Court's discretion to permit the joinder of Radial Corporation in circumstances where it will not be represented by a qualified legal practitioner - but rather will be represented by the plaintiff. Indeed, each of the matters referred to by the Court of Appeal in the Worldwide Enterprises case tells against an exercise of discretion permitting Radial Corporation to be joined as a party where it is not represented by a solicitor. "[17]

20 Notwithstanding what I said last time, there is still no qualified legal practitioner prepared to represent Radial Corporation. Having looked at the material afresh, I remain unpersuaded that I should exercise the Court's discretion to permit the joinder of Radial Corporation in circumstances where it will not be represented by a qualified legal practitioner. If anything, the provision of the proposed further amended statement of claim has fortified me in this view.

21 As part of the material tendered by the plaintiff in support of his applications, the plaintiff has exhibited a 25 page memorandum from experienced senior and junior counsel. The memorandum notes that a significant amount of material was read by counsel and a conference "which lasted for over seven hours" was conducted with the plaintiff. The memorandum provides:

"At the conference we expressed the firm view that we did not see a cause of action available (as discussed in more detail below)."

"There are many problems with this proposed proceeding (scil, current proceeding). Even if they are all overcome (in some way we cannot imagine), we would not recommend the proceeding issue (scil, continue). Our overall impression is that if the causes of action sound in any damage at all, it is damage to...[Radial], and not Mr Knorr personally. All of the statements or representations complained of by Mr Knorr are in the nature of technical views about the utility of Radial's sawing technology. None of them are directed towards Mr Knorr or his conduct or anything that might reflect on his reputation, except as an inventor of the Radial technology. We can see no basis on which such matters could found a personal claim by Mr Knorr in defamation or an economic tort. Beach J has made it perfectly clear (we think correctly) that the court will not allow that company to litigate without lawyers. There seems to be no prospect of a solicitor being engaged to act for the company."

23 Mr Knorr's affidavit material discloses that while the memorandum does not assist him in the present applications, he thought it necessary to produce it for reasons of transparency. In that he is, of course, to be commended. However, I should note for completeness that Mr Knorr has made it plain to me that he does not accept the conclusions in the memorandum.

24 Obviously enough the views of counsel, however experienced, cannot be determinative of whether or not Mr Knorr has any available cause of action against any of the defendants.

25 Each of the existing defendants, in addition to opposing the plaintiff's applications, seeks an order dismissing the proceeding. The bases upon which an order dismissing the proceeding is sought include reliance upon:

(a) the Court's inherent jurisdiction to dismiss for want of prosecution;

(b) section 63 of the Civil Procedure Act 2010 on the ground that the plaintiff's claims have no real prospect of success;

(c) rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 on the grounds that the plaintiff's claims do not disclose a cause of action and/or are scandalous, frivolous or vexatious or an abuse of the process of the court; and

(d) rules 24.01 and/or 24.05.

26 In Udowenko & ors v Chief Executive Officer of the Board of Directors of St George Bank - a division of Westpac Banking Corporation & ors (No 2),[18] Johnson J noted that the question of whether a court should take the exceptional step of dismissing a proceeding for want of prosecution was not necessarily dependent upon how long had passed while the proceeding has been on foot. Nor was it necessarily dependent upon there being a lengthy period of inaction on the part of a party. One can have a case where, although the proceeding has only been on foot for, in that case, some 13 months (and in this case, some 11 months), when one looks at what has happened in that time, one can see that the proceeding has not moved to first base - let alone beyond it.[19]

27 The present is such a case. If I permitted this proceeding to remain on foot, and gave the plaintiff a further opportunity to plead a case in compliance with basic and fundamental rules of pleading, or more particularly with law, I am comfortably satisfied that the plaintiff would continue to deliver lengthy and impenetrable documents, upon which no trial could reasonably or fairly be conducted.

28 Again, as was said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd & anor,[20] "[t]here comes a point at which a self-represented litigant must be required to take responsibility for his choices". Consistently with the principles enunciated in the Civil Procedure Act, Mr Knorr cannot be permitted to continue to subject the parties to this proceeding to significant cost and inconvenience and to add pointlessly to the load on the Court's already limited resources.[21]

29 The fundamental problem with this proceeding is that, if it is left on foot, there will be no progress. What will occur will be contrary to the requirements of the Civil Procedure Act. Further, it will be contrary to law. I am satisfied, in the unusual circumstances of this case, that the plaintiff's proceeding must be dismissed.

30 The plaintiff's application for leave to file and serve a further amended statement of claim and his application to join Radial Corporation Ltd as an additional plaintiff will be refused. The plaintiff's proceeding will be dismissed. I will hear the parties on any question of costs.

[1] Knorr v CSIRO & Ors [2012] VSC 83.

[3] Knorr v CSIRO & Ors (No 2) [2012] VSC 268.

[5] [2011] NSWSC 1122 [111]-[124].

[6] [2012] VSC 268 [47]-[50].

[7] [2012] VSCA 97 [36].

[8] See generally Franchise Central & Ors v Fairfax Media & Anor [2011] VSC 379 [20]-[25] and the authorities referred to therein.

[10] Cf Udowenko & Ors v Chief Executive Officer and Board of Directors of St George Bank - a division of Westpac Banking Corporation & Ors (No 2) [2011] NSWSC 1122 [115]-[124].

[11] [2012] HCA 39 [25].

[12] [2012] VSC 268.

[13] [2010] VSCA 17; (2010) 26 VR 595.

[16] [2010] VSCA 17; (2010) 26 VR 595.

[18] [2011] NSWSC 1122.

[20] [2012] VSCA 97 [36].