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Gunns Limited and Ors v Alexander Marr and Or et ales

[2005] VSC 251

Ramos J

The case and issues presented today before us in this court is one that has lead to the legal profession being in disrepute amongst the general public. Generally put, is one of incompetency and expertise by legal practitioners, who by virtue of their own professional arrogance have implicitly refused to accept sub-standard quality in their own work.

As stated by Bongiorno J there exist several material defects that have negatively impacted upon the case brought today by the Plaintiffs in bringing this action. As I shall discuss later in more detail, the Plaintiffs have changes solicitors a numerous number of times. In addition to this, they have amended their Statement of Claim four times, not withstanding any lack of precision therein.

The main complaint by the defendants was and still remains that the Plaintiff’s claim broke the Rules of the Supreme Court to the degree that it was not possible to comprehend the claim with sufficient clarity and it therefore compromised the defendant’s ability to respond and hence procedural fairness. To examine this further, I shall now discuss the Plaintiffs action in more-depth.


The original Statement of Claim of the plaintiff consisted of 216 pages, which was filed on 13 December 2004. It listed seventeen (17) individual defendants in addition to three (3) corporate defendants. Gunns Limited, a wood cutting entity brought an action against the defendants arising out of anti-deforesting protests championed by the various defendants. In the early part of the following year various defendants requested of the plaintiff further and better particulars. The plaintiff’s claims were founded on the law of tort and claimed both general and special damages. The primary difficulty for the defendants were discerning from the language of the Statement of Claim the legal basis for each claim and the factual background giving rise to the various claims.

At a Directions Hearing on 11 March 2005 my learned friend Bongiorno J expressed “concerns about” the “Statement of Claim.” At a second Directions Hearing on April 8, 2005 an order was made for further and better particulars to the Statement of Claim.  On July 18, 2005 an application filed by a majority of the defendants for the Statement of Claim to be struck out was awarded by the court.  The court’s order effectively struck out the initial Statement of Claim and the Amended Statement of Claim which included responses to the defendant’s requests for further and better particulars. The plaintiff was allowed one month to prepare “a new Statement of Claim” by Bongiorno J.

Procedural Defects
QC Mark Dreyfus, representing 6 of the defendants in this present case told the Sydney Herald his primary concern with the initial Statement of Claim.  Dreyfus said that

“The statement (of claim) is very long, confused, muddled, and deficient in details and parts of it should be struck out…”

In the context of the Federal Court of Australia’s ruling in Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 it is immediately clear how this present case might have abused the civil process in the compilation of the plaintiff’s claim.  The Federal Court ruled in  Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 that:

“The requirement imposed by FCR O 11, r 2, that a pleading contain a statement in summary form of the material facts on which the party relies, is to be understood by reference to the functions of pleadings. Thus it is a well-established rule that the permitted level of generality of a pleading must depend on the general subject matter and on what is required to convey to the opposite party the case that is to be met…”

In other words, the Statement of claim should simply state the cause of action and the facts giving rise to the cause of action.  The defendant should be able to either confirm or deny the claims made in the originating pleadings. The primary purpose for this rule is to familiarize the party against whom the claim is made with the material facts that will be relied on at the trial: Davy v Garrett (1878) 7 Ch D 473.

A chronology of the events leading up to the final draft of the plaintiff’s Statement of Claim clearly demonstrates that the claim was far from clear. It would appear that even with the ensuing provision of further and better particulars the plaintiff’s claim remained confusing and difficult to respond to effectively.   As seen in Bongioro’s J at paragraph 57 final strike out judgment Gunns had not submitted a “proper, coherent and intelligible statement of its case.”

Having to listened to arguments from both sides at the hearing for striking out in July of 2005, the judge, in line with the Federal Court’s ruling in Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 explained that quite simply the pleadings contained in the Statement of Claim should be narrowed down and simplified to permit a response.

As previously noted this court has dealt with the time and expense issues by ordering costs against the plaintiff and ordering the plaintiff to file a new version of the complaint at least three times.   It might well be wise for this court to consider whether or not the plaintiff is serious about recovering damages or merely seeking to achieve an unlawful advantage.  If this can be determined at an early stage the defendants can be spared the anguish of having to commit time and expense in the litigation of a case which only intends to misuse the civil process.  The courts could dismiss the process from the outset.

When a defendant’s motives cannot be determined from the outset the court has a duty to permit the plaintiff to pursue his claim.  In the present case, the court was perhaps overly cautious in attempting to allow Gunns to present a claim with merit.  However, the fact that there were three different lawyers at different times should have been sufficient evidence that the case had no merit and should have been struck out altogether.

This fact alone should have alerted the court to the fact that Gunns had no real intention of recovering alleged damages.  The primary motive was very likely to achieve an unlawful advantage over civil protesters.  In the circumstances the court should not permit the misuse of the civil process for disingenuous reasons.

I agree with the order set out by Bongiorno J.

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