Fuller v Toms (No 2) [2012] FCA 103

Fuller v Toms (No 2) [2012] FCA 103

Leave to amend or re-plead was refused because the primary "lost opportunity" claim for $144 million was misconceived, not open to be pleaded, and the applicant had shown an unwillingness or inability to articulate any other arguable cause of action; therefore, the proceedings were dismissed.

Parties
Applicant: Donald Fuller; First Respondent: Stephen Norman Toms; Second Respondent: Charles Ernest Bright; Third Respondent: Brett Heading; Fourth Respondent: Phillip Toyne; Fifth Respondent: Australian Agricultural Company Limited; Sixth Respondent: Donald J Mackay; Seventh Respondent: Stephen Lonie; Eighth Respondent: Peter Hughes; Ninth Respondent: Nick Burton-Taylor; Tenth Respondent: Chris Roberts; Eleventh Respondent: Arunas Paliulis; Twelfth Respondent: Abdul Samad bin Haji Alias (Datuk Abdul Samad); Thirteenth Respondent: Dato' Sabri Ahmad; Fourteenth Respondent: Donald Gordon McGauchie; Fifteenth Respondent: David Farley; Sixteenth Respondent: J Whiteman; Seventeenth Respondent: Kerry Parker; Eighteenth Respondent: J Sloman; Nineteenth Respondent: Philip Beale; Twentieth Respondent: David R Connolly; Twenty First Respondent: Troy Setter; Twenty Second Respondent: Elders Limited; Twenty Third Respondent: Stephen Gerlach; Twenty Fourth Respondent: Les P Wozniczka; Twenty Fifth Respondent: Malcolm Jackman
Jurisdiction
Australia
Judgment Date
16 February 2012
Procedural Posture
Application / Final Judgment/dismissal
Outcome
Proceedings dismissed; leave to amend refused; costs awarded against applicant
Legal Topics
Leave to Amend, Dismissal of Proceedings, Costs
Civil Procedure Leave to Amend Dismissal of Proceedings Costs

Case Brief

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Parties

Donald Fuller

Applicant

Stephen Norman Toms

First Respondent

Charles Ernest Bright

Second Respondent

Brett Heading

Third Respondent

Phillip Toyne

Fourth Respondent

Australian Agricultural Company Limited

Fifth Respondent

Donald J Mackay

Sixth Respondent

Stephen Lonie

Seventh Respondent

Peter Hughes

Eighth Respondent

Nick Burton-Taylor

Ninth Respondent

Chris Roberts

Tenth Respondent

Arunas Paliulis

Eleventh Respondent

Abdul Samad bin Haji Alias (Datuk Abdul Samad)

Twelfth Respondent

Dato' Sabri Ahmad

Thirteenth Respondent

Donald Gordon McGauchie

Fourteenth Respondent

David Farley

Fifteenth Respondent

J Whiteman

Sixteenth Respondent

Kerry Parker

Seventeenth Respondent

J Sloman

Eighteenth Respondent

Philip Beale

Nineteenth Respondent

David R Connolly

Twentieth Respondent

Troy Setter

Twenty First Respondent

Elders Limited

Twenty Second Respondent

Stephen Gerlach

Twenty Third Respondent

Les P Wozniczka

Twenty Fourth Respondent

Malcolm Jackman

Twenty Fifth Respondent

Procedural Posture

Application / Final Judgment/dismissal

Legal Issues

  1. 1 Should leave be granted to re-plead or amend the statement of claim?
  2. 2 Should the proceedings be dismissed?
  3. 3 Who should bear the costs of the application and proceedings?

Ratio Decidendi

Leave to amend or re-plead was refused because the primary "lost opportunity" claim for $144 million was misconceived, not open to be pleaded, and the applicant had shown an unwillingness or inability to articulate any other arguable cause of action; therefore, the proceedings were dismissed.

Court Disposition

Proceedings dismissed; leave to amend refused; costs awarded against applicant

Orders

  • The application for leave to file the statement of claim and amended originating application be dismissed.
  • The applicant pay the costs of and incidental to the application on a party/party basis.