Stuart v Rabobank Australia Limited [2018] FCA 30

FEDERAL COURT OF AUSTRALIA

Stuart v Rabobank Australia Limited [2018] FCA 30 File number(s): NSD 717 of 2015

Judge(s): JAGOT J

Date of judgment: 5 February 2018

Catchwords: PRACTICE AND PROCEDURE – application for leave to file further amended statement of claim – where pleadings unintelligible – where respondent repeatedly subjected to defective pleadings and seeks summary dismissal on that basis – application for leave refused – final opportunity to plead granted

Legislation: Federal Court of Australia Act 1976 (Cth) s 31A

Date of hearing: 20 December 2017

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: Catchwords

Number of paragraphs: 26

Counsel for the Applicants: P E King

Solicitor for the Applicants: Spencer & Co Legal

Counsel for the Respondent: P Braham SC and S E Gray

Solicitor for the Respondent: Gadens Lawyers

ORDERS NSD 717 of 2015

BETWEEN: MARK LINDSAY STUART First Applicant

CATHERINE ENID STUART Second Applicant

AND: RABOBANK AUSTRALIA LIMITED Respondent

JUDGE: JAGOT J DATE OF ORDER: 5 FEBRUARY 2018

THE COURT ORDERS THAT:

1. The applicants be refused leave to file the third further amended statement of claim. 2. The applicants serve and provide to the Court a proposed fourth further amended statement of claim by 23 March 2018. 3. The respondent notify the applicant and the Court (by email to the Associate to Jagot J) whether it consents to the filing of the fourth further amended statement of claim by 13 April 2018. 4. If the respondent consents under order 3, the fourth further amended statement of claim is to be filed by 17 April 2018 and the matter be listed for directions at 9.30am on 24 April 2018. 5. If the respondent does not consent under order 3, the respondent be granted leave to amend its interlocutory application dated 10 October 2017 and the matter be listed for directions at 9.30am on 24 April 2018 at which time a timetable will be fixed for any hearing required as to: (a) whether leave to file the fourth further amended statement of claim should be granted; and (b) whether the proceedings should be summarily dismissed. 6. The applicants pay the respondent's costs of and in connection with: (a) their attempts to obtain leave to file a statement of claim on and from 28 July 2017; and (b) the respondent's interlocutory application dated 10 October 2017 to date, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J: 1 The principal issue which must be resolved in these reasons for judgment is whether I should give the applicants another opportunity to plead their case. The respondent, Rabobank Australia Limited, contends that no such further opportunity should be given in the circumstances, so that the proceedings should be summarily dismissed. The applicants, Mr and Mrs Stuart, contend that the proposed third further amended statement of claim is adequate so that leave to file the statement of claim should be granted (a contention which I do not accept) or, if it is inadequate, they should be given another opportunity to plead their case. 2 I have decided not to grant leave for the filing of the statement of claim, but will give the applicants one final opportunity to plead their case. 3 Despite the submissions to the contrary for Mr and Mrs Stuart I consider it beyond argument that the statement of claim fails to give Rabobank adequate notice of the case it is required to meet, and thus does not perform the essential function of a pleading. As such, leave should not be granted to Mr and Mrs Stuart to file the statement of claim. A few examples of the inadequacies will suffice to expose the problems, of which there are many. 4 It has been common ground to date that in order to maintain any action against Rabobank Mr and Mrs Stuart would need to succeed in setting aside a deed of forbearance and acknowledgment into which they and Rabobank entered following a farm debt mediation. By the deed Mr and Mrs Stuart released Rabobank from liability in respect of Rabobank's past dealings with them in exchange for Rabobank placing a moratorium on enforcement action until 31 March 2013. 5 In the statement of claim para 46 pleads the deed is inoperative as it was subject to acceptance by Rabobank's credit committee by 23 August 2012 and the Farm Debt Mediation Scheme, section 12, requires the deed to be returned to the farmer and financier within three days of the completion of the mediation. The pleading makes little sense. There is no pleading which connects the pleaded facts to the alleged outcome of inoperability. Further, the deed is dated 22 August 2012 which is one day before the pleaded date for acceptance of 23 August 2012. The pleaded claim is that the deed is "inoperative" but it was submitted that the alleged facts (which, as noted, make little sense) mean the deed is invalid. While the obligation is to plead material facts, not law, nothing in the pleading discloses why section 12 of the Farm Debt Mediation Scheme (which presumably operates under legislation not identified in the pleading) could have any consequence for the operation or validity of the deed. 6 Paragraph 47 asserts that the deed is void "by the unilateral alteration of it as to the insertion of the date and the alteration of the schedule 3 certificate." No particulars are given. This is unintelligible. Who altered the schedule 3 certificate? When and how was it altered? 7 Paragraph 48 asserts a collateral contract to the deed under which Rabobank agreed to "give serious consideration to" a proposal but did not do so. This contract is not adequately pleaded. It is not clear if it was oral or written or both in part (or as to which part). The consideration is not identified. The terms are unclear. Why alleged breach of such a contract might invalidate the deed is also unclear. 8 Paragraph 49 alleges a breach, but not of the contract pleaded contract in paragraph 48. The breach is said to be of the contracts pleaded in paragraphs 8 and 20 (discussed below). If this were not confusing enough, the pleaded facts are that Rabobank "frustrated their [the Stuarts] plans to work through their financial difficulties and/or assist in so doing." Again, there are no particulars. This is unintelligible. Material facts directed at explaining which alleged requirements Rabobank did or did not satisfy, and the contractual source of those requirements, must be pleaded. 9 Paragraph 50 pleaded that the deed is void and of no effect because of various matters. One is an allegation that the Stuarts signed the deed "under the misrepresentation that the collateral contract…would be honoured which it was not and when there was no intention on the part of the Respondent to do so". This is inadequate to plead a case of entry into a contract under a misrepresentation. What was the representation? Who made it? When did they make it? How did Mr and Mrs Stuart rely on it? Another is that the Stuarts signed the deed under duress arising from the conduct of officers of Rabobank. No particulars are given, but without them, the pleading is meaningless. What conduct is alleged to have resulted in duress? How and why did it so result? Yet another ground is said to be that Rabobank failed to negotiate in good faith at the mediation. No particulars of this alleged failure are given. It is then said that after the mediation Rabobank made no further reference to the "said offer" (presumably, the alleged collateral contract, but even that is unclear), and that the deed did not refer to the "said offer". How this can result in invalidity of the deed remains unknown. The source of any obligation to refer to the "said offer" in the deed is equally unknown. It is alleged that the deed was "oppressive, unreasonable and unfair to the Stuarts" and did not contain any concession by Rabobank. No particulars are given of which terms are said to be oppressive, unreasonable and unfair or why they bear that alleged character. It is alleged also as follows: (e) further and alternatively, in the period between the mediation and the date the Bank executed the Deed, the Deed was not binding on the Stuarts as it was incomplete and they could have withdrawn from it, but they received no advice to that effect from the Bank or anyone else. Had they received advice to that effect during the said period they would have repudiated the Deed. 10 The inadequacies of this pleading are manifest. Why was Rabobank obliged to give such advice to the Stuarts? Why was anyone so obliged? 11 As noted, if the deed is not set aside, then it has been common ground that the balance of the claims cannot be maintained. Yet the pleading in respect of the deed is so inadequate that Rabobank cannot possibly know what is being put against it in respect of the deed. 12 The same manifest inadequacies affect virtually every paragraph of the statement of claim. The inadequate pleadings in paragraphs 49 and 50 are the foundation for a claim of misleading or deceptive conduct in paragraph 51. The confusion created by paragraphs 49 and 50 thus underpins this claim as well. The confusion is exacerbated by particulars to paragraph 51 which again fail to identify with any clarity what was represented, by whom, when, and what alleged state of mind it induced, or how it was relied upon. The particulars also include the unhelpful generalisation that thereafter Rabobank "disregarded the undertakings given and considered no alternative sale proposal." What undertakings? Are they the unidentified representation or something else? Why was Rabobank obliged to consider an unidentified "alternative sale proposal"? What proposal was there, for that matter? What would the Stuarts have done otherwise? Not entered into the deed and thus been exposed to immediate enforcement action? 13 Paragraph 52 is an unconscionable conduct claim, which also relies on paragraphs 49 and 50, and thus suffers from all of the defects which affect those claims. Further, why were the Stuarts disadvantaged when they had legal representation at the mediation? What "[u]nfair tactics" were used? Why were they unfair in the circumstances? 14 Paragraph 53 pleads that the deed is unjust on the grounds in paragraphs 45 to 52 which, as discussed above, are incapable of putting Rabobank on notice of the case it must meet. 15 The pleadings which do not concern the deed are equally unintelligible. 16 Paragraph 42 is a highly generalised allegation of unconscionable conduct, with many components none of which are adequately particularised or particularised at all. It refers back to paragraphs 38 to 41. Paragraph 38 refers to a conversation in which one officer of Rabobank allegedly said his predecessor had made lots of mistakes, but how that is a material fact is unknown. Paragraph 39 increases the potential for confusion by vague references to Rabobank's "breaches of duty and contract as alleged herein", as well as breach of contracts alleged in paragraphs 8 and 20. 17 The contract alleged in paragraph 8 is a credit contract. But paragraph 9 then introduces an alternative pleading as between the paragraph 8 credit contract and another collateral contract. But the collateral contract is not properly pleaded. The particulars to paragraph 9 are about alleged representations, not a contract. They are not particulars at all, but a separate claim to some other, unidentified, cause of action. The collateral contract in paragraph 9 is not supported by any material facts. Paragraph 10 focuses on the terms of the paragraph 8 credit contract. Paragraph 11 refers to both the credit contract and the collateral contract as having a term, but (as noted) the collateral contract remains a mystery. And to add to the confusion the particulars to paragraph 11 do not concern the terms of any contract but yet further representations. Paragraph 15 begins with "In breach of contract" but fails to identify which contract, the credit contract or the alleged collateral contract. It also alleges that clause 25 of the Code of Banking Practice is "incorporated therein", but this is the first reference to any contract incorporating such a term. Further, the alleged breach is not identified. Why was it a breach of a contractual term for Rabobank to do what it is said to have done? Further vague allegations of breach of the same inadequate kind follow in paragraphs 17, 18 and 19. We then come to paragraph 20 which refers to another credit facility, which is presumably the paragraph 20 contract. But the paragraph then refers to representations which are not identified and the relevance of which to the paragraph 20 contract is not apparent. 18 The same exercise could be carried out for every paragraph in the statement of claim. The inadequacies are manifest and should have been obvious to the Stuarts' legal representatives. It is near on impossible to understand anything as a cause of action in the statement of claim. Multiple contracts appear to underpin the claims, each of which is insufficiently identified, and the terms of which are by no means clear. The statement of claim creates substantial confusion about the contracts, most often by assuming (incorrectly) that claims about alleged misrepresentations are somehow particulars of a claim of breach of contract. Where a cause of action is pleaded in terms (breach of contract, misleading or deceptive conduct in breach of statute for example), there are no or inadequate material facts to found the claim. Otherwise, there are alleged facts pleaded which do not appear to relate to any pleaded cause of action, such as paragraph 38. By this means, the statement of claim is ultimately unintelligible. As a result, the Stuarts' application to file the statement of claim must be refused. 19 What of Rabobank's application for summary dismissal of the proceedings on the basis that there is still no statement of claim yet the proceedings were commenced on 19 June 2015? To resolve this aspect of the matter, the course of events has to be considered. 20 When the matter first came before me I ordered that it be sent to mediation. The matter was mediated but not settled on 2 September 2015. Directions were made including for an amended statement of claim to be filed by 18 September 2015. This did not occur and the date was extended to 9 October 2015. Instead the originating application was amended. The Stuarts were ordered to file an amended statement of claim which addressed issues raised in correspondence from Rabobank's solicitors by 18 December 2015. They filed an amended statement of claim which Rabobank then applied to strike out. I struck out the amended statement of claim on 27 April 2016 and ordered the Stuarts to file a draft amended statement of claim by 17 June 2016. Then it appeared that the matter had settled and consent orders dismissing the proceedings and noting the Stuart's indebtedness to Rabobank in the sum of $2,522,884.62 were filed. On the date the matter was listed for the consent orders to be made, 5 September 2016, it became apparent that the Stuarts denied any binding agreement to settle. Rabobank sought to enforce the alleged settlement contract. Between 5 September 2016 and 20 March 2017 was taken up with preparation for a hearing about the alleged settlement contract which Rabobank sought to enforce. This claim was heard in part on 20 March 2017 but had to be adjourned to allow a tape recording of certain telephone conversations to be located. By 28 July 2017, under encouragement from me having heard the evidence of Mr and Mrs Stuart, Rabobank (entirely properly) decided not to seek to enforce the alleged settlement contract. As a result, the period from June 2016 to July 2017 involved a (difficult) collateral issue, where the Stuarts were without legal representation for a lengthy period, which was ultimately resolved by consent. 21 From 1 February 2017 the Stuarts again obtained legal representation. 22 On 28 July 2017 I ordered the Stuarts to serve a draft third amended statement of claim by 11 August 2017 on the basis that, given the history of the matter, this was the final opportunity to plead the case. A draft third amended statement of claim was served. Rabobank notified the Stuarts of alleged defects in this document, in so doing pointing out that many of the defects had already been identified in earlier correspondence in respect of earlier versions of the pleading. No amendments were made and both parties filed submissions about whether leave should be granted to the Stuarts to rely on that pleading. Suffice to say Rabobank's were sufficiently persuasive to cause counsel for the Stuarts to seek another opportunity to plead the case during the hearing on 10 October 2017, which I gave. I so doing, I noted that the Stuarts had already been given a supposedly final opportunity to plead their case and thus repeatedly said that "This will be it …", meaning that the Stuarts, being on notice of all of the defects pointed out in Rabobank's submissions dated 3 October 2017, would not be granted yet another opportunity to plead the case. 23 The statement of claim the subject of these reasons for judgment is dated 7 November 2017. It will be apparent from the discussion above that despite being on notice of the defects since 3 October 2017 (and, indeed, well before that given the earlier correspondence), the pleading remains woefully inadequate. It fails to fulfil the role of a pleading as it is frankly unintelligible. Rabobank should not have to attempt to defend a case where it cannot know what facts material to causes of action are put against it. And despite the course of events, including it being made clear on 10 October 2017 that the final opportunity had already been given, counsel for the Stuarts sought yet another opportunity to attempt to plead the case. 24 Circumstances such as these are difficult. The Stuarts have had ample opportunity to file an adequate statement of claim. The document provided on 7 November 2017 (apparently, the culmination of at least three earlier attempts) is profoundly inadequate. The number of attempts made, the fact that they were made in the face of correspondence from and submissions by Rabobank accurately identifying the many inadequacies of the pleading to perform its required function, and the nature of the document filed on 7 November 2017, may well indicate that it is not possible for the Stuarts to plead (and thus pursue) a case against Rabobank. Rabobank must have already been put to substantial expense as a result of this proceeding. Rabobank has gone to the effort of repeatedly explaining the defects in the proposed pleading. It should have been apparent to the Stuarts' lawyers that those defects were not mere technicalities or minor issues which could be rectified or ameliorated by particulars. Indeed, the particulars, where given, are part of the problem as they appear to raise separate causes of action which have nothing to do with the alleged contracts. Yet, as between July 2017 (at the latest) and November 2017, the Stuarts' lawyers failed to prepare a pleading capable of sustaining the proceeding. If the Stuarts are given yet another opportunity to try to plead their case, Rabobank will be put to yet more expense. Costs orders can be made, but (even assuming they could be enforced, which may well not be the case given the Stuarts' financial position), costs orders do not ameliorate the prejudice of having to repeatedly deal with a grossly defective pleading. If the Stuarts are not given another opportunity to plead their case then their case must be summarily dismissed. 25 I have decided that the Stuarts should be given one further opportunity to attempt to plead their case. In so doing I have given the most weight to the fact that, despite the terms of paragraph 2 of its interlocutory application dated 5 October 2017, Rabobank does not contend that the case should be dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth), which permits summary dismissal of a case which does not have a reasonable prospect of success. Rather, Rabobank's point, which is correct, is that the Stuarts have been given multiple opportunities to file a statement of claim which satisfies the fundamental requirement of a pleading that it give to the other party adequate notice of the case that other party must meet but have not been able to do so. In such a case, it is not easy to draw the line. In my view, the line is now drawn. The Stuarts will get one more chance to plead their case. I will give the Stuarts six weeks in which to do so. If the next version of the proposed statement of claim remains unintelligible then, as matters currently stand, I see no option other than to dismiss the proceeding, with costs. As to costs thus far, while I have not summarily dismissed the proceedings as sought by Rabobank, that is an indulgence to the Stuarts who have failed to obtain leave to file a statement of claim. Rabobank should have its costs of and in connection with its interlocutory application dated 10 October 2017 by which it sought summary dismissal and of and in connection with the Stuarts' attempts to obtain leave to file a further pleading from 28 July 2017 onwards. Rabobank need not file another interlocutory application for summary dismissal. Notice that it does not consent to the filing of the further proposed pleading will suffice or Rabobank may amend its current interlocutory application, at its election (which I will not dismiss as a result). Directions to this effect will be made. 26 A word of caution is also necessary. The examples of the inadequacies of the pleading set out above and in Rabobank's submissions should not be taken to be comprehensive by the Stuarts' lawyers. It was not the task of Rabobank, or me, to attempt to identify every problem with the proposed pleading. It would be wrong to assume that the problems with that document are capable of rectification by mere amendment. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate: Dated: 5 February 2018