FEDERAL COURT OF AUSTRALIA

Fuller v Toms [2012] FCA 27

THE COURT ORDERS THAT:

1.    Leave is refused to the applicant to amend the initiating application and to file a substituted statement of claim in accordance with the documents to that effect attached to his affidavit filed 5 October 2011.

2.    The matter be relisted on Friday 10 February 2012 at 10:45 am to enable the Court to hear from the parties as to orders that should be made in consequence of the preceding order and in relation to costs.

3.    The interlocutory application of the application for an order for substituted service filed 3 August 2011 be dismissed.

4.    The Court determines that it will not issue a referral certificate under R 4.12.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

issues

1    This judgment is concerned with three pre-trial issues that have arisen in the proceeding:

1.    Whether the applicant should be granted leave to amend the current originating application and file a substituted statement of claim.

2.    Whether the Court should issue a referral certificate to enable the applicant to obtain pro bono legal assistance.

3.    Whether the applicant should have an order for substituted service so that he is not obliged to comply with the requirement that he personally serve originating process on the individual respondents.

APPLICATION FOR LEAVE TO FILE amended application and Substituted statement OF CLAIM

2    On 19 August 2011, on the application of the fifth respondent Australian Agricultural Company Limited (AACo) and the twenty second respondent (Elders) (the corporate respondents) filed 12 August 2011 to strike out both the originating Form 5 application and statement of claim in this proceeding, I ordered that the statement of claim be struck out and that the applicant on or before 2 December 2011 lodge and serve any proposed statement of claim in substitution for that struck out, failing which the proceeding be dismissed. I ordered that the leave of the Court to the filing of the substituted statement of claim be required.

3    On 5 October 2011, the applicant filed an affidavit to which he attached a proposed amended application and proposed substituted statement of claim. The applicant’s affidavit also described the applicant’s unsuccessful search for professional legal help to conduct his proceeding and to draft these important documents.

4    I will treat the filing of these documents as an application for leave not only to file the substituted statement of claim but also to file an amended originating application.

the proposed amended application

5    By the proposed amended application, the applicant would state “[T]he nature of the application” as follows :

    Jointly and severally against the first four individual respondents, damages (of one sort or another) under the Defamation Act 2005 (WA) and the Defamation Act 2005 (Qld), as well as general damages, aggravated damages and exemplary damages under the common law tort of malicious prosecution “for the defamation action brought without proper or probable cause against the applicant in this matter and subsequently discontinued”.

    Jointly and severally against the first four respondents and those other individual respondents who were from time to time directors of AACo “and the company itself”, damages (or one sort or another) variously for fraudulent accounting and related misrepresentations, variously pursuant to Corporations Act 2001 (Cth) (Corporations Act), s 79, s 286(1), s 295(4), s 295A(2), s 296, s 297 and s 299A(1).

    Jointly and severally against all of the respondents damages (of one sort and another): “under the common law tort of deceit”, “for fraudulent misrepresentation”, damages (of one sort or another) pursuant to the misleading and deceptive conduct provisions of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (ACL), s 18, s 18(1), s 227, s 236 and s 238 and related provisions of Fair Trading Act 1989 (Qld) and related provisions of Fair Trading Act 2010 (WA); and damages (of one sort or another) pursuant to the Corporations Act, s 79, s 180(1), s 181, s 182(1), s 183(1), s 184(1), (2) and (3), s 674(2)(c)(ii) and ASX Listing Rule 3.1.

6    By the proposed amended application the applicant would claim as follows:

    Against the first four respondents:

1.    jointly and severally special damages for defamation in the amount of $10,000,000;

2.    each individually non-economic damages for defamation, in the amount of $250,000;

3.    jointly and severally general damages in the amount of $4,000,000; and unspecified aggravated damages and unspecified exemplary damages, for malicious prosecution;

4.    interest on each amount;

5.    offsetting additional damages for all court costs awarded in the prior matter against the applicant.

    Jointly and severally against all the respondents general damages “including lost-opportunity damages” in the amount of $144,000,000, and unspecified aggravated damages and unspecified exemplary damages, for fraudulent misrepresentation; as well as interest and costs.

The proposed substituted statement of claim

7    The proposed substituted statement of claim has the following general structure:

    [4]-[5] describe the applicant and refer to a group of prospective buyers that he led when Futuris (as AACo was then called) offered for sale its 43% controlling stakeholding in ASX listed AACo.

    [6]-[31] describe each of the first to twenty fifth respondents (not including AACo and Elders), being natural persons and their connection with one or other of AACo or Elders/Futuris.

    [32] describes the corporate respondents.

    [36]-[50] purport to provide some “history” and background to AACo and Elders/Futuris.

    At [34] the applicant would plead as follows:

In essence, I allege that the cattle company had at the relevant time of negotiations for sale of the parent company’s 43% controlling stake holding around half of the cattle it claimed to have – some 300,000 head, not the 600,000 head as allegedly fraudulently reflected in the AACo FY2008 accounts.

(Emphasis in original)

    [51]-[71] deal with what the applicant calls “buy-in-or-buy-out negotiations” concerning the sale of the Futuris shareholding in AACo.

    At [72]-[74] the applicant would plead:

[72]    The respective financial capacities of my prospective venture partners were never in question. The probability of successful completion of whichever approach to the deal (buy-in or buy-out) by my group was high.

[73]    The main claim in this amended statement of claim is on the basis of a 90% probability* of successful completion of a deal at the higher proposed overall funding $3.775 billion in which my equity share at par value would have been reduced from $200m to $160m; hence basic damages claim for $144m.

*see La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd

95% probability – [2011] FCA FC 4

[74]    I would never have gone near either company if I had known the true status of AACo at that time, but both Futuris/Elders and AACo were iconic, trusted agribusiness companies in Australia; and I had recommended them to my intended major venture partners.

(Emphasis in original).

    In [75] and earlier in [35] the applicant refers to a defamation action brought by the first four respondents against him in the Supreme Court of Queensland and pleads in effect that the defamation proceeding was designed to prevent him from negotiating for the purchase of the Futuris shareholding and, in [76], caused the loss of the opportunity to successfully negotiate for the purchase of that shareholding.

    At [77]-[98] the applicant provides something in the nature of a narrative concerning his reliance on the AACo accounts and the basis upon which the cattle accounts were produced.

    At [99] the applicant would plead that in contravention of ACL, s 18(1), AACo and Elders/Futuris and the responsible directors and officers at those times, engaged in conduct in trade or commerce that was misleading or deceptive or likely to mislead or deceive.

    At [100], the applicant relies on the same conduct mentioned in [99] and would plead common law deceit.

    Further, the applicant would plead breach of duty by the corporate respondents of their obligations to make continuing disclosure in relation to the accounts, pursuant to the International Financial Reporting Standards (IFRS), Australian Accounting Standards Board (AASB) and ASX Listing Rule 3.1 (applying s 674(2)(c)(ii) of the Corporations Act).

    By [105], the applicant would plead that the corporate respondents and their responsible directors at the time did not exercise their powers and discharge their duties with the degree of care and diligence required of them pursuant to s 180(1) of the Corporations Act.

    In [106], the applicant would plead that the two corporate respondents and responsible directors and officers did not exercise their powers and discharge their duties in good faith in the best interests of the corporation and for a proper purpose, contrary to s 181 of the Corporations Act.

    In [107], the allegation is that these same respondents improperly used their position to gain an advantage contrary to s 182(1) of the Corporations Act.

    In [108], it would be pleaded that these same respondents improperly used information contrary to s 183(1) of the Corporations Act.

    In [109], it would be pleaded that these same respondents were reckless or intentionally dishonest in their actions contrary to s 184(1) of the Corporations Act.

    By [110], it would be pleaded that these same respondents used their positions dishonestly with intention of directly or indirectly gaining an advantage contrary to s 184(2) of the Corporations Act.

    In [111], it would be pleaded that these same respondents obtained information contrary to s 184(3) of the Corporations Act.

    In [112], it would be pleaded that these same respondents failed to keep financial records in accordance with s 286(1) of the Corporations Act.

    Paragraphs [113]-[129] would deal with the accounts for the financial year ending 2008, here called ‘FY2008’.

    By [130]-[143], in relation to the FY2008 accounts, the applicant would plead contraventions or causes of actions in terms identical to or substantially the same as those pleaded in [99]-[112], the details of which are set out above.

    Further, the applicant would plead in [144]-[149] that the named directors of AACo in so acting breached information or disclosure requirements found in the Corporations Act s 295(4), s 295A(2), s 296, s 297 and s 299A.

    In [149], the applicant would plead that pursuant to s 79 of the Corporations Act, all of the respondents were involved in contraventions of the Corporations Act.

    [150]-[179] would deal with the defamation suit, abuse of process and malicious prosecution, this being a convenient description of the claim that the applicant would make against the first four respondents in respect of the defamation proceedings they brought against him in the Supreme Court of Queensland.

    [180]-[197] would contain a narrative that deals with the topic AACo board and management “notorious disfunctionality going adversely to credit” (the “revolving door”).

    [198]-[216] would deal with what the applicant would plead are the correct cattle numbers, commencing under the heading “Keeping track of cattle numbers is not “rocket science”!”. The applicant includes a “Table FY2008” which he uses to support a plea at [215] that “near-enough-to-200,000 head of branded “trade cattle”” did not actually exist at the close of the FY2008 year despite being shown in the accounts.

    [217]-[225] would deal with “AACo 1H2011 results” to support pleas at [220]-[225] that certain cattle disclosed in accounts do not exist.

    [227]-[265], the proposed substituted statement of claim would deal with a topic called “Imputation and Damage” wherein the applicant would identify damage he claims to have suffered, as well as particulars of circumstances that would justify the award of aggravated or exemplary damages.

response of AACo and elders

8    Only AACo and Elders have thus far been served with the originating application and other process in this proceeding and accordingly are the only respondents to appear. They successfully moved to strike out the initial statement of claim and application and now oppose the grant of leave for the filing of the proposed amended application and proposed substituted statement of claim.

9    As to the proposed substituted statement of claim, these respondents note that in an originating application a party is required, under the heading “Nature of application” to state briefly the nature of the subject of the application and the legislative basis of the Court’s discretion to hear it and grant the application sought. Under the heading “Details of the claim” a party must specify all final relief sought and provisions of legislation upon which the grant of relief may depend.

10    These respondents complain that the proposed amended application is confusing in that, under the heading “Nature of application”, as against all respondents, the application seeks damages for deceit and under other heads it seeks damages pursuant to several provisions of a number of statutes. However, in the “Details of claim” heading, the applicant seeks damages for fraudulent misrepresentation. Thus the application is inconsistent with the proposed substituted statement of claim. They also say that to the extent that the claims purport to be based on statutory provisions, those provisions of themselves do not give rise to any civil causes of action. These respondents therefore contend the application is defective and ought be set aside.

11    I will however first give particular attention to the detailed claims as stated in the proposed substituted statement of claim. If they are found not to be defective or not to be defective in any serious way then no doubt the accompanying application could be further amended to reflect what is actually claimed in the statement of claim. If, however, the proposed substituted statement of claim is found to be seriously defective, then this finding will serve to suggest the apparent inadequacies of the proposed amended application are also serious.

Objections to proposed substituted statement of claim:

12    General objection: AACo and Elders object to the proposed substituted statement of claim on broad terms, mentioning its prolixity, ambiguity and general confusion, as well as particular pleas made in it.

13    Nonetheless, I will deal first with the complaints made about particular paragraphs, including where appropriate the complaints about prolixity, ambiguity and irrelevancies and, having done that, will then consider the more general objections having regard to the findings I have made about the specific pleadings.

14    Essence of claims made: As may be seen from the structure of the proposed substituted statement of claim, the applicant’s primary claim is that he was engaged in negotiations for a group of would-be investors with a view to purchasing the controlling interest of Futuris in AACo. He now alleges that there were difficulties created by the misrepresentations, fraud or failure of the respondents in overstating the true correct cattle inventory of AACo. The essence of the claim is that there were in fact some 200,000 cattle less than represented or disclosed at the time of negotiations.

15    Mr Fuller says that when he made statements about this discrepancy he found himself as the defendant in defamation proceedings in the Supreme Court of Queensland at the instance of the first, second, third and fourth respondents, which proceedings were ultimately withdrawn by them. He now further alleges, in effect, that the defamation proceeding taken against him were strategic in nature and designed to force him out of the negotiations for the acquisition of the controlling interest in AACo.

16    The applicant takes the view that if there had not been any relevant misrepresentations, fraud or failure to disclose the true position in relation to the cattle, as he would allege, then there would have been a real probability that he and his group of investors would have acquired the controlling stake in AACo, but as it turns out he was denied that opportunity. He would say that if that opportunity had been realised – for which he would say there was a 90% probability of success – then his share would have been a percentage of the value of the shares acquired by his group in AACo. That is how he presently calculates the proposed damages claim for “fraudulent misrepresentation” in the amount of $144 million.

17    The buy-in-or-buy-out negotiations pleadings - [51]-[76]: These are the key proposed pleadings. The respondents complain that these paragraphs are discursive and refer to irrelevant matters concerning the board of AACo and dealings between AACo and Elders/Futuris.

18    These respondents say that where these paragraphs allege negotiations between the applicant and the corporate respondents ([51], [56], [57], [61] and [69]-[71]) the pleading is vague and general.

19    Further, these respondents say that [65] and [73] assert that there was a 90% prospect that the applicant would have had a 10-12% interest in AACo (or some other entity that may have taken over AACo) valued at $160 million, resulting in a loss to him personally of $144 million. However, no contractual or other basis for the allegation is pleaded nor is there any detail of the alleged negotiations.

20    These respondents also say that, given the applicant pleads in [74] that he would not have “gone near” the corporate respondents if it were not for the allegedly incorrect accounts and he did not in fact buy any interest in either company, it is impossible to discern what loss he has suffered. He is not entitled to damages that would put him in the position in which he would have been in if the accounts had been correct, but only the position in which he would have been in if the alleged misrepresentations had not been made – in which case, as he says, he “would never gone near either company”.

21    The applicant, in a written response dated 18 December 2011, seeks to answer these points in the following (summarised) way:

    It is necessary to read the applicants documents together, as a whole, and not by viewing each segment of the statement of claim in isolation.

    Events concerning Futuris/Elders are relevant.

    These respondents do not provide any response to the allegations concerning the “200,000 ghost cattle” and do not respond to the allegations of fraud concerning them.

    The respondents “mischievously misstates” paragraphs [65] and [73] in the applicant’s proposed amended statement of claim and introduce “some other unspecified identity” where there was never such mention before.

    The complaint by the respondents that [60], [67]-[70], [74] and [75] are objectionable on the grounds of “commentary and argument” are incorrect and are borne out of factual matters by documentary evidence or are essential to the damages claim.

    That these respondents propound a circular theory that:

if I didn’t buy any shares it is impossible to discern what loss I have suffered; and that if the alleged misrepresentations hadn’t been made, I would never have gone near the companies. I of course say the misrepresentations were made; and that they are the start of all the trouble; and accordingly, I am entitled to my “day in court”.

(Emphasis in original)

22    In my view the pleading in these paragraphs is deficient.

23    Putting it colloquially, the applicant would say that he was a serious negotiator to buy the controlling shareholding interest in AACo and that, if it had not been for the “fraudulent misrepresentation” of the corporate respondents (and others) he, in all likelihood, would have acquired that interest. He says his loss can be equated to the equity share he would have obtained, of $144 million.

24    However, it is difficult to see any basis upon which one could conclude, on the basis of the case proposed to be pleaded, that the alleged misrepresentation concerning stock numbers produced any “opportunity loss”, as would be alleged.

25    In [182] of the initial statement of claim, which I ordered be struck out on 19 August 2011, the applicant pleaded he “would never have gone near either company” if he had known their true status. That plea is now to be found in identical terms in [74] of the proposed substituted statement of claim. At [183] of the original statement of claim, the applicant alleged:

My envisaged, probable and documented equity share in the project was in the range of 10%-12.5% for the value of intellectual assets brought in; representing at par value some $160,000,000 to $200,000,000 in the project as a whole involving total funding of some $3.4 billion to $3.775 billion.

(Emphasis in original)

Now, in the proposed substituted statement of claim, the applicant would plead as follows in [72], [73] and [74]:

[72]    The respective financial capacities of my major prospective venture partners were never in question. The probability of successful completion of whichever approach to the deal (buy-in or buy-out) by my group was high.

[73]    The main claim in this amended statement of claim was on the basis of a 90% probability* of successful completion of a deal at the higher proposed overall funding of $3.775 billion in which my equity share at par value would have been reduced from $200m to $160m; hence basic damages claim for $144m

…

[74]    I would never have gone near either company if I had known the true status of AACo at that time, but both Futuris/Elders and AACo were iconic, trusted agribusiness companies in Australia; and I had recommended them to my intended major venture partners.

(Emphasis in original)

26    Finally, at [75], the applicant would plead, as he had in the initial statement of claim at [185]:

The defamation suit brought by the first four respondents, and especially the very dramatic public assertion of their good faith position, wrecked my credibility as indeed it was intended to do. There was no going back to the position for my project before it was adapted to include AACo. Great harm was not only done to me, but also to the financial market and to the northern Australian meat and livestock industry.

(Emphasis in original)

27    In their initial submissions in support of their strike-out application, the corporate respondents submitted that the losses then alleged and claimed in respect of the cause of action in [178]-[184] of $20 million appeared to be based on the position in which the applicant asserts he would have been in if the allegedly incorrect accounts of AACo had been correct, and the proposed takeover in which the applicant was allegedly involved had proceeded. These respondents submitted in respect of that formulated claim that it misunderstood the correct method of calculating loss. These respondents submitted that if the applicant would not have attempted to negotiate a takeover of AACo had he known its true financial position, then his only loss can be any expenses which he incurred (and perhaps arguably some compensation for his time) in undertaking the alleged negotiations. On no measure could that amount to $20 million and yet he does not allege other types of loss or damage.

28    In my view, the submission in these terms made by these respondents is accurate. The current proposed pleading as set out above is, in fundamental terms, the same in the substituted statement of claim as it was in the initial statement of claim, with some refinements. The refinement is that the applicant would now plead 90% probability of successful completion, but the question remains: 90% probability of successful completion of what? If, on all the matters pleaded, it was plain that the respondents did not accept the applicant’s allegations of misstatement of cattle numbers, then the precondition for this pleading, that there would have been continued negotiations on the cattle position as claimed to be true by the applicant, can never be sustained.

29    It seems to me to be a complete misconception, on the facts alleged by the applicant, for the applicant to contend that, if he can prove the alleged fraudulent misrepresentation/lack of proper disclosure on behalf of the respondents, then in all probability (leaving aside whatever the percentage of that probability might have been), he and his group would have completed the purchase of the shareholding of AACo. On his own pleading, he was never involved in negotiations on such terms. That is to say, the negotiations never proceeded on the understanding that his assertions about the number of cattle involved were correct.

30    This is not a case where an applicant proposes to plead that, as a result of conduct that was misleading or deceptive, the applicant abandoned a course of action in relation to which he had spent a certain amount of money which he now seeks to recover. Rather, the applicant simply asserts he should have been given the opportunity to negotiate for the controlling stake in AACo on the understanding that the number of cattle held by AACo was as he alleged it should have been stated, not as the respondents in fact stated it.

31    This point is ultimately emphasised by the proposed plea at [74], that:

I would never have gone near either company if I had known the true status of AACo at that time.

(Emphasis in original)

This can only be understood to mean that if the stock position had never been “misrepresented” but had been, at material times, of the order alleged by the applicant in the proposed statement of claim (i.e. did not include the alleged 200,000 “ghost cattle”) then the applicant and his group would never have negotiated or tried to negotiate and, indeed, would not have “gone near” either of the corporate respondents, and so would not have entertained the idea of acquiring the controlling stake in AACo.

32    At best, the pleading overall in this section evinces contradictory positions. On the one hand, the applicant says that if the true position, as he alleges it was, as to stock numbers, had always obtained, then he and his group would never have entered into negotiations. On the other hand, he says that if the true position as to stock, as he alleges it was, had obtained, then there is a high probability that he and his group would have acquired the controlling stake in AACo. If this had happened, then the applicant says he would have obtained a substantial equity in AACo, which opportunity he lost. Not only is this latter claim general in the extreme, without material facts in support, so as to appear mere assertion, but more specifically nothing is pleaded that discloses any reliance by the applicant on the misrepresentation he alleges. In fact he says he would not have “gone near” the corporate respondents if he had known the true position at the outset. As a result, the pleading is confused and confusing and in this sense legally embarrassing.

33    I would not allow the proposed amendments referred to in this section of the proposed substituted statement of claim.

34    Contravening Australian Consumer Law s 18 - [99] and [130]: The corporate respondents say that the applicant alleges in a broad statement that the corporate respondents and their directors and officers engaged in misleading or deceptive conduct contrary to s 18 of the ACL. However, the ACL did not exist at the relevant time, and individuals cannot themselves be directly liable for breach of s 52 of the Trade Practices Act 1974 (Cth) (TPA) absent any use by them of postal or telecommunication services in the process, which has not been alleged in the pleading. Liability could only arise, at that time, if a corporation was knowingly involved in such conduct.

35    In written submissions dated 18 December 2011 the applicant makes the following summarised responses:

    The respondents review everything in isolation.

    The applicant has alleged that every respondent knew or ought to have known that the AACo accounts were fraudulent and that the natural respondents failed to speak up when they ought to have spoken up.

    Section 52 of the TPA no longer exists and has been replaced by s 18 of the ACL.

    Companies operate through people, and if a company breaks the law it is because someone has done so on its behalf.

    All of the information about which the applicant complains was produced electronically, much of which was downloaded from AACo’s website.

    The applicant’s negotiations were conducted entirely by postal and telecommunication services.

36    In further written submissions dated 29 December 2011 (filed with the leave of the Court), the applicant accepts the claims in this respect should be under the TPA, as indeed he pleaded in the original statement of claim.

37    Plainly, the applicant intends to rely on the statutory provisions relevant at the time, namely the breach of s 52 of the TPA. It is also clear that the applicant wishes to rely on the use of postal and telecommunication services by all respondents. I would ordinarily, subject to more general considerations, strike out the relevant paragraphs of the pleading in [99] and [130] subject to the right to replead.

38    Fraud and deceit - [100] and [131]: The corporate respondents say the applicant alleges that the same respondents referred to in [99] and [130] engaged in fraud and deceit, but does not plead facts from which knowledge of the alleged incorrect accounts is established or may be inferred, or from which the respondents ought to have acquired the alleged knowledge. In this respect the applicant fails to comply with R 16.42 and R 16.43 of the Federal Court Rules 2011 (Cth) (Rules).

39    The applicant in written submissions dated 18 December 2011 says that it may reasonably be inferred that each and every one of the natural respondents, and the corporate respondents through the natural respondents, knew or ought to have known by virtue of their office “and each in their time” that the accounts were fraudulent; and so it is pleaded in [228]-[234] of the proposed statement of claim.

40    Rule 16.42 of the Rules which apply to this proceeding provides as follows:

A party who pleads fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence must state in the pleading particulars of the facts on which the party relies.

41    Rule 16.43 takes the matter a little further in relation to conditions of mind:

(1)    A party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies.

(2)    If a party pleads that another party ought to have known something, the party must give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge.

(3)    In this rule:

condition of mind, for a party, means:

    (a)    knowledge; and

    (b)    any disorder or disability of the party’s mind; and

(c) any fraudulent intention of the party

42    Therefore, where, as here, fraud and misrepresentation are pleaded against the relevant respondents, and it is said that by virtue of their office as a director or officer a particular respondent “knew or ought to have known something” then it is necessary for the “particulars of the facts and circumstances from which the other party ought to have acquired the knowledge” be set out.

43    It appears that the applicant considers that to satisfy the Rules it is enough to allege that at material times particular respondents were directors and officers of a corporate respondent. In my view, in this case at least, to simply allege the holding of the office is an insufficient plea for the purposes of satisfying the requirements of R 16.42 or R 16.43. If an applicant pleads that because a particular respondent was a director or officer of the company and thereby had access to certain information, or was responsible for certain activities, or whatever facts are said to be relevant from which it may be inferred they knew or ought to have known something, then those facts should be fully pleaded. The other party will then know precisely why it is said they knew or ought to have known something. The general imputing of knowledge by virtue of simply holding an office is not sufficient to meet the requirements of R 16.42 and R 16.43 in relation to a pleading of the kind currently under consideration. In this the proposed pleading is deficient.

44    Failure to disclose contraventions under Corporations Act provisions - [101]-[112] and [132]-[149]: The corporate respondents say the applicant alleges breaches of various sections of the Corporations Act and the Listing Rule 3.1, however, no breach of any of those provisions gives rise to a cause of action against the corporate respondents, whether for deceit (which is the only cause of action for which relief is sought) or otherwise.

45    In oral submissions on 19 December 2011 senior counsel for these respondents, however, accepted he was wrong in saying in respect of the continuous disclosure obligation of the corporate respondents that a person who has suffered damage due to a lack of continuous disclosure by a listed public company cannot sue for loss arising from that. But senior counsel confirmed the submission that the balance of the Corporations Act proceedings are not proceedings that can be taken by a person such as Mr Fuller but may only be taken by ASIC or the corporation itself. He accepted that Mr Fuller could in an appropriate case plead a cause under the TPA (or the ACL).

46    The applicant in his written submissions dated 18 December 2011 contends:

    The ACL does make provision for civil action.

    The Corporations Act sections provide for civil penalties such as those referred to in s 1317E.

    Various civil provisions are also listed in s 344(1) of the Corporations Act regarding requirements for financial reports.

    The respondents failed to mention that the claims under these paragraphs also rely on the tort law of deceit.

    Read as a whole there is no confusion in the pleading and the fraud claim is pleaded clearly enough.

47    As to the last point made by the applicant in respect of the tort of deceit, the particular proposed pleading here depends entirely on contraventions of relevant statutory provisions and there is no reliance on the tort of deceit. While the applicant may consider that the same conduct amounts to the tort of deceit, that is irrelevant for the purposes of the pleading proposed by him in these paragraphs.

48    In essence, the submission made on behalf of these respondents, subject to the clarification made by senior counsel during oral submissions, are correct. It is important in any given case for an applicant to identify an entitlement to claim compensation or some remedy for breach of some statutory provision by another person. The fact that the statutory provision may make certain conduct the subject of a civil penalty does not automatically qualify a person, such as the applicant, to sue for compensation for its alleged breach. One needs to determine from the terms of the statute in question whether Parliament contemplated that a person who suffers loss or damage as a result of a breach of a statutory provision should be entitled to recover compensation if they suffer loss as a result.

49    In this particular instance s 1317HA(1) of the Corporations Act provides as follows:

(1)    A Court may order a person (the liable person) to compensate another person (including a corporation), or a registered scheme, for damage suffered by the person or scheme if:

(a)    the liable person has contravened a financial services civil penalty provision; and

    (b)    the damage resulted from the contravention.

The order must specify the amount of compensation.

50    Section 1317J(3A) of the Corporations Act provides:

(3A)    Any other person who suffers damage in relation to a contravention, or alleged contravention, of a financial services civil penalty provision may apply for a compensation order under section 1317HA.

51     “Financial services civil penalty provision” is defined in s 1317DA of the Corporations Act to mean a provision referred to in s 1317E(1)(ja) and (jaa)-(jg). Paragraph (ja) refers to the continuous disclosure obligations of a listed public company under s 674(2) of the Corporations Act.

52    Accordingly, an applicant, in an appropriate case, may bring an action in respect of breach of the obligations of continuous disclosure, if properly pleaded, but not otherwise. The proposed pleading here does not properly plead such a cause of action and in this respect is deficient.

53    Cattle overstatement communications - [114]-[116]: The corporate respondents say the applicant refers to steps he took to complain about the allegedly incorrect accounts, but those matters are irrelevant to any cause of action pleaded (except to show he did not rely on the 2008 accounts).

54    The applicant in his written submissions dated 18 December 2011 makes several points in relation to this objection at the same time as he deals with the respondents’ objections to [117]-[129] of the proposed statement of claim, to which I will now turn as well.

55    The corporate respondents say in respect of [117]-[129] which deal with the alleged topic “[G]host cattle alleged fraud on the market”, that the proposed pleadings contain a narrative description of the apparent claims, but not in a manner that identifies only the relevant facts, and go beyond the period in which the applicant is alleged to have relied on any incorrect figures. The corporate respondents submit that they are largely commentary and argumentative statements that have no place in a pleading.

56    The applicant in his submissions dated 18 December 2011:

    Denies that the only period of relevance is up to the point where he no longer relied on the AACo accounts and that he was demanding correction of them within one day of publication on 10 February 2009.

    That the respondents falsely misconstrued what is said in [117]-[129] of his proposed statement of claim, thereby implying that they do not know the basis of the claim.

    Repeats the allegation that none of the accounts for FY2006, FY2007 and FY2008 have ever been recast in line with compliance with IFRS and AASB accounting standards.

    The overstated “ghost cattle” have been, or mostly have been, on the books since close of FY2004 to at least the close of 1H2011 (30 June 2011 - the most recent published accounts).

    That it is relevant to plead an “ongoing” fraud.

57    Considering these various paragraphs about the alleged discovery of the overstated cattle and the subsequent analysis and the ongoing nature of the problem, it seems largely to be irrelevant to a claim properly pleaded. If there were a relevant allegation of misleading and deceptive conduct or fraudulent conduct in respect of the overstatement of a product that one was in effect buying, then the allegation of this description would be required together with the relevant particulars as to the nature of the misdescription. Evidence as to how it was discovered and what communications were then made in respect of them could possibly be relevant to some continuing misdescription that was the subject of a claim, but otherwise would seem largely irrelevant for pleading purposes.

58    These paragraphs are redolent of many aspects of the proposed substituted statement of claim in that they are in a form and written in terms that reflect little legal drafting experience by the author (who to be fair, does not claim any such skill) and are more in the nature of a “story” or narrative. There may or may not be aspects of what is stated in these paragraphs that could be relevant to some statement of material facts, but generally speaking they do not seem to be directly relevant.

59    I consider, as contended by the corporate respondents, the paragraphs have the real tendency to distract attention from what should be the pleaded material facts and clear statements of claim that the applicant wishes to make. If the story or narrative account is allowed to remain in a pleading document like this, then the difficulty for a respondent is to know how they should deal with the story, the narrative and the evidence that is recorded in it. Such a document is, in truth, the antithesis of a pleading required by the Rules because it prevents the parties agreeing or joining issue on material facts that relate to clearly formulated causes of action. These paragraphs do not meet the standard that must be met in progressing a claim of the nature outlined by the applicant.

60    I would therefore not grant leave for a statement to claim to contain paragraphs in these terms. I would not otherwise hazard to say whether there are material facts to be found amongst these paragraphs that might be pleaded in respect of some properly formulated claim, in respect of which the applicant might properly be advised to proceed.

61    AACo “disfunctionality” allegations - [180]-[189]: The corporate respondents say that these paragraphs are all irrelevant to any cause of action, and they are described in [180] as part of the larger single “picture”.

62    The applicant in the written submissions dated 18 December 2011 contends that such “disfunctionality goes very adversely to credit” and evidences the manner in which Futuris asserted control over AACo.

63    I am not really sure what it means, in this context, to say that something like this “goes to credit”. That particular form of expression used in a legal context normally pertains to the admission of evidence at a trial bearing on findings that should be made on the evidence as a whole, and does not readily admit of facts material to a pleaded cause of action.

64    If, in some other action, it were alleged that a party had acted without due care, that is to say negligently or had acted recklessly in some relevant way, then to plead how badly managed that entity was at material times might possibly have some bearing on the plea made. But those considerations are not obviously relevant to the claims of the applicant.

65    I would not grant leave to amend in respect of these paragraphs.

66    Herd movements “not rocket science” - [198]-[226]: The corporate respondents say these paragraphs repeat earlier pleadings in [90]-[118] and that the same criticisms raised in respect of them apply here. The corporate respondents say that this section of the document appears intended to allege fraudulent accounting on the part of the respondents, but is over lengthy and abstruse and does not make clear the basis on which the applicant alleges that any one or more of the respondents were fraudulent; and it constitutes commentary and is argumentative.

67    The applicant in the written submissions dated 18 December 2011, leaving aside responses to the comments regarding abstruseness and overly lengthy pleadings, makes these points:

    The basis for the first element of fraud is spelt out explicitly in [203] and the basis for the second element of fraud is spelt out in [208] through nine subparagraphs.

    Ordinarily speaking the table of reported net cash flows which is included in this section purports to set out details of how the applicant contends the fraudulent misstatements of herd numbers occurred.

    So far as the calculations are concerned they do attempt to provide details of how the applicant has made its calculations and purport to provide justification for the claims made that relevant respondents have a case to answer in terms of the claims made.

68    I have little doubt there are a number of irrelevancies pleaded in this section and that it could be improved.

69    The real problem at the end of the day is that the applicant’s statement, in effect of why the overstatement of cattle allegation is correct, must still be shown to be misleading or deceptive and fraudulent in terms of the claims made and there are difficulties with the pleading in these latter respects, as set out above.

70    “Imputation and damage” pleading - [227]-[243]: The corporate respondents say these appear to be a summary of the allegations of fraud, defamation and loss. However, they make broad allegations without any particulars of the involvement in, a knowledge of, fraud by each respondent. For example, the applicant alleges in [235] that all respondents were fraudulent in negotiating with the applicant in 2008, even though some are not alleged to have had any involvements in those negotiations. There are claims of loss by varying direct means, such as [237], [238] and [243] there are claims of lost opportunities “in other directions” without any facts being pleaded.

71    These respondents say the applicant also appears to complain about the annual accounts of AACos from 2004 up to and including the 2011 year at [15(a)], [17(a)] and [19(a)]. However, he does not plead reliance on any year’s accounts other than the 2007 and possibly 2004 to 2006, nor that any loss was caused by any errors in other year’s accounts.

72    These respondents say that according to the applicant, the “damage” to his proposed buyout was done by early 2009 when he alleges it became clear that the accounts upon which he relied in his negotiations were incorrect, but AACo declined to correct them. Therefore all the allegations concerning at least the accounts of 2009, 2010 and 2011 are irrelevant to his causes of action.

73    Similarly, the respondents contend the applicant’s pleading discloses no causes of action against those of the individual respondents who have only been directors of AACo since the publication of the 2008 accounts on 10 February 2009.

74    The applicant in his written submissions dated 18 December 2011 makes a number of points:

    The documents needs to be read together as a whole and with the proposed amended Form 5 application.

    As to the “claims of loss by very indirect means” the applicant is alleging that the respondents gained a benefit for themselves by fraudulent means and by intent to defraud by deceit and cause him a detriment, pecuniary or otherwise, by the same fraudulent means.

    Also that [2] of the substituted statement of claim are relevant and the documentary evidence is yet to be filed.

    As to the question of reliance at [57] the applicant makes it clear that the FY2007 accounts were the basis of his proposal subject to adjustment at 30 June.

    That the applicant has repeatedly alleged fraudulent non-disclosure of change of accounting methods in FY2006, FY2007 and FY2008 and fraudulent overstating of “trade” cattle inventory and related dollar values from the close of FY2004 onwards and continuing to at least the close of 1H2011.

    So far as the damage is concerned at [154] the applicant has stated:

It all brought my project to a screeching halt! The damage was done.

(Emphasis in original)

    So far as directors appointed since the publication of 2008 accounts are concerned, the applicant asserts that:

it is simply a continuation of the same false reasoning just addressed in the previous subparagraph.

75    In my view this section of the proposed statement of claim is designed to identify the alleged loss and damage, and thus compensation, required to remedy it based on the earlier pleaded causes of action. This is not the opportunity to repeat, in different terms, what has already been pleaded. To the extent that there are overlapping causes of action and claims for damages then it is self evident that the document is apt to lead to confusion and does not clearly identify the causes of action that the applicant would pursue at trial.

76    It is also difficult to see how loss can be claimed against the individual respondents who have only been directors of a company for certain periods following a cause of action said to have primarily crystallised with the publication of the 2008 accounts on 10 February 2009.

77    At the very least, leaving aside the other justified complaints, this part of the document would need to be considerably repleaded before leave to file it could be given.

78    The defamation proceedings cause of action - [150]-[179] and [250]-[265]: The fifth and twenty second respondents, who of course are not the respondents to whom this cause of action primarily relates, observe that the pleaded causes of action are poorly pleaded and, to the extent that the applicant complains of an abuse of process, that is a matter for the Supreme Court of Queensland to determine. To the extent that there are allegations of malicious prosecution, defamation proceedings are not a recognised basis for a cause of action for a malicious prosecution of a civil claim. As to the extent the applicant purports to allege a claim in defamation, any cause of action would be statute barred under both Western Australian and Queensland law: see Limitation Act 2005 (WA) s 15; Limitation of Actions Act 1974 (Qld) s 10AA.

79    Given that the proposed pleading in respect of these matters does not directly affect AACo and Elders I will not deal with them further here.

80    General pleading objections: As I have already indicated, there is force in the general complaints of AACo and Elders that the pleading overall suffers fatally from narrative, prolixity, irrelevancies and in this sense is legally “embarrassing” in that it is not easy to draft a pleading in defence.

81    The proposed amended application and the proposed substituted statement of claim have been prepared by the applicant who is not a lawyer. Mr Fuller by his recent affidavit has indicated to the Court that he has tried unsuccessfully to obtain legal advice and representation. That said, the proceeding is one by which the applicant seeks to recover damages of many, many millions of dollars, as well as unspecified aggravated and exemplary damages.

82    Given the applicant’s own appreciation of the significance and magnitude of the claims he wishes to advance, it is important that both the outline of the claim made in the formal application originating the proceeding, as well as the detailed statement of claim accompanying it, be drafted with the precision that the Rules of the Court demand so that the respondents know precisely what case is being put against them. They will then be able properly to plead to the claims made. The Rules are designed to achieve that result.

83    Under R 16.02(1(b)) of the Rules, the pleading must be as brief as the nature of the case permits. In accordance with R 16.02(1)(d), material facts must be pleaded only in relation to the case to be made out, but not “evidence” . To such a pleading a respondent can precisely respond. A respondent cannot be expected to respond to mere “background”, history, narrative material or material of a general evidentiary nature. The time for providing such material is later in the proceeding when statements of proposed, relevant evidence are filed in advance of the trial and then received at trial as evidence.

84    The proposed substituted statement of claim is not a pleading to which the respondents can be expected to plead in defence.

conclusion on strike out application

85    The result then is that I would refuse leave to the applicant to file the proposed substituted statement of claim having regard to the objections taken by AACo and Elders which I have largely upheld.

86    Because of the nature of these objections a question arises whether the applicant should be granted leave to file a further proposed substituted statement of claim. I will hear from the parties in that regard.

87    On the one hand, there must be finality to proceedings at some point. The applicant has had the opportunity on two occasions to file a properly pleaded statement of claim. He has, at the Court’s encouragement, endeavoured to obtain legal assistance in this regard, but has failed in his attempts. He has indicated that he approached a litigation funder at one point but they were not prepared to underwrite his case. To permit the applicant to keep trying to produce an adequate document in accordance with the requirements of the Rules, may unreasonably be considered to require the corporate respondents’ continued involvement in this proceeding. There is also a question whether the applicant can remedy the deficiencies identified. It is not the Court’s function to undertake the drafting exercise on behalf of the applicant; nor should the Court allow itself to undertake this function indirectly. The action belongs to the applicant, not the Court.

88    On the other hand, consideration of these reasons may leave open the possibility of a pleading in a proper form in some areas, for example, as a stand-alone action against the corporate respondents based on breach of the continuing disclosure obligation imposed on a publicly listed company by s 674(2) of the Corporations Act, if not other causes of action and perhaps depending on what loss the applicant would complain of.

89    Accordingly, I will hear from the parties as to whether because to replead, if it is sought, should be refused or granted, and if granted whether it should be on terms.

question of certificate for legal assistance

90    The applicant has been unable to obtain legal assistance in connection with the presentation of his case. He inquires whether the Court might grant him a referral certificate for the engagement of pro bono counsel.

91    Division 4.2 of the Rules deals with Court referral for legal assistance, R 4.12(1) provides that the Court “may” refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9.

92    It may be noticed that the current Rules only relatively recently replaced the former Federal Court Rules 1974 (Cth) (old Rules). Under the old Rules, the Court also had the power to make a referral for legal assistance, but the equivalent rule to current R 4.12(1), namely O 80 r 4(1), qualified the referral power by providing that the Court may make the referral “if it is in the interests of the administration of justice to do so”. That qualification no longer exists.

93    It is quite clear therefore that the Court’s power to issue a referral certificate is very broad indeed and the observations to this effect made in respect of the former O 80 r 4(1) apply with even more force in relation to the current R 4.12(1): see generally Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319 at [10] and Rivera v Minister for Home Affairs [2008] FCA 1 (Rivera) at [8].

94    It should also be noticed that by R 4.13, a party has no right to apply for a referral. This too emphasises the breadth of the Court’s discretionary power to control the referral process. That said, there is no difficulty with a party raising the question of referral, as the applicant has here, as a means of initiating the Court’s consideration of the exercise of its discretion.

95    Rule 4.12(2) sets out the matters that the Court “may” – not “must” – take into account in deciding whether or not to make a referral, in the following terms:

(a)    the means of the party;

(b)    the capacity of the party to otherwise obtain legal assistance;

(c)    the nature and complexity of the proceeding;

(d)    any other matters the Court considers appropriate.

96    It is clear from the language used in R 4.12(2) that the Court is not limited to a consideration of the particular matters listed, nor required to take any into account, and indeed (d) emphasises that the Court can consider any matter that it considers appropriate.

97    Under the old Rules, it was considered that it would not be appropriate to make a referral “in the interests of the administration of justice” if a case were patently hopeless or there was no arguable basis for it: see Rivera at [8]. While the “interests of the administration of justice” qualification to the exercise of the power has gone in the latest version of the Rules, there is no doubt, in my mind, that the question of a patently hopeless case or one that has no arguable basis, is still a factor that may be taken into account by a Court in deciding to exercise its power to grant a referral certificate, and very often will be considered. But plainly it is not intended to be a controlling criterion, particularly as it is not one that controls the exercise of the discretion created by R 4.12(1).

98    In this case, I have decided that there is no sufficient reason to make a referral certificate, the matter having been raised with me by the applicant.

99    So far as the means of the applicant are concerned, I know very little. However, there is no need for me to inquire further for the reasons which follow.

100    As to the capacity of the applicant to otherwise obtain legal assistance, by his affidavit filed 5 October 2011, mentioned above, the applicant has advised the Court of his unsuccessful attempts to engage legal assistance after contacting the Western Australian Bar Association, the Law Society of Western Australia, Legal Aid Western Australia and several law firms, as well as a business that underwrites legal actions. It is not clear just what should be drawn from this information, but at the least it suggests to me that none of the sources to whom the applicant has gone for advice and assistance has been inclined to take the action on after due consideration of the applicant’s proposed case.

101    From the applicant’s point of view, the proceedings, by their nature, are complex. At one level the fact that the applicant wishes to maintain proceeding for the recovery of millions of dollars from various of the respondents, suggests complexity. I have considered in some detail the objections to the current proposed statement of claim. Whether or not one should characterise the attempt to draft pleadings as indicating complexity is perhaps a matter of judgment. I suspect the proceedings may be so called, at least factually. But even so, what the applicant has put forward in his two attempts at pleading an appropriate statement of claim, suggests to me that there is some real confusion about what can be claimed and particularly what may be claimed under the so called “opportunity loss” case.

102    Taking my rulings above into account I am not satisfied that this is the sort of case where it is appropriate for the Court to issue a referral certificate to enable pro bono counsel, at public expense, to be engaged on behalf of an applicant.

103    Therefore, having considered the issue, the Court will not issue a referral certificate under the R 4.12.

application for substituted service

104    The applicant by interlocutory application filed 3 August 2011 has applied for an order for substituted service of process on the respondents other than AACo and Elders. He effectively wishes to serve the individual respondents by post or through the agency of the corporate respondents.

105    AACo and Elders point out that the applicant has not made any attempt to serve the individual respondents personally in accordance with Rules and oppose any order effectively co-opting them to be process servers.

106    The respondents submit that the applicant has not demonstrated that it is impracticable to effect personal service, or futile to attempt to do so, and in failing to do so, the applicant has not met the requirements for substituted service under 10.24 of the Rules. Nor does the applicant’s evidence prove the facts required by R 10.23 for deemed service. Further, the applicant’s reliance on s 109X(2) of the Corporations Act is inappropriate in the circumstances and does not overcome the need for personal service on the natural person respondents.

107    In written submissions dated 18 December 2011 the applicant makes the following (summarised) points:

    It is not unreasonable for the Court to exercise its discretionary powers in authorising substitute service.

    The Court should take into account the applicant’s circumstances, because he is located ‘on the opposite side of the continent’ in Western Australia as opposed to Queensland.

    The respondents have misinterpreted s 109X(2) of the Corporations Act.

108    It is a long standing feature of both civil and criminal procedures, in the common law system, that initiating process ordinarily should be personally served on a respondent party. It is easy to understand this, as personal service ensures that legal liabilities are not imposed and decisions affecting the life and liberty of persons are not made without the affected party being given proper notice of the proceedings and the opportunity to be heard in court in relation to the case brought against them: see generally Plenty v Dillon (1991) 171 CLR 635. Additionally, the jurisdiction of a court to consider a matter may also be considered to depend not just on the initiation of a proceeding in a court, but also upon the service of the originating process on a respondent party: see generally Laurie v Carroll (1958) 98 CLR 310.

109    Where a responding party is within the jurisdiction of the relevant court, ordinarily personal service is the primary means by which service on that party is effected. If the responding party is outside the jurisdiction, then rules of court ordinarily provide for service out of the jurisdiction according to a prescribed protocol. If personal service cannot be effected in such circumstances where it is required, then ordinarily rules of court make provision for substituted service, that is, service by some means other than personal service.

110    In this regard, R 8.06 of the Rules of this Court specifies the following obligations in respect of service of originating documents:

The applicant must, at least 5 days before the return date fixed by the Registrar, serve a copy of the originating application and the statement of claim or accompanying affidavit personally on each respondent named in the originating application.

Note 1 The Court may extend or shorten the time for service — see rule 1.39.

Note 2 For the manner of service of a document personally on individuals, corporations, associations, partnerships and business names, see Part 10.

111    Rule 10.01 then deals with service on an individual, such as the respondents in this proceeding with the exception of the two corporate respondents:

A document that is to be served personally on an individual must be served by leaving the document with the individual.

112    There are, however, two circumstances where service might effectually be achieved without personal service of the relevant process. First, under R 10.23, the Court may deem a document to have been served if:

(a)     it is not practicable to serve a document on the person in a way required by these Rules; and

(b)     the party provides evidence that the document has been brought to the attention of the person to be served.

113    Rule 10.23 is not relevant in the circumstances of this case and the applicant does not rely on that Rule. There is no evidence, in any event, that the originating documents in this case have been brought to the attention of the individual respondents.

114    The second means of avoiding the obligation to personally serve the originating documents is by obtaining an order for substituted service under R 10.24, “[i]f it is not practicable to serve a document on a person in a way required by these Rules”.

115    It will be noticed that under both R 10.23 and R 10.24 the power of the Court to deem service to have been effected or to order substituted service depends on it being established that “it is not practicable” to serve a document in the way required. The concept of it not being practicable to serve a document goes beyond the idea of not being convenient to a party. In the recent decision of Logan J in Combis (Trustee) v Spottiswood [2011] FCA 1082 (Combis), at [9], his Honour applied what Tamberlin J said in Ricegrowers Co-Operative Ltd and Seatide Pty Ltd v ABC Containerline Nv, Med Containerline Antwerp Nv, Maritime Carriers Luxembourg SA and Den Norske Bank (Luxemborg) SA cited in Combis as [1996] FCA 1663 but would appear to be correctly cited as [1996] FCA 657 at 3 and 4, in finding that to establish personal means of service is not practicable, a party must show there has been some attempt to effect service in accordance with the Rules, or adduce evidence that to attempt such service would obviously be futile and so not warrant any attempt at service.

116    In this case there is no evidence that there has been any attempt at personal service on any of the individual respondents and there is no suggestion of futility. Therefore it is simply not open to the Court in the current circumstances to consider making an order for substituted service on the individual respondents.

117    In summary, the point is that service of originating process under the Rules, in accordance with the long established practice in superior courts in litigation of this sort requires personal service to be attempted on persons in the jurisdiction and it is only where it proves to be impractical that alternative means of service may be contemplated. It is simply not open to the Court to make an order for substituted service at this point simply to suit the convenience of the applicant.

118    Having commenced this action it remains appropriate, in all respects, for the applicant to act in accordance with the Rules, including as to the service requirements.

119    The application for substituted service is dismissed.

orders

120    The Court orders that:

1.    Leave is refused to the applicant to amend the initiating application and to file a substituted statement of claim in accordance with the documents to that effect attached to his affidavit filed 5 October 2011.

2.    The matter be relisted on Friday 10 February 2012 at 10:45 am to enable the Court to hear from the parties as to orders that should be made in consequence of the preceding order and in relation to costs.

3.    The interlocutory application of the application for an order for substituted service filed 3 August 2011 be dismissed.

4.    The Court determines that it will not issue a referral certificate under R 4.12.

Associate:

Dated:    1 February 2012