FEDERAL COURT OF AUSTRALIA

Wijayaweera v St Gobain Abrasives Ltd [2012] FCA 97

THE COURT ORDERS THAT:

1.    The application to amend the statement of claim is dismissed.

2.    The application for an adjournment of the hearing is dismissed.

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

REASONS FOR JUDGMENT

1    The applicant, Mr Wijayaweera, (the applicant), filed a proceeding on 12 September 2011 in which he sought $5 million damages from the first respondent, (SGA), and $750,000 from each of the second, fourth and fifth respondents (collectively the respondents). The application was commenced by an originating application and a purported statement of claim containing 14 paragraphs. The basis of the action was described in the statement of claim in the following terms:

[T]he violation of Corporations Act 2001, specifically sections 180 to s184 of the Act , among other sections of the Act by the 4 directors in the application at various times from February 2006 to date, and the vicarious liability of St. Gobain Abrasives Ltd. from the actions of the directors there from.

2    The balance of the pleading raised serious allegations against the directors and other persons and entities not the subject of the claim. Those serious allegations included what appeared to be allegations of fraud, defamation and illegal conduct. None of the allegations were substantiated or particularised.

3    On 22 November 2011, the matter came on for first directions. At that directions hearing Counsel for the respondents submitted that the statement of claim was incomprehensible, vexatious, embarrassing and should have been struck out in accordance with the Federal Court Rules 2011 (Cth). On that day, the first, second and fourth defendants were directed to file and serve a defence to the claim. It was filed. That defence again reiterated the complaints that the respondents had with the substance of the statement of claim filed by the applicant.

4    In addition, I directed that the applicant file and serve all material upon which he intended to rely at the hearing of this case which was set down for today at 9:30am on 13 February 2012. The applicant filed 22 affidavits in support of his purported claims. I further directed that by 4:00pm on 1 February 2012, the first, second and fourth respondents file and serve written submissions. The applicant was served with a copy of the written submissions.

5    On 10 February 2012, the applicant advised the Court that he sought an adjournment of the hearing and I arranged for him to appear this morning by telephone. This morning the applicant made two applications; first, to prosecute an application by way of interlocutory application dated 5 January 2012 for leave to file and serve an amended statement of claim which he described as:

A new statement of claim to comply to allow the addition of two additional parties to the suit and other matters including capacity and role of applicant and the interrelated companies in the St Gobain Group.

6    As I have already noted, on a number of occasions (including at the first directions hearing, in the defence filed by the respondents and in correspondence and other communications between the applicant and the solicitor for the respondents), the applicant has been informed of the defects in his statement of claim. No formulated or fresh proposed pleading has been provided by the applicant. The Court file records that Registrar Caporale denied the applicant’s urgent application for leave to amend in January of this year. Still no formulated or fresh proposed pleading has been provided by the applicant.

7    In the course of discussions with the applicant this morning, the applicant outlined the basis upon which he sought now to expand his current claim. They included, so it would seem, actions for discrimination on the grounds of racism and other discrimination. I understand the applicant has filed an application with the Human Rights Commission. As I have explained to the applicant during the course of the hearing, in the absence of the Human Rights Commission having determined that application (s 46PO of the Australian Human Rights Commission Act 1986 (Cth)) and in the absence of having a formulated claim before me, I cannot accede to this request to amend his statement of claim.

8    I then move to the oral application for an adjournment of the current claim as filed. In support of that application for an adjournment the applicant relied upon a number of matters. First, that he was suffering oppression by the government and that he was concerned that given his family was overseas from 29 January 2011, he did not want to come in front of the Court because he was concerned that the Mental Health Act 1986 (Vic) would be used against him. In further support of his application for adjournment, the applicant identified additional allegations of 24-hour surveillance, him being booked and fined and the risk of imprisonment. The applicant also referred to an allegation that in respect of his application for a new driving licence he was only granted a short extension and not a licence for three years. Other allegations about telephone calls and unauthorised access to his computer were also raised.

9    The respondents opposed the application for an adjournment. Again Counsel for the respondents identified that they had written to the applicant identifying that the statement of claim was hopeless and that he should seek legal advice. Counsel for the respondents referred to the applicant having complied with the directions made on 21 November 2011 by filing 21 affidavits (see [4] above), and the applicant, having been urged by the respondents to withdraw the claim or seek legal advice but taking neither of those steps. The respondents submitted that there was no basis for granting the applicant an adjournment.

10    In the circumstances, and given the extent to which the applicant has complied with the Court orders by filing all the material upon which he relies, I see no basis, or grounds, for granting an adjournment of the trial of the proceeding in VID 997 of 2011.

11    For those reasons, I dismiss both of the applicant’s applications.

Associate:

Dated:    15 February 2012