Strike Out Application 4-7 July 2005

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					      LEGAL UPDATE – August 2005
                  www.gunns20.org
Louise Morris (defendant #8)                        wins national Environment Award
On World Environment Day 2005, Louise Morris was awarded one of the country‟s most prestigious
environmental awards, the Australian Conservation Foundation‟s Peter Rawlinson Conservation Award.

This award recognizes outstanding voluntary contributions to Australia‟s environment. Louise has been
awarded for her work for forest conservation in Western Australia and Tasmania, as well as other
environmental      campaigns      throughout    the    country.         For     more    details,  see
http://www.acfonline.org.au/asp/pages/document.asp?IdDoc=2398



         Strike Out Application 4-7 July 2005
A number of defendants recently made an application to have Gunns’ statement of
claim struck out. The application was heard by Justice Bongiorno over four days.

Gunns initially requested to adjourn the hearing, however, the Judge refused the
adjournment and the hearing proceeded. Barristers for the defendants made oral and
written submissions arguing that both the original and amended statements of claim
should be struck out.

It was argued the amended statement of claim should be struck out because it is too vague and
intertwined (and thus incomprehensible) to enable defendants to understand what exactly is being
alleged against them.

It was further argued that even were the facts of the amended statement of claim to be proved they
would not amount, in some cases, to a tort giving rise to a claim for compensation.

Julian Burnside QC (barrister for defendant #19), arguing against gunns‟ application to adjourn the
hearing, said that part of the reason for gunns‟ commencing proceedings was to silence its critics. He
was challenged by the Judge on this point, as set out below:
           MR BURNSIDE: The application should be refused for a number of reasons. The most
           important reason perhaps is that this statement of claim that is proposed or is being filed is
           so grotesque that it provides a false starting point for any request for particulars..//

           …The third reason Your Honour is that it‟s becoming apparent, at least it‟s an available
           inference that part of the purpose of this proceeding is to intimidate or silence
           people whom Gunns dislikes because they have complained about its activities,
           exercising their proper democratic right to protest, Gunns wishes to silence them
           and what better way than by bogging them down with - - -“ (emphasis added)

           HIS HONOUR: That‟s an allegation Mr. Burnside, but there‟s no evidence of it is there?”

           MR BURNSIDE: The evidence is simply this, that Gunns always comes to this court
           asking for more time. Any parties which implements litigation as complex as this has an
           obligation to the court and to the other parties to make sure that they plead the case
           properly so that the case can be conducted properly and Your Honour, although you
           wouldn‟t be surprised perhaps, there‟ve been some judicial comments along these lines by
           Lord Templem an, in Ashmore v. Lloyds, 1992 to All England at 486.”

At an early stage in the submissions of Gunns‟ barrister, the Judge expressed his difficulty in
understanding the statement of claim as follows:




           HIS HONOUR: I mean part of the problem, Mr Howells is a form problem perhaps, that this
           document, if I may say so at the moment, I find it incomprehensible. Now I shouldn‟t, but I
           do, and nothing so far from any of the defendants and in going through has suggested
           otherwise, it whips from one - just in form it goes from one place to another. The
           defendants are entitled to have their case put against them in acoherent, cogent form - - -”

The hearing finished with the Judge stating he would hand down his judgment as soon as possible.



 Gunns’ statement of claim “embarrassing”
On 18 July 2005, Justice Bongiorno handed down his judgment on the strike out application. The
result was that the entire statement of claim (original and as amended) was struck out.

The full judgment can be read online at: http://www.austlii.edu.au/au/cases/vic/VSC/2005/251.html

In summary, His Honour found the statement of claim to be „embarrassing‟. Embarrassing is a
technical legal term. According to the Supreme Court Rules, a pleading that is embarrassing may be
struck out. It means that because the defendants are unable to determine precisely what the
allegations are against them, they are „embarrassed‟ by them. The judgment says:
           [embarrassing is ]”.....where the pleading is unintelligible, ambiguous, vague or too general,
           so as to embarrass the opposite party who does not know what is alleged against him.”

The judgment states at paragraph 28

           “...it would be extremely difficult, if not impossible, for any particular defendant to determine
           with certainty whether he or she was alleged to be liable for any particular act of tortious
           conduct in respect of any particular forest action.”

John Gay issued a press statement after the judgment in which he stated that „suggestions have been
made for some re-drafting‟. In light of the fact that the entire statement of claim was thrown out and
the judgement can be read as saying certain aspects of it will be very difficult to plead properly, this is
a very curious remark. Mr Gay has also said that the case will proceed against all the defendants.

Gunns have until 15 August 2005 to file and serve another statement of claim. The
question of costs has not been resolved. All defendants have applied for costs for the legal work done
to date.



                   Other sources of information
Note: The views expressed on these websites are not necessarily the view of the Friends of Gunns20

www.gunns20.org

www.mcgunns.org

www.retortmag.com/05/id_07.05_paul_oosting.htm

www.vibewire.net (Australian youth media)

www.tasmaniantimes.com (Tasmanian independent media site)

				
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