CORPORATION REQUESTS LEAVE TO FILE AND ISSUE A WRIT OF SUMMONS
This case is a determination on whether the claim filed by the applicant is an not an abuse of process which entitles the court to grant the application for leave to file and issue a writ of summons.
Facts:
The second applicant, Mr. Lee, is the sole director of the first applicant, Kingsfield Holdings Pty Ltd. Kingsfield carried on business as Quokka Joe's Café on premises on Rottnest Island. On 23 January 2012 officers of the Department of Health, which is the proposed seventh defendant, conducted a routine food safety inspection of the café. During the inspection, one of the officers pointed out some minor non-compliances with statutory standards.
Mr. Duffield, the proposed second defendant, wrote a letter on the letterhead of Sullivan Commercial Pty Ltd, the proposed first defendant, to Kingsfield. A copy was sent to the Rottnest Island Authority, which is the proposed sixth defendant. Sullivan Commercial was the property management agent for Rottnest Island Authority. The letter said, amongst other things, that Sullivan Commercial had been advised that the café has been closed following a health inspection of the premises last week (the Closure Information). The applicants made enquiries to ascertain the source of the Closure Information. The applicants claim that representations were made to them by or on behalf of some of the defendants to the effect that Mr. Rutherford, the proposed third defendant, had provided the Closure Information to Mr. Duffield.
In the fraud and conspiracy claims, the applicants allege that they commenced each of the actions in reliance upon misrepresentations by or on behalf of some of the proposed defendants. The alleged misrepresentations are that Mr. Rutherford spoke the Spoken Words to Mr. Duffield, and that communication was the source of the Closure Information in the letter written by Mr. Duffield on behalf of Sullivan Commercial to Kingsfield and copied to the Rottnest Island Authority (the Misrepresentations).
The applicants presented a writ of summons for filing. An acting registrar informed the applicants that the writ appeared to be an abuse of the process of the court or a frivolous or vexatious proceeding, and was rejected for filing.
The applicants applied to a judge pursuant to O 67 r 5(3) of the Rules of the Supreme Court 1971 for leave to file the writ.
Issue: Should the court grant the application for leave to file the writ of summons?
Law:
- O 67 r 5(3) of the Rules of the Supreme Court 1971
Analysis:
A judge should refuse leave to file or issue the writ only if satisfied that the writ would be an abuse of process or a frivolous or vexatious proceeding. A proceeding will constitute an abuse of process if it is clearly doomed to fail or plainly unsustainable. An action is frivolous when it is so obviously untenable that it cannot possibly succeed.
The applicants' fraud and conspiracy claims are based on the allegations that Mr. Duffield and Sullivan Commercial made the Misrepresentations in the course of, and in furtherance of, an agreement to carry out the Common Design.
The fraud claims are based on the proposed defendants being joint tortfeasors involved in the Misrepresentations. Where persons take concerted actions to a common end and, in the course of executing the joint purpose, one of them commits a tort, all of them are jointly liable. The applicants' claims appear to assert each of those elements.
The applicants' case is that they brought the actions as a result of the Misrepresentations as a consequence of which they incurred legal costs in pursuing those actions and the payment of costs they were ordered to pay to the defendants by the court.
On the face of it, and without the more detailed scrutiny that the court would undertake on a strike out application or an application for summary judgment, the applicants' claims include the necessary elements to establish the torts of fraud and conspiracy.
Conclusion:
The court is not satisfied that the applicants' proposed action for damages for fraud and conspiracy is an abuse of process or frivolous or vexatious. Hence, the leave to file writ of summons is hereby granted.
