Vasram v AMP Life Limited [2001] FCA 1625

FEDERAL COURT OF AUSTRALIA

Vasram v AMP Life Limited [2001] FCA 1625

PRACTICE AND PROCEDURE – power of court to strike out statement of claim - power of court to dismiss proceedings Federal Court Rules O 11 r 16, O 20 r 2 Harris v Cigna Insurance Australia Limited (1995) ATPR 41-445 followed General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 followed Dey v Victorian Railways Commissioners (1949) 78 CLR 62 followed

CHIMAN LAL VASRAM v AMP LIFE LIMITED NG 667 OF 1998 STONE J 15 NOVEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 667 OF 1998

BETWEEN: CHIMAN LAL VASRAM

APPLICANT

AND: AMP LIFE LIMITED

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 15 NOVEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. the proceedings be dismissed;

2. the question of costs is reserved;

3. the parties to provide written submissions on the question of costs by 28 November 2001.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 667 OF 1998

BETWEEN: CHIMAN LAL VASRAM

APPLICANT

AND: AMP LIFE LIMITED

RESPONDENT

JUDGE: STONE J

DATE: 15 NOVEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

Background 1 By application filed on 6 July 1998 the applicant commenced these proceedings in a personal and representative capacity under Part IVA of the Federal Court of Australia Act 1976 (Cth) ("Act"). On 20 April 1999, pursuant to an order made by Madgwick J, the applicant filed a statement of claim. His statement of claim was struck out and the proceedings dismissed by Madgwick J on 28 May 1999. His Honour stayed his orders for seven days to allow the applicant an opportunity to apply for revocation of those orders and prepare amended pleadings. An amended statement of claim was also struck out by Madgwick J on 23 September 1999 on the ground that it was embarrassing. His Honour gave leave to the applicant "further and finally to amend the statement of claim" within 21 days after any breakdown of the proposed mediation and required that "the statement of claim as finally amended is to be verified by persons having personal knowledge of the facts". 2 A second amended statement of claim was filed on 16 February 2000 and yet another amended statement of claim ("fourth statement of claim") on 25 February 2000. In my reasons for judgment dated 21 November 2000 I commented that, "Despite this being the applicant's fourth attempt at producing a statement of claim in these proceedings, it is poorly drafted and makes it difficult to determine the precise nature of the applicant's claim. … It may be that the better approach would have been to strike out the statement of claim. However, as the present amended statement of claim is the applicant's fourth attempt, I do not have any confidence that this would achieve anything." 3 At that time I ordered that certain questions raised by the statement of claim be determined separately from any question in the proceeding. Subsequently those questions were considered and on 22 December 2000 I gave my decision on those questions and also ordered that the proceeding no longer continue under Part IVA of the Act. 4 Following that order it was clear that much of the applicant's claim against the respondent had been disposed of and that much of the statement of claim was rendered obsolete. It is not necessary at this time to list the various skirmishes between the parties but since 22 December 2000 there have been nine directions hearings and various orders made to little avail. At a directions hearing on 7 September 2001 the applicant raised as an issue, the entitlement of the respondent to lapse or forfeit the policies. This allegation was not pleaded in the fourth statement of claim and the basis of the claim was not made clear either at that time or, it would seem, in subsequent correspondence between the parties. It was clear that the statement of claim needed to be amended further to clarify that claim as well as refine the pleadings, taking into account that, as a result of my orders of 22 December 2000, this is no longer a representative proceeding. 5 On 24 September 2001, in giving leave to the applicant to amend his pleadings I said that it was my impression that much of the delay in this matter stemmed from the applicant's lack of a clear vision of what he was trying to achieve. Because of those delays and because there had already been four attempts to finalise the pleadings, I put the applicant on notice that I would give sympathetic consideration to any motion by the respondent to strike out the statement of claim if it was not properly pleaded.