As previously noted the court dealt with the time and expense issues by ordering costs agains the plaintiff and ordering the plaintiff to file a new version of the complaint at least three times. This response by the court did nothing to deter the plaintiff in the Gunns’ case with the result that the diffiucluties the persisted for the defendants at the onset of the proceedings followed them at least until a fourt complaint was refiled.
A Gunns’ spokesperson maintianed that the company was prepared to spend $2M on the case. Motives obviously become a factor. It might well be wise for the court to consider whether or not the plaintiff is serious about recovering damages or merely seeking to achieve an unlawful advantage. If this can be determined at an early stage the defendants can be spared the anguish of having to commit time and expense in the litigation of a case which only intendds to misuse the civil process.
The courts could dismiss the process from the outset. When a defendant’s motives cannot be determined from the outset the court has a duty to permit the plaintiff to pursue his claim. In the Gunns’ case the court was perhaps overly cautious in attempting to allow Gunns to present a claim with merit. However, the fact that there were three different attonreys at different times should have been sufficient evidence that the case had no merit and should have been struck out altogether. As Julian Burnside maintains:
“If you take a hypothetical of a big organisation that sues a penniless defendant and expends hundreds of thousands or millions of dollars in pursuing someone who won’t be able to pay them damages anyway, you can recognise very clearly that that’s a case where stifling dissent is the point, rather than recovering damages…” This fact alone should have alerted the court to the fact that Gunns had no real intention of recovering alleged damages. The primary motive was very likely to achieve an unlawful advantage over civil protesters. In the circumstances the court should not permit the misuse of the civil process for disingenuous reasons.
ABCNews (April 3, 2006) “Lawyers Push for Community Prostest Protection. ” http://www. abc. net. au/news/items/200604/1606945. htm? nsw Retrieved December 19 2007 A brief history of Gunns v Marr & Ors (24 July, 2006) http://www. mcgunns. com/ Retrieved December 19, 2007 Beeson, Adam. (August 29, 2006) “Gunns, Greenies and the Law. ” http://www. theage. com. au/news/in-depth/gunns-greenies-and-the-law/2006/08/29/1156617279358. html? page=fullpage#contentSwap1 Retrieved December 19 2007 Court Rules Against Gunns. (July 19, 2005) http://www. tasmedia. org/node/260 Retrieved December 19, 2007