Rules of the Supreme Court

In the exercise of the courts’ “inherrent power” to “prevent injustice” the judge in the Gunns’ case maintained that yet again the plaintiff’s Statement of Claim in its current state could not proceed. As a result the matter was stayed until further order and a date fixed for costs to be taxed. The consequences of the misuse of the civil process by the plaintiff were therefore twofold. First, the defendants were put to undue cost and secondly they were put to undue delay both culminating to create injustice and embarrasment to them in their defence.

The court’s repsonse to the plaintiff’s misuse of the civil process was the striking out of pleadings and giving the plaintiff time to amend or refile his claim. Moreover costs were taxed for actual delays during the interlocutory process. Lawyers expressed concern that the fling of a complaint against 20 defendants “could financially cripple individual defendants. ” The financial aspect was not lost on the Victorian Supreme Court which ruled as a preliminary matter that the plaintiff pay the cost incurred by all 20 defendants as a result of the plaintiff’s misuse of the civil process.

Jullian Burnside, QC, an attorney representing one of the many defendants initially described the originating process drafted by the plaintiff as "so defective it should not be received by the court". Calling the document incomprehensible, Burnside agreed with the court’s finding that the enormity of the claim and the incomprehensible nature of it would “clog up the courts for an extraordinary amount of time. ” This would obviously involve inordinate expense to those called upon to defend the claim.

An underlying concern was that the process was misused by Gunns as a means of stifling and shutting down civil protests since the claims were against persons actively campaigning against Gunns’ deforresting practices. Bristish lawyers wrote a public letter to the Australian Finandial review claiming that: “We believe that the use of legal proceedings against peaceful protesters amounts to an attack on basic civil liberties, in particular freedom of speech and freedom of assembly, which form part of the essential foundations of any democratic society.

” This aspect of the case explains why the court safeguards the Rules of the Supreme Court which require that the plaintiff’s cause of action and the legal issues and facts giving rise to that cause of action are readily discernible from the Statement of Claim. As illustrated by the Victorian Supreme Court, a meritless or unactionable claim will not be indorsed.