Case: Salim v Loh [2005] FCA 372
Outcome: cited
The progress of this application, and other related applications, to trial has been chequered. That history is described by French J in a decision dated 6 April 2005 ( Salim v Loh [2005] FCA 372). On that occasion French J heard an application by the respondents for the relief which included, the striking out of the statement of claim as it then existed. In his reasons, French J referred to the fact that there had been several previous attempts made to plead a statement of claim and he said at [38]: 'I have a considerable degree of sympathy for the respondents in facing the task of pleading to the [substituted statement of claim] and its proposed successor, the amended [substituted statement of claim] . Some parts use language whose meaning and construction is at best illusive. I fear however, that taking a scalpel to particular paragraphs will simply inflate the expense and delay involved in a proceeding which should have been heard and determined some time ago. It is, in my opinion, necessary to find a way forward in the management of this case that does not involve further undue expense and delay. I propose therefore to allow the applicant's pleading to stand. The amended [substituted statement of claim] may be substituted for it. It will stand as a statement of the applicant's contentions of fact and law. However I will dispense with further pleadings. The respondents will not be required to plead to the amended, [substituted statement of claim] . That, I think, is too onerous a task, given its shortcomings. Rather I will require the respondents to file statements of the contentions of fact and law upon which they each rely in answer to the applicant's case. This will not require them to address the amended [substituted statement of claim] in the way that they would be required to if pleading a formal defence.' 3 French J went on to say at [39]: 'I propose thereafter, consistently with directions previously given in relation to the proceedings in the Federal Magistrates Court, that the trial of the action be on affidavit and/or by the tender of written statements sworn to or affirmed by witnesses called by the parties. Thus the applicant will be required to file all his affidavits and/or witness statements to be relied first and so to disclose the entirety of his case.' 4 French J's comments and directions referred to above, applied both to this application and to a related application, namely WAD 9 of 2004. In application WAD 9 of 2004, the son of the applicants in this application, Iwan Salim, also known as John Salim, seeks relief founded on claims that he was induced to invest monies in a project carried out by the fifth respondent, which I will call the 'ostrich scheme', by misleading and deceptive conduct engaged in by and on behalf of the fifth respondent. 5 In accordance with the directions of French J referred to above, the applicants in this case filed witness statements dated 5 December 2005. It was in response to the filing of those witness statements that this application for summary judgment was brought. 6 The applicants' claims against the third respondent in this application are based upon allegations of the accessorial liability of that respondent for the misleading and deceptive conduct of the fifth respondent. It is alleged that the third respondent was at all material times a director of the fifth respondent. The third respondent submits that as a consequence of the filing of the applicants' witness statements it is now clear that there is no reasonable cause of action disclosed in respect of the claims by the applicants based on misleading and deceptive conduct. 7 The third respondent submits that a perusal of the witness statements shows that there was no conveyance of any representation which was made by or on behalf of the fifth respondent to the applicants, who, as I have said, are the parents of the applicant in WAD 9 of 2004. Further, it is said that there was no evidence that the applicants relied on any representations allegedly made by or on behalf of the fifth respondent. It is also argued that the applicants are precluded from bringing a claim because they suffered no loss. In this regard, the third respondent submits that the applicants' witness statements disclose that the money which was provided for the investment in the ostrich scheme and which was paid to the fifth respondent for that purpose, was paid by the son and not the applicants.