Case: Imobilari Pty Ltd v Opes Prime Stockbroking Limited [2008] FCA 1920 ; (2008) 252 ALR 41
Outcome: considered
the hearing of the current motion it was submitted on behalf of Dr Windsor that I impermissibly had regard to the evidence and that if I had confined myself to the terms of the pleading as I should have done in respect of a strike-out motion in reliance on O 11 r 16, the 2007 notice of motion would have been dismissed. I was referred to what was recently said by Finkelstein J in Imobilari Pty Ltd v Opes Prime Stockbroking Limited [2008] FCA 1920 ; (2008) 252 ALR 41 at [4] : The fundamental thing to understand about the strike-out rule, which the language of O 11 r 16 itself makes clear, is that the rule is concerned only with the adequacy of the pleading (or to be more precise, the allegations and the causes of action asserted therein) as a matter of law. The rule does not permit or allow consideration of facts or evidence outside the pleadings: Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91 and 109; [1999] ALR 333 at 347-8; see also General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129; [1964] HCA 69 ; [1965] ALR 636 at 638 (' General Steel '). Indeed, as counsel for ANZ, Mr Archibald QC, correctly noted in his submissions, the court must, for purposes of deciding the strike-out motion and deciding whether a pleading discloses a reasonable cause of action, assume the truth of the allegations in the statement of claim and draw all inferences in favour of the non-moving party because the question is whether those allegations, even if proved, cannot succeed as a matter of law: General Steel CLR at 129; ALR at 638. The submission is clearly correct. For the reasons more fully explored at [30] below, it is not possible to regard the 2007 notice of motion as anything more than a strike-out motion. It certainly did not seek dismissal of the proceeding as an abuse of process or summary judgment in reliance on s 31A of the Act. As indicated at [35] below, if it had been necessary, I would have taken my error in this respect into account in the exercise of my discretion as to whether the justice of the matter required that the finding as to the contracting parties made on the 2007 notice of motion be reconsidered. On 1 December 2008, Dr Windsor filed an amended statement of claim pursuant to O 13 r 3(1) of the Rules. In the amended statement of claim, Dr Windsor has reformulated her claim for damages for breach of contract and has pleaded that she entered into an agreement with SMS to provide medical services on behalf of SMS on or about 8 January 2001 (para 5). Section 31A of the Act and O 11 r 16 of the Rules have different legislative concerns. In Imobilari , Finkelstein J (at [4] [6]) observed that s 31A of the Act is concerned with the ability to make a claim, and a court must look at the evidence to see whether a cause of action is disclosed, whereas O 11 r 16 of the Rules, on the other hand, is concerned with the adequacy of pleadings as a matter of law and not with facts or evidence outside the pleadings. The amended statement of claim in compliance with O 11 r 2(a) of the Rules pleads the following statement of material facts upon which Dr Windsor relies: (1) That Dr Windsor and SMS entered into an agreement for the provision of medical services by Dr Windsor (para 5); (2) that the agreement comprised certain express and implied terms (paras 6 and 7); (3) that the terms of the agreement were varied (para 8); (4) that the agreement, as varied, was breached by SMS (para 14); and (5) that the breaches caused Dr Windsor to terminate the agreement (para 15); and (6) that Dr Windsor has suffered loss (para 17). The amended statement of claim discloses a reasonable cause of action for breach of contract by Dr Windsor against SMS. There are no grounds upon which the pleaded amended statement of claim constitutes an abuse of process. In these circumstances, it was submitted that the Court should find that SMS has not satisfied the onus of demonstrating that the amended statement of claim discloses no reasonable cause of action or is otherwise an abuse of process within O 11 r 16 of the Rules and, accordingly, refuse to strike out the amended statement of claim.