Case: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109
Outcome: cited
The principles governing the exercise of the Court's power to summarily dismiss a claim on the ground that it discloses no reasonable cause of action, the principles which govern pleadings in this Court and the relevant authorities are conveniently summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421. It is not necessary to restate, at length, his Honour's exposition of the relevant rules and the statements of principle which emerge from the cases to which he refers. It is sufficient, for present purposes, to note that: &#8226; The power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised: see Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130; Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603. &#8226; The purpose of pleadings is to define the issues with sufficient clarity such that respondents understand, and have the opportunity to meet, the case made against them: see Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151ff. &#8226; A statement of claim must plead all the material facts necessary for the purpose of formulating a complete cause of action. If it does not it is liable to be struck out: Mitanis ; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713. &#8226; It is not sufficient for the pleader to state conclusions drawn from unstated facts: see Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5. &#8226; There will be cases in which the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59] ), and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits ( State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42,828-9). &#8226; Not all conclusionary pleadings will be struck out as being deficient: see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 at 417. Whether or not such a pleading should be struck out will depend on whether or not the facts are pleaded at too great a level of generality: see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557. 22 There is a further problem with paragraph 22(a). It appears to proceed on the basis of a tenuous construction of s 45A of the Act . That construction, which fastens on the words "or by any of them", admits the possibility that all parties to an alleged arrangement can be treated as being subject to the deeming provision in s 45A even if the party concerned is not in competition with the other parties in a particular market. It is sufficient to note, for present purposes, that there is authority for this proposition: see Trade Practices Commission v David Jones (Australia) Pty Ltd (1986) 13 FCR 446 at 473. It is strongly arguable that such a construction does not conform with the ordinary and natural language of s 45A or the statutory purpose which it seeks to serve. These construction issues may need to be resolved at trial. It will not, however, be possible to determine whether or not they arise until the applicant alleges and proves the markets in which each respondent competes with which other respondent. 23 The applicant's failure to identify, in its pleadings, the relevant market or markets has implications for other parts for the SASC. In paragraphs 80 and 81, for example, it alleges that the respondents were in a position to influence the price for international airfreight services because of the volume of international airfreight which they carried into and out of Australia. In paragraph 81 (when read with Schedule 3) the applicant identifies the percentages of inbound and outbound airfreight carried by each of the respondents between Australia and certain overseas countries. Curiously, in paragraphs 80(b) and 81(b) it is pleaded that the respondents "together and in combination" with other participants in the cartel " were able by their pricing behaviour to influence the price of international airfreight services" and, specifically, for routes between Australia and each of the places specified in Schedule 3. Even if the alleged cartel participants "were able" to influence the prices charged for international airfreight services, they would only be liable for damages for a contravention of s 45 of the Act if they did, in fact, by their conduct cause prices to be inflated. More importantly, the absence of a market definition prevents the respondents from knowing whether it is alleged that any attempt to influence prices, in furtherance of the alleged agreement, occurred in any market in Australia. 24 The failure to identify a market or markets creates a special problem for British Airways. It has the benefit of an authorisation under s 88 of the Act in relation to a joint services agreement which it has with Qantas. That agreement permits British Airways to agree with Qantas about the prices for services offered, including cargo services, on routes covered by the agreement. Such an authorisation provides British Airways with a defence against any claim that it has contravened s 45 of the Act . Unless British Airways is able to relate the routes covered by the authorisation to the relevant markets for the purposes of s 45 it will be unable to know whether it can plead a complete or partial defence based on s 88.