Case: Johnson Tiles v Esso [2000] FCA 1572 ; (2000) 104 FCR 564
Outcome: cited
The Commission says that full and extensive argument on the effect of s 6 of the Act is necessary to determine the question. That, in turn, will be affected by findings of fact made at trial. The Commission's position is that it cannot be said that the point is manifestly bad or so fatally flawed that it should not see the light of day at the trial ( Johnson Tiles v Esso [2000] FCA 1572 ; (2000) 104 FCR 564 at [50] ) 68 As the Court said in Johnson Tiles at [50] an application to strike out which involves prolonged and serious argument should only be entertained if the Judge not only harbours doubt about the soundness of the pleading but is also satisfied that striking out will avoid the need for a trial or substantially reduce the burden of its preparation. Strike out procedures should not stultify the development of the law. The question is an important one and should be determined in the ordinary course to enable the law to be determined, if necessary on appeal, in the context where the factual issues are also determined. 69 As was observed in Johnson Tiles at [50] , it is inappropriate to decide such a question on hypothetical facts, or as a separate question, where the answer would not determine the proceedings or mean that Mr George or any other respondent would be removed as a party to the proceedings. I accept that the question has not been fully considered and answered. It is not appropriate to strike out these paragraphs as manifestly bad or fatally flawed or unarguable. 70 The nature of the case alleged against Mr George is apparent from the further amended statement of claim. Such particulars as have been and will be provided outside the pleading can be incorporated into a further amended pleading at the appropriate time. The matter is complex as is not unexpected in a case of the type as advanced by the Commission. It has already been amended following the hearing of the strike out application in response to matters raised by Mr George. Rather than engage in a further paragraph by paragraph analysis of the pleading, it may be appropriate to require the Commission to file its evidence before requiring the respondents to file their defences. I will hear from the parties as to that possible course. 71 The Commission sought to file the pleading after the hearing of the application to strike out the amended statement of claim. I will hear from the parties as to the appropriate order for costs. I certify that the preceding seventy one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 21 December 2007 Counsel for the Applicant: C A Sweeney QC, D H Godwin Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: A J Meagher QC, M A Jones Solicitor for the First Respondent: Corrs Chambers Westgarth Counsel for the Sixth Respondent: R Wyld Solicitor for the Sixth Respondent: Johnson Winter &amp; Slattery Counsel for the Thirteenth Respondent: A Leopold SC Solicitor for the Thirteenth Respondent: PriceWaterhouseCoopers Legal Date of Hearing: 25 July 2007, 27 August 2007 Date of Final Submissions: 17 September 2007 Date of Judgment: 21 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2024.html