Case: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409
Outcome: applied
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. 36 In McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 Weinberg J (at 419) identified the pleading requirements for a cause of action under s 82 of the Act . His Honour said: "When a claim is made under s 82 of the Act , the gist of the cause of action being damage, the statement of claim must allege the damage suffered, and that it was suffered by reason of the contravention of the Act . Material facts must be pleaded which show the required causal link between any alleged contravention of the Act , and any damage to the applicant. A deficient pleading, namely one that does not plead relevant material facts, cannot be saved by particulars. It is not sufficient simply to allege loss and damage as a result of alleged contraventions of the Act ; it is necessary to identify a causal connection between the impugned conduct and such loss as is said to have been suffered by the applicants: Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222 ..." 37 No material facts are pleaded in the SASC to establish that the applicant has suffered any loss or damage as a result of any contraventions of the Act by the respondents. Nor are the pleadings in paragraphs 85 and 86 of the SASC adequate for the purpose of establishing that any group member suffered any loss or damage because of any such contraventions. 38 It is not sufficient for an applicant to plead, as does the applicant in the present proceeding, that the represented group members suffered loss and damage because the impugned agreement caused prices for international airfreight services to be "higher than they otherwise would have been" but for the agreement. This is no more than a conclusion without material facts to support it. Whether or not a member of the group suffered loss or damage because of the alleged cartel arrangement will depend upon a range of variables which may nor may not be present depending upon the circumstances of particular transactions. Even if it be assumed that cartel members had agreed to inflate prices for the carriage of air cargo on routes which they serviced it does not follow that they did, in fact, do so on all occasions on which a group member sought services from a respondent. It is certainly less likely that this would have occurred on routes in which carriers who were not members of the alleged cartel were engaged.