Case: State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691
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. 40 The result is, to adopt the words of Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 834: "The case presently pleaded by the applicant on the element of loss is not such as to make the connection between the conduct complained of and the loss sought to be recovered "sufficiently apparent" in the sense in which that expression was used by Lord Watson in Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210 at 221 ... Further explication by the applicant of this part of the claim is therefore required at the pleading stage." See also Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 145-6. 51 I have concluded that the SASC should be struck out. In other circumstances it might have been possible to avoid this outcome. A direction to amend might, for example, have overcome the infelicities concerning the pleading relating to the surcharges. Similarly, a direction of the kind given by Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd , requiring the applicant to file a statement which set out how it intended to prove the losses which the applicant and group members are said to have suffered may have remedied certain defects. The failure of the applicant to identify a relevant market or markets is, however, in my opinion, such a significant deficiency in the pleading that, even if such corrective steps were taken, the SASC would remain fundamentally flawed. Not only is this deficiency significant in its own right, it has a consequential effect on the efficacy of other parts of the pleading including, particularly, the identification of the group and the alleged causal link between the implementation of the alleged cartel agreement and the loss and damage said to be caused to the applicant and the group members by the respondents' alleged contraventions of s 45 of the Act . 52 This is the first occasion on which there has been an adjudication on the respondents' complaints as to the alleged shortcomings of the applicant's pleaded case. I am, therefore, prepared to grant leave to the applicant to replead if it wishes to do so. 53 Certain other issues were raised by the respondents in the course of argument which, having regard to the conclusion to which I have come, it is not necessary to deal at any length. Two warrant some attention.