mdroth/huggingface-course_section-5_zst huggingface dataset:
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 summarily to 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.
Case: HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822
Outcome: cited
The principles governing the exercise of the Court's power summarily to 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.
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 summarily to 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.
Case: Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413
Outcome: cited
The principles governing the exercise of the Court's power summarily to 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.
Case: Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557
Outcome: cited
The principles governing the exercise of the Court's power summarily to 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.
Case: Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568
Outcome: referred to
More recent authority has restated and applied these principles: see, for example, Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42,669-42,670. In the context of representative proceedings Sackville J has emphasised that applicants were obliged to plead adequately the case alleged by them " on their own behalf and on behalf of all members of the represented class" (Emphasis in original): see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at 510. His Honour referred with approval to the earlier observation of Beaumont J in Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251 at 41,370 which he paraphrased as follows: "it is axiomatic that a respondent in a representative proceeding, like the respondent in any proceedings, is entitled to the benefit of a properly pleaded case, so that a proper defence can be filed."
Case: Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053
Outcome: referred to
More recent authority has restated and applied these principles: see, for example, Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42,669-42,670. In the context of representative proceedings Sackville J has emphasised that applicants were obliged to plead adequately the case alleged by them " on their own behalf and on behalf of all members of the represented class" (Emphasis in original): see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at 510. His Honour referred with approval to the earlier observation of Beaumont J in Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251 at 41,370 which he paraphrased as follows: "it is axiomatic that a respondent in a representative proceeding, like the respondent in any proceedings, is entitled to the benefit of a properly pleaded case, so that a proper defence can be filed."
Case: Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487
Outcome: cited
More recent authority has restated and applied these principles: see, for example, Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42,669-42,670. In the context of representative proceedings Sackville J has emphasised that applicants were obliged to plead adequately the case alleged by them " on their own behalf and on behalf of all members of the represented class" (Emphasis in original): see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at 510. His Honour referred with approval to the earlier observation of Beaumont J in Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251 at 41,370 which he paraphrased as follows: "it is axiomatic that a respondent in a representative proceeding, like the respondent in any proceedings, is entitled to the benefit of a properly pleaded case, so that a proper defence can be filed." 15 In my view a person reading the pleaded definition could not reasonably be expected to determine whether he or she had purchased items which were "rubber products" as defined in paragraph 4 of the statement of claim. The statement of claim fails sufficiently to describe or otherwise identify the group members to whom the proceeding relates. For this reason alone the statement of claim should be struck out: see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at 514. 16 There are, however, additional and related difficulties occasioned by the failure of the applicant adequately to define "rubber products" which affect the efficacy of other parts of the statement of claim. The applicant pleads (in paragraph 37) that Bayer Australia and Chemtura Australia were able to and did influence the price of rubber products in Australia. In paragraph 38 it is claimed that the respondents overcharged for rubber products. As a result it is alleged (in paragraph 40) that the applicant and group members suffered loss and damage as a result of having to pay more for rubber products that they would have been required to do had the respondents contravening conduct not occurred. In the absence of a clear definition of group members and a clear understanding of what is comprehended by the term "rubber products" these paragraphs are embarrassing. The respondents cannot fairly be expected to plead to them. The same problem arises in respect to paragraph 12 in which it is said that there is a national market in Australia for the supply of rubber products. 17 Before passing to other objections to the statement of claim it should be noted that the applicant has not pleaded sufficient material facts to establish that it is a member of the group which it seeks to represent.
Case: Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251
Outcome: referred to
More recent authority has restated and applied these principles: see, for example, Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42,669-42,670. In the context of representative proceedings Sackville J has emphasised that applicants were obliged to plead adequately the case alleged by them " on their own behalf and on behalf of all members of the represented class" (Emphasis in original): see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at 510. His Honour referred with approval to the earlier observation of Beaumont J in Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251 at 41,370 which he paraphrased as follows: "it is axiomatic that a respondent in a representative proceeding, like the respondent in any proceedings, is entitled to the benefit of a properly pleaded case, so that a proper defence can be filed."
Case: State Bank of Victoria v Parry (1990) 2 ACSR 15
Outcome: cited
The material facts needed to establish that any one of the Australian companies was the agent of one of the foreign respondents is lacking. There is the bare allegation of agency and no more. This is not sufficient to forge the nexus between the alleged cartel agreements and the implementation of their terms by the Australia companies: see State Bank of Victoria v Parry (1990) 2 ACSR 15 at 30; Briggs v James Hardie &amp; Co Pty Ltd (1989) 16 NSWLR 549 at 556; cf Industrial Equity Limited v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567.
Case: Briggs v James Hardie &amp; Co Pty Ltd (1989) 16 NSWLR 549
Outcome: cited
The material facts needed to establish that any one of the Australian companies was the agent of one of the foreign respondents is lacking. There is the bare allegation of agency and no more. This is not sufficient to forge the nexus between the alleged cartel agreements and the implementation of their terms by the Australia companies: see State Bank of Victoria v Parry (1990) 2 ACSR 15 at 30; Briggs v James Hardie &amp; Co Pty Ltd (1989) 16 NSWLR 549 at 556; cf Industrial Equity Limited v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567.
Case: Industrial Equity Limited v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567
Outcome: referred to
The material facts needed to establish that any one of the Australian companies was the agent of one of the foreign respondents is lacking. There is the bare allegation of agency and no more. This is not sufficient to forge the nexus between the alleged cartel agreements and the implementation of their terms by the Australia companies: see State Bank of Victoria v Parry (1990) 2 ACSR 15 at 30; Briggs v James Hardie &amp; Co Pty Ltd (1989) 16 NSWLR 549 at 556; cf Industrial Equity Limited v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
The applicant's attempt to rely on s 75B of the Act must fail in the absence of a pleading of intentional and knowing participation by a respondent in any alleged contravention of the Act : see Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 669-670. This aspect of the pleading also suffers from an absence of specificity: it identifies conduct, for the purposes of s 75B , as being any of the conduct, alleged to have been undertaken by the foreign respondents or the Australian companies, to which reference is made in any or all of some 22 paragraphs of the statement of claim. 38 The statement of claim should be struck out. It cannot be saved by amendment. As this is the first occasion on which the Court has considered and ruled on the respondents' objections, the applicant should, if it is so advised, have the opportunity to replead. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 10 October 2008 Counsel for the Applicant: Mr I Wylie Solicitor for the Applicant: Maurice Blackburn Pty Ltd Counsel for the Second Respondent: Mr C Moore Solicitor for the Second Respondent: Baker &amp; McKenzie Counsel for the Third and Fifth Respondents: Mr P Crutchfield Counsel for the Third and Fifth Respondents: Mallesons Stephen Jaques Dates of Hearing: 5 May 2008 and 15 May 2008 Date of Judgment: 10 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1510.html