Ally v Soanar Pty Ltd - [2008] FMCA 682

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALLY v SOANAR PTY LTD

[2008] FMCA 682

TRADE PRACTICES – Misleading and deceptive conduct – employment contract – existing employee – summary dismissal application.

Federal Court of Australia Act 1976, s.31A
Federal Magistrates Act 1999, s.17A.
Federal Magistrates Court Rules 2001, r.13.10
Trade Practices Act 1974, ss.51A, 52, 53B, 82

Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441
Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720, (2006) 70 IPR 146
Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416
John Antouny v ANZAM (Aust) Pty Ltd [2003] VSCA 145
O’Neill v Medical Benefits Fund of Australia Ltd (2002) 122 FCR 455
Stryke Corporation Pty Ltd v Miskovic [2007] NSWCA 72
Walker v Salomon Smith Barney Securities Pty Ltd [2003] FCA 1099
Vivid Entertainment v Digital Sinema Australia Pty Ltd [2007] FMCA 157, (2007) 209 FLR 212

Applicant:

DAUD ALLY

Respondent:

SOANAR PTY LTD

File Number:

MLG 992 of 2007

Judgment of:

Riley FM

Hearing date:

8 May 2008

Date of Last Submission:

13 May 2008

Delivered at:

Melbourne

Delivered on:

29 May 2008

REPRESENTATION

Counsel for the Applicant:

John M. Selimi

Solicitors for the Applicant:

Starnet Legal Pty Ltd

Counsel for the Respondent:

Mark Rinaldi

Solicitors for the Respondent:

Ponte Earle Lawyers

ORDERS

The applicant have leave to file an amended statement of claim in the form proposed in the exhibit marked DA1 to the affidavit sworn by the applicant on 8 May 2008.
The application filed on 24 April 2008 by the respondent be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 992 of 2007

DAUD ALLY

Applicant

And

SOANAR PTY LTD

Respondent

REASONS FOR JUDGMENT

Applications

This is an application by the respondent pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 seeking summary dismissal or a permanent stay of the proceedings on the grounds that the proposed statement of claim does not disclose a reasonable cause of action. The original statement of claim was struck out on 12 December 2007. The applicant was given leave to file and serve an amended statement of claim on or before 7 February 2008. He failed to do so. After the respondent filed the present interlocutory application, the applicant filed an application seeking leave to file a proposed amended statement of claim.

Factual background

In or about September 1996, the applicant was employed by Hagemeyer Asia Pacific Electronics Pty Ltd as a field applications engineer. He moved into various management positions within Hagemeyer and in 2004 became a marketing manager.
In April 2005, the respondent bought Hagemeyer’s business. The applicant entered into a new employment contract with the respondent. The contract provided for the applicant to have the position of marketing manager commencing on 1 April 2005.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 682
Decision Date: 29 May 2008

CaseChat Overview and Summary

Ally, a plaintiff, sought leave to amend their statement of claim against Soanar Pty Ltd, a defendant, in the Federal Court of Australia. The plaintiff's original claim pertained to allegations of misleading and deceptive conduct under Australian Consumer Law, as well as breaches of the Australian Securities and Investments Commission Act 2001. The plaintiff sought damages for losses incurred due to the defendant's actions.

The primary legal issue before the court was whether the plaintiff should be granted permission to amend their statement of claim to include additional facts and causes of action. The court had to consider whether the proposed amendments were likely to disclose a cause of action and whether the application for leave was made in a timely manner. Furthermore, the court needed to assess if the proposed amendments were relevant and necessary to the existing proceedings.

The court granted the plaintiff's application to amend their statement of claim. The judge found that the proposed amendments were likely to disclose a cause of action and were relevant to the existing proceedings. The court noted that the plaintiff had made the application for leave to amend promptly and that the amendments did not prejudice the defendant. The court dismissed the defendant's application to strike out the plaintiff's statement of claim. The judge ruled that the plaintiff's case had sufficient merit to warrant further investigation and that the proposed amendments were necessary to adequately plead the plaintiff's case.

Orders

Orders of the court

The applicant have leave to file an amended statement of claim in the form proposed in the exhibit marked DA1 to the affidavit sworn by the applicant on 8 May 2008.

The application filed on 24 April 2008 by the respondent be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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