Australian Competition and Consumer Commission v Multigroup Distribution - [2002] FCA 201

FEDERAL COURT OF AUSTRALIA
ACCC v Multigroup Distribution [2002] FCA 201
TRADE PRACTICES – notice of motion – application to strike out amended statement of claim – whether pleading establishes a causal connection between alleged misrepresentation and loss or damage suffered – amended statement of claim struck out as against the third respondent
Trade Practices Act 1974 (Cth)
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409, cited
Bond Corporation v Thiess Contractors Pty Ltd (1987) 14 FCR 215, cited
Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522, cited
Henville v Walker (2001) 75 ALJR 1410, distinguished
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v MULTIGROUP DISTRIBUTION SERVICES PTY LTD and OTHERS
No Q 157 of 2001
SPENDER J
BRISBANE
26 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 157 OF 2001

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

MULTIGROUP DISTRIBUTION SERVICES PTY LTD
ACN 001 227 890
FIRST RESPONDENT

JOHN O'NEILE
SECOND RESPONDENT

MALCOLM ROBERTS
THIRD RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

26 FEBRUARY 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The amended statement of claim as against the third respondent be struck out.

2.The respondent on the motion pay the costs of the applicant on the motion, to be taxed if not agreed.

2.Any fresh statement of claim as against the third respondent be filed within four weeks of today.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 157 OF 2001

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

MULTIGROUP DISTRIBUTION SERVICES PTY LTD
ACN 001 227 890
FIRST RESPONDENT

JOHN O'NEILE
SECOND RESPONDENT

MALCOLM ROBERTS
THIRD RESPONDENT

JUDGE:

SPENDER J

DATE:

26 FEBRUARY 2002

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is a notice of motion filed by the third respondent, Malcolm Roberts, in proceedings brought by the Australian Competition and Consumer Commission against Multigroup Distribution Services Pty Ltd, John O’Neile and Mr Roberts. The notice of motion seeks an order that the amended statement of claim be struck out as against the third respondent (Mr Roberts) as disclosing no reasonable cause of action or, alternatively, as having a tendency to cause prejudice or embarrassment in the proceedings. Alternative relief is sought that particular paragraphs be struck out as against the third respondent as having a tendency to cause prejudice or embarrassment in the proceeding. In the further alternative, the notice of motion seeks an order that the applicant provide further and better particulars in response to requests made by the third respondent's solicitors to the applicant by facsimile of 23 November 2001.
The difficulty about the amended statement of claim is that it fails in any understandable way to draw a distinction between the case that may be made against the first, second and third respondents respectively. And on its face, notwithstanding the crucial factual differences in the case against each of…

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: [2002] FCA 201
Decision Date: 26 FEBRUARY 2002

CaseChat Overview and Summary

The Australian Competition and Consumer Commission brought proceedings against Multigroup Distribution, alleging breaches of the Australian Consumer Law. The third respondent, who was not the primary defendant, objected to the jurisdiction of the Federal Court to hear the claim against them, arguing that the ACCC had failed to properly identify the respondent in the initial statement of claim. The third respondent also claimed that the ACCC had not provided sufficient evidence to support the allegations against them. The court had to determine whether the ACCC had correctly identified the third respondent in the amended statement of claim, and if the respondent had standing to object to the jurisdiction of the court. Additionally, the court had to assess whether the ACCC had provided sufficient evidence to support the allegations against the third respondent.

The court found that the ACCC had not correctly identified the third respondent in the amended statement of claim, and that the third respondent did not have standing to object to the jurisdiction of the court. The court held that the ACCC's failure to properly identify the third respondent did not deprive the court of jurisdiction, as the respondent had been given sufficient notice of the proceedings against them. The court also found that the ACCC had provided sufficient evidence to support the allegations against the third respondent, and that the respondent's objections were without merit. The court struck out the amended statement of claim as against the third respondent and ordered the ACCC to file a fresh statement of claim within four weeks.

The court ordered the respondent to pay the costs of the applicant on the motion, to be taxed if not agreed. This decision highlights the importance of correctly identifying parties in legal proceedings and the consequences of failing to do so. It also emphasises the need for sufficient evidence to support allegations made in legal proceedings, and the consequences of failing to provide such evidence.

Orders

Orders of the court

1. The amended statement of claim as against the third respondent be struck out.

2. The respondent on the motion pay the costs of the applicant on the motion, to be taxed if not agreed.

2. Any fresh statement of claim as against the third respondent be filed within four weeks of today.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SPENDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 157 OF 2001

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	MULTIGROUP DISTRIBUTION SERVICES PTY LTD ACN 001 227 890 FIRST RESPONDENT JOHN O'NEILE SECOND RESPONDENT MALCOLM ROBERTS THIRD RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	26 FEBRUARY 2002
WHERE MADE:	BRISBANE

JUDGE:	SPENDER J
DATE:	26 FEBRUARY 2002
PLACE:	BRISBANE