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Australian Wool Innovation Ltd v Newkirk

Australian Wool Innovation Ltd v Newkirk

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Case Copied 22 March 2005 40 min read

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FEDERAL COURT OF AUSTRALIA
Australian Wool Innovation Ltd v Newkirk [2005] FCA 290
PRACTICE AND PROCEDURE – pleading – motion for striking out statement of claim under O 11 r 16 of Federal Court Rules – statement of claim must plead material facts - while a conclusion may itself constitute a material fact, a conclusion without exposure of the primary facts on which it is based is likely to render the pleading objectionable – facts pleaded at unacceptable level of generality – statement of claim struck out with leave to replead
TRADE AND COMMERCE – Trade Practices - secondary boycotts for the purpose of causing substantial loss or damage – boycotts affecting trade or commerce - allegation of conduct in concert by several respondents – concerted conduct must actually hinder or prevent supply or acquisition of goods rather than create the mere possibility that hindrance or prevention might occur – pleading must go beyond repeating the language of the Trade Practices Act 1974 (Cth) to reveal the facts which bring a claim within that language - accessorial liability does not attract the extraterritorial application of the Trade Practices Act 1974 (Cth)
TORTS - Tort of conspiracy requires that conspirators have as their dominant purpose the intent of injuring the claimants - the object or objects of the conspiracy should be clearly identified – to make out the tort of intimidation there must be found an intention to harm the claimant
Trade Practices Act1974 (Cth) s 5(1), 45, 45D, 45DB, 51AA, 80(1), 75B, 75B(1)(d), 82
Federal Court Rules O 4 r 6(2)(b), O 6 r 2(a), O 6 r 8, O 9 r 7, O 11 r 2, O 11 r 16, O 13 r 3(1), O 20 r 2
Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 cited
Australian Builders’ Labourers’ Federated Union of Workers – Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452 applied
Australian Broadcasting Commission v Parish (1980) 43 FLR 129 considered
Beach Petroleum NL v Johnson (1991) 105 ALR 456 considered
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 applied
Bray v F Hoffman-La Roche Ltd (2002) 190 ALR 1 applied
Bruce v Odhams Press Ltd [1936] 1 KB 697 cited
Chan Cuong Su trading as Ausviet Travel v Direct Flights International Pty Ltd (1998) ATPR 41-662 cited
Charlie Carter Pty Ltd v The Shop, Distributive & Allied Employees’ Association of Western Australia (1987) 13 FCR 413 considered
Concrete Contractors (NSW) Pty Ltd v Nelson (1990) 109 CLR 594 cited
Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 applied
Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169 applied
Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 applied
Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169 applied
Hughes v Western Australian Cricket Association Inc (1986) 69 ALR 660 cited
Kernel Holdings…

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: [2005] FCA 290
Decision Date: 22 MARCH 2005

CaseChat Overview and Summary

Australian Wool Innovation Ltd brought a claim against Newkirk, along with other respondents, in relation to alleged contraventions of sections 45D and 45DB of the Trade Practices Act. The primary dispute revolves around claims of misleading or deceptive conduct and conduct that is likely to cause substantial loss or damage. The Federal Court of Australia was tasked with determining whether the claims against Newkirk should proceed.

The court had to decide whether the claims against Newkirk were pleaded with sufficient particularity to enable the preparation of a defence. Key issues included whether the conduct alleged by the applicants was specific enough to hold Newkirk liable and whether the pleadings sufficiently identified the persons who suffered loss or damage. Additionally, the court examined whether the general allegations made were sufficient to sustain the claims or if they were too vague and fanciful.

In its reasoning, the court found that the claims against Newkirk were not pleaded with the necessary particularity. The allegations were largely general and did not sufficiently identify the specific conduct by Newkirk or the persons who were allegedly harmed. The court held that the pleadings merely recited the statutory language without providing the material facts needed to establish liability. The claims against Newkirk were thus deemed insufficient and were struck out, with leave granted to replead. The court also ordered that the applicants pay Newkirk’s costs associated with the motion.

The final orders of the court were that the Amended Statement of Claim be struck out, with the applicants having the liberty to replead. The applicants were also ordered to pay the first respondent's costs of the motion, as well as any costs incurred as a result of these orders. The parties were directed to confer and prepare short minutes of order to implement the court's conclusions, including setting a timetable for any further amended statements of claim.

Orders

Orders of the court

1. The Amended Statement of Claim be struck out, with liberty to the applicants to replead.

2. The applicants pay the first respondent’s costs of the motion, and any costs thrown away as a result of the making of these orders.

3. The parties confer, and bring in short minutes of order to give effect to the conclusions reached in this judgment, including a timetable for the preparation of any proposed further amended statement of claim.

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

HELY J

This claim should also be struck out, with leave to replead.Conclusion1. The ASC should be struck out, with liberty to the applicants to replead.2.The applicants should pay the first respondent’s costs of the motion, and any costs thrown away as a result of the making of these orders.3.The parties should confer, and bring in short minutes of order to give effect to the conclusions reached in this judgment, including a timetable for the preparation of any proposed further amended statement of claim.

Ratio Decidendi

Legal Principle Established

Established by: HELY J

The grounds on which it is said that the claims alleging contravention of s 45D and s 45DB of the TPA should not be permitted to proceed in relation to the first respondent are set out below:(a)The only allegation of fact involving conduct by the first respondent is par 18, where it is alleged that she participated in an interview on the 60 Minutes program in Australia. If this conduct alone is said to be sufficient to establish primary liability under s 45D or s 45DB, this should be made clear.(b)No material facts are pleaded to establish that the first respondent acted in concert with all other respondents.(c)Except for the applicants, the pleading does not allege the identity of any person who falls within the categories of Australian wool acquirers, garment manufacturers, retailers or consumers. Hence the first respondent does not know the case she has to meet as she is not told who are the persons who are alleged to have suffered substantial loss or damage, nor who are the persons who are hindered or prevented from acquiring wool or Australian wool garments.(d)All the pleading does is to recite the language of the section. It does not plead the material facts relied upon. In particular, no material facts are pleaded to support the allegation that:(i)the first respondent’s purpose was to cause substantial loss or damage to the business of each of the applicants, or to the business of each of the garment manufacturers offering to supply Australian wool garments, or the business of retailers who offered Australian wool garments for sale and/or garment manufacturers offering or proposing to supply Australian wool garments for sale;(ii)each member of those classes suffered substantial loss or damage; and(iii)each member of the classes of Australian wool acquirers, retailers and consumers was hindered or prevented from acquiring goods from the relevant supplier.(e)A number of the allegations made are simply fanciful. An example is the allegation that the conduct alleged in fact caused substantial loss and damage to each of the classes of persons who are alleged to have suffered loss and damage, and in fact hindered or prevented the supply of goods in the manner alleged. The generality of the pleading involves the proposition that the conduct alleged caused substantial loss and damage to every retailer who sells Australian wool garments.(f)The alleged contravention of s 45DB in par 49(d) cannot be sustained by the matters referred to in that paragraph as there is no allegation of any hindrance in the movement of goods between Australia and places outside Australia.Consideration The applicants contend that the strike out application is misconceived, because the applicants are required to plead the material facts on which they rely, rather than to particularise the evidence by which those facts are to be proven, and in any event, if there is a want of particularity in the pleading, the defect can and should be cured by the provision of further particulars. The issue is whether the applicants’ claim has been pleaded with sufficient particularity to enable the preparation of a defence.