Bennett, D.R. v B.P. Australia Ltd

[1986] FCA 141

LIMITED DISTRIBUTION

T

CATCHWORDS

PRACTICE AND PROCEDURE - Application to strike out Statement of

Claim - Whether Statement of Claim pleads a cause of action known

to the law - Costs - Undertaking by solicitors to indemnify

client against order for costs.

Petroleum Retail Marketins Franchise Act 1980

Trade Practices Act	1974 s.47(2)(e)
NShl G.333 of 1985

DOUGLAS RONALD BENNETT & ANOR v B P (AUSTRALIA) LIMITED

Wilcox J

Sydney

28 February 1986

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. G.333 of 1985
)
GENERAL DIVISION	)

BETWEEN: DOUGLAS RONALD BENNETT

First Applicant

JUDITH ANN BENNE!IT

Second Applicant

m: B P [AUSTRALIA) LIMITED

Respondent

c o w :	WILCOX J.
DATE:	28 FEBRUARY 1986
PLACE :	SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.        The Statement of Claim be struck out.

2.

2. Leave be granted to the applicants to file and serve

within twenty-one (21) days of today a further

amended Statement of Claim and, if	so advised, an
amended Application.

3 .	The applicants pay to	the respondent its costs of the
motion.

AND THE COURT NOTES:

The undertaking given to the Court by the solicitor

for the applicants, Mr Warren Wells, that he will

personally indemnify his clients against the cost	of
complying with this order.

NOTE :

Settlement and entry of orders i s dealt with in

Order 36 o€ the Federal Court Rules.

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH W E S DISTRICT REGISTRY	) No. G.333 of 1985
)
GENERAL DIVISION	)

BEIWEEN:

DOUGLAS RONALD BENNETT

First Applicant

JUDITH ANN BENNETT

Second Applicant

B P (AUSTRALIA) LIMITED

Respondent

CORAM:	WILCOX J.
DATE:	28 FEBRUARY 1986

PLACE : SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

This is an application made by the respondent in the

principal proceeding, BP (Australia) Pty Limited, for an order

that the Statement of Claim filed herein be struck out; that,

in the alternative, certain paragraphs be struck out; and

that, in the further alternative, the proceedings be stayed

pending determination of proceedings number 4488 of 1985 in

the Equity Division of the Supreme Court of New South Wales.

2 .

The Statement of Claim which has been filed makes

various allegations regarding the circumstances in which the applicants became the lessees of a service station and regarding the supply to the applicants of fuel by a person

identified as W L Chaplin, who is said to be a BP agent. It

is alleged in para.16 of the Statement of Claim that Mr

Chaplin on or about 5 October 1985 refused to deliver further

fuel to the applicants.

Upon first reading the Statement of Claim I was quite

mystified as to the nature of the claim which the applicant

sought to litigate. A clue was given by the statement

contained in para.1 of the Statement of Claim: that on 19

September 1980 the Petroleum Retail Marketins Franchise Act

became law, a matter that should not properly be pleaded. But

the statement did at least indicate that that Act was regarded

as relevant. This clue was reinforced by seeing in the

Application a request for certain orders involving amendments

to the lease, a form of relief which under certain

circumstances may be available under that Act.

When the matter came on for hearing Mr Wells on

behalf of the applicants in the principal proceeding indicated

to the Court the basis upon which the matter is brought. He

referred to s.47(2)(e) of the Trade Practices Act 1974, a

3 .

provision which is not referred to in any way in the

pleadings, either directly or by reciting facts falling within

that paragraph.

The substance of the matter, as I understand it, is

that it is claimed on behalf of the applicants that the

respondent has engaged in exclusive dealing within the meaning

of 5 .47 in that it has supplied fuel to Mr Chaplln upon the

condition that Mr Chaplin will not resupply the fuel to the

applicants. I say nothing as to whether or not a case such as

that may be made out. There is no evidence that would

indicate one way or the other, but it is quite apparent that

no such case has been pleaded in the Statement of Claim.

The other contention made on behalf of the applicants

is that the respondent has infringed s.9 of the Petroleum

Retail Marketins Franchise Act 1980. It is said that it, the

respondent, as franchisor, entered into a franchise agreement

that contains a provision imposing an obligation on the

franchisee that is likely to be unduly onerous to perform at

the time when it is required to be performed.

The relevant provision has been identified by Mr

Wells in his submission as being the requirement of the lease

which obliges the applicants as lessees to take from the

respondent not less than one half of their fuel requirements.

It is said by Mr Wells that this provision is one likely to be

4 .

unreasonably onerous because of certain activities by the

respondent in relation to marketing. None of those activities

have been pleaded, nor has there been any allegation made in

terms of the matters required to be established to invoke s.9.

Once again, I have no opinion whatever as to whether

it is possible for the applicants to make out such a case, but

I simply say that no such case has been pleaded.

So far as I can detect, the existing Statement of

Claim pleads no cause of ac-tion at all. It should not be

allowed to remain upon the record. In my opinion it would be

impossible for the respondent to plead to that Statement of

Claim. The Statement of Claim appears to contain a number of

allegations which are, on any view of the matter, quite

irrelevant and it fails to plead the allegations which are

critical t o the causes of action upon which	it appears that
the applicants desire to rely.

I am of the opinion that the Statement of Claim

should be struck out but that leave should be given to the

applicants to amend the Statement of Claim by filing a frea

Statement of Claim, if	so advised, within a period of	21 days
from today.

On behalf of the respondent, Mr Bathurst asked for

costs of the motion. In my view this application is

irresistible. This is not a case in which a respondent has

5.

rushed in with an application to strike out a pleading. It

appears from the affidavit of Georgina Joan Elliott, filed on

behalf of the applicant on the motion, that upon receipt of

the Statement of Claim a letter was sent to the solicitor for

the applicants dated 19 December 1985 indicating the view of

the solicitors for the respondent that the Statement of Claim did not disclose any course of action. Particular reference was made to certain paragraphs. The solicitors invited the

solicitor for the applicant to amend the Statement of Claim so

as to properly plead the cause of action upon which the

applicants rely. It was indicated that if there was not an

appropriate amendment the Court would	be asked to make
appropriate orders.

A follow-up letter was sent on 14 January 1986 and

again on 22 January 1986 following a telephone conversation in

which Mr Wells sought an extension of seven days in order to

file an amended Statement of Claim. An amended Statement of

Claim was filed on 20 January 1986, but this merely rectified

errors of description of the parties which were contained in

the original Statement of Claim and it provided no improvement

on the earlier Statement of Claim in relation to the matters

of substance to which I have referred.

Thereupon the present notice of motion was filed. It

seems to me that the respondent had no alternative whatever other than to approach the Court in order to have the situation rectified.

6.

I therefore propose to make an order that the

applicants pay the respondent’s costs of the motion. However,

this leaves a situation which in my opinion is most

unsatisfactory. The applicants entrusted the conduct of this

litigation to their solicitor. He filed a Statement of Claim

which was manifestly defective andJnotwithstanding a generous

opportunity to rectify the matter without the necessity for an

application of the Court, he failed to do so. Upon the

hearing of the application it quickly became obvious that the an order for costs had to be made in favour of the other side.

It seems to me highly unsatisfactory that in such a

situation the lay client should be left to bear the costs of such an application. The fault rests with the solicitor who

has the conduct of the matter and he should bear the costs.

If it be the fact that the Statement of Claim is

defective because appropriate advice was not obtained from

counsel experienced in considering causes of action and

drafting pleadings, the fault lies with the solicitor for not

engaging such counsel. Solicitors who handle litigation

personally must be required to do so with the same degree of

competence and efficiency as counsel.

L raised this matter with Mr Wells and asked him

whether he was prepared to give an undertaking to the Court

that he would indemnify his clients in respect of the order

for costs- To his credit, he immediately indicated that he would do so. I accordingly accept the undertaking which is offered,

The orders I make are as follows: the Statement of

Claim is to"be struck out. I grant leave to the applicants to

file and serve within 21 days of today a further amended

Statement of Claim and if so advised an amended Application.

1 order that the applicants pay to the respondent its

costs of the motion. L note the undertaking given to the

Court by the solicitor for the applicants, Ur Warren Wells,

that he will personally indemnify his clients against the cost

of complying with that order.

\

I certify that this and the six (6)

preceding pages are a true copy of

the Reasons for Judgment herein of

his Honour Ur Justice Wilcox.

Associate: 4 - A l4.&47%7w

Date : 18 April 1986

Appearance for the applicant: Mr W Wells, Solicitor

Solicitors for the applicant: Messrs Wells & Associates

Counsel $or the respondent: Mr T Bathurst

Solicitors for the respondent: Messrs Clayton Utz

I	Datets) of hearing:	28 February 1986
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