BOASE -v- SEVEN NETWORK (OPERATIONS) LTD & ANOR [2005] WASC 89

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 89
Case No:	CIV:1701/2004	Heard:	24 MARCH 2005
Coram:	MASTER NEWNES	Delivered:	12/05/05
No of pages:	15	Judgment Part:	1 of 1
Result:	Statement of claim struck out
Category:	B
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Parties:	TIMOTHY BOASE SEVEN NETWORK (OPERATIONS) LTD (ACN 045 845 262) CHANNEL SEVEN PERTH PTY LTD (ACN 008 679 294)
Catchwords:	Practice and procedure Application to strike out statement of claim Whether claim outside endorsement on writ Whether exemplary damages available for breach of contract Claim under s 51AC of Trade Practices Act Relevant connection between supply of services and alleged unconscionable conduct Turns on own facts
Legislation:	Trade Practices Act 1974 (Cth), s 51AC
Case References:	Adamson v West Perth Football Club Incorporated (1979) 27 ALR 475 Boase v Seven Network (Operations) Ltd [2004] WASC 245 Butler v Fairclough (1917) 23 CLR 78 Coyne v Commercial Equity Corporation Ltd & Ors (1998) 20 WAR 109 Gray v Motor Accident Commission (1998) 196 CLR 1 Hospital Contributions Fund of Australia v Hunt (1983) 44 ALR 365 Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110 Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2001] FCA 1056 Renowden v McMullin (1970) 123 CLR 584 Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 Chandler v Water Corp [2001] WASC 166 Macgregor v Macgregor [2004] WASC 237

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BOASE -v- SEVEN NETWORK (OPERATIONS) LTD & ANOR [2005] WASC 89 CORAM : MASTER NEWNES HEARD : 24 MARCH 2005 DELIVERED : 12 MAY 2005 FILE NO/S : CIV 1701 of 2004 BETWEEN : TIMOTHY BOASE

Plaintiff

AND

SEVEN NETWORK (OPERATIONS) LTD (ACN 045 845 262)

First Defendant

CHANNEL SEVEN PERTH PTY LTD (ACN 008 679 294)

Second Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Whether claim outside endorsement on writ - Whether exemplary damages available for breach of contract - Claim under s 51AC of Trade Practices Act - Relevant connection between supply of services and alleged unconscionable conduct - Turns on own facts

Legislation:

Trade Practices Act1974 (Cth), s 51AC

(Page 2)

Result:

Statement of claim struck out

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett

First Defendant : Mr P D Evans

Second Defendant : Mr P D Evans

Solicitors:

Plaintiff : Bennett & Co

First Defendant : Freehills

Second Defendant : Freehills

Case(s) referred to in judgment(s):

Adamson v West Perth Football Club Incorporated (1979) 27 ALR 475
Boase v Seven Network (Operations) Ltd [2004] WASC 245
Butler v Fairclough (1917) 23 CLR 78
Coyne v Commercial Equity Corporation Ltd & Ors (1998) 20 WAR 109
Gray v Motor Accident Commission (1998) 196 CLR 1
Hospital Contributions Fund of Australia v…

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.

Continue reading Boase v Seven Network (Operations) Ltd

Details

AGLC: Boase v Seven Network (Operations) Ltd [2005] WASC 89
Case: [2005] WASC 89
Decision Date

CaseChat Overview and Summary

The case of Boase v Seven Network (Operations) Ltd involved an application by the defendants to strike out the plaintiff's amended statement of claim. The plaintiff's original claim under s 52 of the Trade Practices Act 1974 (Cth) had previously been struck out, and the current claim was based on contract and s 51AC of the Act. The defendants argued that the amended statement of claim was unclear and contained irrelevant allegations, while the plaintiff sought further amendments to the statement of claim.

The court found that the amended statement of claim was not clear enough to allow the defendants to know what contractual terms were being alleged. The court also found that certain allegations of breach of contract went beyond the claim endorsed on the writ, and that other allegations were irrelevant to any relief claimed. Additionally, the claim under s 51AC of the Trade Practices Act did not disclose a reasonable cause of action because the alleged unconscionable conduct was not connected to the supply of services.

The court refused leave to amend the statement of claim in its current form and struck out the statement of claim of 11 January 2005. The plaintiff was allowed to file a further minute of proposed statement of claim within a time to be determined, subject to the court's consideration of costs and the appropriate time frame for filing the fresh minute.

Orders