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Brosnan v Katke

Brosnan v Katke

Case [2012] FCA 1249 9 November 2012

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FEDERAL COURT OF AUSTRALIA
Brosnan v Katke [2012] FCA 1249

Citation: Brosnan v Katke [2012] FCA 1249

Parties: MICHAEL BROSNAN AND OTHERS v JEFFREY JAMES KATKE AND OTHERS

File number: QUD 384 of 2012

Judge: GREENWOOD J

Date of judgment: 9 November 2012

Catchwords: PRACTICE AND PROCEDURE – consideration of an application to strike out a statement of claim pleading causes of action based upon ss 82 and 87 of the Trade Practices Act 1974 (Cth) in reliance upon contraventions of s 52 of that Act – consideration of aspects of the pleading reliant upon s 51A of that Act – consideration of the pleading of relief against an individual respondent based upon s 75B(c) of that Act – consideration of issues in relation to the provision of particulars

Legislation: Federal Court Rules 2011, r 1.32, 16.02, 16.03, 16.04, 16.21(1), 16.41, 16.43
Trade Practices Act 1974 (Cth), ss 51A, 52, 75B, 82, 87
Australian Consumer Law, s 243

Cases cited: Mummery v Irvings Pty Ltd (1956) 96 CLR 99 - cited
Katsilis v Broken Hill Pty Co Ltd (1977) 52 ALJR 189 - cited
Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 - cited
Yorke v Lucas (1985) 158 CLR 661 - cited
Hamilton v Whitehead (1988) 166 CLR 121 - cited
Mallan v Lee (1949) 80 CLR 198 - cited

Date of hearing: 18 September 2012

Date of last submissions: 18 September 2012

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 234

Counsel for the Applicant: Mr Martin and Ms Stoker

Solicitor for the Applicant: Ms Twemlow of M S & Cliff Lawyers

Counsel for the Respondent: Mr Sullivan SC

Solicitor for the Respondent: Mr McDonnell of King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 384 of 2012

BETWEEN:
MICHAEL BROSNAN AND OTHERS
Applicants

AND:
JEFFREY JAMES KATKE AND OTHERS
Respondents

JUDGE:

GREENWOOD J

DATE OF ORDER:

9 NOVEMBER 2012

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The Statement of Claim filed in the proceeding on 9 August 2012 is struck out.
2.The applicants have leave to file and serve within 28 days an amended statement of Claim which takes into account the amendments proposed by the applicants by the Amended Statement of Claim dated 18 September 2012, subject however to and in accordance with, the observations of the Court set out in the accompanying Reasons for Judgment on the questions in issue raised by the interlocutory application filed by the respondents.
3.The costs of the interlocutory application are reserved.
4.The parties are directed to put on short submissions of no more than four pages each as to the disposition of the reserved costs, within 14 days.
5.The question of the disposition of the reserved costs of the interlocutory application shall be addressed on the papers.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 384 of 2012

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 Brosnan v Katke

Details

AGLC: Brosnan v Katke [2012] FCA 1249
Case: [2012] FCA 1249
Decision Date: 9 November 2012

CaseChat Overview and Summary

Brosnan and others, as plaintiffs, sought to hold Katke and others, as defendants, accountable for alleged breaches of Australian consumer law. The plaintiffs alleged that the defendants had engaged in misleading or deceptive conduct contrary to section 52 of the Trade Practices Act 1974 (Cth). The case came before the Federal Court of Australia, which was tasked with assessing the merits of an interlocutory application by the defendants to strike out the plaintiffs' statement of claim. The application rested on multiple grounds, including perceived deficiencies in the pleadings under sections 82 and 87 of the Trade Practices Act 1974 (Cth), and issues relating to the pleading of relief against an individual defendant under section 75B(c) of that Act. Furthermore, the defendants questioned the sufficiency of particulars provided in the statement of claim.

The court examined whether the plaintiffs' statement of claim was sufficiently particularised and whether it disclosed a reasonable cause of action. The plaintiffs' claim was largely based on section 51A of the Trade Practices Act 1974 (Cth), which pertains to misleading or deceptive conduct. The court scrutinised the pleadings to determine if they complied with the requirements of the Act and if they provided enough detail to allow the defendants to adequately respond. The court found that while some aspects of the statement of claim required amendment, others could be maintained as they stood. The court determined that the plaintiffs' statement of claim did not sufficiently particularise the alleged misleading or deceptive conduct, and thus ordered that the statement of claim be struck out. However, the plaintiffs were granted leave to amend their pleadings, provided they addressed the deficiencies identified by the court.

The Federal Court of Australia struck out the plaintiffs' statement of claim due to its failure to sufficiently particularise the alleged misleading or deceptive conduct. The court allowed the plaintiffs to file an amended statement of claim within 28 days, incorporating the proposed amendments and taking into account the court's observations. The court reserved the decision on the costs of the interlocutory application and directed the parties to submit concise written submissions on the matter. The court also ordered the parties to address the disposition of the reserved costs based on the written submissions provided. This decision highlights the importance of providing sufficient detail and particulars in statements of claim to ensure that defendants can adequately respond to allegations.

Orders

Orders of the court

1. The Statement of Claim filed in the proceeding on 9 August 2012 is struck out.

2. The applicants have leave to file and serve within 28 days an amended statement of Claim which takes into account the amendments proposed by the applicants by the Amended Statement of Claim dated 18 September 2012, subject however to and in accordance with, the observations of the Court set out in the accompanying Reasons for Judgment on the questions in issue raised by the interlocutory application filed by the respondents.

3. The costs of the interlocutory application are reserved.

4. The parties are directed to put on short submissions of no more than four pages each as to the disposition of the reserved costs, within 14 days.

5. The question of the disposition of the reserved costs of the interlocutory application shall be addressed on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Brosnan v Katke [2012] FCA 1249

Most Recent Citation

Brosnan v Katke [2014] FCA 184

Cases citing this decision · 3 of 3 shown

Australian Competition and Consumer Commission v Emma Sleep GmbH
[2025] FCA 618 Para 17

…d will not disentitle a party to a verdict based on the evidence: Dare v Pelham [1982] HCA 70; (1982) 148 CLR 658 at 664 (the Court); Brosnan v Katke [2012] FCA 1249 at [21] (Greenwood J). In other words, any mismatch between the evidence and the ACCC’s particulars is not necessarily disqualifying; the overriding…
Farac v Pendal Group Limited (No 4)
[2023] FedCFamC2G 225 Para 16

…Relevant principles were summarised by Greenwood J in Brosnan v Katke [2012] FCA 1249: 15 A statement of claim must, as briefly as the nature of the case permits, state the material facts on which the applicant relies that are necessary to give a respondent fair notice of the case to be made against that party at…
Brosnan v Katke
[2014] FCA 184 Para 5

…leave to file an amended statement of claim taking into account particular matters described in Order 2 of the orders made that day: Brosnan v Katke [2012] FCA 1249.…

View all 3 citing cases →

Cases cited in this decision · 9 of 9 shown

Young Investments Group Pty Ltd v Mann
[2012] FCAFC 107 Para 26

…In Young Investments Group Pty Ltd v Mann [2012] FCAFC 107, the Full Court (Emmett, Bennett and McKerracher JJ) said this on the question of knowledge: 9.It has long been the case, in various jurisdictions, that particulars are to be provided of facts and circumstances relied upon to support a plea that something o…
Hamilton v Whitehead
[1988] HCA 65 Para 27

…h), in the particular context of the matters pleaded in the Amended Statement of Claim and the point of distinction reflected in Hamilton v Whitehead (1988) 166 CLR 121, later in these reasons. The Amended Statement of Claim of 18 September 2012…
Pereira v Director of Public Prosecutions
[1988] HCA 57 Para 26

…473). Actual knowledge of suspicious circumstances and failure to make enquiry may be different (see Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 at 3). However, actual knowledge of suspicious circumstances is not pleaded in the Statement of Claim in the sense required for accessorial liability. [emp…
Yorke v Lucas
[1985] HCA 65 Para 26

…ion, a person must have intentionally participated, having knowledge of the essential matters constituting the contravention (see Yorke v Lucas (1985) 158 CLR 661). That is not imputed or constructive knowledge but, rather, actual knowledge. It would not usually be sufficient to establish a statutory breach to show t…
Giorgianni v the Queen
[1985] HCA 29 Para 26

…atutory breach to show that a person said to be an accessory to such a breach wilfully shut his or her eyes to the obvious (see Giorgianni v R. (1985) 156 CLR 473). Actual knowledge of suspicious circumstances and failure to make enquiry may be different (see Pereira v Director of Public Prosecutions (1988) 63 ALJR 1…
Ritter v North Side Enterprises Pty Ltd
[1975] HCA 18 Para 26

…owards falsity, by way of example, may usually be pleaded as the material fact without particularisation (see Ritter v North Side Enterprises Pty Ltd (1975) 132 CLR 301 at 304). Allegations of fraud, or the involvement of persons in statutory breaches sufficiently analogous to allegations of fraud, on the other hand,…
Mummery v Irvings Pty Ltd
[1956] HCA 45 Para 21

…dify or alter the cause of action sued upon. The function of particulars is to limit the issues of fact to be investigated: Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 110 and 111; Katsilis v Broken Hill Pty Co Ltd (1977) 52 ALJR 189 at 201.…
Mallan v Lee
[1949] HCA 48 Para 6

…sed of Mason ACJ, Wilson, Deane and Dawson JJ) had “unnecessarily” adopted a proposition derived from the observations of Dixon J in Mallan v Lee (1949) 80 CLR 198 that it would be an inversion of the conceptions on which degrees of offending are founded to make the person actually committing forbidden acts “an acce…
[1963] 2 QB 601
[1963] 2 QB 601 Para 26

…rs are to be provided of facts and circumstances relied upon to support a plea that something ought to have been known (see Fox v H Wood (Harrow) Ltd [1963] 2 QB 601 at 604 and Smith v Littlemore (1996) 15 WAR 289 at 300).Knowledge itself has usually been treated differently. Knowledge of, or recklessness towards…

Legislation cited in this decision · 2

Federal Court Rules 2011 (Cth)
1.32, 16.02, 16.03, 16.04, 16.21(1), 16.... 8 mentions (from Para 12)
Trade Practices Act 1974 (Cth)
51A, 52, 75B, 82, 87 6 mentions (from Para 27)

Citation:		Brosnan v Katke [2012] FCA 1249
Parties:		MICHAEL BROSNAN AND OTHERS v JEFFREY JAMES KATKE AND OTHERS
File number:		QUD 384 of 2012
Judge:		GREENWOOD J
Date of judgment:		9 November 2012
Catchwords:		PRACTICE AND PROCEDURE – consideration of an application to strike out a statement of claim pleading causes of action based upon ss 82 and 87 of the Trade Practices Act 1974 (Cth) in reliance upon contraventions of s 52 of that Act – consideration of aspects of the pleading reliant upon s 51A of that Act – consideration of the pleading of relief against an individual respondent based upon s 75B(c) of that Act – consideration of issues in relation to the provision of particulars
Legislation:		Federal Court Rules 2011, r 1.32, 16.02, 16.03, 16.04, 16.21(1), 16.41, 16.43 Trade Practices Act 1974 (Cth), ss 51A, 52, 75B, 82, 87 Australian Consumer Law, s 243
Cases cited:		Mummery v Irvings Pty Ltd (1956) 96 CLR 99 - cited Katsilis v Broken Hill Pty Co Ltd (1977) 52 ALJR 189 - cited Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 - cited Yorke v Lucas (1985) 158 CLR 661 - cited Hamilton v Whitehead (1988) 166 CLR 121 - cited Mallan v Lee (1949) 80 CLR 198 - cited
Date of hearing:	18 September 2012
Date of last submissions:	18 September 2012
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	234
Counsel for the Applicant:	Mr Martin and Ms Stoker
Solicitor for the Applicant:	Ms Twemlow of M S & Cliff Lawyers
Counsel for the Respondent:	Mr Sullivan SC
Solicitor for the Respondent:	Mr McDonnell of King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 384 of 2012

JUDGE:	GREENWOOD J
DATE OF ORDER:	9 NOVEMBER 2012
WHERE MADE:	BRISBANE