FEDERAL COURT OF AUSTRALIA
Brown v Deloitte Touche Tohmatsu (A Partnership) [2020] FCA 1747
File number: NSD 796 of 2020 Judgment of: STEWART J Date of judgment: 4 December 2020 Catchwords: PRACTICE AND PROCEDURE – application to strike out two causes of action in statement of claim – whether pleading discloses reasonable causes of action – whether cause of action statute barred under ss 236(2) and 237(2) of the Australian Consumer Law – when the cause of action accrued – when the cause of action crystallised – whether appropriate to determine limitation at stage of strike out –whether step in causation adequately pleaded – whether pleading of reliance in third party misleading and deceptive conduct cause of action is necessary Legislation: Age Discrimination Act 2004 (Cth) ss 14, 15, 51
Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 4, 18, 236, 237
Trade Practices Act 1974 (Cth) s 82(1)
Federal Court Rules 2011 (Cth) r 16.21
Cases cited: Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17
CAJ Investments Pty Ltd v Lourandos [1996] FCA 88; 83 FCR 189
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304
Jaldiver Pty Ltd v Nelumbo Pty Ltd [1992] FCA 906; (1993) ATPR (Digest) 46-097
Karedis Enterprises Pty Ltd v Antoniou [1995] FCA 463; 59 FCR 35
MGICA (1992) Ltd (Formerly MGICA Ltd) v Kenny & Good Pty Ltd [1996] FCA 766; 140 ALR 313
Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; 203 FCR 325
Re HIH Insurance Ltd [2016] NSWSC 482; 335 ALR 320
TPT Patrol Pty Ltd as trustee for Aimes Superannuation Fund v Meyer Holdings Ltd [2019] FCA 1747; 140 ACSR 38
Wardley Australia Ltd v State of Western Australia [1992] HCA 55; 175 CLR 514
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 34 Date of hearing: 30 November 2020 Counsel for the Applicant: I Neil SC with P Moorhouse Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the Respondents: R McHugh SC with J Darams Solicitor for the Respondents: Holding Redlich ORDERS
NSD 796 of 2020 BETWEEN: COLIN BROWN
Applicant
AND: DELOITTE TOUCHE TOHMATSU (A PARTNERSHIP) (ABN 74 490 121 060)
First Respondent
RICHARD DEUTSCH
Second Respondent
ORDER MADE BY:
STEWART J
DATE OF ORDER:
4 DECEMBER 2020
THE COURT ORDERS THAT:
1.Paragraphs [28] to [42] and the words “and 42” in paragraph [43] of the statement of claim filed on 21 July 2020 are struck out.
2.The applicant has leave and is directed to amend the statement of claim by deleting the indirect discrimination cause of action in paragraphs [57] to [59] of the statement of claim and making such consequential amendments as may follow from that deletion.
3.The first respondent’s interlocutory application filed on 17 September 2020 is otherwise dismissed.
4.The costs are reserved.
Note: Entry of orders is dealt with…
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- Case
- [2020] FCA 1747
- Decision Date
CaseChat Overview and Summary
The court considered the appropriate time for determining limitation issues and whether the limitation question should be decided at the interlocutory stage. The court held that the limitation question should not be decided at the interlocutory stage, except in the clearest of cases, as insufficient information was available at that stage. The court also noted that the power to strike out pleadings should be employed sparingly, and only in a plain and obvious case. The court found that the misleading and deceptive conduct cause of action based on the "longevity representations" should not be struck out, as there was insufficient evidence to determine whether the cause of action was bound to fail or amounted to an abuse.
The court found that the misleading and deceptive conduct cause of action based on the "longevity representations" should not be struck out. The court found that the principal problem with the way in which the cause of action was pleaded was that Mr Brown had identified his loss and damage inconsistently. However, the court held that it was premature to decide the limitation question at the interlocutory stage. The court also found that the indirect discrimination cause of action should be struck out, as it was not adequately pleaded. The court dismissed the defendant's interlocutory application, except for the striking out of paragraphs [28] to [42] and the words "and 42" in paragraph [43] of the statement of claim, and the indirect discrimination cause of action in paragraphs [57] to [59]. The costs were reserved.
In summary, the court found that the misleading and deceptive conduct cause of action based on the "longevity representations" should not be struck out, as there was insufficient evidence to determine whether the cause of action was bound to fail or amounted to an abuse. The court held that the limitation question should not be decided at the interlocutory stage, except in the clearest of cases. The court dismissed the defendant's interlocutory application, except for the striking out of paragraphs [28] to [42] and the words "and 42" in paragraph [43] of the statement of claim, and the indirect discrimination cause of action in paragraphs [57] to [59]. The costs were reserved.
Orders
Orders of the court
1. Paragraphs [28] to [42] and the words “and 42” in paragraph [43] of the statement of claim filed on 21 July 2020 are struck out.
2. The applicant has leave and is directed to amend the statement of claim by deleting the indirect discrimination cause of action in paragraphs [57] to [59] of the statement of claim and making such consequential amendments as may follow from that deletion.
3. The first respondent’s interlocutory application filed on 17 September 2020 is otherwise dismissed.
4. The costs are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Mr Brown also submits that the non-economic loss particularised in particular (iv) only crystallised or commenced when in January 2019 Deloitte Touche indicated that it intended to apply the retirement policy to him.Consideration Mr Brown is quite right to emphasise that it is generally undesirable that limitation questions be decided on an interlocutory basis, such as in a strike out application, “except in the clearest of cases”: Wardley at 533 per Mason CJ, Dawson, Gaudron and McHugh JJ and 558-559 per Toohey J. The reason is that in such proceedings insufficient is known of the damage sustained by the applicant and of the circumstances in which it was sustained to justify a confident answer to the question. There are many other authorities in which these points have been emphasised. It is not necessary to canvass them. Mr Brown is also quite right to emphasise that the power to strike out pleadings should be employed sparingly and only in a plain and obvious case, where it is obvious that no reasonable amendment could cure the alleged defect and there is no reasonable question to be tried: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; 203 FCR 325; at [42]-[44] per Perram, Dodds-Streeton and Griffiths JJ. I am not satisfied that the misleading and deceptive conduct cause of action based on the “longevity representations” should be struck out. That is on account of the following considerations. First, despite some problems with the way in which the cause of action has been pleaded, which I will come to, I am not satisfied at this stage that the cause of action is bound to fail or that in its current form it amounts to an abuse. Secondly, the question of when a cause of action for breach of s 18 of the ACL accrues, and in particular when loss or damage crystallises, can be complex and will depend on the evidence that is ultimately adduced and the factual findings that are made. Thirdly, even if the question of limitation is not left for decision only at the trial in due course, it is premature for it to be decided at this strike out stage. I will elucidate these considerations. The principal problem with the way in which the cause of action is pleaded is that Mr Brown has identified his loss and damage in the particulars to [SOC 27] in an inconsistent way. On the one hand, he poses a counterfactual in particulars (iii)(A)-(C) which has as its inarticulate premise that but for the longevity representations he would not have left Deloitte Onch and entered into the partnership deed with Deloitte Touche. That is to say, it is a “no transaction” case. Necessarily, and as indicated in his particulars, that case envisages his loss as commencing when he left Deloitte Onch, which was more than six years before he commenced the proceeding. However, on the other hand he poses a case in particulars (i) and (iii)(D) that depends upon events in the future, namely whether he is forced to retire earlier than he would otherwise have done or he chooses to leave on account of the way in which he has been treated. With reference to those particulars, it is not clear that he has yet suffered any economic loss at all, although the non-economic loss that he has particularised commenced when he learnt that there was a retirement policy and that it was intended that it be applied to him.