VERA MAY BUDD v. POLICE CREDIT UNION AND OTHERS and SIMMONDS CAIN PTY LTD AND
OTHERS
No. SG70 of 1992
FED No. 671/94
Number of pages - 3
Practice and procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
BRANSON J
CATCHWORDS
Practice and procedure - pleadings - application to strike out - whether pleadings disclose a reasonable cause of action - pleading that a director and secretary of a society is performing duties in his/her capacity as an employee - vicarious liability - pleading that an employer owes the members of a society a duty of care to ensure that its employee will perform his/her duties as director and secretary with all due care, skill and diligence - further and better particulars
Federal Court Rules O11 r16
Beach Petroleum NL v. Johnson (1991) 105 ALR 456
Re Co-operative Travel Society and Ors (1978) ACLC 40-396 at 29,831
General Steel Industries Inc v. Commissioner for Railways(1964) 112 CLR 125
Kondes v. State Transport Authority (1984) 154 CLR 672 at 679
Bruce v. Odhams Press Ltd (1936) 1 KB 697
HEARING
ADELAIDE, 27 July 1994
#DATE 16:9:1994
Applicant Vera May Budd: No Appearance
Counsel for the First Respondent Mr J Watts
and Cross-Claimant (Police
Credit Union):
Solicitors for the First Respondent: Phillips Fox
Counsel for the Second Respondent Mr D Trim with
and Cross-Claimant (Ian Jackman): Mr M Bevilacqua
Solicitors for the Second Respondent: Mouldens
Counsel for the Third Respondent Mr D Trim with
and Cross-Claimant Mr M Bevilacqua
(Bain and Company Limited):
Solicitors for the Third Respondent: Mouldens
Fourth Respondent Bennett Johnston No Appearance
Consultants Pty Ltd:
Counsel for the Fifth Respondent Mr D Trim with
and Cross-Claimant (Bain and Mr M Bevilacqua
Company Investor Services Limited):
Solicitors for the Fifth Respondent: Mouldens
Counsel for the Cross-Respondent Mr G Coppola
and Cross-Claimant (Horwath and Horwath):
Solicitors for the Cross-Respondent: Kelly and Co.
Counsel for the Cross-Respondent Mr M Evans
Simmonds Cain Pty Ltd:
Solicitors for the Cross-Respondent: Fountain and Bonig
ORDER
THE COURT ORDERS THAT:
1. The Amended Cross-Claim of Bain and Company Limited and Bain and Company Investor Services Limited
(a) Paragraphs 6.1 and 7.1 will be struck out.
(b) The Cross-Claimants will have leave to make consequential amendments.
2. The Amended Cross-Claim of Ian Jackman
(a) Paragraphs 6.1 and 7.1 will be struck out.
(b) The Cross-Claimant will have leave to make consequential amendments.
3. The Amended Cross-Claim of Horwath and Horwath (in respect of the Cross-Claim against Horwath and Horwath by Bain and Company Limited and Bain and Company Investor Services Limited)
(a) Paragraphs 8.1, 12 and 15.1 will be struck out.
(b) The Cross-Claimant will have leave to make consequential amendments.
4. The Amended Cross-Claim of Police Credit Union
(a) Paragraphs 6.1 and 7.1 will be struck out.
(b) The Cross-Claimant will have leave to make consequential amendments.
5. The time within which the Cross-Respondent Simmonds Cain Pty Ltd is to file its defences to the Amended Cross-Claims is extended until the next directions hearing in this matter.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BRANSON J By Notice of Motion dated 12 July 1994 the Cross-Respondent Simmonds Cain Pty Ltd seeks orders that certain paragraphs of Amended Cross-Claims filed against it be struck out on the grounds that they disclose no reasonable cause of action and/or have a tendency to cause prejudice or embarrassment and/or constitute an abuse of the process of the Court. Certain other orders are also sought.
The issues raised by the Notice of Motion are virtually identical to those raised by a Notice of Motion dated 12 July 1994 filed in Action No. SG 57 of 1992 in which Simmonds Cain Pty Ltd is also a Cross-Respondent. My reasons for decision on that Notice of Motion are applicable here. I shall not repeat them.
I order as follows:-
1. The Amended Cross-Claim of Bain and Company Limited and Bain and Company Investor Services Limited
(a) Paragraphs 6.1 and 7.1 will be struck out.
(b) The Cross-Claimants will have leave to make consequential amendments.
2. The Amended Cross-Claim of Ian Jackman
(a) Paragraphs 6.1 and 7.1 will be struck out.
(b) The Cross-Claimant will have leave to make consequential amendments.
3. The Amended Cross-Claim of Horwath and Horwath (in respect of the Cross-Claim against Horwath and Horwath by Bain and Company Limited and Bain and Company Investor Services Limited)
(a) Paragraphs 8.1, 12 and 15.1 will be struck out.
(b) The Cross-Claimant will have leave to make consequential amendments.
4. The Amended Cross-Claim of Police Credit Union
(a) Paragraphs 6.1 and 7.1 will be struck out.
(b) The Cross-Claimant will have leave to make consequential amendments.
5. The time within which the Cross-Respondent Simmonds Cain Pty Ltd is to file its defences to the Amended Cross-Claims is extended until the next directions hearing in this matter.
I will hear counsel as to the costs of the Notice of Motion.
- AGLC
- Budd, V.M. v. Police Credit Union & Ors [1994] FCA 671
- Case
- [1994] FCA 671
- Decision Date
CaseChat Overview and Summary
The legal issues in this case were whether the pleadings disclosed a reasonable cause of action and whether the court should order further and better particulars. The court had to consider whether the pleadings were sufficient to establish a breach of duty and whether the cross-claimants had identified the specific acts or omissions that constituted the breach. The court also had to consider whether the cross-claimants had pleaded sufficient facts to establish that the cross-defendant was vicariously liable for the actions of its employees.
The court held that the pleadings did not disclose a reasonable cause of action in relation to the claims of vicarious liability and the failure to ensure that the directors and secretary of the society performed their duties with due care, skill, and diligence. The court found that the cross-claimants had not pleaded sufficient facts to establish that the cross-defendant owed a duty of care to them as members of the society or that the cross-defendant was vicariously liable for the actions of its employees. The court also held that the cross-claimants had not pleaded sufficient facts to establish that the cross-defendant had breached any duty of care owed to them. The court ordered that certain paragraphs of the cross-claims be struck out and that the cross-claimants be given leave to make consequential amendments. The court also extended the time within which the cross-respondent was to file its defences to the cross-claims.
The final orders of the court were that certain paragraphs of the cross-claims be struck out, and the cross-claimants be given leave to make consequential amendments. The court also extended the time within which the cross-respondent was to file its defences to the cross-claims. The orders were made in accordance with Order 36 of the Federal Court Rules.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The Amended Cross-Claim of Bain and Company Limited and Bain and Company Investor Services Limited
(a) Paragraphs 6.1 and 7.1 will be struck out.
(b) The Cross-Claimants will have leave to make consequential amendments.
2. The Amended Cross-Claim of Ian Jackman
(a) Paragraphs 6.1 and 7.1 will be struck out.
(b) The Cross-Claimant will have leave to make consequential amendments.
3. The Amended Cross-Claim of Horwath and Horwath (in respect of the Cross-Claim against Horwath and Horwath by Bain and Company Limited and Bain and Company Investor Services Limited)
(a) Paragraphs 8.1, 12 and 15.1 will be struck out.
(b) The Cross-Claimant will have leave to make consequential amendments.
4. The Amended Cross-Claim of Police Credit Union
(a) Paragraphs 6.1 and 7.1 will be struck out.
(b) The Cross-Claimant will have leave to make consequential amendments.
5. The time within which the Cross-Respondent Simmonds Cain Pty Ltd is to file its defences to the Amended Cross-Claims is extended until the next directions hearing in this matter.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
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
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