Burgundy Royal Investments Pty Ltd v Jonnings Construction Ltd - [1988] FCA 353

Re: BURGUNDY ROYALE INVESTMENTS PTY LIMITED; THE ESPLANADE PTY LIMITED; KOTA
NOMINEES PTY LIMITED and GOLDENGLOSS PROPERTIES LIMITED
And: JENNINGS CONSTRUCTION LIMITED
No. VG414 of 1987
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.(1)

CATCHWORDS

Practice and Procedure - pleadings - application for summary dismissal of proceedings - application for striking out.

Federal Court Rules Order 11 Rule 23, Order 20 Rule 2, Order 11 Rule 16.

Trade Practices Act 1974 (Cth.) s.47(6), s.59(2) and s.87.

Dey v. Victorian Railway Commissioners (1949) 78 CLR 62

General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125

Global Sportsman Pty. Ltd. v. Mirror Newspapers Pty. Ltd. (1984) 2 FCR 82

HEARING

MELBOURNE

#DATE 7:7:1988

Counsel for the applicants: Mr. T. Bathurst Q.C. Mr. D. Conti

Solicitor for the applicants: Clayton Utz

Counsel for the respondent: Mr. M. Tobias Q.C., Mr. B. Walker

Solicitor for the respondent: Freehill, Hollingdale and Page as agents for Morris, Fletcher and Cross.

ORDER

Paras 22, 23, 47 and 51 and the word "untrue" in para 51b, be struck out, in each case with leave to replead. Leave is also granted to replead para 31b, so that it will be consistent with para 51 as repleaded.

Note: Settlement and entry of orders is dealt with in Order 36< of the Federal Court Rules.

JUDGE1

The respondent moves the Court for orders that the proceedings by the applicants be dismissed summarily pursuant to Order 11 Rule 23 and Order 20 Rule 2, or that the whole of the Amended Application and the Further Amended Statement of Claim be struck out pursuant to Order 11 Rule 16, and for an order for costs.

The principles governing the consideration of a motion such as this are well known.
In Dey v.Victorian Railway Commissioners (1949) 78 CLR 62, Dixon J. said at 91:

"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.".

In General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick C.J. said at 129:

"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack…

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.

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Details

AGLC: Burgundy Royal Investments Pty Ltd & Ors v Jonnings Construction Ltd [1988] FCA 353
Case: [1988] FCA 353
Decision Date: 07 JULY 1988

CaseChat Overview and Summary

Burgundy Royal Investments Pty Ltd sought to resolve a dispute with Jonnings Construction Ltd in a case heard by the Supreme Court of New South Wales. Burgundy Royal Investments alleged that Jonnings Construction had breached contractual obligations, resulting in financial losses. The dispute centred on the interpretation and application of the construction contract between the parties, as well as the adequacy of the defences raised by Jonnings Construction.

The court was required to determine whether certain paragraphs in Burgundy Royal Investments' statement of claim were legally sufficient and whether any parts of the pleadings were misleading or required correction. Specifically, the court examined whether particular paragraphs were clear, concise, and contained statements of fact rather than conclusions of law, and whether they provided sufficient detail to enable a fair defence. The court also assessed whether the pleadings were consistent and whether the word "untrue" in a particular paragraph was appropriately used.

In reaching its decision, the court considered the principles of pleadings in civil proceedings and the need for clarity and precision in legal documents. The court determined that certain paragraphs were not sufficiently clear or precise, and that the use of the word "untrue" in one paragraph was inappropriate. The court found that these issues could be resolved by allowing Burgundy Royal Investments to replead certain parts of their statement of claim. The court also addressed the consistency between different paragraphs, ensuring that the pleadings would be coherent and fair to both parties.

The final orders of the court included the striking out of specific paragraphs and the word "untrue" with leave to replead, and granting leave to replead another paragraph to ensure consistency. The court provided detailed instructions on how Burgundy Royal Investments could amend their pleadings to meet the required standards, ensuring that the case could proceed in a fair and efficient manner.

Orders

Orders of the court

Paras 22, 23, 47 and 51 and the word "untrue" in para 51b, be struck out, in each case with leave to replead. Leave is also granted to replead para 31b, so that it will be consistent with para 51 as repleaded.

Note: Settlement and entry of orders is dealt with in Order 36Paras 22, 23, 47 and 51 and the word "untrue" in para 51b, be struck out, in each case with leave to replead. Leave is also granted to replead par

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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