Burns, G.T. v Johnston, P

[1994] FCA 672

GILBERT THOMAS BURNS AND OTHERS v. PETER JOHNSTON AND OTHERS AND SIMMONDS CAIN
PTY LTD
No. SG18 of 1993
FED No. 672/94
Number of pages - 3

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

Applicants: No appearance

First Respondent Peter Johnston: No appearance

Counsel for the Second Respondent: Mr D Trim with
and Cross-Claimant (Bain and Mr M Bevilacqua
Company Limited)

Solicitors for the Second Respondent: Mouldens

Third Respondent Bennett Johnston: No appearance
Consultants Pty Ltd

Counsel for the Fourth Respondent: Mr D Trim with
and Cross-Claimant (Bain and Mr M Bevilacqua
Company Investor Services Limited)

Solicitors for the Fourth 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 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.

3. The time within which the Cross-Respondent Simmonds Cain Pty Ltd is to file its defence 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 the 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.

1. The issues raised by the Notice of Motion are virtually identical to those raised by a Notice of Motion dated 12 July 1994 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.

2. 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 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.

3. The time within which the Cross-Respondent Simmonds Cain Pty Ltd is to file its defence is extended until the next directions hearing in this matter.

1. I will hear counsel as to the costs of the Notice of Motion.