Conca, Paula v Permanent Trustee Company Ltd

[1996] FCA 1092

IN THE FEDERAL COURT OF AUSTRALIA )

)No.   NG. 928  of 1994

NEW SOUTH WALES DISTRICT REGISTRY )
  )
GENERAL DIVISION                 )

BETWEEN:PAULA CONCA and MARCELO ALBERTO CONCA

Applicants

AND:PERMANENT TRUSTEE COMPANY LIMITED

First Respondent

FANMAC LIMITED

Second Respondent

STATE OF NEW SOUTH WALES

Third Respondent

PERMANENT CUSTODIANS LIMITED

Fourth Respondent

MERRYLANDS CO-OPERATIVE HOUSING SOCIETY

Fifth Respondent

LIVERPOOL-INGLEBURN CO-OPERATIVE HOUSING SOCIETY

Sixth Respondent

CO-OPERATIVE HOUSING SOCIETIES ASSOCIATION OF NEW SOUTH WALES

Seventh Respondent

and

KEN LONG

Eighth Respondent

CORAM:WILCOX, BURCHETT and OLNEY JJ

PLACE:    SYDNEY
DATE:     12 DECEMBER 1996

THE COURT DIRECTS THAT:

1. The following answers be given to the preliminary questions:

   (a)Question 1

   Whether, having regard to the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the State is bound by the Trade Practices Act 1974 (Cth) and whether any claim made under that Act in these proceedings against the State is maintainable?

   Answer:  No.

   (b)Question 2

   Whether, having regard to the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the respondents other than the State, or any of them, are immune from the claims contained in the amended Application and amended Statement of Claim herein, in light of the principles referred to in Bradken?

   Answer:Yes, to the extent that the acts or omissions giving rise to those claims were not outside the scope of the HomeFund scheme as devised by the State of New South Wales, or that those acts or omissions were carried out pursuant to the direction or request of the State of New South Wales.

   (c)Question 3

   Whether, on the assumption that the claim against the State under the Fair Trading Act 1987 (NSW) is not maintainable, on the basis of the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the respondents other than the State, or any of them, are immune from the claims under the Fair Trading Act, in the light of the principles referred to in Bradken?

   Answer:Yes, to the extent that the acts or omissions giving rise to those claims were not outside the scope of the HomeFund scheme as devised by the State of New South Wales, or that those acts or omissions were carried out pursuant to the direction or request of the State of New South Wales.

   (d)Question 4

On the basis of the answers to Questions 1 and 2, are these proceedings maintainable in the Federal Court?

Answer:  Yes.

(e)Question 5

Are the applicants protected by s 47 of the Legal Aid Commission Act 1979 (NSW) against liability for the payment of the whole or any part of the costs that might be ordered by the Court against them if unsuccessful in these proceedings?

Answer:  No.

1. The claims made in the proceedings under Parts IVA and V of the Trade Practices Act against the State of New South Wales be struck out.

1. The claims made in the proceedings under Part IVA and V of the Trade Practices Act against the first, second, fourth, fifth, sixth, seventh and eighth respondents be struck out, but that the applicants have leave to amend so as to plead claims under the Trade Practices Act against those respondents limited to matters outside the scope of the "HomeFund" scheme as devised by the State of New South Wales and not being matters arising from conduct carried out at the direction or request of the State.

1. It be declared that insofar as claims made against the State of New South Wales under the Fair Trading Act are not maintainable against the State, claims under that Act against the first, second, fourth, fifth, sixth, seventh and eighth respondents will not be maintainable insofar as those claims are based on matters within the scope of the "HomeFund" scheme as devised by the State or conduct carried out at the direction or request of the State.

1. Leave be granted to the applicants to further amend the Application and Statement of Claim consequent upon and so as to make claims consistent with these orders.

1. It be declared that any limitation on the liability of a legally assisted person provided under s 47(1)(b) of the Legal Aid Commission Act is inconsistent with the power of the Court to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) so that s 47(1)(b) is to the extent of the inconsistency invalid by operation of s 109 of the Constitution.

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