Cook, T.A. v Rex Building Co. Pty Ltd

[1986] FCA 559

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH M E S DISTRICT REGISTRY ) No. G 280 of 1986

)

GENERAL DIVISION )

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~ I -

: - B TREVOR ALWYN COOK and

\

. , JANELLE MARGARET COOK

Applicants

- AND : R M BUILDING CO. PTY. LIMITED

.'?

First Respondent

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WYONG SHIRE COUNCIL

Second Respondent

REASONS FOR JUM;MENT

LOCKHART J.

.

This matter was commenced in this Court on 11 July 1986 by

the filing of an application and a statement of claim. The first

respondent, Rex Building Co. Pty. Limited, filed today a notice of

motion to strike out paragraphs of the amended statement of claim or,

in the alternative, for orders that further and better particulars be

furnished by the applicant. The second respondent, the Wyong Shire

Council, is not before the Court today as it is not a party to the motion.

By three letters, two dated in August and one in early

September this year, the solicitors for the first respondent sought

further and better particulars of certain allegations in the statement

of claim. Particulars were furnished by the solicitors for the

2.

applicants in response to at least the first of those letters, but the first respondent asserts that they were inadequate. As a result the first respondent filed today's notice of motion.

I have read the amended statement of claim, the notice of

motion and the affidavit in support of Karyn Lillian Kinsella sworn on

22 September 1986. The case that is propounded against he

respondents is based on alleged contraventions of ss. 52, 53 and 53A

of the Trade Practices Act 1974 ("the Act") and is a claim for damages

under S. 82 and other relief under S. 87.

I raised with counsel, particularly counsel for the

applicants, the question of this Court's jurisdiction to entertain

this case. I have no view on whether the Court has or has not jurisdiction, but I have considerable doubt about it and I base my

observations on the amended statement of claim.

A real question may arise as to whether the first respondent

is a trading or financial corporation. I do not know whether, even if

it is such a corporation, the conduct that is pleaded against it was

in trade or commerce. I emphasise that I do not know the answer to

this as it has not been fully debated and there has not been full evidence. However, it would be most regrettable if at the end of a long hearing the Court was obliged to find an absence of jurisdiction against the first respondent.

3.

The second respondent has filed a notice of objection to

jurisdiction based essentially on its assertion that it is not a

trading, financial or foreign corporation and therefore is not a

corporation within the meaning of sub-S. 4(1) of the Act. I raised a

further question for consideration by the solicitors for the Wyong

Shire Council: namely, if the questions that are set out in its notice

of grounds of objection to jurisdiction are answered in favour of the

applicants, it may be that, even if the Council is a trading or

financial corporation, the case propounded against it is not such as to have involved the Council in trade or commerce. The case against the Council, as I understand it, is essentially that it issued a

certificate under S. 317A of the Local Government Act	1919 of	New
South Wales in circumstances which are said to have constituted

negligence or improper conduct on the part of the Council. Whether, even assuming the facts as pleaded in favour of the applicants, the Council acted in trade or commerce in the making of any alleged

representations or engaging in any alleged conduct under the Act is

obviously a matter of considerable contention.	I	say nothing more
about it.

If the applicants were at this stage to start again and sue

in the Supreme Court of New South Wales or the District Court of New

South Wales then they could possibly sue both respondents essentially

for what they are seeking to recover without facing jurisdictional

problems. I know not the answer to these questions as I have only

become relatively familiar with the matter this morning as the case

has proceeded. But I simply sound a cautionary note as to

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jurisdictional matters so that the applicants may give serious thought

to the future of this case.

Following discussion with counsel, I think the best course to

take in this matter today is not to strike out any of the paragraphs

of the amended statement of claim but to give leave to the applicants

to further amend their statement of claim. They seek three weeks to

do so, and I see no reason why I should not accede to that request.

If they do not file an amended statement of claim, then I think it is

important that the first respondent have the particulars which it	has
sought in the letters to which I have previously referred.

The matter will be adjourned for mention and I can then

review the matter one way or the other in the light of a further

amended statement of claim, if any, or the amended particulars,	if
any.

Although the Council is not a party to the notice of motion

filed by the first respondent it will be put in the list for

directions generally and I would expect to see the second respondent

represented on that occasion. I would ask the solicitors for the

applicants to ensure that the solicitors for the Council have notice

of the adjourned date. I would also expect on that date that the

parties be prepared, if necessary, to argue the question of

jurisdiction before me because this Court must, being a Court

exercising federal jurisdiction, be satisfied	at all times that it has
jurisdiction.

5.

Accordingly, the orders that I make are as follows:

1. I give leave to the applicants to file and serve a further

amended statement of claim on OK before 28 October 1986;

2. If no further amended statement of claim 1s filed by the

applicants within the time limited then I direct the

applicants to furnish in writing particulars as sought in the

first respondent's requests for particulars dated 14 August,

1986, 25 August 1986 and 3 September 1986, saving all just

exceptions; and that those particulars be furnished on or

before 28 October 1986;

3 . The notice of motion filed by the first respondent on 29

September 1986 is adjourned to 3 November 1986;

4 . The matter is generally adjourned until 3 November 1986 for further directions; and

5 . I reserve the costs of today's proceedings.