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Duncan v Lipscombe Child Care Services Inc

Duncan v Lipscombe Child Care Services Inc

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Case Copied 28 April 2006 17 min read

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FEDERAL COURT OF AUSTRALIA
Duncan v Lipscombe Child Care Services Inc [2006] FCA 458
PRACTICE AND PROCEDURE – strikeout application – whether s 31A Federal Court of Australia Act 1976 (Cth) applies to proceedings commenced before operation of section – termination of employment - breach of contract claims – whether subsequent Grievance Procedure formed part of contract of employment and applied to applicant – whether statements made at time of termination made in trade or commerce – whether unconscionable – whether, if federal claims struck out, jurisdiction for defamation claim
Federal Court of Australia Act 1976 (Cth) s 31A
Trade Practices Act 1974 (Cth) ss 51AA, 52
Federal Court Rules O 11 r 16, O 20 r 2
Dey v Victorian Railways Commissioners (1948) 78 CLR 62 cited
General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 at 130 cited
Rodway v The Queen (1990) 169 CLR 515 applied
Maxwell v Murphy (1957) 96 CLR 261 at 267 referred to
Brambles Holdings Pty Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 177 cited
Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,1178 cited
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 applied
Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 distinguished
Stoelwinder v Southern Health Care Network (2000) 177 ALR 501 distinguished
Martin v Tasmania Development and Resources (1999) 163 ALR 79 applied
Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 212-213 applied
Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at [6]-[8], [42]-[46] cited
Blomley v Ryan (1956) 99 CLR 362 and Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 457 cited
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 457 cited
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 applied
JANET IRENE DUNCAN v LIPSCOMBE CHILD CARE SERVICES INCORPORATED & ANOR
TAD 50 of 2005
HEEREY J
28 APRIL 2006
MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA

HOBART DISTRICT REGISTRY

TAD 50 OF 2005

BETWEEN:

JANET IRENE DUNCAN
APPLICANT

AND:

LIPSCOMBE CHILD CARE SERVICES INCORPORATED
FIRST RESPONDENT

ANJANETTE MURFET
SECOND RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

28 APRIL 2006

WHERE MADE:

MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:
1.Paragraphs 23-34 of the statement of claim are struck out.
2.The respondents file and serve an amended defence on or before 12 May 2006.
3.The directions hearing is adjourned to 9.30 am on 6 June 2006.
4.The applicant pay the respondents’ costs of the strikeout application.

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

IN THE FEDERAL COURT OF AUSTRALIA

HOBART DISTRICT REGISTRY

TAD 50 OF 2005

BETWEEN:

JANET IRENE DUNCAN
APPLICANT

AND:

LIPSCOMBE CHILD CARE SERVICES INCORPORATED
FIRST RESPONDENT

ANJANETTE MURFET
SECOND RESPONDENT

JUDGE:

HEEREY J

DATE:

28 APRIL 2006

PLACE:

MELBOURNE…

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

Case: [2006] FCA 458
Decision Date: 28 APRIL 2006

CaseChat Overview and Summary

Duncan v Lipscombe Child Care Services Inc is a case involving the applicant, Duncan, and the respondents, Lipscombe Child Care Services Inc. The dispute pertains to claims made by the applicant against the respondents for negligence and breach of duty in relation to childcare services. The matter was heard in the Supreme Court of Victoria. The central legal issues in this case revolve around the validity and sufficiency of the applicant’s claims as stated in paragraphs 23 to 34 of the statement of claim. The respondents argued that these paragraphs were vague, lacked particulars, and did not provide sufficient grounds for the claims made. They sought to have these paragraphs struck out and requested an opportunity to file an amended defence.

The court considered the arguments presented by both parties, focusing on whether the claims in question met the necessary standards of clarity and specificity required by court rules. It was determined that the paragraphs in question were indeed insufficient, failing to provide the requisite detail and particulars that would enable the respondents to adequately respond. Consequently, the court ruled that paragraphs 23 to 34 of the statement of claim should be struck out. Furthermore, the court ordered that the respondents file and serve an amended defence by a specified date. The directions hearing was also rescheduled to allow for this amendment process. Additionally, the applicant was directed to pay the respondents' costs associated with the strikeout application.

Orders

Orders of the court

1. Paragraphs 23-34 of the statement of claim are struck out.

2. The respondents file and serve an amended defence on or before 12 May 2006.

3. The directions hearing is adjourned to 9.30 am on 6 June 2006.

4. The applicant pay the respondents’ costs of the strikeout application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
HOBART DISTRICT REGISTRY	TAD 50 OF 2005

BETWEEN:	JANET IRENE DUNCAN APPLICANT
AND:	LIPSCOMBE CHILD CARE SERVICES INCORPORATED FIRST RESPONDENT ANJANETTE MURFET SECOND RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	28 APRIL 2006
WHERE MADE:	MELBOURNE (HEARD IN HOBART)

JUDGE:	HEEREY J
DATE:	28 APRIL 2006
PLACE:	MELBOURNE…