Herbert, John James v Active Leisure (Australia) Pty ltd

[1984] FCA 341

NA : NOT APPROPRIATE FQR REPORTING	OR FOR GEVFXAL
CIRCULATION

Trade Practlces - breach of contract ana neglluence aileuea - federal and non-federai as3eccs - non-feaerai clam substanrzve - federal clazm cr:nal - wnezker

strlnnq out of statemenr of clam approprlace

Trade Practlces Act i974 (Cth) ss.52, 53, 71, 7 2 , 74

Fencoct v Muller (1983) 46 ALR 41

Stack v	Coasc Securlczes (No.9)	Ptv Lta (i983) 49 I I L X
193

No. NSW 5.240	of i984
Danes, :

9 October 1984

Canberra

IN TEE FEDERAL COURT OF AUSTRALIA )

)

-W39 SOUTH WdLES DISTRICT REGISTRY	)	NO. 5.240 of 1984
1

GENERAL DIVISION )

Responaenc

JUDGE MAKING ORDER D a n e s , J

D A E OF ORDER	24 September 1984
h i E W E	Sydney
ORDER	1. The statement of claim 1 s

strilcx ouc.

2. The appllcsnt snali say tze

respondent‘s	co ts	of the
motion.

IN TYE FEDERAL COURT OF AUSTRALIA !

SOUTH WALES DISTRICT REGISTRY ) NO. C . 2 4 0 of i484

)

GENERAL DIVISION )

BEIWEEN : JOHN JWES HERBEXT

Appllcant

iiesponaenz

O R D E R

JLJDGE MA!!iNG	ORDER	D a n e s , J
DATE OF ORDER	9 October 1984

m E	MADE	Canberra
CRDER	ay consent
(1) The appllcant shall file and

serve an amended statement of

CldIX cn	or krfore	2 3 Slctoz?r
1984;

( 2 ) Save as CO (al. Eke proceedlnTs

are stayed unr-l1 further srzer.

IN THE FEDERAL COURT OF AUSTRALiB )

)

NE55 SOUTH W E S DISTRICT REGISTRY ) NO. G . X O 1984

)

GENERAL DIVISION )

REASONS FOR JUDGMEVI

(ex tempore)

-

W :	Davles, J
24 SeDtember 1984

I do not thmk any purpose would be served Sy reserving my

declslon. I am of the vlew that the non-federal aspects 3f the

matter should be struck from the statement of clalm ana,

consequent hereon, chat he wnole statement of zia.2; a5

presencly pleaded should be struck O U C . I n i i dlSCJss v i c n

counsel later what furcher sceps should ne cak ?..

Very brlefly. the substance of the dlspute arises from a

purchase made by the appllcant from the respondent of skl boocs and skzs. The skl boots, IC appears, had been marked by tne respondent wlth the ietter 10, to Indicate thac SI-e. zhouun che

boots supplled were In facc of dliferent sizes. one aeinc: SIZE 11

and che ocher slze ; 0 -1 /2 .

. L .

The blndlngs of the s k l s were ad;usted by the respondent.

by testlng the blndlngs 3y reference only C O tke iarqer sf the

boots. In the resulc. tne appllcant alieqes chat the blndlnu

was t o o loose safely CO secure the rzght boor and, as a result.

when he sned uslng the boots and skls. hls rlght booc came ioose

from tne bmdlnu and he fell and suffered 1nJut-y.

That In substance zs a tradltlonal claim wlthln the

Jurlsdlccion of tne state courts. Rellance can De placea 50th on

a cause of action arlslnq from contract m d also a c3use or'

actlon In tort for neullgence. In thls court and also In stace

courts, the appllcant may also rely upon matters arlslnq maer

ss.71, 7 2 and 74 of the Trade Practices Act 1974 (Cth). Tney, of

course, slmply asslst the clalm for breach of contract.

The appllcant has brought hls actlon In chls ccurt seeklng

damages, interest and costs. To actlvate the 2urlsdlctlon of tr.e court, he has made a clalm nased upon ss.52 and 53 of che Trade

Practlces Act as well as reljrlng upon the other matters I have

referred to. it was put to me wlth some force by Yr D.I. Yaces. of counsei, who appeared for che respondenc. chat no clam under elcher of chose sections. at least no claln as presencip pleaceci. could be stabllshed under elther of chose sections. In

conslderlng that submlsslon, I do not thlnk It 1 s proper to isok

too closely at the preclse manner m whlch the statement of cialm

nas been pleaded. It seems to me that It 1s posslble to puz

forward an argumenc thac the marking of 3oots w:ch lncorrec-,

sizes. the selllnq of boocs of different sizes and the seil:?? cf

skls adlusced to f-t only one of tne 3oocs were accs c ~ a z

c 3 .

included an act chac was 1;kely to misleaa. I am also of the

n e w that any matter so put would arise out of facts common to

che clalms arlslng under state law.

Having sald that, however, ~t does not seem to me tnat the

clalms under ss.52 and 5 3 add any slgnlflcant matter eo the

clalms that can Se pue mder state iaw. It does nor: seem zo me

from anythmg tnat 1s pleaded tnat a. cialn could ze smscantiatcd

under elther of those sections zf tne act relled upon was nelzher

negligent nor a xeach cf contract. It seems to me that a courc

would not uphold che federal clalm untll the court vas s clsr'led

that the act relled upon was an ace done neg1;gently or ir, breac:? of a contractual duty arlslng between the partles. I do not put that as a statement of law but from my own Judqment of the matter.

I cherefore do not see anythlng In the facts pleadea wnlch

would glve rlse to an effectlve clam under ss.52 ana 5 3 ~f there

were not a150 escabllshed a clalm under state law. It follows, I

thlnK, thac the substantlal clam 13 t n s action is zhe clalm

mder state law. I n Fencott v Mulier i 1983 : 46 ALR 41 ac 59 .

Justlces Mason, Hurphy, Srennan ar.d Deane sald :

"Eowever, r'eaeral ~ud~clal power 1s attraccec to

the wnole of a controversy on ly li +,ne federal

clalm 1s a substantlal aspect of that controversy.

A federai clalm whlch 1 s a crlvlal o r

lnsubstantlai aspect of the controversy must. or'

course, Itself r solved be In federai

~urlsdlctlon, but It would be nelther approprlate

nor convenlent In such a case eo transiate C O

federai :urlsdlctlcn che determlnatlon -,h?

subscantlai aspeccs or' tne controversy from zke

]urlsa~c:lon to wnlch ;hey are sub~ect 13 orier to determlne the crlvlal or msuostantlal feaeral

aspect. &am, rmpresslon aca pracclcal ,-udunenc

must determlne wnezner It 1 s approprlate ar.a

4.

convenient that the whole zoncroversp be

determlned by the exerclse of federal 7udlclal

power. 'I

More recently, the vlew expressed m Fencott v Muller has been

applled and restated In v Coast Securltles iNo.3) 3t-7

Limlted (1983) 49	ALR 193.	At p.215, Justlces Mason, Brennar? and
Deane sald :

"in thls, as In other cases, the recurrent problem

1 s to ldentlfy what It 1 s tnat falis wlthzn tne

Federai Court's accrued ~ur~sclctlon. The

ma~ority ~udgment In Fencotr v Huller ( 4 6 BLR 3t

68; 5 7 ALJR ac 331-2). provldes this assistance

In reachlng an answer : 'Knat IS and wnat 1s noe

part of the one controversy ceper.ds on what cne parcles have done, the relatlonshlps between or among them and the laws whlch attach rlghts or

liabllltles to thelr conduct-ana relacionsnlps.

The scope of a controversy whlch conscltures a

matter 1s not ascertalned merely by reference to

the proceedings wnlch a party may mstltute, aut

may be illumlnated by the conduct of those

proceedlngs and especlally by the pleadlngs In

which the issues In controversy are aeflned and

the clalms for rellef are set out. buL In the

end, it 1s a matter of lmpressron and of practzcal

judgment whether a non-federal ciam and a federal

clalm Iolned In a proceedlng are wlthln tne scope

of one controversy and thus wlthln the amblt cf a

matter' . "

aithln the terms of that statement, I am of che vzew tnat, In

thls matter, there :S only one controversy. Thelr Honours went

on to express a vlew slmllar to that whlch I have alreadlr c l ~ z c i

from p.69 of Fencoct v Muller. Thelr Honours sald, at p.215 :

- -

"Barwlck CJ m Phlilp Horrzs (33 ALR a~ 474; 33

ALJR at 125) had expressed a szmlar Idea. statrq that the exerclse of the accruea Jurzsdlctlon is

dlscretlonary and not mandatory'. in expressmu

tnls oplnlon, Barwick CJ expressiy acknowledge<

that the Federal Court had a dlscretlon eo ailow

the non-federal clalms to be determlned In a State

court. His Honour was speaklng wlth partlcE:lar

reference to the exerclse by the Federal Court sf

the ~ur~sdlctlon conferred by S a6."

Thelr !ionours Then went on :o conslder what natters should se

taKen Into acccunc In the exerclse of eke alscrec:1on anc xna:

5.

should be done In the partlcular case.

In the present case, It seems to me that the appropriace

court for deallnq wlCh controversy ralsed In tinls actlon 1 s a

state court. The Issue In dispute 1s a tradltlonal claim Llnder

state law and 1 s far removed from tne matters tnat are

tradltlonally ralsed under the Trade Pracclces Act. The rules cf

the state courts have been developed expressly 50 deai wit?.

clalms arlslnq fr3m personal m!uries, and stare courts are

properly geared eo deal wlth dlsputes cf that type. I: seems to

me that, In the present case, the federal lssues wlil add nochlng

of practlcal value to the appllcant's clalm. I do noe say cha'l

matters cannot be ralsed under 5 5 . 5 2 ana 53, aut 1~ seems to me

tnat they are not llkely to succeed unless causes of actzon

arlslng under state law are also establlshed. It seems to me

that he federal clalm can be descrlbea as trlvlal o r

lnsubstantial In the sense that It adds nothlng of reai value to l

the clalms under state law.

For thls reason, I tnlnk that c h l s court snouli nor accept

;urlsdlcelon CO aeal wlch the macters wnlch arlse urder stace iaw

and accordlnuly that ali the non-federal Lssues shouid be s c r u c k

out from the statement of claim. in the 11qnt of that. I cxnx

that, lf the matter 1s to proceed ln thls courc, ~t would ze

deslrable that the statement of clalm be wnolly repleaaea. I

would. therefore. accede to che respondent's submlsslon that the statement of c l a l m as a wcole snould be strueK o u c , reser-,-Lz? leave eo replead.

6 .

I certlfy that the 5

precedtng	pages are a true copy of the
m	for ludgrnent herem of The Honour-

& Mr. Justice f 9 D,YJ.F<

Assoclate

M i / / /o /S ’ &k--