Jet Corporation of Australia Pty Ltd v Petres Pty Ltd

[1986] FCA 575

NOT FOR DISTRIBUTIJN

IN THE FEDERAL COURT OF AUSTRALIA I

I

VICTORIA DISTRICT 3EGI3TRY ) 5‘. No. G 10’3 of 1333

GENERAL DIVIZION	l
BETWEEN :

JET CORFORATION OF AUSTRALIA FT?. LIMITED

LLn Its capaclty as trusts? of the

Jet Corporatlon of Australia Trust) Appl1car.t

and

PETRES PTY. LIMITED

tln its own capacity and in Its capaclty

as trustee of the Schutt Unlt Trust)

Respondents OTHERS and

COURT: NORTHROP S.

W: 29 OCTOBER 1386

W: MELBOURNE

M TEMPORE REASONS FOR JUDGMENT

I propose C O a d ~ o u r n the moclon brouaht by Messrs.

Sent and Forshaw; that the proceed1r.y agalnst them be dlsmlssed on the grounds that lt dlscloses nu reasonable

cause of actlon aqalnst them.

The reason Tcr chr adiourrment has zec3me apparen::

durlnu the course of iubm-szlona c ~ d a - f , ut I :an summarlss

~ t , I hope. In a fairly t r l e f xav. .\S Mr. Fhl3ps u f counsel

for Messrs. Sent and Fsrshaw has 1ndl:aced. tkre has been a

long hlstory of thls matter and a case where a number of statements of claim, rnsofar as they affect Messrs. Sent and Forshaw are concerned, have been struck out and leave given

to f i l e and deliver amended statements	of clam.	Llkewlse,
wlth respect to the applicatlnn.

For relevant purposes. 1% can Se noted that In

February 1385, the iourt made a number ai srders, x c l u d l n a

tne deletion of certaln paragraphs of the statenenr of clalm made on the rnoclon of Messrs. Senc and Forshaw. That appears from order 1 of the order aade on 2 5 Febr-ary 1335 as well as

paragraph 3 . Lea*;r to amend the zcatement or' clalm In a form

which was set out In an exhiblt to che affidavits of Mr.

Johnson at that time was granted. Likewise, leave was given

in order 4 to amend the application and certain consequential

orders were made. An appeal from those orders gas disallowed by the Full Court by applying an earller declslon of the Full Court in relation to the correct lnterpretation and appllcatlon of 6.87 oi the Trade Practlces Act. In November

1935, the posltion was changed once more and on that day

leave was given to the appllcanc to amend che statement of

claim in a form set sut as an exhll;;t t O an affldavlt ui

Craham Alfred Levy and. at the zame tlms, ths application x a j amended to Include paraqrapha 4B and 3 In lcs application to

Messrs. Sent and Fcrshaw.

Subsequently, on 26 Sane 1'3E6, -he H l g n I:UUL.T

allowed an appeal f r 2 m che order ,3f :.-d F u i i Caurt xhlch r.aa

dlsmlssed the appeal CS lt fran tne ,~rder S L ~ tne Ccurt mad2

In February i 3 3 5 and made certain :sn;equenclal arders ~r

_ _

relatlon to the mardera made m *: February. It 1 s n.zc

preclsely clear xhat effect that has I n relatlon to a n y earller statement of clam but, for practical purposes, It

all relates to matters whlch had Seen svertaken by the order5

made In November 1385, which allowed the amended statement	YI
claim and appllcatlon to be made.

On earller occasions the Court announced that, ~f

in due course the High Court dld allow the appeal, with the

effect that the then exlstlng authority of the Full Court of

the Federal Court no longer was blcdlng. thz Court would be

in a posltlon to make any consequentlal orders to correcc the

posItlon arlalnq from the orders mads I n November 13a5. In

thls regard. lt is now clear that the Court should make

orders givlng effect to that and thls can be done by maklng

an order vacating the order made hereln on 25 November 1935,

insofar as It relates to the respondents, Messrs. Sent and

Forshaw, and such an order wlll be made.

The solicitor for the applicant first of all sought

an ad~ournment of the hearlng of the motlon brought by the

appllcant to dlsmiss the proceedlnq. The Court ruled that It would proceed with the hearing on that motlon to see what the matter was all about. It became apparent from submlsslons

made that In the statement of c l a l s , wh;ch 1s presently In

existence, and even allowlnq far the amendments whlch are necessary because of the order I wlll make m relatlon to the

vacatlon of the order of November 1385, there remalns In

exlstence two paragraphs In the statement of clalm, namely paragraphs 2 5 and 49A. whlch on one vlew glves rlze to a

claim based on conspiracy whlch may be able to be brought

withln the accrued !urlsdlctlon of the Court because of the

fact that It 1 s so tled up and intermingled =lti-, matters properly before the (Court. lnsofar as they relace ca other respondents, chat It 1s approprlate that they shoulc! be heard In the one prcceeding rather than In two proceedings. The

solicitor conceded that the appllcatlon as It stands does not

clalm any damages against Messrs. sent and Forshaw based upon

the consplracy clalm but that he would seek leave to amend

the application to lnclude that clalm f o r damages based upon the common law clam of conspiracy and would seek an order that this Court should hear that under its accrued ]urlsdlctlon.

Counsel for Messrs. Sent and Forshaw have argued

that thls should not be alloved because of the hlstory of

this matter and the speclal clrcumstances relatlnq to the

number of tlmes In whlch the statement of c l a m has been

varled and amended; that there 1s nothlna to stop the

applicant commenclng proceedings In the Supreme Court aqalnst Messrs. Sent and Forshaw In relatlon to any consplracy claim

and that It 1s only falr that that should be done rather than

a further amendment to the existlnq proceedlngs.

In all t n e c~rcumsranzes zf ths case. i thlnli ~t 13

lnapproprlace fzr cne C z j ~ r t t z cieclde 311 thoss ~ s i u e s at :he

present clne In che arjsenze ~f ar.7 iocument S ~ C C L ~ Q cuc w.ac

1s the current posltlon as far a: tke appllcatlon an&

statement of claim 1s concerned followlng the order I progose

to make based upon the Hlqh Court declslon and the

non-applicatlon of 5 . 8 7 of the Trade Practlces Act to thls

case insofar as Messrs. Sent and Forshaw are concerned.

It is put by counsel for Messrs. Sent and Forshaw

that any clalm based upon consplracy, as appearing In paragraphs 2 5 and 49A are merely part of a laruer clalm whlch

1s founded upon s.87 of the Trade Practlces Act and were not

Intended to have any separate exlstence. That map well be

correct and It may veli be a mere unlntended cocaequence thac the clalm fur consplrac-q can have a life of l t z own. Thes?

are matters whlch w l l l need C O be cunsldered In due course,

together wlth a conslderatlun of whether the Court, In the

exercise of its dlscretion. should allow the clalm based on

accrued jurisdlctlon wlth respect to persons who are not

otherwlse wlthln the jurlsdlctlon of thls Court, to proceed.

Accordingly, I propose to adlourn the further

hearing of thls motion to a tlme to allow the appllcant to prepare any necessary documentatlon as to what exactly it is

seekina in relatlon both to the appllsatlon and the statement

of clalm. Thls rnvolves a re-draftlng or re-drawlnq of the

statement of clalm by deletlnq from It all references to

Messrs. Sent and Forshaw arlslng from any claims based upon

s.87 of the Trade Practices Act but leavlng m existence

those paragraphs 2 5 and 4 3 A , whlch may found a clalm fer

damaues for conspiracy together wlth an:r ather paragraphs

whlch could be dlrected along line; to support that clalm.

On the resumed hearmg SI the present motlcn b:r

Messrs. Sent and Farshaw and any motlon b-r the sppllcant, the

Court ; ~ o u l d be In a posltlon to declde f~ritly Yhether ttcre

1s r'uundatlon for a clalm based upon ioniplracy, whether ~t

1s appropriate that thls clalm should come wlthln the accrued

lurisdlctlon of this Court to be heard as part of the current

proceedings, or whether the applicant should be left to seek

their rellef elsewhere and, in all the clrcumstances havmg

regard to the then position, whether the proceeding against

Messrs. Sent and Forshaw should be dlsmlsied.

It 1s not unusual in cases llke thls, where a

statement of claim discloses no cause of aztlon, to strlke It out, glving leave to the plalntlff to re-plead. Likewlse, In

my oplnlon, lt IS only fair that the appllcant should be able

to conslder Its posltlon In relation to any accrued

jurlsdlctlon clalm xhlch at least comes wlthln the exlstlng

pleadlng, so as to ~ustify an amendmenr to the appllcatlon to

q l v e effect to that matter. These are all questlons which

wlll need to be declded In the future.

celtliy :hat this and the&k (6)

ccedlng pages are a true copy of the

-n:ons for judgment herein of the