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Johnson Tiles Pty Ltd v Esso Australia Ltd

Johnson Tiles Pty Ltd v Esso Australia Ltd

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Case Copied 25 November 1999 38 min read

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FEDERAL COURT OF AUSTRALIA
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 1645
PRACTICE AND PROCEDURE – application to strike out part of statement of claim – whether pleading should be struck out where particulars are not reasonably capable of sustaining the substantive allegation – whether reliance on a failure to warn must be pleaded as causative of loss in a s 52 claim for damages
PRACTICE AND PROCEDURE – representative proceedings under Part IVA – whether proceeding should no longer continue as representative proceeding where the federal claim is struck out
JURISDICTION – whether s 52 and negligence claims are severable and therefore separate matters – whether the Court no longer has jurisdiction in the matter if the federal claim is struck out - whether s 52 claim has been brought to fabricate jurisdiction
Federal Court of Australia Act 1976 (Cth) Pt IVA; ss 33G and 33N
Trade Practices Act 1974 (Cth) ss 52 and 82
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 477 – applied
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 - applied
Yorkshire Provident Life Assurance Co v Gilbert (1895) 2 QB 148 – cited
Trade Practices Commissioner v George Weston Foods Pty Ltd (1979) 39 FLR 182 – cited
Davey v Bentinick (1893) 1 QB 185 – cited
Minichin v Adamson (1975) 10 SASR 119 – cited
Marks v GIO Australia Holdings Ltd (1998) 158 ALR 333 – cited
Qantas Airways v Cameron (1996) 66 FCR 246 – cited
Chappel v Hart (1998) 195 CLR 232 – cited
Bright v Femcare [1999] FCA 1377 – cited
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 – cited
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 – cited
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 – cited
Re Wakim; Ex parte McNally (1999) 163 ALR 270 – cited
Fencott v Muller (1983) 152 CLR 570 – applied
Burgundy Royale Investments Pty Ltd v Westbank Banking Corporation (1987) 18 FCR 212 - applied
Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 – considered
New South Wales Land Council v Australian Securities and Investments Commission (1995) 131 ALR 559 – cited
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56 – cited
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 636 - cited
JOHNSON TILES PTY LTD v ESSO AUSTRALIA LTD
VG 519 OF 1998
STATE ELECTICITY COMMISSION OF VICTORIA v BHP PETROLEUM (BASS STRAIT) PTY LTD
VG 524 OF 1998
JUDGE:         MERKEL J
DATE:           25 NOVEMBER 1999
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 519 of 1998
VG 524 of 1998

BETWEEN:

JOHNSON TILES PTY LTD AND OTHERS
Applicants

ESSO AUSTRALIA LTD AND ANOTHER
Respondents/Cross-claimants

AND:

STATE ELECTRICITY COMMISSION OF VICTORIA AND OTHERS
Cross respondents/Cross claimants

BHP PETROLEUM (BASS STRAIT) PTY LTD
Cross-respondent

JUDGE:

MERKEL J

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: [1999] FCA 1645
Decision Date: 25 NOVEMBER 1999

CaseChat Overview and Summary

The applicants, representing themselves and group members, commenced proceedings against Esso, the owner and operator of a gas plant in Victoria, for alleged losses and damages resulting from the unavailability of gas to consumers between 25 September 1998 and 12 October 1998, following an explosion and fire at the gas plant. The applicants' claims against Esso were for negligence and misleading and deceptive conduct under the Trade Practices Act 1974 (Cth). Esso and the cross-respondents argued that the pleading of the misleading and deceptive conduct claim was deficient and ought to be struck out. They further argued that the negligence claim was not within the Court's jurisdiction and the proceeding should no longer continue as a representative proceeding. The issues before the Court were whether the misleading and deceptive conduct claim should be struck out and whether the negligence claim was within the Court's jurisdiction. The Court found that the misleading and deceptive conduct claim was not reasonably capable of sustaining the substantive allegation and should be struck out. However, the negligence claim was found to be within the Court's jurisdiction and the proceeding could continue as a representative proceeding. The Court ordered that the misleading and deceptive conduct claim be struck out, but the negligence claim could proceed. The applicants were to be given an opportunity to apply for leave to replead the misleading and deceptive conduct claim. The taxed costs of all parties of and incidental to their respective motions were to be costs in the cause.

Orders