Johnson Tiles Pty Ltd v Esso Australia Ltd - [1999] FCA 167

`FEDERAL COURT OF AUSTRALIA
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 167
PRACTICE AND PROCEDURE – Representative proceedings under Part IVA of the Federal Court of Australia Act 1976 (Cth) - claims that negligence and misleading conduct caused economic loss as a result of cessation of supply of gas – application to strike out statement of claim – whether material facts pleaded assert a contractual rather than a tortious obligation in relation to the supply of gas– whether duty to avoid or prevent the loss suffered pleaded - whether pleadings allege misleading conduct
John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd and Another (1996) BCL 262 – considered
Sutherland Shire Council v Heyman (1984) 157 CLR 424 – applied
Bryan v Maloney (1995) 182 CLR 609 - cited
Pyrenees Shire Council v Day (1998) 192 CLR 330 - cited
Caparo Industries Plc v Dickman and Others (1992) AC 605 – cited
Trade Practices Act 1974 (Cth) – s 52
JOHNSON TILES PTY LTD AND OTHERS V ESSO AUSTRALIA LIMITED AND ANOTHER
VG 519 OF 1998
MERKEL J
MELBOURNE
1 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 519 OF 1998
VG 524 OF 1998

BETWEEN:

JOHNSON TILES PTY LTD AND OTHERS
(ACN 004 576 103)
Applicants

AND:

ESSO AUSTRALIA LIMITED
(ACN 000 018 566)
First Respondent

ESSO AUSTRALIA RESOURCES LTD
(ARBN 000 444 860)
Second Respondent

JUDGE:

MERKEL J

DATE OF ORDER:

1 MARCH 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.   The Further Amended Statement of Claim dated 12 February 1999 be struck out.
2.   The applicants have leave to deliver a further Amended Statement of Claim on or before 15 March 1999.
3.   The applicants pay the respondents’ costs of and incidental to the Notice of Motion dated 15 February 1999.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 519 OF 1998
VG 524 OF 1998

BETWEEN:

JOHNSON TILES PTY LTD AND OTHERS
(ACN 004 576 103)
Applicants

AND:

ESSO AUSTRALIA LIMITED
(ACN 000 018 566)
First Respondent

ESSO AUSTRALIA RESOURCES LTD
(ARBN 000 444 860)
Second Respondent

JUDGE:

MERKEL J

DATE:

1 MARCH 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

By a notice of motion dated 15 February 1999 Esso Australia Limited and Esso Australia Resources Ltd (“Esso”) moved the Court for an order that the Further Amended Statement of Claim (“the statement of claim”) of the applicants dated 12 February 1999 be struck out. A copy of the statement of claim is annexed to these reasons for judgment. In the alternative, an order was sought striking out paras 6, 7, 8, 9, 13, 14, 18, 19, 20 and 21 of the statement of claim. Esso contended that the statement of claim, as presently pleaded, did not disclose a reasonable cause of action and would prejudice, embarrass or delay the fair trial of the proceeding.
The…

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 167
Decision Date: 1 MARCH 1999

CaseChat Overview and Summary

Johnson Tiles Pty Ltd brought an action against Esso Australia Ltd in the Federal Court of Australia, seeking damages for alleged misleading or deceptive conduct in breach of the Trade Practices Act 1974 (Cth). Johnson Tiles claimed that Esso had engaged in misleading or deceptive conduct by failing to disclose the significant increase in the price of certain goods. The dispute arose from the sale of goods where the advertised price was lower than the actual price charged to consumers, allegedly misleading them about the true cost.

The legal issues that the court had to decide included whether the Further Amended Statement of Claim sufficiently disclosed a cause of action under the Trade Practices Act and whether the applicants were entitled to further amend their statement of claim. The court also needed to consider the appropriate costs order in light of the applicants' conduct in the proceedings.

The court found that the Further Amended Statement of Claim did not adequately disclose a cause of action for misleading or deceptive conduct. The applicants had failed to provide sufficient detail regarding the alleged misleading conduct and the impact it had on consumers. Consequently, the court decided to strike out the Further Amended Statement of Claim. The applicants were granted leave to deliver a further Amended Statement of Claim within a specified timeframe, but they were required to pay the respondents’ costs associated with the Notice of Motion. The court held that the applicants’ conduct warranted an order for costs, given the inadequacy of the previous statement of claim.

Orders

Orders of the court

1. The Further Amended Statement of Claim dated 12 February 1999 be struck out.

2. The applicants have leave to deliver a further Amended Statement of Claim on or before 15 March 1999.

3. The applicants pay the respondents’ costs of and incidental to the Notice of Motion dated 15 February 1999.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 519 OF 1998 VG 524 OF 1998

BETWEEN:	JOHNSON TILES PTY LTD AND OTHERS (ACN 004 576 103) Applicants
AND:	ESSO AUSTRALIA LIMITED (ACN 000 018 566) First Respondent ESSO AUSTRALIA RESOURCES LTD (ARBN 000 444 860) Second Respondent
JUDGE:	MERKEL J
DATE OF ORDER:	1 MARCH 1999
WHERE MADE:	MELBOURNE