Leonie Cameron v Qantas Airways Limited

[1993] FCA 1082

IN THE FEDERAL COURT OF AUSTALIA	)
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PEW SOUTH WAL	ES DISTRICT REGISTY	)	No. NG 205 of 1993
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GENERAL DIVISION 1

BETWEEN :

LEONIE CAMERON

Applicant

AND

QANTAS AIRWAYS LIMITED

Respondent

CORAM :	Beaumont J
DATE :	21 December 1993

REASONS FOR J

(on strike out application)

In my opinion the allegation in paragraph 8, to take one example of the further amended statement of claim, is embarrassing. It is not clear whether it is asserting on the one hand, that in particular instances, the respondent has been guilty of misleading or deceptive conduct or, on the other, whether there are, in particular instances, where there i-S no such conduct. As I would read paragraph 8 in its ordinary meaning, the word, "may", is intended to cover both possibilities. In my view, this is not an acceptable form of pleading.

If I am right in my interpretation of paragraph 8, as it

would ordinarily be read, it should have been pleaded in the

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distinct fashion I have suggested. That is to say, an allegation should have been made that in some instances, but not in others, a belief was induced in the passenger, by the conduct of the respondent, that the representations alleged in paragraph 7 would be honoured. As the pleading now stands, that allegation is not made clearly and, in my view, it should be made clear.

The same problem is reflected, for instance, in paragraph 2 of the amended application. There - and I leave apart for the

moment the question of the flight crew which, as I understand it, is now conceded to be beyond the scope of the present matter - the group members, sought to be made the subject of these proceedings, include persons who "may" be affected by the conduct of the respondent.

It is true that the use of the word, "mayw, in that context

has another dimension, that is to say, it could be interpreted as referring to a possible future conduct on the footing that these are, to some extent, quia timet proceedings, as indeed I think they are. However, if the amended application is read as it should be, in conjunction with the further amended statement of claim, it appears that the use of the word, "mayw, in paragraph 2 of the amended application suffers from the same lack of clarity as it did, for instance, in paragraph 8 of the further amended statement of claim.

I note in this connection, that in paragraph 4 of the

amended application, there is a claim made in subparagraph (c)

for damages on behalf of, inter alios, such of the group members

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who, "may", have suffered loss or damage by the respondent 'S conduct. For the reasons I have given in dealing with paragraph

8 of the further amended statement of claim, it seems to me that

the use of the word, "may", here is equally ambiguous and, as a matter of pleading, unacceptable. It does not indicate clearly to the respondent the nature of the case sought to be made against the respondent in an important respect.

I have chosen these two examples of the word, "mayw, to illustrate the point. There may be other parts of the statement of claim which suffer from the same problem and, if so, the comments I have made will also be applicable. I think that in the circumstances, the better course, rather than strike out particular parts of the pleading, is to give the applicant leave to amend both the amended application and the further amended statement of claim and I grant that leave.

I give the applicant liberty to amend her amended application, filed on 13 August, and her further amended statement of claim, filed today in Court, generally, as the applicant may be advised, on or before Monday, 31 January 1994.

I certify that this and the preceeding two pages are a true cop judgment of his Honour Mr

Associate :

Date: 21 December ---.-a 1993