Luck v Deakin University - [2008] FCA 1781

FEDERAL COURT OF AUSTRALIA
Luck v Deakin University [2008] FCA 1781
Federal Court Rules O 13
GAYE ALEXANDRA LUCK v DEAKIN UNIVERSITY
VID 444 of 2008
HEEREY J
26 NOVEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 444 of 2008

BETWEEN:
GAYE ALEXANDRA LUCK
Applicant

AND:
DEAKIN UNIVERSITY
Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

26 NOVEMBER 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The motion to strike out the amended statement of claim be adjourned for hearing before Marshall J on a date to be fixed.
2.By 8 December 2008, the applicant file and serve a document of no more than two pages which summarises what the applicant says are the wrongful acts or omissions of the respondent which have affected her.
3.No less than seven days before the time fixed for hearing of the strike out motion, the respondent file and serve an outline of its submissions on such motion.
4.Costs reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 444 of 2008

BETWEEN:
GAYE ALEXANDRA LUCK
Applicant

AND:
DEAKIN UNIVERSITY
Respondent

JUDGE:

HEEREY J

DATE:

26 NOVEMBER 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 25 November 2008 the respondent filed a notice of motion returnable for directions today seeking to strike out the applicant’s statement of claim which was filed on 17 October 2008. In the meantime, the applicant has filed an amended statement of claim on 24 November 2008. This is a document of 108 pages. The applicant says she is entitled to file and serve an amended statement of claim once, without leave. She referred to O 13 r 3(1) of the Federal Court Rules. In the course of the hearing I was inclined to agree. However, it has since come to my attention that a defence was filed on 14 November, thus the pleadings are closed and consequently leave to file the amended statement of claim is required: O 13. In any event, the respondent objects to the amended statement of claim. As I understand the respondent’s contention, the amended statement of claim does not set out the applicant’s case in a way which enables the issues to be properly tried. Whether this is right or wrong is not to be determined today, and I am making no judgment on that question.
The practical course in my opinion is to treat the return of the respondent’s motion as the time to determine whether the applicant should have leave to file the amended statement of claim dated 24 November 2008. In opposing that application the respondent can argue the same grounds as it could on a strike out application. The respondent’s motion will be adjourned for hearing before Marshall J, to whose docket this matter is now to be transferred. To avoid confusion, I will direct,…

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: [2008] FCA 1781
Decision Date: 26 November 2008

CaseChat Overview and Summary

The parties involved in this case are Luck, the plaintiff, and Deakin University, the defendant. Luck has brought forward a legal action against Deakin University, asserting that the university's conduct has adversely impacted her. This case was presented before the Federal Court of Australia. The primary nature of the dispute revolves around Luck's allegations of wrongful acts or omissions by Deakin University, which she claims have affected her in significant ways.

The legal issues before the court were to determine the admissibility of Luck's amended statement of claim and whether it should be struck out. Specifically, the court had to consider whether the amended statement of claim met the necessary legal standards and whether it should be permitted to proceed to a full trial. The court also had to consider the procedural fairness and the necessity of providing both parties with adequate notice and opportunity to respond to the motion.

The Federal Court, in its reasoning, decided to adjourn the motion to strike out the amended statement of claim for a future hearing. The court emphasized the importance of ensuring that both parties had a fair opportunity to present their respective positions. The court ordered Luck to provide a concise summary of her claims, limited to two pages, to clarify the wrongful acts or omissions she attributes to Deakin University. Additionally, the court mandated that Deakin University provide an outline of its submissions on the motion, with a minimum of seven days' notice before the hearing. The court reserved its decision on costs, indicating that this matter would be addressed at a later stage in the proceedings.

Orders

Orders of the court

1. The motion to strike out the amended statement of claim be adjourned for hearing before Marshall J on a date to be fixed.

2. By 8 December 2008, the applicant file and serve a document of no more than two pages which summarises what the applicant says are the wrongful acts or omissions of the respondent which have affected her.

3. No less than seven days before the time fixed for hearing of the strike out motion, the respondent file and serve an outline of its submissions on such motion.

4. Costs reserved.

Note:

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

HEEREY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 444 of 2008

JUDGE:	HEEREY J
DATE OF ORDER:	26 NOVEMBER 2008
WHERE MADE:	MELBOURNE

JUDGE:	HEEREY J
DATE:	26 NOVEMBER 2008
PLACE:	MELBOURNE