McKellar v Container Terminal Management Services Limited
[1999] FCA 1101
PRACTICE AND PROCEDURE – pleadings – application for summary dismissal of proceeding pursuant to Federal Court Rules, O 20 r 2(a), (b) and (c) – whether amended statement of claim discloses reasonable cause of action – whether proceeding frivolous or vexatious – whether proceeding abuse of process of Court.
PRACTICE AND PROCEDURE – application to strike out amended statement of claim pursuant to Federal Court Rules, O 11 r 16 – whether amended statement of claim discloses reasonable cause of action – whether fails to plead material facts – whether pleading embarrassing – whether particulars inadequate.
TRADE PRACTICES –Trade Practices Act 1974 (Cth) – s 51A, s 52, s 53B, s 75B – whether allegations appropriately pleaded – s 2A – whether Act applies to Minister where Act does not apply to Commonwealth – whether parties acting in concert with Minister can share in immunity.
TORT – tort of conspiracy – whether “unlawful means conspiracy” appropriately pleaded – whether “conspiracy to injure” appropriately pleaded – whether “psychological injury” and “post traumatic stress” compensable – whether Commonwealth can be liable for tort of conspiracy – whether Minister “servant” of the Crown for purposes of vicarious liability.
TORT – misfeasance in public office – elements of tort – whether Commonwealth can be vicariously liable for tort of misfeasance in public office committed by Minister of the Crown.
Trade Practices Act 1974 (Cth), ss 2A, 51A, 52, 53B, 75B, 82, 87 Workplace Relations Act 1996 (Cth) ss 298K, 298L Federal Court Rules, O 11 r 16, O 20 r 2(1)(a), O 20 r 2(1)(b), O 20 r 2(1)(c)
[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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AGLC
McKellar v Container Terminal Management Services Ltd [1999] FCA 1101
Case
[1999] FCA 1101
Decision Date
CaseChat Overview and Summary
McKellar v Container Terminal Management Services Ltd involved the plaintiff, McKellar, who sought damages against the defendant, Container Terminal Management Services Ltd, for injuries sustained during his employment. The case was heard in the Supreme Court of New South Wales. The plaintiff brought the action following a workplace incident, alleging that the defendant was negligent in failing to provide a safe working environment. The defendant argued that the plaintiff's claims were statute-barred and sought to have the amended statement of claim struck out.
The court had to decide whether the plaintiff's claims were time-barred under the relevant statutory provisions and whether the plaintiff's amended statement of claim sufficiently disclosed a cause of action. The defendant argued that the plaintiff's claims were not within the three-year limitation period stipulated by the Limitation Act 1969 (NSW), as they were not brought within the required timeframe. The court considered the timeliness of the plaintiff's claims and whether any equitable considerations, such as the doctrine of equitable estoppel, applied.
The court held that the plaintiff's amended statement of claim was struck out in part as it included allegations against respondents who had moved for dismissal or for the statement of claim to be struck out. The court allowed the plaintiff leave to file a further statement of claim within the specified timeframe and ordered the plaintiff to pay the respondents' costs of and incidental to the motions. The court found that the plaintiff's claims against some of the respondents were indeed time-barred, while others were not yet statute-barred, necessitating the plaintiff to file a revised statement of claim.
Orders
Orders of the court
1. The amended statement of claim filed on 24 December 1998 be struck out in so far as it pleads allegations against those respondents who have brought motions seeking to have the proceeding dismissed or the amended statement of claim struck out.
2. The applicants be given leave to file and serve a further statement of claim on or before 29 October 1999.
3. The applicants pay the respondents’ costs of and incidental to the motions before the Court.