McKellar v Container Terminal Management Services Ltd

Case [1999] FCA 1101


FEDERAL COURT OF AUSTRALIA

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)

Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 77 FCR 456 referred to
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 77 FCR 478 referred to

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 referred to
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 applied
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-9, 130 applied
Webster v Lampard (1993) 177 CLR 598 at 602 applied
Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368 at 435-6 referred to
Cubillo v Commonwealth of Australia (1999) 163 ALR 395 at 415-6 applied
Packer v Meagher (1984) 3 NSWLR 486 referred to
Gallo v Dawson (1988) 82 ALR 401 referred to
Yeldham v Rajski (1989) 18 NSWLR 48 referred to
Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511 referred to
Munnings v Australian Government Solicitor (1994) 118 ALR 385 referred to
Dare v Pulham (1982) 148 CLR 658 at 664 referred to
Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR ¶41-591 at 44,151 ff applied
Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114-5 referred to
H 1976…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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