Mick Skorpos Petrol Discount King Pty Ltd v The Shell Co of Australia Ltd

[1996] FCA 607

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 96 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:

MICK SKORPOS PETROL
  DISCOUNT KING PTY LTD
  (ACN 008 160 996)

Applicant

- and -

THE SHELL COMPANY OF
  AUSTRALIA LIMITED
  (ACN 004 400 220)

Respondent

EXTEMPORE REASONS FOR DECISION

CORAM:    Branson J
PLACE:    Adelaide
DATE:     17 July 1996

In my view, the statement of claim in this matter exhibits a number of fundamental faults.  I do not propose to go through in detail each of the contentions put to me by Mr Jopling.  It is, I think, sufficient for me to identify certain matters which I see as fundamental defects in this statement of claim.  I do say, however, that there is, in my view, considerable strength in most of the contentions put forward today by Mr Jopling.

The matters on which I place particular reliance for present purposes are as follows:-

(a)The statement of claim pleads considerable evidence or other apparently irrelevant material.  I refer in particular (and these are not intended as exhaustive lists) to paragraphs 5D, 5G, 10D, 10F, 10G, 10I, 10K, 18A, 23C and 29K.

(b)It pleads, as particulars of material facts, matters not amounting to particulars of such facts.  As examples I give paragraphs 8A, 22.1 and 23.1.

(c)It pleads, as particulars, matters apparently intended as pleas of material facts.  As examples I give paragraphs 8A, 21 and 22.

(d)It is embarrassing in a number of paragraphs for uncertainty or ambiguity - in some cases resulting from failure to define terms used.  I refer to paragraphs 9A, 10, 10A, 20, 21, 24, 26, 29, 29D and 34.

(e)It contains serious grammatical flaws leading to uncertainties of meaning.  I refer to paragraphs 5E, 8.1, 21(d), 21A(x) and 33.1.

(f)It pleads repetitively where repetition is unnecessary.  I refer to paragraphs 8A.3, 8A.5 and 23A.

In my view, nothing useful would come from striking from the statement of claim particular paragraphs.  Problems pervade the document.  The interests of both parties will, in my view, be served by this statement of claim being struck out in its entirety.  In its present form it shows defects apparently resulting from an attempt to amend an earlier document.  The statement of claim ought to be reconsidered in its entirety.

I propose to give the applicant leave to file a fresh statement of claim.

I certify that this and the preceding       pages are a true copy of the Extempore Reasons for Decision of the Honourable Justice Branson.

Associate:

Dated:

Counsel for the Applicant        :    Mr R A Cameron

Solicitors for the Applicant     :    Townsends

Counsel for the Respondent       :    Mr P Jopling

Solicitors for the Respondent        :    Finlaysons

Hearing Date  :    17 July 1996