MIDLAND BRICK CO PTY LTD -v- CMS GAS TRANSMISSION OF AUSTRALIA & ANOR [2000] WASC 283

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 283
Case No:	CIV:2042/2000	Heard:	16 NOVEMBER 2000
Coram:	MASTER SANDERSON	Delivered:	23/11/00
No of pages:	8	Judgment Part:	1 of 1
Result:	Application succeeds in part
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Parties:	MIDLAND BRICK CO PTY LTD (ACN 008 674 244) CMS GAS TRANSMISSION OF AUSTRALIA (ARBN 078 902 397) ARC ENERGY NL (ACN 009 204 031)
Catchwords:	Practice and procedure Application to strike out statement of claim Turns on its own facts
Legislation:	Nil
Case References:	Acorn Consolidated Pty Ltd v Hawkslade Investments Pty Ltd (1999) 21 WAR 425 B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Assoc Pty Ltd (1994) 35 NSWLR 227 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Darbyshire v Leigh [1896] 1 QB 554 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Charide Nominees Pty Ltd v Matour Nominees Pty Ltd [1987] WAR 137 Clifton v Coffey (1924) 34 CLR 434 Jones v Walton [1966] WAR 139 Manufacturers' Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 Noyes v Klein (1984) 3 BPR 9216 State Rail Authority of NSW v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MIDLAND BRICK CO PTY LTD -v- CMS GAS TRANSMISSION OF AUSTRALIA & ANOR [2000] WASC 283 CORAM : MASTER SANDERSON HEARD : 16 NOVEMBER 2000 DELIVERED : 23 NOVEMBER 2000 FILE NO/S : CIV 2042 of 2000 BETWEEN : MIDLAND BRICK CO PTY LTD (ACN 008 674 244)

Plaintiff

AND

CMS GAS TRANSMISSION OF AUSTRALIA (ARBN 078 902 397)

First Defendant

ARC ENERGY NL (ACN 009 204 031)

Second Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Turns on its own facts

Legislation:

Nil

(Page 2)

Result:

Application succeeds in part

Representation:

Counsel:

Plaintiff : Mr G H Murphy

First Defendant : Mr P G Doherty

Second Defendant : Mr R J Ainslie

Solicitors:

Plaintiff : Phillips Fox

First Defendant : Minter Ellison

Second Defendant : Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Acorn Consolidated Pty Ltd v Hawkslade Investments Pty Ltd (1999) 21 WAR 425
B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Assoc Pty Ltd (1994) 35 NSWLR 227
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Darbyshire v Leigh [1896] 1 QB 554
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423

Case(s) also cited:

Charide Nominees Pty Ltd v Matour Nominees Pty Ltd [1987] WAR 137
Clifton v Coffey (1924) 34 CLR 434
Jones v Walton [1966] WAR 139
Manufacturers' Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853
Noyes v Klein (1984) 3 BPR 9216
State Rail Authority of NSW v Heath Outdoor Pty Ltd (1986)

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.

Continue reading Midland Brick Co Pty Ltd v CMS Gas Transmission of Australia

Details

AGLC: Midland Brick Co Pty Ltd v CMS Gas Transmission of Australia [2000] WASC 283
Case: [2000] WASC 283
Decision Date: 23 NOVEMBER 2000

CaseChat Overview and Summary

The case of Midland Brick Co Pty Ltd v CMS Gas Transmission of Australia was heard in the Federal Court of Australia. Midland Brick, the plaintiff, brought an action against CMS Gas Transmission, the defendant, to recover damages for alleged interference with their property by the defendant's gas transmission pipeline. The defendant sought to have the plaintiff's statement of claim struck out, arguing it failed to disclose a cause of action.

The primary legal issue before the court was whether the plaintiff's statement of claim contained sufficient particulars to constitute a valid cause of action. The defendant contended that the plaintiff's claim was vague and uncertain, lacking the necessary detail to inform a responsive defence or to allow the court to determine the merits of the case. Specifically, the defendant argued that the claim did not adequately specify the nature or extent of the interference or the resulting damage.

The court found that while the plaintiff's statement of claim was deficient in some respects, it was not so deficient as to warrant a complete strike-out. The court held that the statement of claim provided enough information to enable the defendant to understand the nature of the plaintiff's claim and to prepare a defence. However, the court also found that certain parts of the claim were overly vague and ordered that these parts be amended to provide clearer particulars. The application to strike out the statement of claim was therefore allowed in part, with the plaintiff granted leave to amend the deficient parts of the claim.

Orders

Orders of the court

Application succeeds in part

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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