Minister for Foreign Affairs and Trade v Magno

[1992] FCA 566

Re: COMMONWEALTH OF AUSTRALIA
And: EDUCATION AUSTRALIA PTY. LIMITED (formerly TAKAMA HOLDINGS PTY. LTD.)
trading as WESSEX COLLEGE and WESSEX COLLEGE OF ENGLISH
No. G 275 of 1992
FED No. 566
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Practice and Procedure - pleading that representation with respect to future matter misleading under s.51A of Trade Practices Act 1974 - whether an order for further particulars should be made.

HEARING

SYDNEY

#DATE 14:7:1992

Counsel and Solicitors Mr A. Sullivan QC with for Applicant: Mr F. Kunc instructed by

Australian Government Solicitor

Counsel and Solicitors Mr M. Cashion instructed by De for Respondent: Rubeis and Associates

ORDER

Notice of Motion dismissed, with costs.

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

JUDGE1

The notice of motion before me is dated 7 July 1992. It in fact seeks orders that the amended statement of claim be struck out and also that the proceedings be dismissed pursuant to O.20 r.2(1)(a) of the Federal Court Rules. In opening the case on behalf of his client, Mr Cashion informed us that he wished to press for more limited relief than was originally sought in the notice of motion. Mr Cashion indicated that his submissions were confined to what he described as the Trade Practices Act allegations and in particular paragraphs 21 and 23 of the amended statement of claim filed on 20 May 1992. In paragraph 21 of the amended statement of claim it is alleged that the respondent made a certain representation that a student would receive a refund in certain circumstances.

1. In paragraph 23 it is pleaded that the representation in paragraph 21 was a misleading representation with respect to a future matter by virtue of s.51A of the Trade Practices Act 1974 ("the Act"). The essential argument put on behalf of the respondent is that the Commonwealth should identify the facts relied upon to justify the conclusion that the respondent had no reasonable grounds for believing the representation. It seems to me that although the court should ensure that each party has an adequate understanding of the respective cases of the parties well before the trial, there would be no useful purpose achieved by my now seeking to order further particulars of paragraph 23.

2. Senior counsel appearing for the Commonwealth has indicated and there is a full transcript of these proceedings, that although the Commonwealth submits that the evidentiary and indeed legal onus under s.51A will lie upon the respondent, it will nonetheless be the case of the Commonwealth at the trial that the representation made as alleged in paragraph 21, was misleading in the sense that it was made without reasonable grounds in accordance with the provisions of s.51A(1) of the Act.

3. Being a negative of this kind it is clear to me that no useful purpose would be served by my directing that any further particulars be given. For those reasons I do not propose to order that those particulars be provided as that would be a course without utility. Since the applications to strike out the statement of claim and for the dismissal of the proceedings are not pursued, I will not deal with them. In the result I propose to dismiss the notice of motion.