FEDERAL COURT OF AUSTRALIA
Mobileworld Operating Pty Ltd v Telstra Corporation Limited [2006] FCA 743
PRACTICE AND PROCEDURE – Pleading – Application to strike out paragraphs of statement of claim – Whether no tenable claim – Application for a split trial – Whether in the interests of justice and the efficient management of the proceeding – Application to amend statement of claim – Whether particulars of loss and damage sufficient
TRADE PRACTICES – Causation – Whether allegations disclose cause of action
Trade Practices Act 1974 (Cth), ss 52, 82, 87
Federal Court of Australia Act 1976 (Cth), s 31A
Migration Litigation Reform Act 2005 (Cth), Item 44 of Pt 2 Sch 1Federal Court Rules, O 13 r 2, O 20 r 2
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 referred to
Wardley Australia Ltd v Western Australia (1992) 175 CR 514 referred to
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 referred to
HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 referred to
Henville v Walker (2001) 206 CLR 459 at 501 referred to
I & L Securities Pty Ltd v HTW Valuers(Brisbane) Pty Ltd (2002) 210 CLR 109 referred to
Murphy v OvertonInvestments Pty Ltd (2004) 216 CLR 388 discussed
Walton Stores (Interstate) Limited v Maher (1988) 164 CLR 387 considered
Commonwealth v Verwayen (1990) 170 CLR 394 referred to
Giumelli v Giumelli (1998) 196 CLR 101 referred to
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 applied
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 applied
Webster v Lampard (1993) 177 CLR 598 referred to
Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 292 referred to
Murphy v Overton Investments Pty Ltd (2001) 112 FCR 183 referred to
Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 referred to
Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 referred to
Tepko Pty Ltd v Water Board (2001) 206 CLR 1 referred to
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 referred toQueensland v JL Holdings Pty Ltd (1997) 189 CLR 146 applied
Goldsmith v Sandilands (2002) 76 ALJR 1024 referred toMOBILEWORLD OPERATING PTY LTD (ACN 090 451 433) v TELSTRA CORPORATION LIMITED (ACN 051 775 556), DAVID KENNETH HUNTER MOFFATT and EDWARD NOEL PRETTY
VID 620 of 2004
KENNY J
15 JUNE 2006
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 620 OF 2004
BETWEEN:
MOBILEWORLD OPERATING PTY LTD (ACN 090 451 433)
APPLICANTAND:
TELSTRA CORPORATION LIMITED (ACN 051 775 556)
FIRST RESPONDENTDAVID KENNETH HUNTER MOFFATT
SECOND RESPONDENTEDWARD NOEL PRETTY
THIRD RESPONDENTJUDGE:
KENNY J
DATE OF ORDER:
15 JUNE 2006
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Leave be granted to the applicant to file and serve, on or before 31 July 2006, a Second Further Amended Statement of Claim in…
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- Case
- [2006] FCA 743
- Decision Date
CaseChat Overview and Summary
The court considered whether the pleadings sufficiently disclosed a cause of action, applying the standard under Order 20 rule 2 of the Federal Court Rules. The court noted that prior to the enactment of section 31A of the Federal Court of Australia Act 1976, the standard required the court to be very cautious in striking out a proceeding, only doing so in a clear case where no tenable claim was disclosed. The court examined the authorities cited by Mobileworld and considered the nature of the claims made in the previous judgment by Crennan J in Mobileworld Operating Pty Ltd v Telstra Corporation Ltd. The court ultimately concluded that the pleadings needed to be amended to provide further and better particulars, particularly regarding the detriment claimed.
The Federal Court granted leave to Mobileworld to file a Second Further Amended Statement of Claim, providing further particulars of the detriment claimed. The court also made several other orders, including allowing certain parties to inspect specific documents, setting deadlines for the filing of affidavits and further particulars, and scheduling a case management conference. Additionally, the court dismissed the motions brought by both parties and ordered the payment of costs associated with those motions. This decision focused on ensuring that the pleadings were sufficiently detailed to withstand a strike-out application and to adequately prepare for the trial of the matter.
Orders
Orders of the court
1. Leave be granted to the applicant to file and serve, on or before 31 July 2006, a Second Further Amended Statement of Claim in accordance with the exhibit NJA 20 to the affidavit of Mr Anderson sworn 8 June 2006 and in accordance with these reasons, including further and better particulars of paragraph 41.
2. Mustafa (John) Ilhan and Barry John Hamilton be permitted to inspect the documents, the subject of the first respondent’s Sixth List of Documents dated 7 April 2006 subject to them each executing an undertaking to keep the information obtained by them confidential and to use the information obtained by them solely for the purpose of this proceeding and for no other purpose. Such undertakings are to be signed by them and filed with the Court.
3. The applicant file and serve by 4 pm on 31 July 2006 any further affidavits upon which it intends to rely at trial in relation to the issue of quantification of its loss, including but not limited to quantification of the loss alleged under paragraph 41 of the second further amended statement of claim.
4. To the extent the applicant considers that it has not had access to sufficient primary documents and/or other evidence to enable it to comply with order 3 hereof, the applicant file and serve by 4 pm on 31 July 2006 any affidavit identifying the specific evidence it is unable to file and serve in accordance with order 3, the steps it has taken to comply with order 3, and the further steps necessary for it to be able to comply with order 3.
5. The applicant file and serve any affidavit in answer to the affidavits of the respondents, upon which it intends to rely at trial, on or before 4 pm on 31 August 2006.
6. The respondents file and serve any affidavits in answer to any affidavit of the applicant served pursuant to order 3 hereof, upon which they intend to rely at trial, on or before 4 pm on 31 August 2006.
7. The parties attend a case management conference on 7 September 2006 for the making of such orders as may be required pursuant to O 10 r 1(2)(i) of the Federal Court Rules or otherwise.
8. Each party file and serve by 31 August 2006 any proposal (together with such written submissions in support thereof as it considers appropriate) which that party seeks to make for the conduct of the trial of the proceeding other than in the ordinary course.
9. The applicant’s motion, notice of which is dated 8 May 2006, be dismissed.
10. The respondents’ motion, notice of which is dated 5 June 2006, be dismissed.
11. The applicant pay the respondents’ costs of the applicant’s motion, notice of which is dated 8 May 2006.
12. The respondents pay the applicant’s costs of the respondents’ motion, notice of which is dated 5 June 2006.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: KENNY J
MWO contended that the causal connection between the no cap representation and warranty and the detriment was constituted by its entry into the 2003 agreement and doing the other acts as alleged in reliance on the representation and warranty. The detriment was the non-fulfilment of the no cap representation and warranty. MWO relied on Walton Stores (Interstate) Limited v Maher (1988) 164 CLR 387 at 428-9, Commonwealth v Verwayen (1990) 170 CLR 394 at 442-6 and Giumelli v Giumelli (1998) 196 CLR 101 at 112-4, as well as the reasons for judgment of Gyles J in the Full Court of this Court in Murphy (which MWO said met with the High Court’s approval) in support of the proposition that there was no deficiency in its pleading to support its estoppel claim. MWO also referred to its proposed amendment to paragraph 34D, which, so it said, “makes plain that [it] relies upon the particulars subjoined to paragraph 24 as to the acts which it did to its detriment and relies upon the particulars subjoined to paragraph 29 as to the loss and damage occasioned by Telstra’s failure to fulfil the assumption or expectation induced in [it] by making the [no cap representation] and Warranty”. MWO submitted that this claim was plainly arguable.Consideration of the strike out application Order 20 rule 2 of the Rules provides as follows:“(1)Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding – (a)no reasonable cause of action is disclosed; (b)...(c)… the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.(2)The Court may receive evidence on the hearing of an application for an order under subrule (1).” Prior to the enactment of s 31A of the Federal Court of Australia Act 1976 (Cth), which came into force on 1 December 2005, the standard to be satisfied before any order would be made under this provision was settled law. The Court would exercise its powers under this rule with great care and only make an order against an applicant in a very clear case that disclosed no tenable claim: see, e.g., Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 (“Fancourt”) at 99; and Webster v Lampard (1993) 177 CLR 598. Whether or not the Court is satisfied that that there is no real question to be tried (see Fancourt at 99) will depend entirely on the circumstances of the case. As MWO ultimately conceded, the new s 31A does not apply to this proceeding, because this proceeding was instituted before the commencement of the operation of the provision: see Item 44 of Part 2 of Schedule 1 of the Migration Litigation Reform Act 2005 (Cth). Accordingly, the Court should apply the authorities to which I have just referred. Although the pleadings have been amended from time to time, the nature of the claims made are, for present purposes, sufficiently described in the reasons for judgment of Crennan J in Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 292 (“Mobileworld (1)”) at [3] to [4]. Further, as reference to her Honour’s decision shows, this is not the first time that this aspect of MWO’s pleading has been challenged: see Mobileworld (1) at [25]-[30].