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Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd

Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd

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Case Copied 4 September 1996 26 min read

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CATCHWORDS

PRACTICE AND PROCEDURE - PLEADING - Statement of claim - pleading of material allegations - functions of a pleading - applications to strike out - whether case stated sufficiently to enable respondents to meet it - pleading of case under ss.4D, 45, 45A and 46 of the Trade Practices Act - pleading of causal relationship between contravention and damage - pleading stating conclusions only without material facts supporting the conclusions - indefiniteness and obliquity of allegations.

TRADE PRACTICES - pleading of contraventions of ss.45 and 46 - effect of s.83 where a respondent was not a party to the earlier proceeding - whether the limitation provision in the Act is subject to the Limitation of Actions Act 1936 of South Australia or the doctrine of fraudulent concealment.

Federal Court Rules, Order 4, r.6; Order 11, rr. 2, 10
Trade Practices Act 1974, ss.4D, 45, 45A, 46, 82, 83
Limitation of Actions Act 1936 (S.A.), s.48

The Bega Co-operative Society Limited v. The Milk Authority of the Australian Capital Territory, unreported, Neaves J., 12/5/92
Natwest Australia Bank Limited v. Boral Gerrard Strapping Systems Pty Ltd (1992) ATPR 40,639
H 1976 Nominees Pty Ltd v. Galli (1979) 30 ALR 181
Harris v. Cigna Insurance Australia Limited, unreported, Kiefel J., 10/11/95
Elna Australia Pty Ltd v. International Computers (Aust) Pty Ltd (No 2) (1987) 14 FCR 193
Bond Corporation Pty Ltd v. Thiess Contractors Pty Ltd (1987) 14 FCR 193
Trade Practices Commission v. TNT Australia Pty Limited (1995) 17 ATPR 40,161
News Limited v. Australian Rugby Football League Limited (1996) 58 FCR 447
Fenech v. Sterling (1983) 51 ALR 205

Keen Mar Corporation Pty Ltd v. Labrador Park Shopping Centre Pty Ltd (1988) 10 ATPR 49,185
State of New South Wales v.McCloy Hutcherson Pty Ltd (1993) 116 ALR 363
Timeny v. British Airways PLC (1991) 102 ALR 565
Vink v. Schering Pty Ltd (No 1) (1990) 13 ATPR 52,005
Vink v. Schering Pty Limited (No 2) (1990) 13 ATPR 52,113
Karedis Enterprises Pty Ltd v. Antoniou (1995) 59 FCR 35
General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125
Williams and Humbert Ltd v. W. & H. Trade Marks (Jersey) Ltd [1986] AC 368
Commonwealth of Australia v. Dixon (1988) 13 NSWLR 601
Coe v. The Commonwealth of Australia (1979) 53 ALJR 403
Ultramares Corporation v. Touche (1931) 174 NE 441

MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED -V- TNT AUSTRALIA PTY LIMITED & ORS

NG 786 of 1995

Burchett J.
Sydney
4 September 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 786 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED

Applicant

AND:TNT AUSTRALIA PTY LIMITED

First Respondent

AND: ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LIMITED

Second Respondent

AND: MAYNE NICKLESS LIMITED

Third Respondent

AND: J. McPHEE & SON (AUSTRALIA) PTY LIMITED

Fourth Respondent

CORAM:    Burchett J.
PLACE:    Sydney
DATE:     4 September 1996

MINUTE OF ORDERS OF THE COURT

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.

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Details

Case: [1996] FCA 781
Decision Date: 4 SEPTEMBER 1996

CaseChat Overview and Summary

Multigroup Distribution Services Pty Ltd, the applicant, commenced proceedings against TNT Australia Pty Ltd and three other respondents alleging breaches of ss.45, 45A and 46 of the Trade Practices Act 1974. The respondents moved to strike out the applicant's Statement of Claim, or alternatively, to dismiss it. Burchett J considered whether the Statement of Claim set out sufficient material facts to enable the respondents to meet the case. The applicant also sought to rely on s.83 of the Trade Practices Act to rely on findings of fact made in an earlier proceeding. The court was also asked to decide whether the limitation provision in the Act was subject to the Limitation of Actions Act 1936 of South Australia or the doctrine of fraudulent concealment. Burchett J held that the Statement of Claim was defective in that it did not set out sufficient material facts to enable the respondents to meet the applicant's case. The applicant had failed to allege facts sufficient to establish the required causal link between any alleged contravention of the Act and any damage to the applicant. The applicant had also failed to plead sufficient facts to establish that the fourth respondent had market power. The court held that s.83 of the Act did not apply to findings of fact made in an earlier proceeding to which a party was not a party. The applicant's reliance on s.48 of the Limitation of Actions Act 1936 (S.A.) was also dismissed, as the section was incorrectly cited. The applicant was ordered to pay the respondents' costs of and incidental to their motions to strike out the Statement of Claim and their costs thrown away by virtue of the defective pleading of the applicant's claims. Unless a motion for leave to file an amended statement of claim, together with a proposed pleading, be filed within 21 days, upon which leave is granted with or without further amendment, the proceeding stand dismissed with costs.

Orders