National Mutual Holdings Pty Ltd v The Sentry Corporation

[1989] FCA 840

JUDGMENT No. .%.y0..14--%?-

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	V. NO. G.173 of 1987
)
GENERAL	DIVISION	1
BETWEEN:

NATIONAL MUTUAL HOLDINGS PTY. LTD. & ORS.

Applicants

and

THE SENTRY CORPORATION AND ANOR.

COURT	:	NORTHROP J.
DATE :	2 1 NOVEMBER 1989
- -  . .- . - - - - - H -5FEB1990 H
PLACE	:	MELBOURNE

EX-TEMPORE REASONS FOR JUDGMENT

The matter presently before the Court arlses
pursuant to a motion brought by the respondent Sencry

Corporat~on, notice of whlch is dated 18 October 1989. The

3 .

. . .

not~ce states that the respondenrr, Sentry, will move the Court for orders, and I quote:

"1. Pursuant to Order 10, Rule 7(l) (a) of the Rules of

the Federal Court the proceedrng be dismissed.

2.    Alternatively, pursuant to Order 12, Rule 5 of the said Rules the proceed~ng be dismissed unless the Applicants do wlthin 7 days comply wlth paragraphs 6 and 7 of the Order made herein on 28 August 1989.

4.    Such further or other orders as the Court deems fit."

When the motlon came on for hearing, counsel for Sentry also sought an order under 0.20, r.2 of the Federal Court rules that the proceeding or part of the proceeding be struck out as showlng no reasonable cause of action or as constltutlng an abuse of the process of the Court. Durlng the course of submissions it was stated by counsel that what was being sought was an order that paragraphs 12 to 16 of the amended statement of clalm be struck out pursuant to 0.20, r.2. Although the notice of motlon does not make express reference to thls Order it was stated from the bar table that counsel for Sentry had notlfied counsel for the applicants chat such an order would be sought and although there may be some confusion about that, there was no submlsslons made on behalf of the applicants that the hearlng of the motion for thls order should be adjourned and in fact some submissions were made.

I do not propose to deal wlth the submissions put

in any detail. The submissions depend upon the amendments

paragraphs 12, 12(a), 12(b), 12(c), 12(d) and 13 whlch relate	made in the amended statement of claim and in particular
to different periods durlng which negot~ations took place between interests on behalf of the applicants and interests on behalf of the respondents and divlded lnto three separate perlods of negotiatlons described as the early negotiatlons, the intermediate negotiations and the final negotiations. It

1s noted that the statement of clalm, in those paragraphs, alleges that the same persons were the persons negotiating on behalf of the Sentry Interests although in particulars which have been given correspondence has been exhlblted showlng that letters were in fact written by other persons. Reference should be made also that in the pleading it is alleged that Sentry adopted the conduct engaged in by other companies prior to Sentry becomlng the party dlrectly concerned.

The claim based upon s.52 of the Trade Practices

Act, on one vlew is a dlscrete course of actlon separate and

distinct from the causes of actlon based upon other matters,

breach of warranty and on negligence. To a large extent the ev~dence which is relevant to those causes of actlon, particularly, the breach of warranty, could well be relevant to issues arising under sectlon 52. It was asserted further that the pleading based upon breach of warranty is based upon terms or warranties whlch are identical with the conduct which is alleged to be misleading and deceptive.

During the course of submissions reference was made to authorltles both ln England and in Australia seeklng to support the submissions made on behalf of the respondent Sentry. I do not propose to express any views on those matters but I propose to refuse the orders sought on a broader ground.

This action has been proceeding for some time. It

is a very complex action glvlng rise to hotly disputed questions of fact as well as law. Before a cause of actlon is struck out or part of the statement of clalm is struck out as disclosing no cause of action it 1s clear that the Court must be satisfied that the clalm is untenable and has no hope of succeeding. In the present case, even if an order was made as sought the action would proceed and much of the evidence whlch will be led on the remaining causes of action would be of a kind slmilar to that relating to the 5.52 of the Trade Practzces Act cause of action. Having regard to the hlstory of the matter and the wlde ranging area of dispute, even though it is said to be based almost entirely upon documentation, in my opinion this is not a case where the Court can be satisfied to the requlred extent to deprive the applicant from pursulng his claim based upon s.52 of the Trade Practices Act.

Accordingly, for those reasons, the Court refuses the order to strike out paragraphs 12 to 16 of the statement of claim.