Painter v Commonwealth of Australia (No.2)

[2011] FMCA 798

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PAINTER v COMMONWEALTH OF AUSTRALIA (No.2) [2011] FMCA 798

PRACTICE & PROCEDURE – Variation of leave granted to file statement of claim.

Omilaju v Waltham Forest London Borough Council [2005] 1 All ER 75

Applicant: LYNDELL BARBARA PAINTER

Respondent: COMMONWEALTH OF AUSTRALIA

File Number: SYG 2052 of 2010

Judgment of: Cameron FM

Hearing date: 4 October 2011

Date of Last Submission: 4 October 2011

Delivered at: Sydney

Delivered on: 4 October 2011

REPRESENTATION

Solicitors for the Applicant: Harmers Workplace Lawyers

Counsel for the Respondent: Ms K. Eastman

Solicitors for the Respondent: Maddocks

ORDERS

1. The leave granted to the applicant to file a statement of claim be amended as follows. The statement of claim which the applicant may file:

   (a)must not plead evidence;

   (b)must identify the parties to the contract;

   (c)must identify the circumstances of the contract’s creation and any subsequent variation; and

   (d)must identify which conduct is said to breach which term of the contract.

2. The costs of today be reserved.

3. The parties have liberty to apply on 2 days’ notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2052 of 2010

LYNDELL BARBARA PAINTER

Applicant

And

COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

1. Following my ruling earlier this afternoon in relation to the proposed filing of a statement of claim by the applicant, it has become apparent to me that some aspects of the submissions made by the respondent were not addressed by me in the reasons which I gave at that time or in the ruling that I made. As an interlocutory ruling, it is open to me under the rules of the court to amend the order which I made. 

2. I remain of the view that the applicant should be allowed to raise her breach of contract claim on the basis that it appears in the document annexed to the affidavit of Claresta Jun Lei Seto, in particular the argument of straws breaking the camel’s back which is discussed in Omilaju v Waltham Forest London Borough Council [2005] 1 All ER 75. However the form in which the pleading currently appears in relation to the contract aspect of the claim is, on reflection, problematic. In order that the matter proceed efficiently, it is appropriate that the contract aspect of the claim be re-pleaded in a more conventional way.

3. So, although the applicant will have leave to file and serve a statement of claim alleging breach of contract and raising the causes of action which appear in the document attached to the affidavit of Claresta Jun Lei Seto, the leave will be subject to the following qualifications: the statement of claim not plead evidence, it identify the parties to the contract, it identify the circumstances of the contract’s creation and any subsequent variation and it identify which conduct is said to breach which term of the contract.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date:  19 October 2011