Peirce, J.E. v K G Motors Pty Ltd

[1985] FCA 171

Re: JOHN ELDON PEIRCE and CAROL MAXINE PEIRCE
And: K.G. MOTORS PTY. LIMITED
No. G4 of 1985
Practice and Procedure
(1985) ATPR para 40 - 558

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

Practice and Procedure - Trade Practices - application to strike out statement of claim - whether statement of claim disclosed a cause of action - applicants' failure to prosecute the claim with due diligence - whether Federal Court appropriate forum.

Trade Practices Act, 1974: ss. 52, 53.

HEARING

SYDNEY
#DATE 8:3:1985

ORDER

The statement of claim filed in proceedings G4 of 9185 on 15 January 1985 be struck out.

John Eldon Peirce and Carol Maxine Peirce pay the costs of K.G. Motors Pty. Limited of the notice of motion filed on 7 March 1985.

No further step in this proceeding be taken by John Eldon Peirce or Carol Maxine Peirce until the costs of this matter which the Court has previously ordered them to pay and the costs of the notice of motion filed on 7 March 1985 have been paid.

JUDGE1

This proceeding was commenced by an application filed in this Court on 15 January 1985. A statement of claim was filed on that same day. It is, in essence, a claim by the applicants to recover damages and seek certain other relief including rescission in respect of an agreement said to have been made in 1983 for the purchase of a 1979 model Peugeot sedan for the sum of $7,400.

1. I should say at the outset that the Federal Court is not the appropriate court in which to have brought this proceeding. Notwithstanding that this Court probably has jurisdiction in the matter, it is primarily a claim for damages allegedly suffered following the sale by the respondent to the applicants of a second-hand motor car for a small sum. The parties apparently live or carry on business in or near Armidale, New South Wales. The parties will bear a substantial burden of costs as they and witnesses will have to travel from Armidale to Sydney for the tria1. This Court does not sit outside capital cities except in exceptional circumstances. This does not appear to be such a case.

2. However, having said that, I proceed to deal with the history of the matter. The matter came before the court for directions on 14 February 1985 and the applicants failed to appear. The second directions hearing was on 28 February and, again, the applicants failed to appear. A letter was sent by the solicitors for the respondents dated 6 February 1985 to the solicitors for the applicants seeking further and better particulars of certain paragraphs in the statement of claim. The letter asked that the particulars be furnished by 11 February. I have been informed this morning that the particulars were furnished yesterday, 7 March, but no copy of them has been made available to me, nor are the contents known by counsel for any party.

3. A motion was filed in this Court on behalf of the respondents seeking an order that the statement of claim be struck out and in support of that there is an affidavit of Judith Mary Gerard Housego sworn on 5 March 1985. I have carefully perused the statement of claim and, so far as I can ascertain, it propounds first a cause of action which appears to be based on common law fraud arising out of what are said to be representations by the respondent, a second-hand motor vehicle dealer, that the Peugeot vehicle was in a sound mechanical and roadworthy condition.

4. I do not understand paragraph 6 of the statement of claim. It does not establish any cause of action. Indeed, counsel for the applicants fairly concedes that the paragraph cannot stand and ought to be struck out. There follow what appears to be, as I discern them, causes of action seeking to invoke sections of the Trade Practices Act 1974 which are perhaps s. 52 or parts of s. 53; but I am not sure. Then one turns to the critical paragraph of the statement of claim, namely, paragraph 3. It alleges:-
   
   

"The respondent by its servants and agents

represented to the applicants and each of them that

the said motor vehicle was in a mechanically sound

condition and was roadworthy regard being had to

its then age and apparent mileage."

1. I assume from this that the vehicle was a second-hand vehicle. The particulars then purported to set out the alleged representations; but when they are analysed they do no more than repeat, it seems to me, the allegation made in paragraph 3. Then, after paragraph 6 to which I have already referred, there is an allegation that, in reliance on the representations, the applicants were induced to enter into the agreement.

2. In the circumstances it seems to me that the statement of claim, insofar as the Trade Practices Act is concerned, does not allege a cause of action and I propose to therefore strike out those parts of the statement of claim. Having done so, all that is left, as I perceive it, is some claim for common law fraud. Consequently, I think that in all the circumstances the only proper course to take is to strike out the whole of the statement of claim. Of course, that leaves the proceedings still on foot so that, if the applicants wish to do so, they can file a second statement of claim; but one hopes that they may nevertheless be mindful of the initial remarks which I made as to the appropriate forum for such a case as this.

3. Then I must have regard to the fact that on the two prior directions hearings there was no appearance by the applicants and, although there was some explanation proferred from the Bar Table, I do not think that it answers the contention of the respondents that the applicants have behaved in a cavalier fashion in relation to the conduct of the case thus far by failing to appear at the first two directions hearings and by failing to provide relevant particulars within a reasonable time after they were sought. I have in mind also, of course, the contents of the statement of claim which I propose to strike out. The applicants have been ordered to pay the costs of both 14 February and 28 February.

4. As I propose to accede to the notice of motion to strike out the statement of claim and to order the applicants to pay the costs of that motion, I think in all the circumstances to which I have already referred - including the conduct of the applicants in relation to this application, the fact that the statement of claim is to be struck out, and the orders for costs to which I have referred - that it is a proper case to order that no further step be taken by the applicants in this proceeding until all those costs are paid.

5. Accordingly the orders of the Court are as follows:
   
   

1. That the statement of claim be struck out.

2. That the applicants pay the respondent's costs of the notice of motion filed on 7 March 1985 including the costs of yesterday when the notice of motion first came before the court.

3. That the applicants take no further step in this proceeding until payment is made by them of the costs which this Court has

previously ordered them to pay in this matter including the costs

which I have today directed the applicants to pay.