Putrim Pty Ltd & ors Mayne Nickless & ors - [1992] FCA 1014

JUDGMENT No. .,!.2.!.k.,,./!~,~

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

B E T W E E N :

PUTRIM PTY LIMITED AND OTHERS 1 ,

Applicants b.;
,-
:

A N D :

i

MAYNE NICKLESS AND OTHERS 1

Respondents I.

m: NORTHROP J

PLACE : MELBOURNE
m: 30 NOVEMBER 1992

EX TEMPORE REASONS FOR JUDGMENT

There are two motions before the Court. The fir

is that of the respondents dated 14 October 1992 seeking an

order that the amended application and statement of claim

filed on behalf of the applicants be struck out pursuant to 011 r16 of the Federal Court Rules on the grounds that they have a tendency to cause prejudice, embarrassment or delay in

i:~ L
the proceedings, alternatively, that the statement of claim ! I
disclosed no reasonable cause of action against the second, 1 ,

respondent apparently filed and served a defence to the

third, fourth, fifth and sixth-named respondents. In the way

the matter proceeded, counsel appearing for the respondents
conceded that possibly there were causes of action available
to the applicants and, in fact, what was being sought was that
the existing amended statement of claim be struck out and that 8 ,
if it was struck out, there would be no objection to leave !

being granted to plead again. It is noted that the first

L

statement of claim. The other respondents have not done so.

By the other motion, notice of which is dated 23 October

1992, the applicants are seeking a number of orders, including an order that another company, Keyline Pty Ltd, be added as an

applicant. They also seek an order that the applicants have

leave to amend the statement of claim and application. The
application and statement of claim in the form as sought to be
amended were handed to the Court. For the sake of clarity,
the Court has been looking at the proposed amended application
and proposed amended statement of claim which, for the
purposes of the hearing of these motions, have been referred
to as the further amended application and the further amended

statement of claim.

During the course of the submissions, the Court, of its

own motion, drew attention to the provisions of the
Jurisdiction of Courts (Cross-Vestina) Act 1987 (Cth), and in

particular to sub-secs5(4) and (7), which empowers the Court

to transfer a proceeding under this section on the application

of a party to the proceeding, of its own motion or on the
application of the Attorney-General of the Commonwealth or of
a State or Territory. As the Court indicated during the
course of submissions, on the facts of this case, this may
well be a case where the Court, of its own motion, should
transfer the application, being the proceedings herein, to the
Supreme Court of Victoria. I propose to deal with that matter
first .

In considering this issue it is necessary to make a very

brief reference to the further amended application…

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: [1992] FCA 1014
Decision Date: 30 Nov 1992

CaseChat Overview and Summary

The case involves Putrim Pty Ltd and others as applicants against Mayne Nickless and others as respondents. The applicants sought various orders including the addition of another company, Keyline Pty Ltd, as an applicant, and amendments to the statement of claim. The respondents moved to have the amended application and statement of claim struck out, arguing they were prejudicial and disclosed no reasonable cause of action. The Court considered the matter on its own motion and decided to transfer the proceeding to the Supreme Court of Victoria, finding that the proceeding was more appropriately determined by a State court due to its reliance on State law.

The legal issues before the Court included whether the amended application and statement of claim should be struck out and whether leave should be granted for Keyline Pty Ltd to be added as an applicant. The Court also considered whether the proceeding should be transferred to the Supreme Court of Victoria. In determining these issues, the Court examined the nature of the claims and the interests of justice, finding that the proceeding was predominantly a matter of State law and should be heard by the Supreme Court of Victoria.

The Court concluded that the amended statement of claim was confusing and did not comply with the requirements of a proper pleading. It held that the pleading had a tendency to cause prejudice and embarrassment and granted leave to re-plead in accordance with the Supreme Court Rules. The Court further ordered that Keyline Pty Ltd be added as an applicant and that the proceeding be transferred to the Supreme Court of Victoria. The applicants were directed to pay the respondents' costs of the motion and the costs thrown away by the striking out of the amended statement of claim.

The final orders included granting leave for Keyline Pty Ltd to be added as an applicant, striking out the amended statement of claim and granting leave to re-plead, transferring the proceeding to the Supreme Court of Victoria, and directing the applicants to pay the respondents' costs.

Orders