Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192

File number: NSD 756 of 2015
Judge: MARKOVIC J
Date of judgment: 4 March 2016
Catchwords: PRACTICE AND PROCEDURE – application to strike out pleadings – application for summary dismissal – whether pleading disclosed reasonable cause of action – whether no reasonable prospect of success – pleading dependent upon drawing of inferences – whether sufficient identification of material facts from which inferences to be drawn  
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 31A(2), 31A(3)

Federal Court Rules 2011 rr 16.21(1)(b), 16.21(1)(c), 16.21(1)(d), 16.21(1)(e), 26.01(1)

Cases cited:

Adunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499

Australian Competition and Consumer Commission v Pauls Ltd (2000) ATPR 41-747

Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd (2011) 197 FCR 498

Compaq Computer Australia Pty Ltd v Merry & Ors (1998) 157 ALR 1

Fernandez v Glev Pty Ltd [2000] FCA 1859

J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581

Kanakaridis v Westpac Banking Corporation [2015] FCA 1146

Mulhern v Bank of Queensland [2015] FCA 44

Ridgway v Consolidated Energy Corporation Pty Ltd (1987) ATPR 40-754

Tameeka Group Pty Ltd v Landan Pty Ltd [2015] FCA 1218

Date of hearing: 9 December 2015
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Category: Catchwords
Number of paragraphs: 131
Counsel for the Applicant: Mr S C G Burley SC with him Mr B Le Plastrier
Solicitor for the Applicant: Birchall Legal
Counsel for the Respondents: Mr J O’Sullivan
Solicitor for the Respondents: & Legal

ORDERS

NSD 756 of 2015
BETWEEN:

QUALIFY ME PTY LTD ACN 165 025 874

Applicant

AND:

GET QUALIFIED AUSTRALIA PTY LTD ACN 144 813 543

First Respondent

ADAM WADI

Second Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

4 March 2016

THE COURT ORDERS THAT:

1.Paragraphs 3A to 17 of the further amended statement of claim be struck out.

2.The applicant have leave to replead paragraphs 3A to 17 of the further amended statement of claim and to file a second further amended statement of claim by 25 March 2016.

3.The parties are to file and serve submissions, not exceeding 5 pages in length, in relation to the issue of costs of the interlocutory application by 18 March 2016.  Unless notified to the contrary by 18 March 2016 the question of costs on the interlocutory application will be determined on the papers.

4.Otherwise dismiss the interlocutory application.

5.The matter be relisted for directions before Markovic J on 31 March 2016.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MARKOVIC J:

INTRODUCTION

  1. Qualify Me Pty Ltd (Qualify Me) and Get Qualified Australia Pty Ltd (GQA) are in substantially the same business: they both provide skills recognition and accreditation services.  As will…

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Details
Case
[2016] FCA 192
Decision Date

CaseChat Overview and Summary

The case of Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd involved an application by Get Qualified Australia Pty Ltd (GQA) and Mr Wadi to strike out certain paragraphs of a further amended statement of claim (FASOC) filed by Qualify Me Pty Ltd. The dispute primarily centred around allegations of misleading or deceptive conduct by GQA, including actions taken through blogs and Facebook. The Federal Court of Australia was tasked with deciding whether the pleadings disclosed a reasonable cause of action and if there was a reasonable prospect of success.

The court examined the principles governing the exercise of the power under section 31A of the Federal Court of Australia Act, focusing on whether the pleadings sufficiently identified material facts from which reasonable inferences could be drawn. The court needed to assess the strength of the allegations by reference to the pleadings, affidavits, and any other evidence. It had to determine whether there were real, as opposed to fanciful, issues of fact or law that required proper determination at a trial. In assessing whether there were reasonable prospects of success, the court drew all reasonable inferences in favour of the non-moving party.

The court found that while some of the evidence relied upon by Qualify Me departed from the pleadings or ought to have been particularised earlier, this did not constitute a proper basis to strike out the proceedings. However, the court held that certain paragraphs of the FASOC did not disclose a reasonable cause of action or have reasonable prospects of success. Consequently, the court ordered the striking out of paragraphs 3A to 17 of the FASOC, granted leave to Qualify Me to file a second further amended statement of claim repleading the causes of action in those paragraphs, and directed that the second further amended statement of claim be filed and served within three weeks of the date of the judgment. The matter was relisted for directions on 31 March 2016.

Orders

Orders of the court

1. Paragraphs 3A to 17 of the further amended statement of claim be struck out.

2. The applicant have leave to replead paragraphs 3A to 17 of the further amended statement of claim and to file a second further amended statement of claim by 25 March 2016.

3. The parties are to file and serve submissions, not exceeding 5 pages in length, in relation to the issue of costs of the interlocutory application by 18 March 2016. Unless notified to the contrary by 18 March 2016 the question of costs on the interlocutory application will be determined on the papers.

4. Otherwise dismiss the interlocutory application.

5. The matter be relisted for directions before Markovic J on 31 March 2016.

Background

Background to the litigation

In J&A Vaughan Pagone J at [7] quoted from the judgment of Sundberg J in Adunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [37] where the principles relating to the exercise of the power under s 31A of the FCA Act were summarised including that:….• In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28] (Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.• In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford 167 FCR at [73] (Rares J) and [130] (Gordon J).• The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: see Jefferson Ford 167 FCR at [127] (Gordon J).• As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J).RELEVANT FACTS There is a contest between the parties about many of the facts. I set out below the facts insofar as they are relevant to the Interlocutory Application. The parties and relevant associates GQA was registered on 24 June 2010. Mr Wadi is its sole director, secretary and shareholder. Qualify Me operated its business from about January 2013 but was registered on 29 July 2013. Its directors, secretaries and shareholders in equal shares are Mr Andrawis and Mr Choucair. Its registered office and principal place of business is in Croydon.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At the conclusion of the interlocutory hearing, the parties agreed that the question of costs on this application should be deferred to allow the parties to consider the outcome and to make any submissions on costs they consider appropriate. I will order that any submissions on this issue of costs of this application are to be filed and served within two weeks of the date of this judgment. Unless the parties notify me to the contrary I propose to determine the issue of costs on this application on the papers once submissions have been filed and served.CONCLUSION In light of the matters set out above, I will make orders striking out paragraphs 3A to 17 of the FASOC and I will grant leave to Qualify Me to file a second further amended statement of claim repleading the causes of action contained in those paragraphs which are struck out. The second further amended statement of claim is to be filed and served within three weeks of the date of this judgment. The proceedings will be listed before me for directions on 31 March 2016.

Ratio Decidendi

Legal Principle Established

On 29 September 2015 Qualify Me filed the FASOC.CONSIDERATION Before dealing with each of the particular claims in the FASOC, counsel for GQA and Mr Wadi made two overarching submissions. The first was that by its response to the Interlocutory Application it appears that Qualify Me wishes to bring a case that is different from the one pleaded and that it now relies on a large amount of material that either departs from the pleadings or ought to have been properly particularised in the period that has elapsed since commencement of the proceedings. It is apparent that if Qualify Me wishes to press some of those claims it will need to seek leave to further amend its statement of claim and that it ought not be permitted to do so. It is the case that Qualify Me relies on evidence that departs from its pleaded case and which it says would support additional causes of action. Should Qualify Me wish to amend its pleading to include further causes of action that is an application it will need to make at an appropriate time. It is not before me now and it is not appropriate that I make any further comment on such an application. In the meantime that evidence is relied on by Qualify Me as part of the factual matrix it relies on to answer the application made by GQA and Mr Wadi for summary dismissal. GQA and Mr Wadi further submit that despite Qualify Me saying that it needs discovery to properly particularise its claim, it is apparent from the evidence it now relies on that it was in a position to provide particulars at all times and in fact Ms Robson undertook her investigations in September 2014, well before commencement of the proceedings. In those circumstances, there is no explanation as to why the material included in Ms Robson's affidavit could not properly have been included as particulars in the statement of claim first filed. In the absence of a reason being proffered, a further amendment ought not be allowed and the proceedings should be struck out on case management grounds. While it may be the case that some of the evidence contained in Ms Robson's affidavit ought and could have properly been included as particulars in the FASOC or earlier iterations of it, the omission of that material to date is not of itself a proper basis to strike out the proceedings. The failure to include it, in the circumstances which Qualify Me has been aware of it for some time, is rather, in my view, an issue that might go to costs. The second overarching submission is that the FASOC either has a tendency to cause prejudice and embarrassment and delay, because it does not disclose the case Qualify Me actually wishes to make or, because it does not have reasonable prospects of success. As to the former point, the Interlocutory Application is to be considered based on the FASOC. As already observed, if Qualify Me wishes to further amend its pleading it will need to make an application to do so which will be assessed on its merits. As to the latter point the question of whether the FASOC has reasonable prospects of success is a complex one which, given the way in which the parties approached the detailed argument on the Interlocutory Application, I will consider for each part of the FASOC.Alleged misleading or deceptive conduct: Blogs and Facebook