Reiffel v ACN 075 839 226 Ltd - [2001] FCA 509

FEDERAL COURT OF AUSTRALIA
Reiffel v ACN 075 839 226 Ltd
[2001] FCA 509
Trade Practices Act 1974 (Cth) s 75B
Yorke v Lucas (1985) 158 CLR 661
Rinbridge Marketing Pty Ltd v Walsh [2000] FCA 1738
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 599
MARLENE JOYCE REIFFEL (for herself and representing the persons referred to in the Statement of Claim) v ACN 075 839 226 LIMITED, PANNELL KERR FORSTER CONSULTING AUSTRALIA PTY LIMITED ACN 059 506 115, ANDREW CHARLES VERON and KENNETH JAMES GRESHAM
N 966 OF 2000
GYLES J
SYDNEY
3 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 966 OF 2000

BETWEEN:

MARLENE JOYCE REIFFEL (for herself and representing the persons referred to in the Statement of Claim)
APPLICANT

AND:

ACN 075 839 226 LIMITED
FIRST RESPONDENT

PANNELL KERR FORSTER CONSULTING AUSTRALIA PTY LIMITED ACN 059 506 115
SECOND RESPONDENT

ANDREW CHARLES VERON
THIRD RESPONDENT

KENNETH JAMES GRESHAM
FOURTH RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

3 MAY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The words in par 28 of the Second further Amended Statement of Claim “each of” before “Veron” and “and Gresham” after “Veron” be struck out.
2.Leave is granted to the applicant to amend par 28 of the Second Further Amended Statement of Claim within fourteen days of the date of this judgment on terms that such amendment is limited to supplementing the existing allegation in par 28.
3.The applicant pay the costs of the fourth respondent of and incidental to the hearing on 18 April 2001 of the Notice of Motion filed on 8 December 2000.
4.All other costs of the Notice of Motion to be costs in the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 966 OF 2000

BETWEEN:

MARLENE JOYCE REIFFEL (for herself and representing the persons referred to in the Statement of Claim)
APPLICANT

AND:

ACN 075 839 226 LIMITED
FIRST RESPONDENT

PANNELL KERR FORSTER CONSULTING AUSTRALIA PTY LIMITED ACN 059 506 115
SECOND RESPONDENT

ANDREW CHARLES VERON
THIRD RESPONDENT

KENNETH JAMES GRESHAM
FOURTH RESPONDENT

JUDGE:

GYLES J

DATE:

3 MAY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is a motion by Kenneth James Gresham (“the fourth respondent”) to a claim brought by Marlene Joyce Reiffel (“the applicant”), on behalf of herself and others, for, amongst other things, an order pursuant to O 11 r 16 or, alternatively, O 20 r 2 that par 34 of the Amended Statement of Claim be struck out or, alternatively, an order pursuant to O 12 r 5 that the applicant give further and better particulars of the conduct alleged in par 34. As a result of amendments which have been made, par 34 is now par 28 of the Second Further Amended Statement of Claim.
The applicant pleads a case against ACN 075 839 226 Limited, the first respondent…

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: [2001] FCA 509
Decision Date: 3 MAY 2001

CaseChat Overview and Summary

In the case of Reiffel v ACN 075 839 226 Ltd, the matter before the court involved a dispute regarding certain words within a paragraph of the Second Further Amended Statement of Claim. The plaintiff sought to amend a specific paragraph of the statement of claim, while the defendants opposed this amendment and raised concerns about the costs associated with the proceedings. The case was heard in a relevant Australian court.

The central legal issue before the court was whether the plaintiff should be allowed to amend a particular paragraph in the Second Further Amended Statement of Claim, and if so, under what conditions. Additionally, the court had to determine the allocation of costs between the parties involved in the proceedings.

In delivering the judgment, the court found that the plaintiff should be granted leave to amend the specified paragraph of the Second Further Amended Statement of Claim, but with the condition that the amendment is limited to supplementing the existing allegation. The court also ruled that the fourth respondent was to be compensated for the costs of the hearing on 18 April 2001, while all other costs were to be considered as costs in the proceeding. This decision was based on the balance of justice and the overall fairness of the case, taking into account the parties' arguments and the relevant legal principles.

As a result of the court's decision, the plaintiff was required to make specific amendments to the Second Further Amended Statement of Claim, while also bearing the costs of the fourth respondent's hearing. All other costs associated with the hearing were to be treated as costs in the proceeding.

Orders

Orders of the court

1. The words in par 28 of the Second further Amended Statement of Claim “each of” before “Veron” and “and Gresham” after “Veron” be struck out.

2. Leave is granted to the applicant to amend par 28 of the Second Further Amended Statement of Claim within fourteen days of the date of this judgment on terms that such amendment is limited to supplementing the existing allegation in par 28.

3. The applicant pay the costs of the fourth respondent of and incidental to the hearing on 18 April 2001 of the Notice of Motion filed on 8 December 2000.

4. All other costs of the Notice of Motion to be costs in the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GYLES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GYLES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 966 OF 2000

BETWEEN:	MARLENE JOYCE REIFFEL (for herself and representing the persons referred to in the Statement of Claim) APPLICANT
AND:	ACN 075 839 226 LIMITED FIRST RESPONDENT PANNELL KERR FORSTER CONSULTING AUSTRALIA PTY LIMITED ACN 059 506 115 SECOND RESPONDENT ANDREW CHARLES VERON THIRD RESPONDENT KENNETH JAMES GRESHAM FOURTH RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	3 MAY 2001
WHERE MADE:	SYDNEY

JUDGE:	GYLES J
DATE:	3 MAY 2001
PLACE:	SYDNEY