Rumble v Telstra Corporation Limited
[2012] FCA 1006
•7 September 2012
FEDERAL COURT OF AUSTRALIA
Rumble v Telstra Corporation Limited [2012] FCA 1006
Citation: Rumble v Telstra Corporation Limited [2012] FCA 1006 Parties: LARRY KEITH RUMBLE v TELSTRA CORPORATION LIMITED (ACN 051 775 556), SENSIS PTY LTD (ACN 007 423 912) and PHILIP POAT; TELSTRA CORPORATION LIMITED AND SENSIS PTY LTD (ACN 007 423 912) v PHILIP POAT File number: ACD 80 of 2011 Judge: FOSTER J Date of judgment: 7 September 2012 Date of hearing: 7 September 2012 Place: Canberra Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 22 Counsel for the Applicant: Mr P Walker Solicitor for the Applicant: Mr Ian D Stevens Counsel for the First and Second Respondents/Cross-Claimants: Mr W Sharwood Solicitor for the First and Second Respondents/Cross-Claimants: King & Wood Mallesons Solicitor for the Third Respondent/Cross-Respondent: The Third Respondent/Cross-Respondent appeared in person
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 80 of 2011
BETWEEN: LARRY KEITH RUMBLE
ApplicantAND: TELSTRA CORPORATION LIMITED (ACN 051 775 556)
First RespondentSENSIS PTY LTD (ACN 007 423 912)
Second RespondentPHILIP POAT
Third RespondentAND BETWEEN: TELSTRA CORPORATION LIMITED (ACN 051 775 556)
First Cross-ClaimantSENSIS PTY LTD (ACN 007 423 912)
Second Cross-ClaimantAND: PHILIP POAT
Cross-Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
7 SEPTEMBER 2012
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.Those paragraphs in the Amended Originating Application and the Amended Statement of Claim filed on 20 July 2012 which are relied upon in support of the causes of action pleaded by the applicant against the third respondent, Philip Poat (Mr Poat), be struck out.
2.The whole of the proceeding as between the applicant and Mr Poat be dismissed.
3.There be no orders as to the costs of that proceeding as between the applicant and Mr Poat.
4.The applicant amend his Amended Originating Application and Amended Statement of Claim so as to confine those pleadings to causes of action against the first respondent (Telstra) and the second respondent (Sensis), such Further Amended Originating Application and Further Amended Statement of Claim to be filed and served by 21 September 2012.
5.By 5 October 2012, Telstra and Sensis file their Defence to the proposed Further Amended Originating Application and proposed Further Amended Statement of Claim.
6.Those paragraphs in the Notice of Cross-Claim and Statement of Cross-Claim filed by Telstra and Sensis against Mr Poat on 27 February 2012 which plead a cause of action for damages for breach of certain warranties contained in the contract dated 16 December 2005 between Sensis and Mr Poat be struck out.
7.Telstra and Sensis amend their Cross-Claim pleadings so as to confine their Cross-Claim against Mr Poat to a claim to enforce the contractual indemnity said to be contained in the said contract, such amended Cross-Claim pleadings to be filed and served by 21 September 2012.
8.Mr Poat file and serve his Defence to the said amended Cross-Claim pleadings by 28 September 2012.
9.The costs of and incidental to the Interlocutory Application filed by Mr Poat on 10 August 2012 as between Mr Poat, on the one hand, and Telstra and Sensis, on the other hand, be costs in the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 80 of 2011
BETWEEN: LARRY KEITH RUMBLE
ApplicantAND: TELSTRA CORPORATION LIMITED (ACN 051 775 556)
First RespondentSENSIS PTY LTD (ACN 007 423 912)
Second RespondentPHILIP POAT
Third RespondentAND BETWEEN: TELSTRA CORPORATION LIMITED (ACN 051 775 556)
First Cross-ClaimantSENSIS PTY LTD (ACN 007 423 912)
Second Cross-ClaimantAND: PHILIP POAT
Cross-Respondent
JUDGE:
FOSTER J
DATE:
7 SEPTEMBER 2012
PLACE:
CANBERRA
REASONS FOR JUDGMENT
These proceedings were commenced on 15 December 2011 by the filing of an Originating Application and a Statement of Claim. At that time, the only respondents to the proceedings were Telstra Corporation Limited (Telstra) and Sensis Pty Ltd (Sensis).
The case pleaded against Telstra and Sensis was that those two companies had committed the tort of passing off vis-à-vis the applicant and had also committed contraventions of relevant statutory provisions which prohibit persons and corporations from engaging in misleading and deceptive conduct. The fundamental proposition embedded in the pleading was that Telstra and Sensis had published advertisements at the behest of Mr Philip Poat under various names associated with the removals business sometimes called “Rumbles the Remover” in circumstances where Mr Poat was not entitled to use those names and, thus, not entitled to authorise the placing of the relevant advertisements.
By Notice of Cross-Claim and Statement of Cross-Claim, both filed by Telstra and Sensis on 27 February 2012, those two companies joined Mr Poat as a cross-respondent to the proceedings. The causes of action relied upon by Telstra and Sensis against Mr Poat are twofold: First, it is said that Mr Poat warranted that he had the right to place the relevant advertisements and that nothing in them contravened any law; second, Telstra and Sensis claim an entitlement to a contractual indemnity, specifically agreed to by Mr Poat in the contract signed between Mr Poat and Sensis dated 16 December 2005.
Emboldened somewhat by Mr Poat’s joinder by Telstra and Sensis, the applicant applied to join Mr Poat directly to the claim brought by him. I granted leave to the applicant to do that by orders made on 13 April 2012 and extended on 6 July 2012. Neither of the orders which I made was intended to extend any relevant limitation period, even if such extension were possible.
The applicant accommodated the joinder of Mr Poat by filing an Amended Statement of Claim and an Amended Originating Application. Those documents were both filed on 20 July 2012. The applicant alleges in those pleadings that the conduct relied upon as constituting misleading and deceptive conduct by him as against Telstra and Sensis was conduct which, in substance, had also been engaged in by Mr Poat with the consequence that he too is liable for the alleged misleading and deceptive conduct.
I should pause to record the fact that Mr Poat is not legally represented but is endeavouring to deal with this litigation on his own.
By Interlocutory Application filed by Mr Poat on 10 August 2012, Mr Poat sought orders striking out both the claim directly made by the applicant against him and also the Cross‑Claim made by Telstra and Sensis against him. The basis of the strikeout application made by Mr Poat is the same in both cases: It is his contention that neither claim can be brought against him now because they are both out of time, having been brought outside the relevant limitation periods.
In support of his Interlocutory Application, Mr Poat filed an affidavit sworn by him on 27 August 2012. In that affidavit, Mr Poat proved the following facts:
(a)The relevant contract with Sensis was dated 16 December 2005;
(b)All of the businesses which the applicant asserts were the subject of passing off and which were the foundation for his misleading and deceptive conduct claim were disposed of by the applicant by no later than early July 2006;
(c)At some stage (and possibly still), there were proceedings between the applicant and Mr Poat in the Supreme Court of the Australian Capital Territory (SC4 of 2006) which, at the very least, dealt with some of the matters sought to be agitated in the present proceedings in this Court;
(d)There were proposals to resolve a dispute which had arisen between Sensis and Mr Poat in 2006; and
(e)Mr Poat will have difficulty defending the claims made against him here because much of the documentary material previously held by him is no longer available to him.
It is not necessary to say very much about the exchanges which occurred between Mr Poat’s then solicitor and Sensis in 2006. There appears to have been an agreement in principle reached whereby Mr Poat’s claim against Sensis for a refund of the advertising costs which he paid was to be resolved by those costs being credited to him, provided that he released Sensis from any further claim.
A proposed Deed of Settlement and Release was provided by Sensis to Mr Poat. Mr Poat says that he signed that document and returned it to Sensis. That seems to be a matter of dispute from the Sensis side of things. In the end, for present purposes, I do not need to resolve whether that document was in fact signed and returned in 2006 because the only release in the document is a release by Mr Poat in favour of Sensis, not the other way around.
The material before me does not, therefore, establish that Sensis released Mr Poat, at any stage, from any claims it might have. This is hardly surprising because it would appear that, in 2006, nobody thought for a moment that there would be a claim made by Telstra or Sensis against Mr Poat for anything to do with what had occurred.
In addition to the affidavit sworn by Mr Poat, he has tendered before me a document entitled “Chronology and Background” prepared by his solicitor in 2006 (Exhibit A). That document records some important matters as far as the substance of the dispute is concerned but does not assist in the resolution of the current Interlocutory Application.
When the matter was called on this morning, Senior Counsel for the applicant informed me that he accepted that his client had disposed of the relevant businesses on a date which was more than six years before the applicant had joined Mr Poat directly to his claims in this proceeding—that is to say, the businesses had all been sold more than six years before 20 July 2012.
Senior Counsel informed me that he accepted also that his client’s losses as against Mr Poat had all crystallised by early July 2006. Senior Counsel went on to accept that, in light of all of those circumstances, there was nothing which he could put against Mr Poat’s proposition that the applicant’s proceeding against Mr Poat was indeed out of time and should be struck out. This appears to be the inevitable result of the various matters to which I have just referred.
Accordingly, I propose to strike out that part of the Amended Originating Application and Amended Statement of Claim filed by the applicant on 20 July 2012 which is relied upon against Mr Poat. I will also dismiss that Amended Originating Application insofar as it raises any cause of action against Mr Poat.
In light of those rulings, I will order that the applicant amend his Amended Originating Application and Amended Statement of Claim in order to remove all causes of action against Mr Poat.
The second aspect of Mr Poat’s Interlocutory Application is his application to strike out the Cross-Claim brought by Telstra and Sensis against him. It seems to me that, insofar as that Cross-Claim pleads a cause of action for damages for breach of warranty contained in the contract between Mr Poat and Sensis dated 15 December 2005, the warranty was breached immediately when the contract was entered into or, at the very latest, when the 2006 Yellow Pages was published, be that online or in print. That breach almost certainly occurred more than six years before 27 February 2012.
For that reason, it seems to me that the claim for damages for breach of warranty contained in that contract is also out of time and should be removed from the Cross-Claim for that reason. I therefore propose to strike out that part of the Cross-Claim that pleads a cause of action for damages for breach of that contract in that way.
The second aspect to the claim contained in the Cross-Claim brought by Telstra and Sensis against Mr Poat is the claim for specific relief under the contractual indemnity. The entitlement to that relief is dependent upon Sensis becoming liable to the applicant. It has not presently been enlivened but may be in due course if the applicant is successful against Sensis. That claim is not out of time and is legitimately entitled to remain in the Cross-Claim.
Ordinarily a litigant in the position of Mr Poat, who has enjoyed the success which Mr Poat has enjoyed vis-à-vis the applicant, would be entitled to his costs. However, Mr Poat is self-represented. He has not incurred any costs. I will therefore make no order as to costs as between the applicant and Mr Poat.
In relation to the dispute between Telstra and Sensis, on the one hand, and Mr Poat on the other hand, Counsel for Telstra and Sensis has sought costs on behalf of his clients. It seems to me that Mr Poat had some success in relation to his application to strike out the Telstra/Sensis Cross-Claim but also suffered a defeat. The interlocutory dispute effectively ended in a draw. The costs of and incidental to the Interlocutory Application filed by Mr Poat on 10 August 2012 as between Mr Poat, on the one hand, and Telstra and Sensis, on the other hand, will be costs in the proceeding.
I propose to make the orders to which I have referred above. There will be orders accordingly.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 8 October 2012
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