Spiteri v Nine Network Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905

PRACTICE AND PROCEDURE – motion for summary dismissal of proceedings pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) – whether no reasonable prospects of successfully prosecuting the proceeding – appropriate standard to be satisfied - the onus on party seeking summary judgment is heavy – motion for pleadings in statement of claim be struck out pursuant to O 11 r 16(b) of the Federal Court Rules – whether a pleading has a tendency to cause embarrassment in the proceeding – where pleadings are confusing and inconsistent – leave granted to re-plead pleadings struck out – applicant claims misleading and deceptive conduct by the respondent and breach of contract in relation to employment 

Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules O 11 r 16(b) 

Bartlett v Swan Television and Radio Broadcasters Pty Ltd (1995) ATPR 41-434 cited
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 applied
Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq.) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 considered
Dare v Pulham (1982) 148 CLR 658 cited
Davids Holdings Pty Ltd v Coles Myer Ltd (1993) ATPR 41-227 cited
Hicks v Ruddock (2007) 156 FCR 574 considered
Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 considered
Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 cited
Vasyli v AOL International Pty Ltd (NG 219/96) (Lehane J, 19 August 1996, unreported) cited
White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298 cited

CHRISTINE LORRAINE SPITERI v NINE NETWORK AUSTRALIA PTY LTD

NSD 232 OF 2008

EDMONDS J
13 JUNE 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 232 OF 2008
BETWEEN:

CHRISTINE LORRAINE SPITERI
Applicant
AND:

NINE NETWORK AUSTRALIA PTY LTD
Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

13 JUNE 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The respondent’s motion dated 11 April 2008 insofar as it relies on s 31A(2) of the Federal Court of Australia Act 1976 (Cth) be dismissed.

2.The pleadings in paragraphs [8], [9], [10], [32], [33], [34], [38], [41], [42], [45], [46], [55], [63], [72] and [74] – [82] of the statement of claim be struck out pursuant to O 11 r 16(b) of the Federal Court Rules.

3.The applicant amend paragraphs [6], [17], [34], [47] – [51], [54], [62], [74] and [81] of the statement of claim in accordance with these reasons.

4.Leave be granted to the applicant to re-plead those pleadings and claims that have been struck out by Order 2.

5.The applicant file and serve an amended statement of claim on or before 27 June 2008.

6.The respondent file and serve its defence on or before 11 July 2008.

7.Insofar as the respondent regards it as necessary to request further…

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Details
Case
[2008] FCA 905
Decision Date

CaseChat Overview and Summary

In the case of Spiteri v Nine Network Australia Pty Ltd, the plaintiff, Mr. Spiteri, brought a claim against Nine Network Australia Pty Ltd (Nine Network) for alleged breaches of contract and misrepresentations. The case was heard and determined in the Federal Court of Australia. The primary issues before the court were the clarity and validity of various paragraphs in the Statement of Claim (SOC) and whether certain claims should be struck out due to inconsistencies or lack of clarity.

The court examined the pleadings and found several paragraphs to be problematic. For example, paragraph [6] was found to be grammatically incorrect, and paragraphs [8], [9], and [10] were deemed confusing regarding the definition of 'the Contract'. The court also noted inconsistencies in references to dates and terms within the pleadings. Additionally, certain paragraphs were found to be confusing or inconsistent with other claims, leading to a recommendation that these paragraphs be struck out. The court further identified issues with the claims regarding damages, finding them to be repetitive and confusing.

Following the analysis, the court issued orders to address the deficiencies in the pleadings. The respondent’s motion under section 31A(2) of the Federal Court of Australia Act 1976 was dismissed. Specific paragraphs of the SOC were struck out due to their inconsistencies or lack of clarity. The plaintiff was granted leave to amend the pleadings and re-plead the struck-out claims. The court also set deadlines for the filing of the amended statement of claim and the respondent’s defence, and scheduled a further directions hearing. These orders aimed to ensure that the case could proceed with clear and valid pleadings.

Orders

Orders of the court

1. The respondent’s motion dated 11 April 2008 insofar as it relies on s 31A(2) of the Federal Court of Australia Act 1976 (Cth) be dismissed.

2. The pleadings in paragraphs [8], [9], [10], [32], [33], [34], [38], [41], [42], [45], [46], [55], [63], [72] and [74] – [82] of the statement of claim be struck out pursuant to O 11 r 16(b) of the Federal Court Rules.

3. The applicant amend paragraphs [6], [17], [34], [47] – [51], [54], [62], [74] and [81] of the statement of claim in accordance with these reasons.

4. Leave be granted to the applicant to re-plead those pleadings and claims that have been struck out by Order 2.

5. The applicant file and serve an amended statement of claim on or before 27 June 2008.

6. The respondent file and serve its defence on or before 11 July 2008.

7. Insofar as the respondent regards it as necessary to request further and better particulars of the amended statement of claim, any such request is to be made on or before 11 July 2008.

8. The matter be listed for further directions on 18 July 2008.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EDMONDS J (dissent)
I deal with a number of the pleadings which have been put in issue and others I have identified in the numerical order of the SOC. All paragraph references are to the SOC unless otherwise stated:(1)Paragraph [6] is grammatically wrong and needs to be amended.(2)Paragraphs [8], [9] and [10] are confusing as to what constitutes ‘the Contract’: is it confined to the instrument of 7 March 2005 as defined in (iv) to para [8] or does it also extend to the content of the Uechritz Conversation as suggested in the particulars to para [9]? Additionally, one does not accept a contract; a contract comes into existence only upon acceptance of an offer. These paragraphs are embarrassing and should be struck out; and as presently framed, they make subsequent paragraphs embarrassing.(3)Paragraph [17] refers to ‘paragraphs 14 and 16’ and in the next breath to ‘paragraphs 14 to 16’. It also refers to ‘the Termination Date’ which is defined in para [13] as ‘7 March 2008’ and in para [15] as ‘7 March 2007’. Paragraph [17] needs to be amended.(4)Paragraph [32] is confusing and arguably inconsistent with the claims at paras [33] and [34]. It is not clear that the allegation at para [32] is that the Contract (however that is ultimately identified and constituted) was terminated or purported to be terminated by the respondent or only the applicant’s Position (as defined in the SOC). For that reason it is embarrassing and should be struck out.(5)Paragraph [34] is grammatically wrong and needs to be amended.(6)Paragraph [38] is totally confusing. How does one unilaterally withdraw an offer that was a contract? Upon acceptance of an offer and the bringing into existence of a contract, there is no longer an offer to be withdrawn. It is inconsistent with paras [35] and [36] and the claims at paras [41] and [42], and for that reason is embarrassing and should be struck out.(7)The relevance of para [45] is neither stated nor apparent. Unless such relevance can be shown, it is embarrassing and should be struck out.(8)The response to the request for particulars indicates that the ‘EEO Policy’ referred to in para [46] but not otherwise defined, is a reference back to the document headed ‘Fair Employment Practices’ referred to in the particulars at (ii) to para [19]. Clause 3.7 of the instrument of 7 March 2005 in its terms only binds the applicant. The pleading at para [46], if not at para [19], should plead the facts necessary to demonstrate how the policies and/or procedures were express terms or how they bound the respondent; it is embarrassing and should be struck out.(9)The applicant says that it will amend the pleadings at paras [47] – [51] to make it clear that they are concerned with alleged breaches of the ‘Ongoing Contract’. I agree that this should be done and the amendments should identify which provisions or parts of the EEO Policy have been contravened in each case, consistent with the further particulars that have already been provided.(10)Paragraph [54] refers to the respondent’s breach of the implied terms at paras [18] and [19], when the pleadings there refer to the terms as express terms. Paragraph [54] should be amended to remedy this. The reference to the ‘Respondent’s rights and obligations’ should also be amended to the ‘Applicant’s rights and obligations’; and the particulars in (i) should be amended because there is no anterior title ‘Breach EEO Policy’ above.(11)The claims with respect to damages are confusing and repetitious. For example, paras [33] and [34] claim, in the alternative, that the applicant suffered loss and damage by reason of the respondent’s actions leading to the ‘July Termination’; paras [41] and [42] claim, in the alternative, that the applicant suffered loss and damage by reason of the respondent’s actions leading to the ‘October Repudiation’; para [55] claims that the applicant suffered loss and damage as a result of the breaches referred to at paras [47] – [54] inclusive; para [63] claims that the applicant suffered loss or damage by reason of the ‘First Misrepresentation’; para [72] claims that the applicant suffered loss or damage by reason of the ‘Second Misrepresentation’ and then paras [74] – [82] inclusive seem to repeat these claims. It is not clear whether the applicant is making multiple claims or whether there is one claim for alternative sums but for different breaches. Paragraphs [74] – [82] inclusive, when read in the context of the anterior paragraphs referred to above, are embarrassing and all paragraphs should be struck out.(12)Paragraph [62] refers to paras [54] – [61]. The references to paras [54] and [55] cannot be correct and should be amended.(13)Paragraph [74] refers in (a) to ‘the Employment Contract’. The term is not defined nor referred to elsewhere in the SOC. It will have to be amended. (14)Paragraph [81] refers to the implied terms in para [54]; it may require amendment depending on the amendment to para [54]: see (10) above.CONCLUSION

Ratio Decidendi

Legal Principle Established

Established by:

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