Taylor v Telstra Corporation Limited

[2006] FCA 1528

FEDERAL COURT OF AUSTRALIA

Taylor v Telstra Corporation Limited [2006] FCA 1528

ANDREW TAYLOR v TELSTRA CORPORATION LIMITED (ACN 051 775 556)
NSD 89 OF 2006

GYLES J
2 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 89 OF 2006

BETWEEN:	ANDREW TAYLOR Applicant
AND:	TELSTRA CORPORATION LIMITED (ACN 051 775 556) Respondent

JUDGE:	GYLES J
DATE OF ORDER:	2 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT:

1.Orders that leave be granted to file a second further amended statement of claim, and a second further amended application in the form initialled by me. 

2.Orders that costs of the motion are the respondent’s costs in the cause. 

3.Directs that the defence be filed on or before 15 December 2006. 

4.Orders that the matter stand over to 6 February 2007 at 9.30 am for further directions. 

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	NSD 89 OF 2006

BETWEEN:	ANDREW TAYLOR Applicant
AND:	TELSTRA CORPORATION LIMITED (ACN 051 775 556) Respondent

JUDGE:	GYLES J
DATE:	2 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The issues on this motion to strike out have become very much narrower now than they initially were, largely by virtue of amendments to the statement of claim and application.  I need not repeat the arguments of Counsel for the respondent, which are recorded on the transcript and refer to previous written submissions.

2. In my view, most of the defects of which complaint is still made are either matters of evidence or proof on the one hand, rather than pleading omissions, or are inherent in the nature of the representations which are pleaded.  So far as the latter is concerned, it may be that there is a difficulty for the applicant in establishing the case.  I make no comment about that one way or the other, but I do not think it is a pleading problem. 

3. There is a special issue in relation to the pleading of the breach of the ASX Listing Rules.  The pleading alleges a breach of r 3.1.  It is submitted that r 3.1A needs to be pleaded and negatived by the applicant in the statement of claim.  Having looked at the authorities, in my opinion, the better view is that r 3.1A is what used to be called a proviso which does not require pleading by the applicant.  There is an issue about that.  This ruling is not intended to preclude the respondent from pursuing an argument that there is a fundamental defect in the applicant’s case.  That is a matter of substance which I would not decide on a pleading summons.

4. The other principal complaint can be summed up by looking at paragraph 17 as it previously stood.  I indicated during the course of argument that it seemed to me that it did not follow that the mere publication of the documents concerned would, without more, give rise to an obligation to say more.  It seemed, and seems, to me that that obligation will either flow from the obligations of the statute or some other source of obligations of that kind, from external circumstances, or because of the contents of the document or documents itself or themselves.  Each of these would require particularisation as part of the pleading.

5. Since then, counsel for the applicant has proposed some further amendments to the statement of claim in an endeavour to meet the paragraph 17 problem and clarify some other matters.  I have not had the chance of absorbing those, nor has counsel for the respondent.  It may be that the stage has been reached where the applicant must stand or fall on what it has now pleaded.  In any event, I reserve liberty to the respondent to raise any matter which arises out of this.  Whilst, on the one hand, I do not wish to encourage continual interlocutory applications in matters of this kind, on the other, it is best to have issues sorted out early rather than late.

6. Leave is granted to file a second further amended statement of claim, and a second further amended application in the form initialled by me.  Costs of the motion are the respondent’s costs in the cause.  I direct that the defence be filed on or before 15 December next.  The matter will stand over to 6 February 2007 at 9.30 am for further directions. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:       15 November 2006

Counsel for the Applicant:	Mr S Gageler SC, Mr N Beaumont
Solicitor for the Applicant:	Slater & Gordon Lawyers
Counsel for the Respondent:	Mr RG McHugh SC with Ms A Horvath
Solicitor for the Respondent:	Freehills

Date of Hearing:	2 November 2006
Date of Judgment:	2 November 2006