Vasram v AMP Life Limited

[2001] FCA 1625

FEDERAL COURT OF AUSTRALIA

Vasram v AMP Life Limited [2001] FCA 1625

PRACTICE AND PROCEDURE – power of court to strike out statement of claim - power of court to dismiss proceedings

Federal Court Rules O 11 r 16, O 20 r 2

Harris v Cigna Insurance Australia Limited (1995) ATPR 41-445 followed
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 followed
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 followed

CHIMAN LAL VASRAM v AMP LIFE LIMITED

NG 667 OF 1998

STONE J
15 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 667 OF 1998

BETWEEN:	CHIMAN LAL VASRAM APPLICANT
AND:	AMP LIFE LIMITED RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	15 NOVEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the proceedings be dismissed;

2.the question of costs is reserved;

3.the parties to provide written submissions on the question of costs by 28 November 2001.

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	NG 667 OF 1998

BETWEEN:	CHIMAN LAL VASRAM APPLICANT
AND:	AMP LIFE LIMITED RESPONDENT

JUDGE:	STONE J
DATE:	15 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

1. By application filed on 6 July 1998 the applicant commenced these proceedings in a personal and representative capacity under Part IVA of the Federal Court of Australia Act 1976 (Cth) (“Act”). On 20 April 1999, pursuant to an order made by Madgwick J, the applicant filed a statement of claim. His statement of claim was struck out and the proceedings dismissed by Madgwick J on 28 May 1999. His Honour stayed his orders for seven days to allow the applicant an opportunity to apply for revocation of those orders and prepare amended pleadings. An amended statement of claim was also struck out by Madgwick J on 23 September 1999 on the ground that it was embarrassing. His Honour gave leave to the applicant “further and finally to amend the statement of claim” within 21 days after any breakdown of the proposed mediation and required that “the statement of claim as finally amended is to be verified by persons having personal knowledge of the facts”.

2. A second amended statement of claim was filed on 16 February 2000 and yet another amended statement of claim (“fourth statement of claim”) on 25 February 2000.  In my reasons for judgment dated 21 November 2000 I commented that,

   “Despite this being the applicant’s fourth attempt at producing a statement of claim in these proceedings, it is poorly drafted and makes it difficult to determine the precise nature of the applicant’s claim.
   …
   It may be that the better approach would have been to strike out the statement of claim.  However, as the present amended statement of claim is the applicant’s fourth attempt, I do not have any confidence that this would achieve anything.”

3. At that time I ordered that…