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W A Pines Pty Ltd v Bannerman

W A Pines Pty Ltd v Bannerman

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Case Copied 25 January 1980 12 min read

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W.A. PINES PTY. LTD. v. BANNERMAN (1980) 41 FLR 169
Practice

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Toohey J.(1)

CATCHWORDS

Practice - Pleadings - Statement of claim - Striking out - Trade Practices Act 1974 (Cth.), s. 155.

Practice - Discovery - Interrogatories - Discretion - Federal Court of Australia Rules, O. 15, r. 3 (2), (3).

HEADNOTE

The applicant sought a declaration that a notice purporting to have been issued by the respondent Chairman of the Trade Practices Commission pursuant to s. 155 of the Trade Practices Act 1974 (Cth.) was void and without legal effect. Section 155 provides that where, inter alia, the Chairman, "has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act", a notice in writing may be served requiring the production of such documents, information or evidence.

By par. 5 of its statement of claim the applicant alleged: "The lack of definition of the respondent's state of belief concerning the matters referred to in the notice . . . is inconsistent with the state of belief required to attract the operation of s. 155 of the Trade Practices Act." By par. 6 of the statement of claim the applicant alleged: "Alternatively the notice was issued without the Trade Practices Commission, the respondent or the Deputy Chairman having reason (or alternatively any legally sufficient reason) to believe any of the matters set out in s. 155 (1) of the said Act."

The respondent applied by motion to the court to strike out pars. 5 and 6 of the statement of claim as failing to disclose a reasonable cause of action. At the same time the applicant applied, on a summons for directions, for discovery and leave to interrogate the respondent.

Held: (1) On the notice of motion: (a) par. 5 of the statement of claim should be struck out as disclosing no reasonable cause of action. The use of the terminology of s. 155, as part of the administrative act of issuing a notice pursuant thereto, is not contrary to the statute merely because alternative grounds are set out. Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman (1979), 36 FLR 450, and (1979), 40 FLR 428, referred to. (b) par. 6 of the statement of claim should not be struck out. On its face as a pleading it is unobjectionable and appears to disclose a cause of action.

(2) On the summons for directions no order should be made for discovery or interrogatories. It is not enough for the applicant to allege a "lack of reason to believe" on the part of the respondent and then seek, by discovery and interrogatories to support that allegation. Without some factual foundation for the allegation, discovery and interrogatories are "fishing" and should not be ordered.

Rofe v. Kevorkian, (1936) 2 All ER 1334; Melbourne Home of Ford Pty. Ltd. v. Trade…

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: [1980] FCA 16
Decision Date: 25 JANUARY 1980

CaseChat Overview and Summary

W A Pines Pty Ltd initiated legal proceedings against Bannerman, seeking a declaration of non-liability in relation to an alleged contravention of the Trade Practices Act 1974 (Cth.). The case was heard in the Federal Court of Australia, where the primary legal issue was whether the statement of claim should be struck out for non-compliance with the rules of court and the Trade Practices Act.

The court had to determine whether the statement of claim sufficiently outlined the facts and legal arguments to justify the relief sought. In particular, the court needed to assess if the claim complied with the requirements of the Trade Practices Act, which mandates that a statement of claim must contain a concise statement of the facts upon which the claim is based, as well as the relief sought. The court also considered whether the statement of claim was consistent with the rules of court, which govern the format and content of pleadings.

The Federal Court concluded that the statement of claim did not comply with the requirements of the Trade Practices Act and the rules of court. The court found that the statement of claim was deficient in setting out the relevant facts and legal arguments with the requisite particularity. Consequently, the court ordered the statement of claim to be struck out, as it did not provide a sufficient basis for the proceedings to proceed. The court held that the claimant had not met the necessary standards for the statement of claim to be considered valid under the applicable laws and rules.

Orders