Walker v Trewarne

[2002] FCA 1042

FEDERAL COURT OF AUSTRALIA

Walker v Trewarne [2002] FCA 1042

Statutes

Trade Practices Act 1974 (Cth) ss 52, 45D, 45DA, 45DB, 46, 47, 48, 51AC, 151AJ

KELL WALKER v JAMES TREWARNE AND TELSTRA CORPORATION LTD
Q104 OF 2002

KIEFEL J
BRISBANE
20 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q104 OF 2002

BETWEEN:

KELL WALKER
APPLICANT

AND:

JAMES TREWARNE
FIRST RESPONDENT

TELSTRA CORPORATION LTD
ABN 051 775 556
SECOND RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

20 AUGUST 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The applicant pay the first and second respondents’ costs on the application to strike out.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q104 OF 2002

BETWEEN:

KELL WALKER
APPLICANT

AND:

JAMES TREWARNE
FIRST RESPONDENT

TELSTRA CORPORATION LTD
ABN 051 775 556
SECOND RESPONDENT

JUDGE:	KIEFEL J
DATE:	20 AUGUST 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT
(Ex Tempore)

1. Mr Walker has brought proceedings against Telstra Corporation in connection with its failure to provide him with an internet service as contracted for.  He also brings proceedings against an employee of Telstra, Mr Trewarne, who is named as the first respondent.

2. The respondents seek orders striking out the statement of claim which has been filed.  On the afternoon before the hearing Mr Walker advised that he intended to further amend his statement of claim by inserting additional claims.  I have had the opportunity of reading the proposed amended pleading in some detail, as I have submissions filed by the applicant on the motion for striking out.  My comments are, therefore, able to be addressed to both pleadings.  Unfortunately however, it would appear that counsel for the applicants to the motion have not had the same opportunity.

3. It is convenient to refer to the question of the parties first.  The second respondent says that it is unclear as to who is the true applicant, either Mr Walker or a company he names, StormNet Pty Ltd (trading as Kell Walker).  However, it seems to me to be tolerably clear that it is Mr Walker.  This was confirmed by Mr Walker in discussion in Court on the hearing of the motion, although he did indicate that he may need to reconsider the position of the applicant.  I have indicated to him that the applicant must, in truth, be the person or company having the cause of action and having suffered the losses sued for.  I further indicated that if he seeks to sue in the name of the company he will require the leave of the Court to appear for it.  Particularly in a complex case, such leave will not necessarily be granted.  As presently pleaded, however, the references to the company StormNet would appear to be unnecessary. 

4. Mr Walker’s claims against the first respondent are misconceived, in my view.  Mr Trewarne is alleged to have conspired with Telstra to have discontinued internet services to Mr Walker.  As the respondents point out, the acts of the first respondent, as an employee, are acts for and on behalf of the company.  They are not his personal acts such as to involve him in any liability to the applicant.  So far as concerns the conspiracy, logically as Mr Walker accepted in discussions this morning, it is being asserted that the company is creating a conspiracy with itself through the acts of its employee.  There is neither a personal liability in Mr Trewarne, nor can his actions in connection with Telstra be relied upon as a conspiracy.  The pleadings on that account should be struck out against the first respondent, and Mr Walker, if he chooses to apply for leave to file a further amended pleading in the near future, should carefully consider whether he should do so against the first respondent.

5. The core complaints which may be discerned from the pleading are that Mr Walker was told by Telstra that it could provide him with an internet service which could handle five hundred customers for a particular sum;  that there were continuing faults and disruptions with the supply of the service;  it ignored his complaints;  and he has suffered loss.  The difficulty is that the matter is not pleaded simply as a breach of a contract  for services or goods, with particularised loss and damage.  Mr Walker seeks to take it further and has sought to rely upon causes of action which would seem to have little relevance to the facts he pleads.

6. Even the claim in contract is not sufficiently pleaded to be able to stand.  He pleads an implied term of merchantable quality, or that the service would be ready for use.  The other claims in par 15 would appear to be irrelevant or unexplained.  He does not, however, particularise the breaches of contract, except in a very general way, and does not link any loss said to have been caused by each of those breaches.  It is not clear what happened to the contract and whether it was terminated and by whom, although he complains that his internet services were terminated by Telstra.   It may be that in Mr Walker’s case the question of loss and damage, even for breach of terms of a contract, will be a matter of some complexity.

7. The claim for contravention of s 52 of the Trade Practices Act 1974 (Cth) (“the TPA”) is based on the same complaints. That is to say, it refers to the quality of a product supplied and complains that there were errors in it, or faults, for which Telstra is responsible. It is possible that contractual terms might be couched as representations, but the only one which appears to be raised is that Telstra said it would service five hundred customers. The only particular that it was false, however, would appear to be that the service was faulty, which is not to say that the representation was misleading and deceptive, at least without other facts relating to Telstra’s knowledge, or the promise it made, being pleaded.

8. There are a number of other claims brought under the TPA. They would appear to relate to the same basic facts, although there are a number of other facts referred to which are not connected. Apart from the claims of a conspiracy to cut his internet services, to which I have referred, Mr Walker brings claims under ss 45D, 45DA and 45DB on the basis of secondary boycotts arranged by the first and second respondents to substantially lessen competition. Most of the elements of those claims are missing, and, as I have observed, reliance upon a conspiracy between a company and its employee is misconceived. In any event, there are no facts pleaded to suggest that they acted in concert.

9. The other sections of the Trade Practices Act which are relied upon, ss 46, 47, 48 and 51AC, are simply asserted. There are no facts pleaded to bring the matter within those sections. Section 151AJ is also referred to in the statement of claim. Assuming, although it is not fully particularised, that some market power was held by the second respondent, it is alleged that it took advantage of that power by failing to provide the service. The concept of the misuse of a power in the market would not seem to me to be established by a supply of a faulty product.

10. I have made these observations on claims brought under the TPA for the general benefit of Mr Walker. They are, in any event, unable to be pursued against Mr Trewarne. He is not himself a corporation, as is required by the TPA except in the extension provisions. As I have said, he cannot be taken to conspire with his employer.

11. The claims for loss and damage are also problematic.  There are general references to the applicant having entered into a written contract to purchase $26 million worth of equipment from Ericsson (Aust) Pty Limited and a service contract to the value of $10 million.  It is also alleged that he lost the opportunity to obtain contracts exceeding $35 million.  How the latter figure is calculated is not explained and no basis is shown for Telstra’s liability for that kind of loss.  It is not clear how the contract for purchase with Ericsson is relied upon as a loss and how it is connected with the complaints made against Telstra.  It may be that it was the basis for further profits, or it may be that goods were purchased but were not able to be used.  It is just not clear.

12. As I have said, the question of loss and damage might be a matter of some complexity in Mr Walker’s case, or it might be simple.  At the moment, I simply cannot discern what loss is said to flow from each of the causes of action which he seeks to set up.  There are some particulars given of loss of income from the internet service which might provide a more realistic basis for a claim, or at least one that is more readily able to be quantified and proved. Even so, it is not clear over what period this operated;  what breaches are responsible for each aspect of loss;  and what the total might be.  If further amendments are to be made by Mr Walker, he will need to show clearly the connexion between the conduct of Telstra and loss as appropriate to the cause of action and show how he calculates the loss in some considerable detail, or at least show the specific nature of the loss and how it might be calculated.

13. The pleading does not contain claims which are properly particularised and pleaded.  Not one of them can stand on its own.  The pleading has so many deficiencies that I am of the view that it must be struck out.  Mr Walker has pointed out that he is able to amend his statement of claim without further leave and has put a document forward which I have considered as his proposed amended statement of claim.  It has not, however, been filed and I would not be inclined to grant him leave to file it.

14. If Mr Walker wishes to re-plead in the near future, it would be, as I have said to him, to his advantage to seek legal advice at least upon setting up the cause of action.  The statement of claim filed on 22 July 2002 will be struck out.  Mr Walker may bring such further applications with respect to a further pleading as he may be advised.  I refuse leave to file the document entitled Amended Statement of Claim, which I will place with the papers and mark “A” as an amended statement of claim.

15. I will order that the applicant to the proceeding pay the first and second respondents’ costs on to the application to strike out.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:            20 August 2002

For the Applicant:	In Person
Counsel for the Respondent:	Mr T Sullivan
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	20 August 2002
Date of Judgment:	20 August 2002