FEDERAL COURT OF AUSTRALIA
Whittenbury v Vocation Limited [2017] FCA 1185
File number: VID 434 of 2015 Judge: MIDDLETON J Date of judgment: 4 October 2017 Catchwords: PRACTICE AND PROCEDURE – applications to strike out pleadings and for leave to amend pleadings – claims under s 1041E of the Corporations Act 2001 (Cth) to be properly articulated – leave to re-plead appropriate Legislation: Australian Securities and Investments Commission Act 2001 (Cth)
Corporations Act 2001 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82
Bright v Femcare Ltd (2000) 175 ALR 50
Crowley v WorleyParsons Limited [2017] FCA 3
Hastie Group Ltd (in liq) v Bourne; Hastie Group Ltd (in liq) v Moore [2017] NSWSC 709
Date of hearing: 16 August 2017 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 65 Counsel for the Applicants: Mr P Collinson QC with Mr W A D Edwards and Ms K Burke Solicitor for the Applicants: Maurice Blackburn with Slater and Gordon Lawyers Counsel for the First Respondent and Cross-Claimant: Mr C Caleo QC with Dr C Button Solicitor for the First Respondent and Cross-Claimant: Gilbert + Tobin Counsel for the Second Respondent: Mr R McHugh SC with Mr M Garner and Mr A Shearer Solicitor for the Second Respondent: Herbert Smith Freehills Counsel for the Cross-Respondent: The Cross-Respondent did not appear ORDERS
VID 434 of 2015 BETWEEN: CHERYL WHITTENBURY
First Applicant
MANNY KARAGEORGIOU
Second Applicant
AND: VOCATION LIMITED (ACN 166 631 330)
First Respondent
PRCEWATERHOUSECOOPERS (A FIRM)
(ABN 52 780 433 757)Second Respondent
AND BETWEEN: VOCATION LIMITED (ACN 166 631 330)
Cross-Claimant
AND: THE PARTNERS OF JOHNSON WINTER & SLATTERY
Cross-Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
4 OCTOBER 2017
THE COURT ORDERS THAT:
1.The parties confer and bring to the case management hearing on 27 October 2017 an agreed minute of order reflecting these reasons, or short submissions as to form of such order, and any other directions that need to be made to progress this matter to trial.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MIDDLETON J:
INTRODUCTION
Before me are applications to strike out the applicants’ existing Consolidated Statement of Claim by PricewaterhouseCoopers (‘PWC’) and for leave to file and serve an amended Consolidated Statement of Claim (‘ACSOC’) against PWC. It is convenient to refer to the ACSOC, as it is the current version relied upon by the applicants. I should mention that Vocation Limited (‘Vocation’) has agreed to the filing of the ACSOC insofar as the allegations therein concern Vocation.
PWC essentially complains about…
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- AGLC
- Whittenbury v Vocation Ltd [2017] FCA 1185
- Case
- [2017] FCA 1185
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the plaintiff's SOC adequately articulated the claims under section 1041E of the Corporations Act, and whether the plaintiff should be granted leave to re-plead to properly articulate those claims. The court considered whether the plaintiff’s current pleadings sufficiently linked specific individual allegations to the loss and damage claimed, and how any representations made to Vocation Ltd related to the release of financial information to the market. The court also assessed whether the plaintiff’s attempt to re-plead would be a futile exercise.
The court found that while the plaintiff's SOC contained claims under section 1041E, the pleadings did not adequately link the individual allegations to the claimed loss and damage. The representations in question were made to Vocation Ltd rather than market participants, and the plaintiff had not sufficiently explained how these communications related to the release of financial information. Consequently, the court decided to strike out certain paragraphs of the SOC and permit the plaintiff to re-plead to properly articulate the claims. The court concluded that this was not a futile exercise and granted leave for the plaintiff to re-plead with further particulars as appropriate. The court ordered the parties to confer and propose an order for the case management hearing on 27 October 2017.
The court’s final orders required the parties to confer and propose an agreed minute of order reflecting the court's reasons, or short submissions as to the form of such order, along with any other necessary directions to progress the matter to trial. The court also suggested that it may be appropriate to order the refusal of the plaintiff’s application for leave to file the SOC, the striking out of certain paragraphs of the existing pleading, the dismissal of Vocation Ltd’s application to strike out the SOC, and the granting of leave to the plaintiff to re-plead. The court published its reasons prior to the case management hearing to allow the parties to consider their positions, including the plaintiff’s re-pleading and Vocation Ltd’s potential joinder of additional parties.
Orders
Orders of the court
1. The parties confer and bring to the case management hearing on 27 October 2017 an agreed minute of order reflecting these reasons, or short submissions as to form of such order, and any other directions that need to be made to progress this matter to trial.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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