Whittenbury v Vocation Ltd

Case [2017] FCA 1185


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

Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098

Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537

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

  1. 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.

  2. PWC essentially complains about…

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Details
AGLC
Whittenbury v Vocation Ltd [2017] FCA 1185
Case
[2017] FCA 1185
Decision Date

CaseChat Overview and Summary

The case of Whittenbury v Vocation Ltd involved a dispute between the plaintiff, Whittenbury, and the defendant, Vocation Ltd. The plaintiff sought to amend and re-plead certain allegations within their Statement of Claim (SOC) to properly articulate claims under section 1041E of the Corporations Act 2001 (Cth). Vocation Ltd opposed the plaintiff’s application for leave to re-plead and moved to strike out certain paragraphs of the SOC as failing to comply with the requirements of the relevant legislation. The Federal Court of Australia was tasked with determining these applications.

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

However, the complaint is that the pleading does not link the specific individual allegations to the loss and damage claimed. Part of this problem lies in the fact that the “PWC 19 August Representations” and “PWC 2 September Representations” were not made to any participants in the market, but to Vocation (see ACSOC [223] and [226]). The pleader would need to show how this communication to Vocation related to the release of FY14 Appendix 4E.CONCLUSION The position is then that the ACSOC in its current form needs to be re-pleaded. I have focussed on certain specific paragraphs of the ACSOC in these reasons, but to the extent other paragraphs adopt the same or similar formula, my observation and conclusions apply equally to them. I propose to strike out paragraphs 233 to 245. I would permit the applicants to re-plead to paragraphs 233 to 245 as I have indicated, I would not strike out any other paragraphs at this time, but would allow the applicant to re-plead as so advised upon a consideration of these reasons and to provide further particulars at the appropriate time. I consider that the applicants should be given the opportunity to re-plead, as in my view it cannot be said that this would involve a futile attempt to plead an unarguable cause of action. The proceeding returns before the Court on 27 October 2017 for a case management hearing. I propose to now order that 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, along with any other directions that need to be made to progress this matter to trial. As to the form of orders in relation to the applications before me, it may be appropriate to order that the Applicant’s application for leave to file the ACSOC be refused, the paragraphs of the existing pleading alleging contravention of s 1041E be struck out but otherwise PWC’s application to strike out the CSOC be dismissed, and the applicants have leave to re-plead. I have published these reasons prior to that case management hearing to give the parties the opportunity to consider their positions including re-pleading by the applicants as so advised, and PWC considering the question of joinder of additional parties. I appreciate joinder may depend on or be influenced by the re-pleading of the allegations concerning s 1041E.

Ratio Decidendi

Legal Principle Established

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