Wright Rubber Products Pty Ltd v Bayer AG

Case [2008] FCA 1510

FEDERAL COURT OF AUSTRALIA

Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510

PRACTICE AND PROCEDURE – pleadings – application to strike out statement of claim pursuant to Federal Court Rules, O 11 r 16 – whether statement of claim discloses reasonable cause of action – whether fails to plead material facts – whether pleading embarrassing

TRADE PRACTICES – whether allegations appropriately pleaded

Federal Court Rules O 11 r 16
Federal Court of Australia Act 1976 (Cth) ss 33H(1)(a), 33J
Trade Practices Act 1974 (Cth) s 4D, 4E, 45(2), 45(3), 45A(1), 75B

McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 applied
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 cited
Webster v Lampard (1993) 177 CLR 598 cited
Dare v Pulham (1982) 148 CLR 658 cited
Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 cited
Bruce v Odhams Press Ltd [1936] 1 KB 697 cited
Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 cited
HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 cited
State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 cited
Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association (WA) (1987) 13 FCR 413 cited
Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557 cited
Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 referred to
Australian Wool Innovation Ltd v Newkirk [2005] ATPR 42-053 referred to
Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 cited
Cameron v Qantas Airways Ltd [1993] ATPR 41-251 referred to
Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61 applied

State Bank of Victoria v Parry (1990) 2 ACSR 15 cited

Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 cited

Industrial Equity Limited v Blackburn (1977) 137 CLR 567 referred to

Yorke v Lucas (1985) 158 CLR 661 cited

WRIGHT RUBBER PRODUCTS PTY LTD (ACN 075384100) v BAYER AG, BAYER AUSTRALIA LTD (ACN 000138714), CHEMTURA CORPORATION, CROMPTON MANUFACTURING COMPANY, INC and CHEMTURA AUSTRALIA PTY LTD (ACN 005225507)

VID 882 OF 2007

TRACEY J
10 OCTOBER 2008
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 882 OF 2007

BETWEEN:

WRIGHT RUBBER PRODUCTS PTY LTD (ACN 075384100)
Applicant

AND:

BAYER AG
First Respondent

BAYER AUSTRALIA LTD (ACN 000138714)
Second Respondent

CHEMTURA CORPORATION
Third Respondent

CROMPTON MANUFACTURING COMPANY, INC
Fourth Respondent

CHEMTURA AUSTRALIA PTY LTD (ACN 005225507)
Fifth Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

10 OCTOBER 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The statement of claim filed on 27 September 2007 be struck out.

2.The applicant be given leave to file and serve a further statement of claim on or before 21 November 2008.

3.The applicant pay the second, third and fifth respondents’ costs of and incidental to their respective strike out motions.

Note:    Settlement…

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AGLC
Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510
Case
[2008] FCA 1510
Decision Date

CaseChat Overview and Summary

In the case of Wright Rubber Products Pty Ltd v Bayer AG, the applicant sought to rely on section 75B of the relevant Act in their claim against Bayer AG and other respondents. The dispute centred on allegations of price-fixing and market manipulation in the supply of rubber products, with the applicant contending that the respondents had engaged in anti-competitive conduct. The Federal Court of Australia was tasked with determining whether the applicant's claim was legally sound and properly pleaded.

The primary legal issue the Court addressed was whether the applicant's reliance on section 75B of the Act was valid, given the absence of specific pleadings regarding the intentional and knowing participation of the respondents in any alleged contravention of the Act. The Court also considered whether the statement of claim provided sufficient detail to support the allegations made. According to the Court, the applicant's failure to adequately plead the requisite intentional and knowing participation by the respondents rendered the claim deficient, as per the principles outlined in Yorke v Lucas.

The Court found that the applicant's statement of claim was not sufficiently detailed to support the invocation of section 75B, as it merely referred to conduct in a broad and non-specific manner across numerous paragraphs. This lack of specificity meant the claim could not be substantiated. Consequently, the Court ruled that the statement of claim should be struck out, and it could not be salvaged by amendment. The Court granted the applicant leave to replead, provided they were so advised, and set a deadline for the filing of a further statement of claim.

The Court ordered the striking out of the statement of claim filed on 27 September 2007 and granted the applicant until 21 November 2008 to file and serve a revised statement of claim. Additionally, the applicant was directed to pay the costs of the second, third, and fifth respondents associated with their respective motions to strike out the statement of claim.

Orders

Orders of the court

1. The statement of claim filed on 27 September 2007 be struck out.

2. The applicant be given leave to file and serve a further statement of claim on or before 21 November 2008.

3. The applicant pay the second, third and fifth respondents’ costs of and incidental to their respective strike out motions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TRACEY J
The applicant’s attempt to rely on s 75B of the Act must fail in the absence of a pleading of intentional and knowing participation by a respondent in any alleged contravention of the Act: see Yorke v Lucas (1985) 158 CLR 661 at 669-670. This aspect of the pleading also suffers from an absence of specificity: it identifies conduct, for the purposes of s 75B, as being any of the conduct, alleged to have been undertaken by the foreign respondents or the Australian companies, to which reference is made in any or all of some 22 paragraphs of the statement of claim. CONCLUSION The statement of claim should be struck out. It cannot be saved by amendment. As this is the first occasion on which the Court has considered and ruled on the respondents’ objections, the applicant should, if it is so advised, have the opportunity to replead.

Ratio Decidendi

Legal Principle Established

Established by: TRACEY J

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