CATCHWORDS
PRACTICE AND PROCEDURE - clarity and particularity of pleadings.
Trade Practices Act 1974 s 52
Krakowski v. Eurloynx [1995] A.T.P.R. 41-419
GABOR MARTIN NAGY AND PATRICIA DOROTHY NAGY V. MASTERS DAIRY LIMITED A.C.N. 008 671 761
WAG27 OF 1995
LEE J.
PERTH
13 OCTOBER 1995
IN THE FEDERAL COURT)
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) NO. WAG27 OF 1995
B E T W E E N: GABOR MARTIN NAGY and
PATRICIA DOROTHY NAGY
Applicants
and
MASTERS DAIRY LIMITED
A.C.N. 008 671 761
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER: LEE J.
DATE OF ORDER: 13 OCTOBER 1995
WHERE MADE: PERTH
THE COURT ORDERS THAT:
1. Further re-amended statement of claim to be filed by 20 October.
2. Costs of the motion of 24 August 1995 be costs in the cause of the respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT)
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) NO. WAG27 OF 1995
B E T W E E N: GABOR MARTIN NAGY and
PATRICIA DOROTHY NAGY
Applicants
and
MASTERS DAIRY LIMITED
A.C.N. 008 671 761
Respondent
CORAM: LEE J.
DATE : 13 OCTOBER 1995
PLACE: PERTH
REASONS FOR JUDGMENT
This is a motion by the respondent to strike out parts of the applicants' re-amended statement of claim.
On the basis of written submissions filed by both parties I have determined that in order that the material facts of the pleading appear with clarity and appropriate particularity paras.8, 12, 13, 14, 17, 33, and 35 of the statement of claim should be struck out, as per the notice of motion, along with paras.20, 22, 26, 27, 28 and 29. The paragraphs should also be re-numbered and amendments should be made to paras.16, 19, 32 and 36.
The
pleadings in relation to s.52 of the Trade
Practices Act 1974 ("the Act") need to be amended to reflect more
accurately the representations allegedly made by the
respondent. As the pleading is drawn it appears that the case pleaded as
conduct in contravention of s.52 is one in which it is said that the conduct of
the respondent prior to the de-regulation of the industry, in the context of
the pre-existing relationship of the parties amounted, in substance, to a
representation that reasonable notice would be given to the applicants of any
variation in the respondent's intention to negotiate with the applicants or of
its intention to negotiate with, or enter into contract with, another party. If
such a representation was made and the respondent had no intention of giving
such notice or kept the applicants unaware of a change in the respondent's
intentions and the applicants acted to their detriment in reliance on the
representation, it would be fairly arguable that there has been a contravention
of s.52 of the Act in respect of which the applicants may have an entitlement
to damages. (See: Krakowski
v. Eurloynx [1995] A.T.P.R. 41-419.)
Deleting the reference to "withdrawal of the offer" in paras.30 and 32 clarifies the contravention of the Act that is pleaded and avoids any potential confusion between principles of contract law and misleading or deceptive conduct. It is unnecessary to use those words to link the cause of action pleaded in contract with that pleaded under the Act.
Some further pleading may be required if an election was required of the applicants under the terms of the Dairy Industry Amendment Act 1994. Such matters may have had a bearing upon the terms of the negotiation between the parties and may be relevant to the assessment of loss or damages.
The amendments to the statement of claim made necessary by the respondent's motion are as set out in the schedule attached.
I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.
Associate:
Date:
APPEARANCES
Counsel for the Applicants: G.I. Chitty
Solicitors for the Applicants: G.I. Chitty
Counsel for the Respondent: J.R. Atkinson
Solicitors for the Respondent: Corrs Chambers Westgarth
Date of Hearing : 13 October 1995
Date of Judgment : 13 October 1995
