FEDERAL COURT OF AUSTRALIA

GPG (Australia Trading) Pty Limited v GIO Australia Holdings Limited

[2000] FCA 875

Trade Practices Act 1974 (Cth)

Commonwealth v Verwayen (1990) 170 CLR 394 followed

Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (2000) 169 ALR 324 cited

Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 cited

Wickstead v Browne (1992) 30 NSWLR 1 referred to

Meagher, Gummow & Lehane Equity: Doctrines & Remedies 3rd ed (1992)

GPG (AUSTRALIA TRADING) PTY LIMITED (ACN 054 400 761) v GIO AUSTRALIA HOLDINGS LIMITED (ACN 054 573 401) and AMP LIMITED (ACN 079 354 519)

N 213 OF 2000

GYLES J

SYDNEY

29 JUNE 2000

THE COURT ORDERS THAT:

1.                  Par 1 and 2 of the application be struck out.

2.                  Par 25 to 28 (inclusive) of the statement of claim be struck out.

3.                  The applicant be granted leave to amend its pleading in accordance with the reasons for judgment within 14 days.

4.         Costs of the motion to be the costs of AMP Limited in the proceedings.

REASONS FOR JUDGMENT

1                     This is a motion that par 25 to 28 of the applicant’s statement of claim be summarily dismissed or struck out and that prayers 1 and 2 of the application be summarily dismissed or struck out.  In the alternative, further particulars are sought.

2                     As the issue is interlocutory, I will not burden these reasons by elaborate discussion of the pleading, which speaks for itself.  The parties have exchanged written submissions, which adequately indicate the position that each take and the authorities upon which each relies.  I only need add a reference by Mr Hammerschlag to Meagher, Gummow & Lehane, Equity: Doctrines & Remedies 3rd ed (1992) at par 17.10.  I need not set these submissions out.  I can express my conclusions quite shortly.

3                     The second respondent, AMP Limited (“AMP”), is correct in submitting that the applicant, GPG (Australia Trading) Pty Ltd (“GPG”) pleads a bare estoppel.  It is not pleaded in aid of some other cause of action – it stands alone as if it supplies a right to equitable compensation.  An estoppel does not provide an independent cause of action in equity for relief for compensatory damages or otherwise (Commonwealth v Verwayen (1990) 170 CLR 394, per Deane J at 439-440).  His Honour is there stating a fundamental and well accepted principle.  It could not be said that his Honour was a crusty conservative on the issue of estoppel.  Prayer 1(a) of the application and par 28 of the statement of claim will be struck out.  The heading prior to par 23 will need to be amended. 

4                     There is an issue as to whether the facts pleaded in pars 25, 26 and 27 are sufficient to establish a ground for relief pursuant to s 51AA of the Trade Practices Act 1974 (Cth).  The cases of Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (2000) 169 ALR 324 and Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 reveal that the precise content and limit of the reach of s 51AA are matters for considerable debate.  On the widest view, and subject to one matter, it is possible that the facts pleaded might constitute a breach of s 51AA.  That matter is the omission of any pleading of either knowledge by AMP that people reading the announcement would (or perhaps might) act upon it or of an intention of AMP that people reading it would act upon it.  Absent that element, I do not regard the case as having any chance of success, even on the widest view of the section.  Par 1 and 2 of the application and par 25 to 27 of the statement of claim will be struck out but leave granted to replead if the missing element is included.

5                     If I had taken the view that permitting the claim under s 51AA to remain would substantially increase the burden of preparation and hearing of the case, I would have been inclined to come to some positive view about the reach of the section. However, it seems to me that the facts relevant to this claim are intrinsically intertwined with those relevant to the remainder of the case. That being so, it is best that the issue is resolved in the light of the facts as found at the trial.  In addition to the authorities cited to me, I should add a reference to Wickstead v Browne (1992) 30 NSWLR 1.

6                     I do not think that any further particulars are required at this stage.  The matter can be revisited in due course, if necessary.

7                     The costs of the application will be the costs of AMP Limited in the proceedings. 

8                     The formal orders will be:

1.         Par 1 and 2 of the application be struck out.

2.                  Par 25 to 28 (inclusive) of the statement of claim be struck out.

3.                  The applicant be granted leave to amend its pleading in accordance with the reasons for judgment within 14 days.

4.                  Costs of the motion to be the costs of AMP Limited in the proceedings.

Associate:

Dated:              29 June 2000