FEDERAL COURT OF AUSTRALIA

Croker v Philips Electronics Australia Ltd [2000] FCA 1516

PRACTICE & PROCEDURE – pleadings – whether reasonable cause of action pleaded – whether proceeding should be dismissed – possibility of a cause of action but applicant not able to draw an acceptable pleading – interests of justice where claim inappropriately sought to be made in Federal Court

CLAYTON ROBERT CROKER v PHILIPS ELECTRONICS AUSTRALIA LIMITED & ORS

N 197 of 2000

BRANSON J

SYDNEY

19 OCTOBER 2000

THE COURT ORDERS THAT:

1.         The proceeding be dismissed.

2.         The applicant pay the costs of the respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The history of this matter is outlined in my reasons for decision of 17 July 2000.  I do not propose to set out that history again.

2                     On 17 July 2000 the respondents moved on notices of motion for orders that the proceeding be stayed or dismissed or, alternatively, that the statement of claim be struck out.  In ex tempore reasons for decision delivered that day I noted that the application did not fully comply with the requirements of O 4 r 1(2) or O 4 r 3(1)(b) of the Federal Court Rules.  I further noted that it was infected with errors of spelling and syntax and disclosed a lack of understanding of the nature of interlocutory relief.  As to the purported statement of claim then on file, I noted that it did not conform with O 11 r 2 in that it was largely a recital of narrative facts with certain conclusions of law apparently based on those facts.  Material facts crucial to the claims which Mr Croker wished to advance against the respondents, or one or more of them, were not pleaded in that statement of claim.

3                     I decided on 17 July 2000 that it would not be appropriate at that stage to stay or dismiss the proceedings.  I indicated that, in my view, the applicant should be given a further opportunity to plead his case.  I ordered that the statement of claim be struck out and granted the applicant leave to file and serve an amended application and a fresh statement of claim.  The applicant has filed an amended application and a fresh statement of claim.

4                     The respondents have again moved for orders that the application be stayed or dismissed. The third respondent has sought an order in the alternative that the statement of claim be struck out as against the third respondent.

5                     The amended application is not in, or substantially in, the form numbered 5 in the First Schedule to the Federal Court Rules.   So far as can be determined, the only final relief sought by the amended application is an order for damages although there are purported claims by way of interlocutory relief for costs and rescission of a purported contract between the applicant and the second and third respondents.  Although there are clear deficiencies in the amended application they are not, standing alone, such as to persuade me that the proceedings should be permanently stayed or dismissed.

6                     I turn to consider the fresh statement of claim.  It is a confusing document.  By paragraph 4 it pleads that the applicant on 7 November 1999 approached the second respondent and purchased a mobile phone from the second respondent.  The same paragraph pleads that at the time of the purchase the applicant and the third respondent were “bound in an 18 months contract for the supply of goods and services by the third named Respondent for consideration by the Applicant at monthly intervals”.  No particulars of this contract or of the contract of purchase are given.  Surprisingly, subsequent paragraphs of the statement of claim allege that the applicant purchased the mobile phone from the first respondent.  It is alleged that “at the time of purchase and at the time of contracting with the third named Respondent that the material details involved in the contract were false and misleading”, but no particulars of the material details referred to are provided.   It is pleaded “[t]hat by silence the third named Respondent misleads the Applicant in regard to the IMEI number that coincided with the said contract and the said mobile phone”, but no particulars are provided of how the applicant was misled or of the circumstances which placed the third respondent under a duty not to remain silent in respect to any, and if what, relevant matter.

7                     Numerous allegations of negligence are made against each respondent but no material facts are pleaded in support of the allegations.  In particular, no facts are pleaded to support the existence of a duty of care or which would give rise to such a duty.  Numerous alleged breaches of statutory duty are alleged without proper particulars and without any relief in respect thereof being sought.  The relevance of some of the statutory provisions relied upon is at best obscure (eg the Crimes Act 1914 (Cth) s 16A and the Corporations Law s 232).

8                     To require the respondents to plead to the statement of claim as presently drawn would be embarrassing to them and unhelpful to the Court.  The respondents cannot know from the document the material facts upon which the applicant relies.  They cannot know the suggested relevance of many of the allegations made against them.  The statement of claim, in my view, must be struck out on the basis that it has a tendency to cause prejudice, embarrassment and delay to the proceeding.

9                     Ought the applicant again be granted leave to replead his asserted case against the respondents?  The two attempts which the applicant has made to plead causes of action against the respondents have not left me with any clear idea of the precise nature of his complaints.  However, so far as the third respondent is concerned, it is, I think, sufficiently clear that the applicant cannot demonstrate that he has a reasonable cause of action.  It appears that the applicant relies on a contract between himself and the third respondent which predated his purchase of the mobile phone which is the centrepiece of his asserted claims against the respondents.  He has been unable to make clear how any conduct of the third respondent in relation to the mobile phone has been causative of any of the alleged loss or damage which he now seeks to recover.

10                  So far as the first and second respondents are concerned, I am less confident that the applicant does not have a reasonable cause of action against them or either of them.  I am, however, persuaded that even if he has such a case, he is not capable of drawing a pleading which fairly presents that case to the first and second respondents so as to enable them to defend it.  I am also persuaded that his claim to have suffered loss and damage in an amount in excess of $100,000 is fanciful.  I have on a number of occasions urged the applicant to seek legal advice in respect to this proceeding.  He has today assured me that he has made some attempts but he does not believe that he can obtain legal assistance.

11                  The effect of refusing to grant leave to the applicant to file a fresh statement of claim will be the equivalent to dismissing the proceedings summarily.  This is a serious step which should be exercised with great care and ordinarily only in a clear case.  As I have mentioned, I think that there is a clear case so far as the third respondent is concerned.  However, I am less sure that there is no cause of action which the applicant could plead against the first and second respondents.  However, the Court must also give consideration to the interests of justice so far as the respondents are concerned and generally.

12                  The proceeding concerns the purchase of a single mobile telephone.  This Court is not, as I have drawn to the applicant’s attention on previous occasions, an appropriate forum for the resolution of minor disputes of this kind.  There are consumer tribunals and courts of limited jurisdiction which can hear and determine complaints of the type which the applicant wishes to advance in this proceeding.  Indeed, it appears that the applicant has already made two applications to the Fair Trading Tribunal of New South Wales arising out of his purchase of the mobile telephone.  The parties have already been before the Court on this proceeding on six occasions.  No doubt the costs of the respondents are mounting.  Court time is being taken up with little, if any, commensurate public benefit.  The applicant has had two opportunities to plead his case and has not been able to do so in an acceptable way.  I have no reason to think that he will be able to do so in the future.  In the circumstances, it seems to me that no useful purpose will be served from my granting the applicant leave to file a third version of the statement of claim.  It would, I consider, be unfair to the respondents and contrary to the interests of justice generally to allow this proceeding to continue.  The proceeding will be dismissed.

Associate:

Dated:                                                                      19 October 2000