FEDERAL COURT OF AUSTRALIA

Luck v Deakin University [2008] FCA 1781

Federal Court Rules O 13

GAYE ALEXANDRA LUCK v DEAKIN UNIVERSITY

VID 444 of 2008

HEEREY J

26 NOVEMBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The motion to strike out the amended statement of claim be adjourned for hearing before Marshall J on a date to be fixed.

2.                  By 8 December 2008, the applicant file and serve a document of no more than two pages which summarises what the applicant says are the wrongful acts or omissions of the respondent which have affected her.

3.                  No less than seven days before the time fixed for hearing of the strike out motion, the respondent file and serve an outline of its submissions on such motion.

4.                  Costs reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 25 November 2008 the respondent filed a notice of motion returnable for directions today seeking to strike out the applicant’s statement of claim which was filed on 17 October 2008.  In the meantime, the applicant has filed an amended statement of claim on 24 November 2008.  This is a document of 108 pages.  The applicant says she is entitled to file and serve an amended statement of claim once, without leave.  She referred to O 13 r 3(1) of the Federal Court Rules.  In the course of the hearing I was inclined to agree.  However, it has since come to my attention that a defence was filed on 14 November, thus the pleadings are closed and consequently leave to file the amended statement of claim is required: O 13.  In any event, the respondent objects to the amended statement of claim.  As I understand the respondent’s contention, the amended statement of claim does not set out the applicant’s case in a way which enables the issues to be properly tried.  Whether this is right or wrong is not to be determined today, and I am making no judgment on that question. 

2                     The practical course in my opinion is to treat the return of the respondent’s motion as the time to determine whether the applicant should have leave to file the amended statement of claim dated 24 November 2008.  In opposing that application the respondent can argue the same grounds as it could on a strike out application.  The respondent’s motion will be adjourned for hearing before Marshall J, to whose docket this matter is now to be transferred.  To avoid confusion, I will direct, subject of course to any direction of Marshall J, that the respondent will commence the argument.  Some dates were mentioned, namely 19 December 2008 and 9 February 2009, which for various reasons do not suit the applicant, so I shall not fix a date.  I will leave it up to the parties to contact Marshall J’s chambers to arrive at a mutually convenient date. 

3                     Until the validity of the amended statement of claim is sorted out, it would be premature to make any other directions such as for discovery.  I will, however, make the following directions, which hopefully may assist the conduct of the respondent’s strike out motion. 

4                     I will direct that by 8 December 2008, the applicant file and serve a document of no more than two pages which summarises what the applicant says are the wrongful acts or omissions of the respondent which have affected her.

5                     I will further direct that no less than seven days before the time fixed for hearing of the strike out motion, the respondent file and serve an outline of its submissions.  The costs of today are reserved.

Associate:

Dated:         27 November 2008