Federal Court of Australia

Svehla v Svager [2026] FCA 185

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application to rely on a further amended statement of claim and a further amended originating application (each filed on 3 June 2024) be refused.

2.    Pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) and s 31A(2) of the Federal Court of Australia Act 1976 (Cth), there be summary judgment for the second and third respondents against the applicant.

3.    The first respondent’s interlocutory application for summary judgment against the applicant be dismissed.

4.    The applicant pay the costs of the second and third respondents in relation to the proceedings:

(a)    The second respondent have liberty to apply under r 40.02(b) of the Federal Court Rules within 28 days of the Court’s orders for a lump sum costs order; otherwise costs to be agreed or assessed.

(b)    The third respondent’s costs to be agreed or assessed.

5.    The applicant and the first respondent bear their own costs in relation to the applicant’s interlocutory application to rely on a further amended statement of claim, and the first respondent’s summary judgment and strikeout applications.

6.    Each of the following be struck out pursuant to r 16.21 of the Federal Court Rules:

(a)    The originating application accepted for filing on 8 August 2023;

(b)    The statement of claim accepted for filing on 8 August 2023;

(c)    The amended originating application filed on 14 March 2024; and

(d)    The amended statement of claim filed on 14 March 2024.

7.    By 6 April 2026, the applicant serve on the first respondent drafts of a fresh further amended originating application and a fresh further amended statement of claim.

8.    Within 14 days of service under order 7, the first respondent write to the applicant by registered post in relation to any issues identified with the draft further amended originating application and the draft further amended statement of claim.

9.    Within 28 days of service under order 7, the first respondent inform the applicant by registered post whether he consents to or opposes the filing of the further amended originating application and the further amended statement of claim.

10.    A case management hearing be listed for a date to be determined but no earlier than 4 May 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STELLIOS J:

1    In this proceeding, the applicant (Mr Svehla) claims compensation and damages under Sch 2 of the Competition and Consumer Act 2010 (Cth) (CCA), being the Australian Consumer Law or ACL. Mr Svehla alleges that the first respondent (Mr Svager) provided Mr Svehla with a defective gas cylinder and, as a consequence of an incident involving that defective gas cylinder, Mr Svehla suffered gas exposure-related injuries. The alleged provision of the gas cylinder and subsequent incident occurred in Queanbeyan, New South Wales (NSW).

2    Mr Svehla also brings claims against the second respondent (the Commonwealth) and the third respondent as the bodies responsible for the administration of the ACL at the federal level and in NSW. Although it is not clear from the documents filed by Mr Svehla, broadly speaking, the claims against the Commonwealth and the third respondent appear to include claims for damages arising at common law and from alleged defective administration of, and breach of statutory duties under, their respective legislation.

3    These orders arise from the interlocutory applications filed by:

(1)    Mr Svehla made orally before Perry J at a case management hearing on 10 October 2024;

(2)    Mr Svager on 7 November 2024 in the affidavit of Eilish Cabban affirmed on the same date (Cabban affidavit);

(3)    the Commonwealth on 7 November 2024 in the affidavit of Charles Richard Taylor affirmed on the same date (Taylor affidavit); and

(4)    the third respondent on 13 November 2024 in the affidavit of Mark Gabriel Nicoletti sworn on the same date (Nicoletti affidavit).

4    Mr Svehla seeks leave to rely on a further amended statement of claim (FASOC) and further amended originating application (FAOA) filed by him on 3 June 2024.

5    Each of the respondents seeks orders for summary judgment in their favour, orders that Mr Svehla’s pleadings and amended pleadings be struck out, and orders for costs either on an indemnity or party and party basis in their favour. The Commonwealth and the third respondent also, in the alternative, seek orders removing them as parties to the proceeding.

6    For the reasons that follow, orders should be made for summary judgment in favour of the Commonwealth and the third respondent. Orders should also be made (a) striking out the originating application (OA), the statement of claim (SOC), the amended originating application (AOA) and the amended statement of claim (ASOC); (b) refusing leave to Mr Svehla to file the FASOC and FAOA; and (c) giving Mr Svehla a further opportunity to serve on the first respondent a draft of a fresh further amended originating application and a draft of a fresh further amended statement of claim.

Procedural history

The state of the originating process and pleadings

7    Mr Svehla filed the OA and the SOC on 20 July 2023. Following an interlocutory application by the Commonwealth, on 20 February 2024, a Registrar of this Court ordered that Mr Svehla file and serve an amended originating process and amended statement of claim on or before 15 March 2024. The Registrar further ordered that, failing compliance with that order, the Commonwealth would cease to be a party to the proceeding.

8    On 14 March 2024, Mr Svehla filed the AOA and the ASOC. On 17 April 2024, the Registrar ordered that the respondents were to write to Mr Svehla in relation to issues identified with the ASOC. Mr Svehla was ordered to serve any draft further amended statement of claim by 3 June 2024, and the respondents were to inform Mr Svehla whether they consented to or opposed the filing of the further amended statement of claim by 17 June 2024.

9    Two days later, on 19 April 2024, Mr Svehla was referred to pro bono counsel for legal assistance under r 4.12(1) of the Federal Court Rules 2011 (Cth). The advice provided by counsel was apparently limited to causes of action against the Commonwealth and the third respondent.

10    On 3 June 2024, Mr Svehla filed the FAOA and FASOC.

11    On 10 October 2024, Perry J held a case management hearing during which Mr Svehla was taken to have made an oral application for leave to rely on the FAOA and FASOC. Perry J made orders for the respondents to file and serve responsive affidavits, including any additional interlocutory orders sought by the respondents (in lieu of applications being filed pursuant to r 17.01 of the Rules), and timetabled submissions and a hearing of those applications.

The interlocutory hearing on 23 June 2025

12    The hearing of the respective interlocutory applications was held on 23 June 2025. The arguments in the written submissions ahead of the hearing necessarily focussed on those applications.

13    However, in the course of oral submissions, I raised with the parties the question of whether the Court had jurisdiction to hear and determine the matter. That was because, if the Court did not have jurisdiction, it would not be within the Court’s jurisdiction to grant any of the relief sought.

14    Following the hearing, the parties were provided a further opportunity to put on written submissions addressing the question of whether the Court had jurisdiction and, if not, whether the Court can and should transfer the proceedings to another court of competent jurisdiction. I have determined that the question of jurisdiction can be decided on the basis of the written submissions without a further hearing.

15    Additionally, during the hearing Mr Svehla indicated that he had not received the third respondent’s written submissions in time to prepare a written response. Those submissions were, by Perry J’s orders dated 10 October 2025, to be filed on 24 January 2025, with Mr Svehla’s reply to be filed by 21 February 2025. Those dates were extended on 24 January 2025, respectively, to 31 January 2025 and 28 February 2025 and, again, on 14 February 2025, respectively, to 21 February 2025 and 21 March 2025. It was noted in the orders dated 24 January 2025 and 14 February 2025 that the first respondent and the third respondent, respectively, would promptly notify the applicant of those orders by registered post.

16    At the hearing of the interlocutory application, counsel for the third respondent opposed a further opportunity for Mr Svehla to respond in writing to the third respondent’s written submissions. That opposition was on the basis that Mr Svehla had been properly served within the extended time. I requested during the hearing that the third respondent, in its further written submissions on jurisdiction, to provide confirmation that the third respondent had notified Mr Svehla of the extension to 21 March 2025. That did not occur.

17    In response to an enquiry by my chambers, the third respondent clarified that it did not have any records indicating that the third respondent had notified Mr Svehla of the extension given to him to 21 March 2025 for his reply submissions. The third respondent clarified that Mr Svehla had received the third respondent’s submissions on 5 March 2025. It further identified that Mr Svehla had filed his reply submissions on 11 March 2025, which were non-responsive to the third respondent’s submissions. Although Mr Svehla filed his reply submissions earlier than the date required by the orders of 14 February 2025, it is likely that the third respondent did not put him on notice of those orders.

18    In those circumstances, and given the serious consequence of an order against Mr Svehla in favour of the third respondent, I considered it appropriate to allow Mr Svehla a further opportunity to reply to the third respondent’s written submissions. Those submissions were filed on 13 February 2026.

The evidence relied on in support of the interlocutory applications

19    Mr Svehla relied on two affidavits, both of which he affirmed on 8 January 2025. Mr Svager relied on the Cabban Affidavit. The Commonwealth relied on the Taylor Affidavit. The third respondent relied on the Nicoletti Affidavit.

Jurisdiction

The jurisdiction of the Court to hear the applicant’s ACL claims

20    The Federal Court is a statutory court created by the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and vested with jurisdiction by Commonwealth legislation. For the Court to determine the dispute between the parties and, indeed, determine the interlocutory applications, it must be satisfied that it has jurisdiction conferred by Commonwealth legislation: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512; [2023] HCA 26 at [3] (Kiefel CJ, Gordon and Steward JJ).

21    As a court established by the Commonwealth Parliament, the Federal Court can exercise jurisdiction conferred on it pursuant to s 77(i) of the Constitution. That jurisdiction can be defined to include matters arising under any laws made by the Parliament: Constitution s 76(ii). As an exercise of power under s 77(i), by reference to s 76(ii), s 39B(1A)(c) of the Judiciary Act 1903 (Cth) provides that the Federal Court has original jurisdiction in any matter arising under any laws made by the Parliament. Section 19(1) of the Federal Court Act further provides that the Federal Court has such original jurisdiction as is vested in it by laws made by the Parliament. These general provisions conferring jurisdiction operate alongside more specific provisions that confer and define the jurisdiction of the Court in particular statutory contexts.

22    Relevantly to Mr Svehla’s claims against Mr Svager, s 138 of the CCA confers jurisdiction on the Court “in relation to any matter arising under [Part XI] or the Australian Consumer Law in respect of which a civil proceeding has been instituted under [Part XI] or the Australian Consumer Law”. “Australian Consumer Law” is defined in s 130 of the CCA to mean “Schedule 2 as applied under Subdivision A of Division 2 of [Part XI]”. Schedule 2 contains the ACL.

23    However, the ACL only applies under Subdivision A of Division 2 of Part XI “as a law of the Commonwealth” in the ways set out in s 131 of the CCA. It follows from what has been set out above that the Court only has jurisdiction to hear an ACL claim to the extent that the ACL applies as a law of the Commonwealth under s 131.

24    The ACL applies as a law of the Commonwealth under s 131 in five circumstances:

(1)    First, it applies as a law of the Commonwealth to the conduct of corporations, and in relation to contraventions of Chapter 2, 3 or 4 of the ACL by corporations (s 131(1)).

(2)    Secondly, s 21 of the ACL applies as a law of the Commonwealth in relation to (i) a supply or possible supply of goods or services by any person to a corporation; or (ii) an acquisition or possible acquisition of goods and services from any person by a corporation (s 131(2)(a)).

(3)    Thirdly, s 147 of the ACL also applies as a law of the Commonwealth to, and in relation to, a corporation as a supplier referred to in that section (s 131(2)(b)).

(4)    Fourthly, Div 2 of Part 5‍–‍1 of the ACL applies as a law of the Commonwealth to and in relation to a person if the other person referred to in s 219 of the ACL is a corporation (s 131(2)(c)).

(5)    Fifthly, s 33 of the ACL applies as a law of the Commonwealth to, and in relation to, the conduct of any person (s 131(2)(d)).

25    The first four circumstances referred to in s 131 require the involvement of a “corporation” which is defined to mean “a body corporate” of certain kinds (CCA ss 4(1) and 130). Leaving aside s 33 of the ACL, the difficulty in this proceeding is that Mr Svehla’s ACL claims against Mr Svager do not allege any conduct involving a corporation: both Mr Svehla and Mr Svager are natural persons.

26    If not for the s 33 claim against Mr Svager, I would have accepted the Commonwealth’s submissions that the Court lacked jurisdiction under s 138 of the CCA to hear and determine Mr Svehla’s ACL claims. To the extent that s 138 requires the involvement of the conduct of a corporation as a foundation for the ACL claims, that statutory condition requiring the conduct of a corporation is not satisfied on the basis of the existing or proposed pleadings. Excluding the claim under s 33, the ACL claims are otherwise “incapable on [their] face of legal argument” (Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [35] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ)) and, accordingly, are incapable of enlivening the jurisdiction of the Court.

The applicant’s s 33 claim

27    However, s 33 of the ACL — the fifth category in [23] above — extends to the conduct of natural persons. There is no suggestion that Mr Svehla’s s 33 claim against Mr Svager is not genuinely raised: Citta at [35]. Accordingly, s 33 applies in the circumstances of this proceeding as a law of the Commonwealth, thereby prima facie enlivening the jurisdiction of the Court under s 138 of the CCA.

28    Nonetheless, the Commonwealth submitted that, even if it were accepted that s 33 of the ACL were capable of relevant application to the facts underlying Mr Svehla’s claim, this Court does not have the power under ss 237 or 238 of the ACL to make a compensation order for an alleged contravention of s 33. That is because s 137E of the CCA provides:

(1)    A court must not make an order under subsection 237(1) or 238(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person to the extent to which:

(a)    the action would be based on the conduct contravening a provision of Part 2‍–‍1 or 3‍–‍1 [which includes s 33] of the Australian Consumer Law; and

(b)    the loss or damage is, or results from, death or personal injury; and

(c)     the death or personal injury does not result from smoking or other use of tobacco products.

29    The Commonwealth contended that the Court lacks the power to make a compensation order under ss 237 or 238 of the ACL because the alleged personal injury in this case did not result from smoking or other use of tobacco products. I note that a similar restriction applies to actions for damages under s 236 of the ACL (a further claim that Mr Svehla makes): see CCA s 137C(1).

30    I understand the Commonwealth’s position to be that Mr Svehla’s s 33 claim is incapable on its face of legal argument because s 137E (and, I would add, s 137C) of the CCA denies Mr Svehla an entitlement to compensation.

31    However, jurisdiction under s 138(1) (when read with s 131(2)(d)) is enlivened where there is a matter arising under s 33 of the ACL. That enlivening condition is satisfied. There is no mention of the remedial provisions as being necessary to enliven the Court’s jurisdiction. To the extent that the relevant “matter” referred to in s 138(1) might require the existence of a correlative remedy (a question that does not need to be addressed), nothing in ss 137C or 137E of the CCA prevents the grant of non-compensatory relief. Accordingly, the claim that there has been a contravention of s 33 is capable of enlivening the jurisdiction of the Court.

Connection with the ACT

32    For reasons that will become apparent below, it is also necessary to consider whether the Court’s jurisdiction is separately enlivened because of a connection between the facts alleged in the FASOC and the Australian Capital Territory (ACT). That is the case for two reasons:

(1)    Section 6(2)(a)(iii) of the CCA extends the operation of the relevant parts of the CCA to persons who are not corporations in circumstances where trade or commerce is within a Territory, between a State and a Territory or between two Territories.

(2)    The Court has jurisdiction in respect of any matter in which the ACT Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or a State: Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(3) (Cross-Vesting Act (Cth)); Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 4(1) (Cross-Vesting Act (ACT)); see Crosby v Kelly (2012) 203 FCR 451; [2012] FCAFC 96 at [35]. The ACT Supreme Court has jurisdiction to determine matters under the ACT version of the ACL (Fair Trading (Australian Consumer Law) Act 1992 (ACT) (ACL (ACT))). The ACL (ACT) applies to and in relation to people carrying on business within the ACT, people ordinarily resident in the ACT or people otherwise connected with the ACT: ACL (ACT) s 11.

33    I agree with the Commonwealth’s submissions that Mr Svehla has not presently pleaded facts that would enliven the Court’s jurisdiction in either of these ways:

(1)    Mr Svehla’s address for service is given as an address in NSW; and

(2)    Mr Svehla’s dealings with Mr Svager occurred in NSW.

34    It also follows that, as currently pleaded or proposed to be pleaded under the FASOC, any ACL claims that Mr Svehla might have do not arise under the ACL (ACT).

Accrued jurisdiction

35    Nonetheless, because the Court’s jurisdiction has been enlivened by a claim for a contravention of s 33 of the Commonwealth ACL, any claim under the NSW version of the ACL as it applies under the Fair Trading Act 1987 (NSW) as a law of NSW (ACL (NSW)) will fall within the Court’s accrued federal jurisdiction if it is non-severable from the claim under the Commonwealth ACL. That will be the case where the respective claims arise from a common substratum of facts: Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [140] (Gummow and Hayne JJ; Gleeson and Gaudron JJ agreeing). Any non-severable claims under the ACL (NSW) that arise from the alleged incident involving the gas cylinder would constitute the same federal matter and can be determined by this Court.

Summary

36    In summary, the Court has jurisdiction to hear and determine Mr Svehla’s claim for a contravention of s 33 of the ACL. As currently pleaded or proposed to be pleaded under the FASOC, there is no basis to conclude that the other ACL claims fall within the ACL (ACT) or the extended operation of the Commonwealth ACL because of a connection with the ACT and, thereby, within the jurisdiction of the Court in the ways described at [31] above. Nonetheless, the Court also has jurisdiction to hear other non-severable ACL claims that arise under the ACL (NSW).

37    It is neither necessary nor appropriate at this stage in the proceeding to decide whether it is the NSW or ACT version of the ACL (or, indeed, the extended operation of the Commonwealth ACL) that might apply to the pleaded facts in addition to the claim under s 33 of the Commonwealth ACL. If it is the NSW version, then the ACL claims will fall within the Court’s accrued jurisdiction if they are non-severable. If it is the ACT version of the ACL or the extended operation of the Commonwealth ACL because of a connection with the ACT, then the claims will be heard within the Court’s jurisdiction conferred as described above at [31]. Whether the Court has jurisdiction to hear those claims (other than the s 33 claim), and on what basis, will have to await a new pleading.

COMMONWEALTH’S APPLICATION

38    The Commonwealth seeks summary judgment pursuant to r 26.01(1) of the Federal Court Rules and/or s 31A(2) of the Federal Court Act. The grounds for summary judgment under those provisions include that Mr Svehla has no reasonable prospect of successfully prosecuting the proceeding and that no reasonable cause of action is disclosed. Section 31A(3) of the Federal Court Act provides that a proceeding need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success.

Legal principles for summary judgment

39    As Gaudron, McHugh, Gummow and Hayne JJ said in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] (footnote omitted):

It is, of course, well accepted that a court whose jurisdiction is regularly invoked … should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

See also Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [46] (Gleeson CJ, Gummow, Hayne and Crennan JJ); DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91 at [1], [64] and [206].

40    The exercise of the power to summarily terminate proceedings “is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99 (the Court); see also Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] (French CJ and Gummow J). The power “will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable”: Spencer at [22] (French CJ and Gummow J).

41    In Dowling v Commonwealth Bank of Australia [2008] FCA 59 at [30], Reeves J said that the circumstances warranting summary judgment include those “where a party completely fails to identify any valid claim or cause of action, to the court or fails to provide any factual material that could amount to a valid claim, in the materials he or she places before the court, having been given a reasonable opportunity to do so”.

42    Some care must be taken when considering a summary judgment application against a litigant in person. However, the difficulties experienced by litigants in person “cannot justify a departure from the Rules relating to the institution and conduct of proceedings and to pleadings such that anything will go. Justice requires fairness to all parties”: Manolakis v Carter [2008] FCAFC 183 at [9]‍. See also Ferdinands v South Australia (No 2) [2017] FCA 1436 at [53]‍–‍[55].

Applicant’s claims against the Commonwealth

43    I will assess the summary judgment application against Mr Svehla’s proposed claims in the FASOC. Mr Svehla makes a range of claims against the Commonwealth. They are not pleaded with clarity. In the reasons that follow, I have sought to identify those claims on my best reading of the pleadings.

44    The following appear to be claims made against the Commonwealth in the FASOC:

(1)    Negligence: It is alleged that the Commonwealth and its departments “are responsible for administering safety of the people of Australia including the Consumer Protection Laws and Civil Laws” (FASOC at [52]). The particulars include that the Commonwealth provides policies, legislation, redress systems and enforcement agencies; cooperates with State and Territory consumer protection agencies; and promotes international enforcement in consumer protection. It appears from the pleadings that the allegation is that the Commonwealth is liable in negligence because it is responsible for (a) the regulation of gas cylinders (FASOC at [57]), (b) ensuring that licensed professionals who deal with such cylinders are competent (FASOC at [57.1]), and (c) preventing, through the supply chain, gas leaks from non-compliant gas cylinders (FASOC at [58] and [59]).

(2)    The allegations also include the claim that the Commonwealth did not provide alternatives for the degradation of service providers and products during COVID-19 (FASOC at [60]).

(3)    There also appears to be a claim that the COVID-19 vaccine was not tested on frostbite injury victims (FASOC at [62]), although it is unclear whether Mr Svehla alleges that the COVID-19 vaccine contributed to the extent of Mr Svehla’s injury, or prevented him from re-entering Australia if unvaccinated. I will assume that this too is a claim based in negligence.

(4)    Further, it is alleged that the Commonwealth failed in its responsibilities (including the failure of Australian consumer protection laws and subsequent defective administration and detriment), and that failure resulted in injury and other loss to Mr Svehla, including the time he has spent dealing with his injury (FASOC at [61]), entitling Mr Svehla to damages “under the Civil liability Act” or compensation (FASOC at [70], [91], [95]).

(5)    Breach of statutory duty: Although not pleaded clearly, Mr Svehla appears to allege a breach of statutory duty. From his written submissions, Mr Svehla seeks declarations that the Commonwealth’s authorities have failed to fulfil statutory duties to regulate and enforce the ACL, and an order that they investigate and recall the cylinder and issue public warnings. The claim for breach of statutory duty also includes allegations of contraventions of the International Convention on Civil and Political Rights (ICCPR) (FASOC at [92]‍–‍[94]). Mr Svehla also claims that he has suffered discrimination under the Disability Discrimination Act 1992 (Cth) (FASOC at [81.1]).

(6)    Constitutional claims: Under the heading of “Other adverse issues – unconstitutional”, Mr Svehla also appears to take issue with: the COVID-19 lockdown and alleged restrictions on him travelling to Europe; (then) Prime Minister Scott Morrison’s appointment to multiple portfolios; (then) Premier Gladys Berejiklian’s resignation; and the refusal to allow the UN Subcommittee on Prevention of Torture entry to Australia. All these alleged matters are claimed to have contributed to Mr Svehla’s insecurity (FASOC at [63]‍–‍[66]). It is unclear to what extent these claims seek to raise a constitutional question. However, any such question is so insubstantial that it does not warrant the issuing of a notice under s 78B of the Judiciary Act: see Re Culleton (2017) 91 ALJR 302; [2017] HCA 3 at 307‍–‍308 [29] (Gageler J).

(7)    Other claims: A litany of other allegations include that: the Commonwealth “had the authority to resolve Consumer Protection Laws disputes efficiently” (FASOC at [54]); the incident has been reported to federal authorities without proper resolution or feedback (FASOC at [53]); Mr Svehla has tested the gas cylinder for the Commonwealth involuntarily and without reward (FASOC at [67]‍–‍[69]); Mr Svager could have made the Commonwealth a party under s 148 of the ACL (Commonwealth liability for goods that are defective only because of compliance with a Commonwealth mandatory standard) (FASOC at [72]); there has been a failure to investigate the alleged incident in a timely way and the Commonwealth’s “hands off approach” will set a precedent (FASOC at [73]‍–‍[77]); Centrelink staff have treated Mr Svehla in a disrespectful and unhelpful manner (FASOC at [79]‍–‍[80]); he has been denied access to his superannuation funds (FASOC at [82]‍–‍[83.1]); no documentation has been provided to Mr Svehla in relation to the alleged non-compliance of the gas cylinder, thereby denying Mr Svehla information about the supply chain for the cylinder (FASOC at [84]‍–‍[86]); and Mr Svehla has been denied free movement in Australia or abroad and, consequently, has been entrapped (FASOC at [87]). There are also unclear claims about agreements between Australia and the European Union and relating to Mr Svehla’s immigration status (FASOC at [88]‍–‍[90]). Mr Svehla’s submissions also refer to misfeasance in public office as a result of the failure by the Commonwealth to investigate, recall, or take corrective action in relation to the cylinder.

45    In affidavit evidence, Mr Svehla also asserts that, while the Commonwealth did not supply the gas cylinder, it could be held liable for human rights violations, negligence, wilful misconduct, breach of statutory duty and “[d]efective administration – negligence”.

Negligence

46    In relation to the negligence claim, I accept the Commonwealth’s submissions that Mr Svehla has no reasonable prospect of successfully establishing that the Commonwealth owes him a relevant duty of care. Mr Svehla’s allegation appears to be that the duty of care arises because (a) the Commonwealth (or a Commonwealth agency) has responsibility for the safety of the Australian people and/or the control of goods in Australia; (b) the Commonwealth (or a Commonwealth agency) has responsibility for the regulation of gas cylinders and/or the prevention of injury arising from non-compliant cylinders (including by recalling them); and (c) the Commonwealth (or a Commonwealth agency) has the responsibility to resolve disputes under consumer protection laws efficiently.

47    None of these bases for the alleged duty are capable of sensibly confining the duty to a foreseeable class of persons. In Knowles v Commonwealth [2022] FCA 741, Mortimer J (as her Honour then was), considered a claim that a duty of care was owed by the Commonwealth and State governments in relation to measures, including lockdowns and vaccination requirements, put in place during COVID-19. As formulated, the duty was said to be owed to the entire Australian community. In rejecting the existence of a duty of care, her Honour said (at [233]):

[The applicants] seek to run their negligence case on the basis the duty is owed to all members of the community affected in a negative way by the impugned Measures. … This breadth of the persons to whom the alleged duty of care is said to be owed, without any attempt to identify or delineate the material facts relating to their circumstances, is one of the fatal flaws in the framing of the applicants’ case in negligence. It is exacerbated by the failure to articulate specific links between the making of a particular Measure and the alleged harm said to have been caused even to a specific applicant. This detail is wholly absent. In my opinion that is in large part because the harm suffered by the applicants is of the same nature as the harm the applicants’ case assumes has been suffered by a large (unidentified) proportion of the Australian community.

48    I agree with the Commonwealth’s submissions that Mr Svehla’s negligence claims (including the claim relating to the COVID-19 vaccine) suffer from the same flaws. If accepted, the duty would be owed to Mr Svehla in a way that is undifferentiated from the way the claimed duty would apply to other members of the Australian community. I agree with the thrust of the Commonwealth’s argument that the bases identified for the duty are not capable of singling out Mr Svehla, either alone or as a member of a class (“rather than the public at large”), who might have been brought into a special relationship with the Commonwealth as a consequence of any action or inaction on the part of the Commonwealth: see Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at [93(2)] (McHugh J); see also at [25] (Gaudron J).

Breach of statutory duty

49    Mr Svehla does not, with any precision, identify the foundation for the claimed cause of action for breach of statutory duty. There are references in the FASOC to a “failure of Australian Consumer Laws”; and in his submissions and affidavit evidence, references to failures to recall the product, provide information and advice, and to cooperate with State agencies. The alleged failures appear to relate to actions or omissions both before and after the incident in question.

50    However, Mr Svehla does not identify a clear basis, or plead material facts, to support an argument that the Commonwealth has contravened a statutory duty. Nor does the ICCPR provide a foundation for such an argument: it is an international treaty that has not been incorporated into domestic law in a way that would provide Mr Svehla with a statutory foothold for a claim for breach of statutory duty.

51    There is also the reference to the Disability Discrimination Act, but I agree with the Commonwealth’s submissions that the process for obtaining redress for unlawful discrimination is set out in Pt IIB of the Australian Human Rights Commission Act 1986 (Cth). Even if prohibited discrimination could be established (which it has not), the Disability Discrimination Act does not provide a basis for the remedy that Mr Svehla seeks in this proceeding.

Other claims

52    It is not necessary to canvass the other purported claims in detail. Most are in the nature of generalised grievances. It is enough to say that none of them identify a recognised cause of action, or a clear basis to support such a cause of action, that would entitle Mr Svehla to relief against the Commonwealth.

53    While Mr Svehla pleads s 148 of the ACL, that provision is only enlivened if the conditions in s 148(1) of the ACL are satisfied, including that a person against whom a defective goods action is sought gives the Commonwealth the prescribed notice and their defence. That has not occurred in these proceedings.

54    In summary, Mr Svehla’s claims against the Commonwealth do not disclose a reasonable cause of action and/or have no reasonable prospect of success.

third respondent’s application

55    NSW Fair Trading is not an entity that can be sued.    As submitted by the third respondent, it is a division of a department of the NSW State Government. Accordingly, the appropriate respondent (if there were a reasonable cause of action) should have been the State of NSW. Before the third respondent could be removed on that basis, consideration would need to be given to whether the State should be substituted as the appropriate party.

56    Accordingly, in considering the third respondent’s summary judgment application, I will assume that the State has been named as the third respondent. For clarity, I will refer to the “third respondent” when identifying positions taken and submissions made by NSW Fair Trading and refer to the “State” when hypothesising about the success of the cause of action.

57    Mr Svehla claims the following against the third respondent.

58    First, while it is not entirely clear from the pleadings, Mr Svehla appears to claim that the State has breached a statutory duty by failing to investigate the alleged incident with the gas cylinder or to enforce regulatory requirements (FASOC at [75], [96], [98], [99], [100], [111]‍–‍[117]). These complaints are repeated in Mr Svehla’s written submissions, which also allege a contravention of “the Code of Conduct” by failing to act with honesty and integrity, providing misleading information, and failing to exercise reasonable care and skill.

59    Such claims would require consideration of NSW statutes, perhaps including the Plumbing and Drainage Act 2011 (NSW), the Home Building Act 1989 (NSW), the ACL (NSW) and Work Health and Safety Regulations 2017 (NSW) (which were referred to in the third respondent’s submissions), and also the Government Sector Employment Act 2013 (NSW).

60    The third respondent sought to deflect responsibility for the design, safety and regulation of the sale of gas cylinders in NSW to Safework NSW. However, it too appears to be an agency within a department of the State and, accordingly, such attempted deflection does not advance the third respondent’s position.

61    There are two difficulties with Mr Svehla’s claims again the State. The first is that Mr Svehla does not identify a clear basis, or plead material facts, to support an argument that there has been a contravention of State provisions.

62    The second is that, to the extent that Mr Svehla seeks a remedy against the State for a breach of State provisions, on the basis of a failure by the State to respond to the alleged incident, I consider that it would be a distinct and severable claim under State legislation that does not fall within the accrued jurisdiction of the Court. On that basis, it is not a claim that can be determined by this Court.

63    Secondly, Mr Svehla appears to allege a cause of action against the State in negligence. It appears that the foundation of the allegation is that every gas leak from non-compliant gas cylinders should be under the State’s control and it is the responsibility of the State to prevent gas leaks causing injury (FASOC at [97], [105], [106], [108], [109]). For the reasons set out above in relation to negligence claims against the Commonwealth, this claim does not disclose a reasonable cause of action and/or has no reasonable prospect of success.

64    Thirdly, Mr Svehla also appears to plead claims against the State under the ACL (FASOC at [109], [117]). However, Mr Svehla does not plead any material facts that provide a foundation for such a claim.

65    Fourthly, Mr Svehla pleads reliance on the Civil Liability Act 2002 (NSW) (CLA) (FASOC at [117]). I agree with the third respondent’s submission that the pleading is unintelligible. To the extent that its alleged application is connected to a common law claim or breach of statutory duty claim (see CLA Pt 5), then it takes those claims no further than what has been outlined above.

66    I also agree with the third respondent’s submission that Mr Svehla’s claim that “Gas leak failure could be engineered into the product in the supply chain by the Third Respondent” (FASOC at [107]) is scandalous and should be struck out.

appropriate order in relation to the commonwealth and the third respondent

67    The Commonwealth and the third respondent seek, variously, orders for summary judgment, the striking out of pleadings and their removal as parties.

68    I am mindful that Mr Svehla is a litigant in person and that care should be taken before proceedings are disposed summarily. I am also mindful that Mr Svehla has indicated a desire for the proceedings against the Commonwealth and the third respondent to be stayed in order to provide Mr Svehla additional time to crystallise causes of action against those respondents (FASOC, proposed orders 13 and 19). In submissions, he indicated that the information arising from the proceeding against Mr Svager would then be used against the Commonwealth and the third respondent (see also FASOC at [95], [117]).

69    However, Mr Svehla has had three opportunities to identify a reasonable cause of action against the Commonwealth and the third respondent without success. He has had the benefit of a pro bono referral in relation to the claims against the Commonwealth and third respondent. Indeed, rather than providing an opportunity to clarify the basis for such an action, the additional opportunities have resulted in strained and misguided attempts to identify additional bases for relief.

70    Furthermore, it is entirely unclear what additional information might come to light through the course of the proceeding against Mr Svager that might illuminate potential claims by Mr Svehla against the Commonwealth and the third respondent. In my view, there is little prospect that a repleaded statement of claim would cure the present deficiencies.

71    In any event, I agree with the Commonwealth’s submission that it would be a misuse of the Court’s processes to seek to use the proceeding against Mr Svager as a vehicle to discover information that might provide a basis for a cause of action against the second and third respondents: see ARU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1275 at [21]–[29] (Meagher J); Gould v National Provincial Bank Ltd [1960] Ch 337 at 341 and 345 (Russell J); Burstall v Beyfus [1884] 26 ChD 35 (Earl of Selborne LC and Cotton LJ).

72    In those circumstances, it is appropriate to order summary judgment against Mr Svehla, respectively, in favour of the Commonwealth and the third respondent. In Dowling, Reeves J said at [30]:

The complete absence of an identified and valid claim and, more importantly, the factual materials to found either that valid claim, or some other form of valid claim, along with the likelihood that the applicant has no reasonable prospects of ever being able to produce that material, justifies a conclusion that there is not, and never will be, a valid claim before the court. This obviously cannot be remedied by orders to amend or strike out the pleadings because no amount of pleadings will remedy the fundamental absence of a valid claim. Moreover, the complete absence of a valid claim in this sense i.e. no identification of a claim, no factual foundation for a claim and no prospect of providing either, must lead inexorably to the conclusion that the applicant has no prospects of prosecuting his or her proceedings to a successful conclusion.

73    In my view, those observations apply to Mr Svehla’s claims against the Commonwealth and the third respondent, and justify summary judgment being ordered in their favour.

74    In relation to the distinct and severable claims referred to at [57]–[58] and [61] above that do not fall within the accrued jurisdiction of the Court, summary judgment should be given in relation to those claims on that basis: Nyoni v Chee Koon Hee (No 4) [2013] FCA 948 at [23].

applicant’s claims against the first respondenT

75    Mr Svager seeks an order for summary judgment or, alternatively, that Mr Svehla’s claims be struck out. The Court can strike out a pleading if it is evasive or ambiguous; is likely to cause prejudice, embarrassment or delay in the proceeding; or fails to disclose a reasonable cause of action, amongst other things: Federal Court Rules r 16.21.

76    In the SOC, the ASOC and the FASOC, Mr Svehla appears to make a range of claims against Mr Svager. I will address these claims by reference to the FASOC on which Mr Svehla seeks to rely.

Claims under the ACL

77    Mr Svehla appears to claim that Mr Svager has contravened ss 18, 19, 21, 29, 33, 54, 55, 69, 70, 106, 107, 131 and 132 of the ACL (FASOC at [6(bb)], [6(g)], [9A], [10], [14], [31.2], [31.5], [31.9], [32], [36]‍–‍[40], [47]). As explained above, s 33 of the ACL applies as a Commonwealth provision. The other ACL claims can only arise under the NSW or ACT versions of the ACL, or the extended operation of the Commonwealth ACL if there is a connection to the ACT.

(1)    Section 18 provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2)    Section 19 deals with the non-application of Part 2‍–‍1 of the ACL to information providers. It is not relevant to the circumstances in this case and should be struck out.

(3)    Section 21 provides that a person must not, in trade or commerce, in connection with certain activities, engage in conduct that is unconscionable.

(4)    Section 29 provides that a person must not, in trade or commerce, make certain false or misleading representations in certain circumstances.

(5)    Section 33, as mentioned earlier, provides that a person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to certain matters.

(6)    Section 54 provides for a guarantee in certain circumstances that goods supplied by a person in trade or commerce to a consumer are of acceptable quality.

(7)    Section 55 provides for a guarantee that goods supplied in trade or commerce will be fit for any disclosed purpose, and for any purpose for which the supplier represents they are reasonably fit.

(8)    Sections 69 and 70 relate to “unsolicited consumer agreements” which are defined to be agreements for the supply in trade or commerce of goods or services to a consumer in certain circumstances.

(9)    Section 106 prohibits certain conduct in trade or commerce relating to consumer goods, including the supply, offer for supply, manufacture, possession, control or export, of consumer goods, if they do not comply with applicable safety standards.

(10)    Section 107 provides that a person must not in trade or commerce supply product related services if they do not comply with applicable safety standards.

(11)    Sections 131 and 132 require persons who supply consumer goods or product related services in trade or commerce to report instances of death, serious injury or illness.

78    Mr Svehla claims damages or compensation under ss 138, 147, 224, 236, 237, 246, 259, 260, 271 and 272 of the ACL (FASOC at [9C], [28], [31.2], [31.8], [31.13], [31.15], [35], [42.1], [43.1], [46], [48], [49]):

(1)    Section 138 provides that a manufacturer of goods is liable to compensate an individual if the manufacturer supplies defective goods in trade or commerce and the individual suffers injury.

(2)    Section 147 provides that a person who wishes to institute a defective goods action, but does not know the identity of the manufacturer, may request the supplier to provide details of the manufacturer or supplier. A supplier who does not comply with a request can be taken to be the manufacturer for the purpose of a defective goods liability action.

(3)    Section 224 provides for certain pecuniary penalties. Such action can only be taken by a regulator: s 228. Accordingly, I agree with Mr Svager that Mr Svehla’s claim for relief under s 224 should be struck out.

(4)    Section 236 provides for an action for damages for a person who suffers loss or damage because of the conduct of another person that contravenes a provision in Chapter 2 (including ss 18 and 21) or 3 (including ss 29, 33, 54, 69, 70, 106, 107, 131, 138 and 147). Section 137C(1) of the CCA provides that a person is not entitled to recover an amount of loss or damage under s 236 where (a) the action would be based on the conduct contravening a provision of Part 2‑1 (including s 18) or 3‑1 (including ss 29 and 33) of the ACL; (b) the loss or damage is, or results from, death or personal injury; and (c) the death or personal injury does not result from smoking or other use of tobacco products. The claimed injury does not result from smoking or other use of tobacco products. Accordingly, an action to recover an amount of loss or damage under s 236 on the basis of a contravention of ss 18, 29 and 33 has no prospects of success and should be struck out.

(5)    Section 237 provides for compensation orders to be made in favour of a person who has suffered, or is likely to suffer, loss or damage because another person has contravened provisions in Chapter 2, 3 or 4. As the Commonwealth submitted, s 137E(1) of the CCA provides that a court must not make an order under s 237 where (a) the action would be based on a contravention of a provision in Part 2-1 (including s 18) or 3-1 (including ss 29 and 33) of the ACL; (b) the loss or damage is, or results from, death or personal injury; and (c) the death or personal injury does not result from smoking or other use of tobacco products. The claimed injury does not result from smoking or other use of tobacco products. Accordingly, a claim for compensation under s 237 on the basis of a contravention of ss 18, 29 and 33 has no prospects of success and should be struck out.

(6)    Section 246 provides that a court may make certain non-punitive orders on the application of a regulator. Such an action cannot be taken by Mr Svehla and, accordingly, I agree with Mr Svager that this claim for relief should be struck out.

(7)    Section 259 provides that a consumer may take certain action under that section if a person supplies in trade or commerce goods to a consumer and a guarantee applies under certain provisions, including ss 54 and 55 of the ACL. Section 260 identifies circumstances when a failure will be a major failure. It is unclear from the pleadings how a claimed contravention of s 54 or s 55 would give rise to the damages that are sought by Mr Svehla. The action that can be taken under s 259 involves, depending on the nature of the failure to comply with the guarantee, requiring the supplier to remedy the failure; recovering reasonable costs incurred in having the failure remedied; rejecting the goods; or recovering compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. The pleadings do not make clear what relief is sought under this claim and, accordingly, the claim under s 259 (along with the claim under s 260) on the basis of a contravention of s 54 or s 55 should be struck out.

(8)    Sections 271 and 272 deal with actions for damages against a manufacturer of goods. Subsection 271(1) provides that, if the guarantee under s 54 applies to a supply of goods to a consumer and the guarantee is not complied with, an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer. Nothing is pleaded that would suggest that Mr Svager is a manufacturer for the purposes of ss 271 and 272. Accordingly, the claims under ss 271 and 272 should be struck out.

79    Leaving aside the claims that have already been struck out in the passages above, Mr Svager seeks summary judgment or, in the alternative, the striking out of claims on the following bases:

(1)    Mr Svehla did not pay for the gas cylinder and accordingly (a) Mr Svehla did not “acquire” the cylinder; (b) he is not a “consumer”; and (c) Mr Svager did not “supply” the cylinder.

(2)    The cylinder was not provided to Mr Svehla by Mr Svager “in trade or commerce” because (a) there was no anticipation of return favour or value to Mr Svager; and (b) there was no identifiable feature of commerciality to the interaction between Mr Svehla and Mr Svager.

(3)    The cylinder was not a “consumer good” because it was not “intended to be used, or … likely to be used, for personal, domestic or household use or consumption …” (ACL s 2). Nor was there a “product related service” which is defined to mean a service for or related to conduct identified by reference to consumer goods (ACL s 2).

80    If Mr Svager is correct, that would account for the alleged contraventions of ss 18, 21, 29, 33, 54, 55, 69, 70, 106, 107, 131 and 132.

81    However, there are difficulties with the first respondent’s submissions that these relevant provisions are not capable of applying.

82    First, Mr Svager submits that Mr Svehla does not satisfy the conditions in ss 3(1) of the ACL to be taken to have acquired goods as a consumer. That section provides:

A person is taken to have acquired particular goods as a consumer if, and only if:

(a)    the amount paid or payable for the goods … did not exceed [$100,000 – refer to Competition and Consumer Regulations 2010 (Cth) reg 77A]; or

(b)    the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption.

83    The first respondent submits that the pleaded facts do not satisfy either s 3(1)(a) or (b). In particular, in relation to s 3(1)(a), it is submitted that Mr Svehla did not pay for the cylinder. It is true that Mr Svehla pleads that no money was exchanged at the time that the cylinder is alleged to have been provided to Mr Svehla. However, Mr Svehla also indicated in his submissions and in his affidavit evidence that, on his understanding, the price and other conditions of exchange were to be further considered, consistently with previous dealings. Thus, whether there was to be a payment for the cylinder would appear to be a fact in dispute between the parties. If Mr Svehla were able to establish that an amount less than $100,000 were payable to Mr Svager for the cylinder, then that would be enough to satisfy the first of the alternative limbs of s 3(1)(a).

84    Secondly, Mr Svager submits that, because there was no payment, Mr Svehla did not “acquire” the cylinder, and Mr Svager did not “supply” it. Again, that appears to turn on a fact in dispute between the parties.

85    Thirdly, whether, in the circumstances, the cylinder can be characterised as having been provided “in trade or commerce” involves a mixed question of fact and law. Whether, as contended by Mr Svager, (a) there was no anticipation of return favour or value to Mr Svager; or (b) there was no identifiable feature of commerciality to the interaction between Mr Svehla and Mr Svager, will turn on the establishment of the facts surrounding the alleged provision of the gas cylinder and the nature of Mr Svager’s business, which are facts that are unclear at this stage. Furthermore, whether the established facts are within the expression “in trade or commerce” is a legal question of some complexity and uncertainty in the circumstances of this case. The first respondent was unable to identify any authority that was a close analogy to the circumstances in this case. It is not appropriate for that legal question to be resolved on an application for summary judgment, particularly when the facts are yet to be established and, indeed, are unclear from the pleadings and evidence.

86    Fourthly, while it appears to be common ground that Mr Svehla attached the cylinder to a commercial forklift, there is no evidence at this early stage of the proceeding about the type of cylinder involved; specifically, whether it was of a kind ordinarily acquired for personal, domestic or household use or consumption. To underscore the uncertainty, Mr Svehla indicates in written submissions and in his affidavit evidence that, upon receiving the cylinder, his intention was to consider whether he could use the gas cylinder at home.

87    Because there are factual disputes going to the application of the ACL provisions, and questions of law about the correct construction of the provisions, it is inappropriate to order summary judgment in favour of Mr Svager in relation to the ACL claims that have not otherwise been struck out for other reasons.

Common law action

88    While not set out in detail or with any specificity, Mr Svehla alleges in the FASOC that Mr Svager owes a professional duty of care to people affected by his business activity and that he has suffered injury, loss and damage as a consequence of a breach of that duty (FASOC at [8], [15A], [16B], 16[C]). There are also references to Donoghue v Stevenson [1932] AC 562 in Mr Svehla’s written submissions and the neighbour principle of reasonable care in his affidavit. This common law claim is not clearly identified or particularised in the pleadings and, perhaps for that reason, Mr Svager did not specifically address that claim in written submissions in support of his summary judgment or strike out applications.

89    At the hearing, counsel for Mr Svager accepted that Mr Svehla might be understood as having intended in his pleadings to pick up general common law principles. In response, it was submitted that (a) the pleading in that respect was defective; and (b) in general terms, the common law claim has no reasonable prospects of success. If advanced, and depending on how it is pleaded, such a claim might fall within the Court’s accrued jurisdiction.

90    I accept that the common law claim is not well pleaded. However, it is fairly raised on the basis of the pleaded facts. In the absence of a detailed submission as to why there is no reasonable prospect of success, I am not prepared to reach that conclusion.

91    I will return below to whether Mr Svehla should be given a further opportunity to plead and particularise that common law claim.

Reporting obligations

92    Mr Svehla also appears to claim that Mr Svager has failed to comply with statutory reporting obligations. To the extent that the claims relate to compliance failures under NSW legislation, I do not consider that those claims fall within the Court’s accrued jurisdiction. To the extent that the claim is for non-compliance with the voluntary recall provision in s 128 of the ACL (FASOC at [9(ii)]), it is unclear how that provision has been enlivened in the circumstances in this case, and the claim should be struck out.

first respondent’s StRike out application and leave to replead

93    To summarise the conclusions so far as they relate to Mr Svager, summary judgment should not be given against Mr Svehla in favour of Mr Svager. However, various claims against Mr Svager disclose no reasonable cause of action and, accordingly, should be struck out (see Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97 at [43]) or, to the extent that they are raised for the first time in the FASOC, leave to rely on those claims should be refused. Those are claims for contraventions of ss 19 and 128 of the ACL, and for relief under ss 224, 236 (on the basis of a contravention of ss 18, 29 and 33), 237 (on the basis of a contravention of ss 18, 29 and 33), 246, 259 and 260 (on the basis of a contravention of ss 54 and 55), 271 and 272 of the ACL.

94    Additionally, I accept Mr Svager’s submissions that the whole of the ASOC, the AOA, the SOC and the OA should be struck out, and leave should be refused for Mr Svehla to rely on the FASOC. Without criticism of Mr Svehla who appears in person and who has had obvious difficulties in drafting the pleadings, much of the SOC, ASOC and FASOC is unintelligible, unclear, and/or not in a form that permits Mr Svager an adequate opportunity to properly defend. While there are basic factual matters that have been appropriately pleaded, the various iterations of the pleadings have created unnecessary and unhelpful clutter and disorganisation in the existing and proposed text.

Further opportunity to replead

95    The question remains whether Mr Svehla should be given a further opportunity to replead his case against Mr Svager. I recognise that Mr Svehla has now had three opportunities to plead a statement of claim in an appropriate form. I also acknowledge that the ASOC and the FASOC have not improved the clarity of the pleadings against Mr Svager. However, the ASOC and the FASOC have been burdened by misguided attempts to implead the Commonwealth and the third respondent. Furthermore, while Mr Svehla has had the benefit of pro bono counsel advice, that advice appears to have been limited to the claims against the Commonwealth and the third respondent. I am not persuaded that Mr Svehla in the circumstances has had a sufficient opportunity to articulate the cause(s) of action against Mr Svager (Plaintiff M83A/219 v Morrison (No 2) [2020] FCA 1198 at [47]) or that giving a further opportunity to replead will be futile: Kowalski v Mitsubishi Motors Australia [2010] FCAFC 73 at [51].

96    I am mindful that a litigant in person is not to be put in a privileged position at the expense of another party: see Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445‍–‍6, quoting from Rajski v Scitec Corporation Pty Ltd (NSW Court of Appeal, Kirby P, Samuels and Mahoney JJA, 16 June 1986) at 14 and 27. However, I am nevertheless satisfied that Mr Svehla should be given another opportunity to replead his claims (including any common law claim in negligence), and I make orders for how drafts of a fresh further amended originating application and a fresh further amended statement of claim should be progressed.

97    Mr Svehla should be clear in his understanding of the basis of my decision to give a further opportunity to replead. It is not that I am satisfied that he has arguable causes of action against Mr Svager. It is that I have not been persuaded at this time by Mr Svager’s arguments that:

(1)    the proceeding should be terminated at this early stage in the proceeding on the basis of the arguments put by Mr Svager in support of summary judgment; and

(2)    the deficiencies in the intelligibility of the pleadings are incurable.

98    It will be open to Mr Svager to seek appropriate relief if the fresh draft of the further amended originating application and fresh draft of the further amended statement of claim do not reveal a reasonable cause of action or if the deficiencies in the current pleadings are not remedied. In short, Mr Svehla’s opportunities to replead his case are not unlimited.

Limitations on repleading

99    I summarise the following points for any repleaded case:

(1)    The claim for relief for a contravention of s 33 of the ACL is a claim arising under the Commonwealth ACL.

(2)    Depending on the pleaded facts, other ACL claims may arise under the ACL (NSW), the ACL (ACT) or the extended operation of the Commonwealth ACL if there is the requisite connection with the ACT. If it is the ACL (NSW), the claims will fall within the Court’s accrued jurisdiction if they are non-severable from the s 33 claim; if there is a connection with the ACT, the claims will fall within the Court’s jurisdiction conferred by either s 6(2)(a)(iii) of the CCA or s 9(3) of the Cross-Vesting Act (Cth) and s 4(1) of the Cross-Vesting Act (ACT). It is not necessary to finally determine those matters at this stage.

(3)    Depending on how any common law claim is pleaded, there is some risk that such a claim will not fall within the Court’s accrued jurisdiction if it is severable from the s 33 claim. However, that is a question that cannot be resolved at this stage in the proceeding.

100    For the avoidance of doubt, the further opportunity to replead is limited to claims that have not otherwise been struck out. The claims otherwise struck out are identified by way of summary at [92] above. Mr Svehla cannot seek to replead those claims. Additionally, Mr Svehla cannot replead his claims against the Commonwealth and the third respondent.

101    Mr Svehla must draft the new pleadings in accordance with these reasons and the requirements in Divs 16.1 and 16.2 of the Federal Court Rules. In particular, the fresh further amended statement of claim should avoid argumentation, legal submission, repetition and unnecessary or irrelevant commentary or narrative. The draft pleadings should be expressed with sufficient clarity and particularity to enable Mr Svager to understand the claims that are being made against him and for him to respond. Mr Svehla should be mindful of his obligation under s 37N(1) of the Federal Court Act to conduct the proceeding in a way that is consistent with the overarching purpose in s 37M of the Act, namely, amongst other things, facilitating the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. Failure to adhere to these pleading requirements may result in summary dismissal of Mr Svehla’s claims.

Costs

102    The Commonwealth and the third respondent have succeeded on their applications for summary judgment. The usual position is that a successful party is entitled to an order for its costs. There is nothing in the circumstances that would justify departing from that usual position. Mr Svehla was on notice that the Commonwealth and the third respondent would seek their costs if successful on their interlocutory applications, and did not seek to contest that position. Indeed, before the hearing, the Commonwealth wrote to Mr Svehla outlining the deficiencies in his claims against the Commonwealth, and offered its consent to the discontinuance of the proceeding against it with no order as to costs. Mr Svehla did not agree to that course of action.

Associate:

Dated:    2 March 2026