Cook v Pasminco Ltd [2000] FCA 677

Cook v Pasminco Ltd [2000] FCA 677

The Trade Practices Act claims were clearly untenable because the alleged noxious emissions were not supplied to the applicants as part of any bilateral consensual transaction, were not supplied in trade or commerce, and were alleged to be harmful because they were true to their nature rather than because of any defect. Those federal claims were therefore colourable, not genuine and fabricated, so they could not attract accrued jurisdiction over the negligence and nuisance claims. The application was dismissed as incompetent.

Jurisdiction
Australia
Judgment Date
12 May 2000
Procedural Posture
Representative Proceeding Under Part IVA of the Federal Court of Australia Act 1976 (cth) Involving Claims in Negligence, Nuisance and Under Ss 75 AD and 75 AG of the Trade Practices Act 1974 (cth) / Respondents' Motion to Strike Out Paragraphs 13 to 19 of the Amended Statement of Claim and Set Aside the Amended Application or Dismiss the Proceeding as Incompetent
Outcome
Application dismissed as incompetent; proceeding stood over for costs submissions.
Legal Topics
['accrued Jurisdiction' 'negligence' 'nuisance' 'representative Proceedings' 'product Liability' 'meaning of Goods, Manufactured, Supply, In Trade or Commerce and Defect Under the Trade Practices Act 1974 (cth)']
['practice and Procedure' 'federal Jurisdiction' 'trade Practices' 'torts'] ['accrued Jurisdiction' 'negligence' 'nuisance' 'representative Proceedings' 'product Liability' 'meaning of Goods, Manufactured, Supply, in Trade or Commerce and Defect Under the Trade Practices Act 1974 (cth)']

Case Brief

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Procedural Posture

Representative Proceeding Under Part IVA of the Federal Court of Australia Act 1976 (cth) Involving Claims in Negligence, Nuisance and Under Ss 75 AD and 75 AG of the Trade Practices Act 1974 (cth) / Respondents' Motion to Strike Out Paragraphs 13 to 19 of the Amended Statement of Claim and Set Aside the Amended Application or Dismiss the Proceeding as Incompetent

Legal Issues

  1. 1 ["Whether the claims under ss 75AD and 75AG of the Trade Practices Act 1974 (Cth) were genuine and non-colourable federal claims capable of attracting the Federal Court's accrued jurisdiction over negligence and nuisance claims." 'Whether alleged noxious emissions could arguably be found to have been supplied by the respondents.' 'Whether the alleged supply of emissions could arguably be found to have occurred in trade or commerce.' 'Whether the emissions could arguably be found to have had a defect within the meaning of Part VA of the Trade Practices Act 1974 (Cth).']

Ratio Decidendi

The Trade Practices Act claims were clearly untenable because the alleged noxious emissions were not supplied to the applicants as part of any bilateral consensual transaction, were not supplied in trade or commerce, and were alleged to be harmful because they were true to their nature rather than because of any defect. Those federal claims were therefore colourable, not genuine and fabricated, so they could not attract accrued jurisdiction over the negligence and nuisance claims. The application was dismissed as incompetent.

Court Disposition

Application dismissed as incompetent; proceeding stood over for costs submissions.

Orders

  • ['The application be dismissed as incompetent.' 'The proceeding be stood over to a date to be fixed for the hearing of submissions on costs.']