James, K.F.D. & Ors v. Australia & New Zealand Banking Group Ltd & Ors [1985] FCA 22

James, K.F.D. & Ors v. Australia & New Zealand Banking Group Ltd & Ors [1985] FCA 22

Paragraphs 24, 25, and 28 of the amended statement of claim are so interwoven with objectionable material that they create prejudice and embarrassment for the second and third respondents and are therefore struck out, with leave to amend. The applicants are to pay the costs of the motion for the second and third respondents.

Parties
Applicants: Kingsley Frederick David James, Jill Maxine James, David Maxwell James, Peter Norman James, Angus Kingsley James and Yallambee Pty Ltd; First Respondent: Australia and New Zealand Banking Group Limited; Second Respondent: Tamar Management Pty Ltd; Third Respondent: John Wells
Jurisdiction
Australia
Judgment Date
08 February 1985
Procedural Posture
Motion to Strike Out Parts of Statement of Claim / Interlocutory
Outcome
Paragraphs 24, 25 and 28 struck out with leave to amend. Costs awarded to second and third respondents on the motion. Liberty to apply for first respondent's costs.
Legal Topics
Application to Strike Out Pleading, Reasonable Cause of Action, Inelegant Pleading, Prejudice and Embarrassment in Pleading, Misleading or Deceptive Conduct, Negligence, Breach of Duty
Practice and Procedure Trade Practices Application to Strike Out Pleading Reasonable Cause of Action Inelegant Pleading Prejudice and Embarrassment in Pleading Misleading or Deceptive Conduct Negligence +1 more

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Parties

Kingsley Frederick David James, Jill Maxine James, David Maxwell James, Peter Norman James, Angus Kingsley James and Yallambee Pty Ltd

Applicants

Australia and New Zealand Banking Group Limited

First Respondent

Tamar Management Pty Ltd

Second Respondent

John Wells

Third Respondent

Procedural Posture

Motion to Strike Out Parts of Statement of Claim / Interlocutory

Legal Issues

  1. 1 Whether paragraphs of the statement of claim disclose a reasonable cause of action against the second and third respondents
  2. 2 Whether inelegancy of pleading is a ground for striking out
  3. 3 Whether objectionable and non-objectionable matter interwoven in a pleading is a ground for striking out

Ratio Decidendi

Paragraphs 24, 25, and 28 of the amended statement of claim are so interwoven with objectionable material that they create prejudice and embarrassment for the second and third respondents and are therefore struck out, with leave to amend. The applicants are to pay the costs of the motion for the second and third respondents.

Court Disposition

Paragraphs 24, 25 and 28 struck out with leave to amend. Costs awarded to second and third respondents on the motion. Liberty to apply for first respondent's costs.

Orders

  • Paragraphs 24, 25 and 28 of the statement of claim be struck out.
  • Applicants have leave to file and serve an amended statement of claim on or before 22 February 1985.