Thompson v Department of Environment and Conservation [2011] FCA 617

Thompson v Department of Environment and Conservation [2011] FCA 617

The applicants failed to satisfy the criteria in s 237(2) of the Corporations Act 2001 (Cth). In particular, the Court was not satisfied it was in the best interests of the company to grant leave for derivative action, or that there were serious questions to be tried. The claims against the State parties under the Trade Practices Act/Competition and Consumer Act were untenable because licensing activities by the State are not carrying on a business as required by the Act. Most claims against the receivers were precluded by issue estoppel due to prior determination in the Supreme Court. Accordingly, leave to bring derivative action was refused and various paragraphs in the pleadings and...

Jurisdiction
Australia
Judgment Date
03 June 2011
Procedural Posture
Application for Leave to Bring Derivative Action and Interlocutory Applications / Interlocutory Judgment and Orders
Outcome
Applicants’ notice of motion for leave to bring derivative action dismissed; various paragraphs in the statement of claim and affidavit evidence struck out; orders for costs to be fixed at a later hearing.
Legal Topics
['derivative Actions' 'summary Dismissal/strike Out' 'receivership' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'licensing Under Environmental Law' 'jurisdictional Immunities' 'evidence']
['corporations Law' 'administrative Law' 'practice and Procedure' 'trade Practices'] ['derivative Actions' 'summary Dismissal/strike Out' 'receivership' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'licensing Under Environmental Law' 'jurisdictional Immunities' 'evidence']

Case Brief

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Procedural Posture

Application for Leave to Bring Derivative Action and Interlocutory Applications / Interlocutory Judgment and Orders

Legal Issues

  1. 1 ['Whether applicants should be granted leave to bring derivative action on behalf of the company under s 237 Corporations Act 2001 (Cth)' 'Whether parts of the statement of claim should be struck out as disclosing no reasonable cause of action or having no reasonable prospect of success' 'Whether application of the Trade Practices Act 1974 (Cth) (and Competition and Consumer Act 2010) extends to State respondents in relation to grant of licences' 'Whether applicants’ affidavit evidence is admissible' "Whether challenging the validity of the receivers' appointment is an abuse of process"]

Ratio Decidendi

The applicants failed to satisfy the criteria in s 237(2) of the Corporations Act 2001 (Cth). In particular, the Court was not satisfied it was in the best interests of the company to grant leave for derivative action, or that there were serious questions to be tried. The claims against the State parties under the Trade Practices Act/Competition and Consumer Act were untenable because licensing activities by the State are not carrying on a business as required by the Act. Most claims against the receivers were precluded by issue estoppel due to prior determination in the Supreme Court. Accordingly, leave to bring derivative action was refused and various paragraphs in the pleadings and...

Court Disposition

Applicants’ notice of motion for leave to bring derivative action dismissed; various paragraphs in the statement of claim and affidavit evidence struck out; orders for costs to be fixed at a later hearing.

Orders

  • ['Strike out of paragraphs [44(b)(iii)], [44(c)(iii)], and so far as they refer to the Trade Practices Act 1974 (Cth), [45(a), (b), (c)] of the statement of claim.' 'Strike out specified portions of affidavits of Mr and Mrs Thompson as detailed in the schedule.' 'Strike out paragraph [86(b)] of the statement of...