Allstate Life Insurance Company & Ors v. Australia & New Zealand Banking Group Ltd & Ors [1994] FCA 822

Allstate Life Insurance Company & Ors v. Australia & New Zealand Banking Group Ltd & Ors [1994] FCA 822

The pleaded facts did not arguably establish circumstances requiring the initial participant banks to speak, so paragraph 75 alleging misleading conduct by failure to speak and paragraph 131 alleging concealment in fraud were struck out. However, paragraph 74(e) could permit proof at trial that the banks were involved in Linter Textiles' alleged s.52 contravention within s.75B, so it was not struck out. Proposed paragraph 75A was refused because it repeated the untenable direct misleading conduct case and duplicated the accessorial case already pleaded. Paragraph 135 was not struck out because the international tort conflict of laws issue concerning New York fraud was arguable.

Jurisdiction
Australia
Judgment Date
08 November 1994
Procedural Posture
Federal Court Proceeding Involving Trade Practices Act, Deceit and Fraud Claims / Notices of Motion Seeking to Strike Out Paragraphs of the Amended Statement of Claim Dated 11 October 1994
Outcome
Application to strike out allowed in part; paragraphs 75 and 131 struck out, paragraph 74(e) and paragraph 135 not struck out, leave to plead proposed paragraph 75A refused, costs reserved.
Legal Topics
['misleading or Deceptive Conduct' 'aiding, Abetting, Counselling or Procuring Contravention' 'knowing Involvement in Contravention' 'failure to Speak' 'concealment' 'deceit and Common Law Fraud' 'strike Out Application' 'foreign Tort and Governing Law']
['trade Practices' 'consumer Protection' 'fraud' 'conflict of Laws' 'civil Procedure'] ['misleading or Deceptive Conduct' 'aiding, Abetting, Counselling or Procuring Contravention' 'knowing Involvement in Contravention' 'failure to Speak' 'concealment' 'deceit and Common Law Fraud' 'strike Out Application' 'foreign Tort and Governing Law']

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Procedural Posture

Federal Court Proceeding Involving Trade Practices Act, Deceit and Fraud Claims / Notices of Motion Seeking to Strike Out Paragraphs of the Amended Statement of Claim Dated 11 October 1994

Legal Issues

  1. 1 ['Whether allegations of failure to speak by the initial participant banks could constitute misleading or deceptive conduct under s.52 of the Trade Practices Act 1974 (Cth).' "Whether paragraph 74(e) disclosed an arguable cause of action that the initial participant banks aided, abetted, counselled or procured, or were knowingly concerned in, Linter Textiles' alleged contravention of s.52." 'Whether leave should be granted to plead proposed paragraph 75A.' 'Whether allegations of knowing concealment by the initial participant banks disclosed a reasonable cause of action in deceit or common law fraud.' 'Whether the pleading of a New York tort of fraud in paragraph 135 disclosed an arguable cause of action under applicable conflict of laws principles.']

Ratio Decidendi

The pleaded facts did not arguably establish circumstances requiring the initial participant banks to speak, so paragraph 75 alleging misleading conduct by failure to speak and paragraph 131 alleging concealment in fraud were struck out. However, paragraph 74(e) could permit proof at trial that the banks were involved in Linter Textiles' alleged s.52 contravention within s.75B, so it was not struck out. Proposed paragraph 75A was refused because it repeated the untenable direct misleading conduct case and duplicated the accessorial case already pleaded. Paragraph 135 was not struck out because the international tort conflict of laws issue concerning New York fraud was arguable.

Court Disposition

Application to strike out allowed in part; paragraphs 75 and 131 struck out, paragraph 74(e) and paragraph 135 not struck out, leave to plead proposed paragraph 75A refused, costs reserved.

Orders

  • ['Paragraph 75 should be struck out.' 'Paragraph 74(e) is not struck out.' 'Leave to amend by adding proposed paragraph 75A is refused.' 'Paragraph 131 should be struck out.' 'Paragraph 135 is not struck out.' 'Costs of the motion are reserved.' 'The parties will be heard on the form of orders to be made in light of...