Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd [1988] FCA 393

Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd [1988] FCA 393

The applicant's compliance with the self-executing order to file affidavit evidence is measured by whether it has, in good faith, provided the evidence it then intends to adduce, not whether such evidence is objectively sufficient to satisfy all elements of its case; alleged deficiencies do not constitute non-compliance justifying dismissal at this stage. Further, summary dismissal under O.20 r.2 or inherent jurisdiction is not warranted absent the clearest case of fatal defects, and the right to trial should not be lightly denied. The respondent's motion for dismissal is therefore refused, and costs are reserved.

Parties
Applicant / First Cross Respondent: Caboolture Park Shopping Centre Pty. Ltd.; First Respondent / First Cross Claimant: White Industries (Qld) Pty. Limited
Jurisdiction
Australia
Judgment Date
22 July 1988
Procedural Posture
Civil / Motion to Dismiss Proceedings and for Summary Orders Prior to Trial
Outcome
Respondent's motion for dismissal refused; costs reserved.
Legal Topics
Self Executing Orders, Order 20 Rule 2 Federal Court Rules, Misleading and Deceptive Conduct, Fraudulent Misrepresentation, Negligent Misstatement, Pleading Requirements, Affidavit Evidence, Summary Dismissal
Practice and Procedure Contract Tort Trade Practices Self Executing Orders Order 20 Rule 2 Federal Court Rules Misleading and Deceptive Conduct Fraudulent Misrepresentation +4 more

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Parties

Caboolture Park Shopping Centre Pty. Ltd.

Applicant / First Cross Respondent

White Industries (Qld) Pty. Limited

First Respondent / First Cross Claimant

Procedural Posture

Civil / Motion to Dismiss Proceedings and for Summary Orders Prior to Trial

Legal Issues

  1. 1 Whether alleged deficiencies in applicant's affidavits amounted to non-compliance with a self-executing order for affidavit evidence;
  2. 2 Whether the proceedings should be dismissed under O.20 r.2 Federal Court Rules for no reasonable cause of action, or as frivolous, vexatious, or an abuse of process;
  3. 3 Whether the Court's consideration is limited to the statement of claim or extends to the proceedings generally under O.20 r.2;

Ratio Decidendi

The applicant's compliance with the self-executing order to file affidavit evidence is measured by whether it has, in good faith, provided the evidence it then intends to adduce, not whether such evidence is objectively sufficient to satisfy all elements of its case; alleged deficiencies do not constitute non-compliance justifying dismissal at this stage. Further, summary dismissal under O.20 r.2 or inherent jurisdiction is not warranted absent the clearest case of fatal defects, and the right to trial should not be lightly denied. The respondent's motion for dismissal is therefore refused, and costs are reserved.

Court Disposition

Respondent's motion for dismissal refused; costs reserved.

Orders

  • That the motion on notice dated 8 June 1988 be dismissed.
  • That the costs of the said motion be reserved.