Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [1999] FCA 1645

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [1999] FCA 1645

The s 52 Trade Practices Act claim, as presently pleaded and particularised, does not disclose a reasonable cause of action and must be struck out. However, this does not deprive the Federal Court of jurisdiction over the negligence claim, as both claims arise from a common factual substratum forming a single justiciable controversy within accrued jurisdiction. There is no evidence the federal claim was fabricated solely to attract jurisdiction. The proceedings may continue as a representative proceeding.

Parties
Applicants: Johnson Tiles Pty Ltd and others; Respondents/cross Claimants: Esso Australia Ltd and another; Cross Respondents/cross Claimants: State Electricity Commission of Victoria and others; Cross Respondent: BHP Petroleum (Bass Strait) Pty Ltd; Cross Respondent: 15th and 24th Cross-Respondent; Cross Respondent: 19th to 20th Cross-Respondent; Cross Respondent: 21st to 23rd Cross-Respondent; Cross Respondent: 25th to 27th Cross-Respondent
Jurisdiction
Australia
Judgment Date
25 November 1999
Procedural Posture
Application/motion (strike Out and Jurisdiction) / Interlocutory (reasons for Judgment After Hearing Strike Out Applications)
Outcome
s 52 claim struck out; leave to apply to amend within 21 days; proceeding not dismissed and to continue as representative proceeding
Legal Topics
Strike Out Applications, Representative Proceedings (part Iva), Jurisdiction and Accrued Jurisdiction, Misleading and Deceptive Conduct (s 52 Tpa), Causation and Failure to Warn, Fabrication of Jurisdiction
Practice and Procedure Federal Jurisdiction Trade Practices Negligence Strike Out Applications Representative Proceedings (part Iva) Jurisdiction and Accrued Jurisdiction Misleading and Deceptive Conduct (s 52 Tpa) +2 more

Case Brief

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Parties

Johnson Tiles Pty Ltd and others

Applicants

Esso Australia Ltd and another

Respondents/cross Claimants

State Electricity Commission of Victoria and others

Cross Respondents/cross Claimants

BHP Petroleum (Bass Strait) Pty Ltd

Cross Respondent

15th and 24th Cross-Respondent

Cross Respondent

19th to 20th Cross-Respondent

Cross Respondent

21st to 23rd Cross-Respondent

Cross Respondent

25th to 27th Cross-Respondent

Cross Respondent

Procedural Posture

Application/motion (strike Out and Jurisdiction) / Interlocutory (reasons for Judgment After Hearing Strike Out Applications)

Legal Issues

  1. 1 Whether the s 52 Trade Practices Act claim should be struck out for want of pleadable particulars
  2. 2 Whether the negligence and s 52 claims are severable for jurisdictional purposes
  3. 3 Whether the matter should continue as representative proceedings under Part IVA if the federal claim is struck out

Ratio Decidendi

The s 52 Trade Practices Act claim, as presently pleaded and particularised, does not disclose a reasonable cause of action and must be struck out. However, this does not deprive the Federal Court of jurisdiction over the negligence claim, as both claims arise from a common factual substratum forming a single justiciable controversy within accrued jurisdiction. There is no evidence the federal claim was fabricated solely to attract jurisdiction. The proceedings may continue as a representative proceeding.

Court Disposition

s 52 claim struck out; leave to apply to amend within 21 days; proceeding not dismissed and to continue as representative proceeding

Orders

  • Parties to bring in minutes of orders within 7 days to give effect to these reasons
  • Taxed costs of all parties in relation to these motions to be costs in the cause