Curtin v University of New South Wales (No. 2) [2008] NSWSC 1236

Curtin v University of New South Wales (No. 2) [2008] NSWSC 1236

The challenged FTA and TPA paragraphs in the Amended Statement of Claim were materially the same as claims previously summarily dismissed and did not plead new matters capable of establishing conduct in trade or commerce; their inclusion was an abuse of process. Additional defects existed because paragraphs 24E(a) to (c) did not plead reliance or causation of loss, and the s.43 FTA claim did not allege that the Plaintiff acquired goods or services as a consumer. The impugned paragraphs were therefore struck out, and indemnity costs payable forthwith were warranted because the Plaintiff had repleaded the statutory claims without notice and continued despite warning that indemnity costs...

Jurisdiction
Australia
Judgment Date
04 September 2008
Procedural Posture
Practice and Procedure; Procedural Ruling on Strike Out Application / Defendants' Notice of Motion to Strike Out Parts of the Amended Statement of Claim After Earlier Summary Dismissal of Statutory Claims
Outcome
Defendants' Notice of Motion allowed; challenged paragraphs of the Amended Statement of Claim struck out; Plaintiff ordered to pay the First, Second and Third Defendants' costs on an indemnity basis forthwith.
Legal Topics
['strike Out of Pleadings' 'abuse of Process' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'in Trade or Commerce' 'internal Communications' 'indemnity Costs']
['civil Procedure' 'trade Practices' 'fair Trading' 'employment Related Pleadings'] ['strike Out of Pleadings' 'abuse of Process' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'in Trade or Commerce' 'internal Communications' 'indemnity Costs']

Case Brief

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Procedural Posture

Practice and Procedure; Procedural Ruling on Strike Out Application / Defendants' Notice of Motion to Strike Out Parts of the Amended Statement of Claim After Earlier Summary Dismissal of Statutory Claims

Legal Issues

  1. 1 ['Whether the repleaded Fair Trading Act 1987 and Trade Practices Act 1974 (Cth) claims in the Amended Statement of Claim re-agitated claims previously summarily dismissed and constituted an abuse of process.' 'Whether the pleaded conduct was conduct in trade or commerce for the purposes of the Fair Trading Act 1987 and the Trade Practices Act 1974 (Cth).' 'Whether paragraphs 24E(a) to (c) disclosed a reasonable cause of action by pleading reliance and causation of loss or damage.' 'Whether the s.43 Fair Trading Act 1987 claim could proceed absent an allegation that the Plaintiff acquired goods or services from the Defendants as a consumer.' 'Whether consequential relief paragraphs should be struck out to the extent they depended on struck-out allegations.' 'Whether costs should be payable forthwith on an indemnity basis.']

Ratio Decidendi

The challenged FTA and TPA paragraphs in the Amended Statement of Claim were materially the same as claims previously summarily dismissed and did not plead new matters capable of establishing conduct in trade or commerce; their inclusion was an abuse of process. Additional defects existed because paragraphs 24E(a) to (c) did not plead reliance or causation of loss, and the s.43 FTA claim did not allege that the Plaintiff acquired goods or services as a consumer. The impugned paragraphs were therefore struck out, and indemnity costs payable forthwith were warranted because the Plaintiff had repleaded the statutory claims without notice and continued despite warning that indemnity costs...

Court Disposition

Defendants' Notice of Motion allowed; challenged paragraphs of the Amended Statement of Claim struck out; Plaintiff ordered to pay the First, Second and Third Defendants' costs on an indemnity basis forthwith.

Orders

  • ['Paragraphs 24A, 24B, 24C, 24E, 24F, 24G, 24I and 24J, insofar as relief sought in those paragraphs depends on allegations made in paragraphs 24A, 24B, 24C, 24E, 24F and 24G, and paragraphs 24K, 24L, 24M and 24N of the Amended Statement of Claim filed 11 July 2008 be struck out pursuant to r 14 r 28 Uniform Civil...