Sipa Resources Limited v Zinc & Copper Corporation of Australia Ltd [2001] FCA 454

Sipa Resources Limited v Zinc & Copper Corporation of Australia Ltd [2001] FCA 454

The pleaded oral communications were material constitutive facts of the alleged misleading or deceptive conduct under Pt V and s 52 of the Trade Practices Act 1974 (Cth), not merely evidence, and therefore should not be struck out on that basis. However, the general pleading relying on s 51A for any representation that might be as to a future matter was embarrassing and likely to cause prejudice because it failed to identify the relevant conduct, requiring amendment. Other drafting defects could be addressed by particularisation, deletion or amendment, including allegations involving the fourth cross-respondent.

Jurisdiction
Australia
Judgment Date
24 April 2001
Procedural Posture
Cross Claim Alleging Contraventions of S 52 of the Trade Practices Act 1974 (cth) / Interlocutory Motion by Cross Respondents to Strike Out Paragraphs of the Cross Claim
Outcome
Motion dismissed except to the extent amendments and further directions were required; leave to amend the cross-claim indicated; costs of the motion to be costs in the cause of the cross-claim.
Legal Topics
['strike Out of Pleadings' 'material Facts and Evidence in Pleadings' 'misleading or Deceptive Conduct' 'representations as to Future Matters' 'amendment of Cross Claim']
['practice and Procedure' 'trade Practices'] ['strike Out of Pleadings' 'material Facts and Evidence in Pleadings' 'misleading or Deceptive Conduct' 'representations as to Future Matters' 'amendment of Cross Claim']

Case Brief

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Procedural Posture

Cross Claim Alleging Contraventions of S 52 of the Trade Practices Act 1974 (cth) / Interlocutory Motion by Cross Respondents to Strike Out Paragraphs of the Cross Claim

Legal Issues

  1. 1 ['Whether paragraphs of the cross-claim should be struck out because they plead evidence rather than material facts.' 'Whether paragraphs of the cross-claim are embarrassing, prejudicial or likely to cause delay.' 'Whether a pleading relying generally on s 51A of the Trade Practices Act 1974 (Cth) without identifying the representations as to future matters is embarrassing.' 'Whether paragraphs relating to alleged representations disclose a reasonable cause of action against the fourth cross-respondent.']

Ratio Decidendi

The pleaded oral communications were material constitutive facts of the alleged misleading or deceptive conduct under Pt V and s 52 of the Trade Practices Act 1974 (Cth), not merely evidence, and therefore should not be struck out on that basis. However, the general pleading relying on s 51A for any representation that might be as to a future matter was embarrassing and likely to cause prejudice because it failed to identify the relevant conduct, requiring amendment. Other drafting defects could be addressed by particularisation, deletion or amendment, including allegations involving the fourth cross-respondent.

Court Disposition

Motion dismissed except to the extent amendments and further directions were required; leave to amend the cross-claim indicated; costs of the motion to be costs in the cause of the cross-claim.

Orders

  • ['By 27 April 2001, the cross-claimant and cross-respondents are to file a minute of orders giving effect to these reasons and of further directions in respect of the amendment of the cross-claim and matters consequential thereto.' 'The cross-claimant must amend the pleading by identifying precisely which of the...