Bailey v Veda Advantage Information Services and Solutions Limited [2007] FCA 1664

Bailey v Veda Advantage Information Services and Solutions Limited [2007] FCA 1664

Certain paragraphs in the applications and statements of claim are defective, particularly in the identification of group members and specification of common questions, and must be struck out; pleaded imputations repeat express descriptive terms and do not constitute valid imputations; the operation of s 65A of the Trade Practices Act raises significant difficulties and may provide a complete defence unless pleadings are amended; leave to amend is granted subject to certification of correctness.

Jurisdiction
Australia
Judgment Date
02 November 2007
Procedural Posture
Representative Proceedings (class Actions) / Interlocutory Motions for Striking Out Paragraphs of Pleading and for Summary Dismissal
Outcome
Certain paragraphs struck out with leave to amend; statement of claim struck out in its entirety with leave to file further amended statement of claim; costs to be determined.
Legal Topics
['representative Proceedings' 'misleading and Deceptive Conduct' 'defamation' 'negligence' 'summary Dismissal' 'striking Out Pleadings' 'identification of Group Members' 'specification of Common Questions' 'application of S 65 a of Trade Practices Act']
['practice and Procedure' 'defamation' 'trade Practices'] ['representative Proceedings' 'misleading and Deceptive Conduct' 'defamation' 'negligence' 'summary Dismissal' 'striking Out Pleadings' 'identification of Group Members' 'specification of Common Questions' 'application of S 65 a of Trade Practices Act']

Case Brief

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Procedural Posture

Representative Proceedings (class Actions) / Interlocutory Motions for Striking Out Paragraphs of Pleading and for Summary Dismissal

Legal Issues

  1. 1 ['Whether the pleadings sufficiently identify group members for representative proceedings under s 33C and s 33H of Federal Court of Australia Act 1976 (Cth)' 'Whether the specification of common questions of fact and law is adequate' 'Whether pleaded imputations in defamation repeat express terms and thus are not true imputations' 'Whether publication by or to a computer constitutes publication for defamation purposes' 'Whether s 65A of the Trade Practices Act 1974 (Cth) provides a defence to the claim of contravention of s 52']

Ratio Decidendi

Certain paragraphs in the applications and statements of claim are defective, particularly in the identification of group members and specification of common questions, and must be struck out; pleaded imputations repeat express descriptive terms and do not constitute valid imputations; the operation of s 65A of the Trade Practices Act raises significant difficulties and may provide a complete defence unless pleadings are amended; leave to amend is granted subject to certification of correctness.

Court Disposition

Certain paragraphs struck out with leave to amend; statement of claim struck out in its entirety with leave to file further amended statement of claim; costs to be determined.

Orders

  • ['Proceedings listed for the making of further orders including orders as to costs.' 'Applicants given leave to amend pleadings subject to certification of correctness by solicitors and counsel.' 'Applicants to pay respondent’s costs of the motions (subject to further consideration).']