Australian Competition and Consumer Commission v Fox Symes & Associates Pty Ltd (No 2) [2005] FCA 1251

Australian Competition and Consumer Commission v Fox Symes & Associates Pty Ltd (No 2) [2005] FCA 1251

Leave to amend was granted only excluding paragraphs 15 to 20B because the alleged imputation that the advertised services would release debtors from debts without consequences similar to bankruptcy could not arise from the words relied upon, including "It's not bankruptcy", and those paragraphs could not stand once the imputation was struck out.

Jurisdiction
Australia
Judgment Date
05 September 2005
Procedural Posture
Application for Leave to Amend Statement of Claim in Federal Court Proceedings Alleging Misleading and Deceptive Conduct / Notice of Motion for Leave to Amend Statement of Claim
Outcome
Leave to amend statement of claim granted in part; leave refused for paragraphs 15 to 20B; applicant ordered to pay the first respondent's costs of the notice of motion.
Legal Topics
['misleading and Deceptive Conduct' 'amendment of Statement of Claim' 'strike Out of Pleading' 'advertising Representations' 'implied Representations']
['competition and Consumer Law' 'civil Procedure'] ['misleading and Deceptive Conduct' 'amendment of Statement of Claim' 'strike Out of Pleading' 'advertising Representations' 'implied Representations']

Case Brief

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Procedural Posture

Application for Leave to Amend Statement of Claim in Federal Court Proceedings Alleging Misleading and Deceptive Conduct / Notice of Motion for Leave to Amend Statement of Claim

Legal Issues

  1. 1 ['Whether the applicant should have leave to amend its statement of claim to include paragraphs 15 to 20B concerning advertisements using words including "It\'s not bankruptcy".' 'Whether the pleaded imputation that Fox Symes offered services releasing debtors from debts without consequences similar to bankruptcy could arise from the words relied upon.' 'Whether paragraphs 15 to 20B should stand if the pleaded imputation could not arise at law.']

Ratio Decidendi

Leave to amend was granted only excluding paragraphs 15 to 20B because the alleged imputation that the advertised services would release debtors from debts without consequences similar to bankruptcy could not arise from the words relied upon, including "It's not bankruptcy", and those paragraphs could not stand once the imputation was struck out.

Court Disposition

Leave to amend statement of claim granted in part; leave refused for paragraphs 15 to 20B; applicant ordered to pay the first respondent's costs of the notice of motion.

Orders

  • ['The applicant has leave to file an amended statement of claim in the terms of the amended statement of claim being annexure ESG1 to the affidavit of Emma Scotia Gill, save for paragraphs 15 to 20B for which leave is not granted.' "The applicant to pay the first respondent's costs of the notice of motion."]