Australian Competition & Consumer Commission v Internic Technology Pty Ltd & Anor [1998] FCA 818

Australian Competition & Consumer Commission v Internic Technology Pty Ltd & Anor [1998] FCA 818

The proceeding should not be transferred to the Victoria Registry as the balance of convenience, including the number of group members in Sydney and ACCC logistical reasons, favours retention in New South Wales. However, it is inappropriate for the proceeding to continue as a representative proceeding under Part IVA due to the necessity for group members to provide individual evidence of reliance for loss/damage; thus an order is made under s 33N accordingly. Pleadings regarding intent to induce and reference to general public are struck out as embarrassing as not aligning with elements of causes pleaded.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Internic Technology Pty Ltd (ACN 079 268 714); Second Respondent: Peter Marek Zmijewski
Jurisdiction
Australia
Judgment Date
14 July 1998
Procedural Posture
Application/representative Proceeding / Interlocutory (orders on Transfer, Representative Status, and Strike Out)
Outcome
Application granted in part; proceeding to continue as non-representative proceeding; strike out orders made.
Legal Topics
Transfer of Proceedings, Representative Proceedings, Standing Under Part IVA, Misleading or Deceptive Conduct, Striking Out Pleadings
Practice and Procedure Consumer Law Transfer of Proceedings Representative Proceedings Standing Under Part IVA Misleading or Deceptive Conduct Striking Out Pleadings

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Parties

Australian Competition and Consumer Commission

Applicant

Internic Technology Pty Ltd (ACN 079 268 714)

First Respondent

Peter Marek Zmijewski

Second Respondent

Procedural Posture

Application/representative Proceeding / Interlocutory (orders on Transfer, Representative Status, and Strike Out)

Legal Issues

  1. 1 Should the proceeding be transferred to Victoria District Registry?
  2. 2 Is the ACCC entitled to commence and continue the proceeding as a representative party under Part IVA?
  3. 3 Should the proceeding no longer continue under Part IVA as a representative proceeding?

Ratio Decidendi

The proceeding should not be transferred to the Victoria Registry as the balance of convenience, including the number of group members in Sydney and ACCC logistical reasons, favours retention in New South Wales. However, it is inappropriate for the proceeding to continue as a representative proceeding under Part IVA due to the necessity for group members to provide individual evidence of reliance for loss/damage; thus an order is made under s 33N accordingly. Pleadings regarding intent to induce and reference to general public are struck out as embarrassing as not aligning with elements of causes pleaded.

Court Disposition

Application granted in part; proceeding to continue as non-representative proceeding; strike out orders made.

Orders

  • Paragraph 28 of the statement of claim filed on 30 April 1998 be struck out.
  • The words 'members of the general public, including' in paragraph 29 of the statement of claim filed on 30 April 1998 be struck out.