Australian Competition and Consumer Commission v Fox Symes & Associates Pty Ltd [2005] FCA 1071

Australian Competition and Consumer Commission v Fox Symes & Associates Pty Ltd [2005] FCA 1071

The pleaded representations in the impugned paragraphs, especially relating to 'not bankruptcy', did not support the alleged imputations nor disclose a reasonable cause of action for misleading or deceptive conduct according to the legal standard. Pleadings for causation and accessorial liability were defective as they lacked requisite particulars. Therefore, paragraphs 16, 17, 18, 19, 20, 30-32, 89-91, 126-128, 162-164, 203-205, 213-214 and 215-216 were struck out, with the applicant permitted to seek leave to file a further amended statement of claim.

Jurisdiction
Australia
Judgment Date
05 August 2005
Procedural Posture
Application to Strike Out Pleadings / Interlocutory Judgment on Strike Out Motion
Outcome
Certain paragraphs of the amended statement of claim are struck out; costs awarded to respondents; applicant permitted to seek leave to file amended pleading within 14 days.
Legal Topics
['misleading and Deceptive Conduct' 'pleadings' 'accessorial Liability' 'causation of Loss' 'strike Out Applications']
['competition Law' 'consumer Law' 'bankruptcy Law' 'civil Procedure'] ['misleading and Deceptive Conduct' 'pleadings' 'accessorial Liability' 'causation of Loss' 'strike Out Applications']

Case Brief

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Procedural Posture

Application to Strike Out Pleadings / Interlocutory Judgment on Strike Out Motion

Legal Issues

  1. 1 ['Whether certain paragraphs of the amended statement of claim should be struck out for disclosing no reasonable cause of action' "Whether the 'not bankruptcy' representations pleaded give rise to actionable misleading or deceptive conduct under s 52 Trade Practices Act 1974" 'Whether accessorial liability was adequately pleaded against second and third respondents' 'Whether causation was sufficiently pleaded for damages under s 82 Trade Practices Act 1974']

Ratio Decidendi

The pleaded representations in the impugned paragraphs, especially relating to 'not bankruptcy', did not support the alleged imputations nor disclose a reasonable cause of action for misleading or deceptive conduct according to the legal standard. Pleadings for causation and accessorial liability were defective as they lacked requisite particulars. Therefore, paragraphs 16, 17, 18, 19, 20, 30-32, 89-91, 126-128, 162-164, 203-205, 213-214 and 215-216 were struck out, with the applicant permitted to seek leave to file a further amended statement of claim.

Court Disposition

Certain paragraphs of the amended statement of claim are struck out; costs awarded to respondents; applicant permitted to seek leave to file amended pleading within 14 days.

Orders

  • ['Paragraphs 16, 17, 18, 19, 20, 30-32, 89-91, 126-128, 162-164, 203-205, 213-214 and 215-216 of the amended statement of claim filed on 15 November 2004 are struck out.' 'Applicant, if so advised, to seek leave to file any further amended statement of claim within 14 days.' "Applicant to pay the respondents' costs."]