Johnstone v HIH Insurance Limited [2004] FCA 1414

Johnstone v HIH Insurance Limited [2004] FCA 1414

The Application and Statement of Claim were struck out because the group definition was ambiguous and did not satisfy the requirements for a representative proceeding under s 33C, and because the pleadings contained substantial and pervasive defects including contingent allegations, rolled-up expressions, failure to specify conduct and knowledge, insufficient particulars, inconsistency, and inadequate pleading of causation. Leave to re-plead was granted because the Court was not persuaded that the case sought to be presented was so untenable that the proceeding should be struck out entirely.

Jurisdiction
Australia
Judgment Date
02 November 2004
Procedural Posture
Group Proceeding Under Part IVA of the Federal Court of Australia Act 1976 (cth) / Applications by the Seventh, Tenth, and Eleventh to Thirteenth Respondents to Strike Out the Second Amended Application and Third Amended Statement of Claim
Outcome
The Second Amended Application and Third Amended Statement of Claim were struck out, with leave to re-plead, and the applicant was ordered to pay the respondents' costs of the applications.
Legal Topics
['strike Out of Pleadings' 'sufficiency of Pleadings' 'definition of Group Members' 'misleading or Deceptive Conduct' 'particularisation' 'federal Court of Australia Act 1976 (cth) S 33 C']
['practice and Procedure' 'representative Proceedings' 'corporations' 'trade Practices'] ['strike Out of Pleadings' 'sufficiency of Pleadings' 'definition of Group Members' 'misleading or Deceptive Conduct' 'particularisation' 'federal Court of Australia Act 1976 (cth) S 33 C']

Case Brief

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Procedural Posture

Group Proceeding Under Part IVA of the Federal Court of Australia Act 1976 (cth) / Applications by the Seventh, Tenth, and Eleventh to Thirteenth Respondents to Strike Out the Second Amended Application and Third Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the pleadings adequately defined group members and satisfied s 33C of the Federal Court of Australia Act 1976 (Cth).' 'Whether the Second Amended Application and Third Amended Statement of Claim sufficiently pleaded the alleged conduct, involvement, knowledge, conspiracy, causation and loss.' 'Whether ambiguous formulations such as "in so far as", "in the premises" and "susceptible" rendered the pleadings deficient or embarrassing.' 'Whether the Application and Statement of Claim should be struck out and whether leave to re-plead should be granted.']

Ratio Decidendi

The Application and Statement of Claim were struck out because the group definition was ambiguous and did not satisfy the requirements for a representative proceeding under s 33C, and because the pleadings contained substantial and pervasive defects including contingent allegations, rolled-up expressions, failure to specify conduct and knowledge, insufficient particulars, inconsistency, and inadequate pleading of causation. Leave to re-plead was granted because the Court was not persuaded that the case sought to be presented was so untenable that the proceeding should be struck out entirely.

Court Disposition

The Second Amended Application and Third Amended Statement of Claim were struck out, with leave to re-plead, and the applicant was ordered to pay the respondents' costs of the applications.

Orders

  • ['The Second Amended Application and the Third Amended Statement of Claim be struck out.' 'The applicant be granted leave to re-plead.' "The applicant pay the respondents' costs in respect of the applications." 'Leave be granted on a party-party basis to the respondents to tax and collect those costs forthwith.']