Brown v Deloitte Touche Tohmatsu (A Partnership) [2020] FCA 1747

Brown v Deloitte Touche Tohmatsu (A Partnership) [2020] FCA 1747

It is premature at the strike out stage to determine limitation or to strike out the misleading and deceptive conduct claim regarding longevity representations because factual resolution on when damage crystallised is necessary and a limitation defence has not yet been pleaded. However, the Rio Tinto representations cause of action is inadequately pleaded as it lacks necessary articulation of causation; the whole of that cause of action is struck out with leave to amend.

Jurisdiction
Australia
Judgment Date
04 December 2020
Procedural Posture
Interlocutory Application / Strike Out Application Determination
Outcome
Partially struck out with leave to amend; interlocutory application otherwise dismissed; costs reserved.
Legal Topics
['strike Out Application' 'limitation of Actions' 'misleading and Deceptive Conduct' 'age Discrimination' 'pleading Requirements']
['administrative and Constitutional Law and Human Rights' 'practice and Procedure'] ['strike Out Application' 'limitation of Actions' 'misleading and Deceptive Conduct' 'age Discrimination' 'pleading Requirements']

Case Brief

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Procedural Posture

Interlocutory Application / Strike Out Application Determination

Legal Issues

  1. 1 ['Whether two causes of action in the statement of claim should be struck out for failing to disclose reasonable causes of action' 'Whether the misleading and deceptive conduct claims are statute barred under ss 236(2) and 237(2) of the Australian Consumer Law' 'When loss or damage crystallises for limitation purposes under the ACL' 'Whether step in causation is adequately pleaded' 'Whether reliance in third party misleading and deceptive conduct cause of action is necessary']

Ratio Decidendi

It is premature at the strike out stage to determine limitation or to strike out the misleading and deceptive conduct claim regarding longevity representations because factual resolution on when damage crystallised is necessary and a limitation defence has not yet been pleaded. However, the Rio Tinto representations cause of action is inadequately pleaded as it lacks necessary articulation of causation; the whole of that cause of action is struck out with leave to amend.

Court Disposition

Partially struck out with leave to amend; interlocutory application otherwise dismissed; costs reserved.

Orders

  • ['Paragraphs [28] to [42] and the words "and 42" in paragraph [43] of the statement of claim are struck out.' 'Applicant has leave and is directed to amend the statement of claim by deleting the indirect discrimination cause of action in paragraphs [57] to [59] and making consequential amendments.' "First...