Nyoni v Shire of Kellerberrin [2011] FCA 1299

Nyoni v Shire of Kellerberrin [2011] FCA 1299

The proceeding was not dismissed for want of jurisdiction or summarily dismissed because the applicant's federal misleading or deceptive conduct claim, particularly the claim based on internet publication of disparaging Shire Council minutes, was not shown to be untenable, let alone colourable. On the pleaded allegations, it was at least arguable that the publication was intended to damage the applicant's business and promote a rival pharmacy, and therefore could be conduct in trade or commerce. Although the amended statement of claim was seriously defective, verbose, embarrassing and failed to plead causes of action adequately, the underlying allegations were not shown to have no...

Jurisdiction
Australia
Judgment Date
14 November 2011
Procedural Posture
Civil Proceeding Alleging Contraventions of the Trade Practices Act 1974 (cth), Racial Discrimination, and Common Law Causes of Action / Respondents' Interlocutory Notices of Motion Seeking Dismissal for Want of Jurisdiction, Summary Dismissal Under S 31 a of the Federal Court of Australia Act 1976 (cth), Strike Out, and Removal or Strike Out of Scandalous Material
Outcome
The amended statement of claim was struck out with leave to file and serve a re-amended statement of claim. The respondents' notices of motion were otherwise dismissed, specified scandalous material was struck out, and costs were reserved.
Legal Topics
['misleading or Deceptive Conduct' 'conduct in Trade or Commerce' 'summary Dismissal' 'strike Out of Pleadings' 'colourable Federal Claims' 'scandalous Material']
['practice and Procedure' 'trade Practices' 'federal Jurisdiction' 'pleadings'] ['misleading or Deceptive Conduct' 'conduct in Trade or Commerce' 'summary Dismissal' 'strike Out of Pleadings' 'colourable Federal Claims' 'scandalous Material']

Case Brief

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Procedural Posture

Civil Proceeding Alleging Contraventions of the Trade Practices Act 1974 (cth), Racial Discrimination, and Common Law Causes of Action / Respondents' Interlocutory Notices of Motion Seeking Dismissal for Want of Jurisdiction, Summary Dismissal Under S 31 a of the Federal Court of Australia Act 1976 (cth), Strike Out, and Removal or Strike Out of Scandalous Material

Legal Issues

  1. 1 ['Whether the proceeding should be dismissed because the jurisdiction of the Court had not properly been invoked by a tenable federal claim.' "Whether the applicant's allegations under s 52 of the Trade Practices Act 1974 (Cth) were so untenable or colourable that the Court lacked jurisdiction." 'Whether it could tenably be contended that publication on the internet of disparaging statements in Shire Council minutes was conduct in trade or commerce.' 'Whether the proceeding should be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).' 'Whether the amended statement of claim should be struck out for defective pleading.' "Whether identified material in the applicant's documents was scandalous and should be struck out."]

Ratio Decidendi

The proceeding was not dismissed for want of jurisdiction or summarily dismissed because the applicant's federal misleading or deceptive conduct claim, particularly the claim based on internet publication of disparaging Shire Council minutes, was not shown to be untenable, let alone colourable. On the pleaded allegations, it was at least arguable that the publication was intended to damage the applicant's business and promote a rival pharmacy, and therefore could be conduct in trade or commerce. Although the amended statement of claim was seriously defective, verbose, embarrassing and failed to plead causes of action adequately, the underlying allegations were not shown to have no...

Court Disposition

The amended statement of claim was struck out with leave to file and serve a re-amended statement of claim. The respondents' notices of motion were otherwise dismissed, specified scandalous material was struck out, and costs were reserved.

Orders

  • ['The whole of the amended statement of claim filed 30 May 2011, is struck out.' 'The applicant has leave to file and serve by 4.00 pm on 31 January 2012, a re-amended statement of claim.' 'Leave is reserved to the respondents, within 28 days of the service upon them of the re-amended statement of claim, to make any...