Energex Limited v Alstom Australia Limited [2004] FCA 575

Energex Limited v Alstom Australia Limited [2004] FCA 575

The Court held that it is at least arguable that loss or damage suffered by Energex did not arise until after the alleged cartel conduct became manifest—i.e., when Energex discovered or could reasonably have discovered that it paid higher prices due to anti-competitive conduct. In the context of complex competition cases, and at the interlocutory stage, it cannot be clearly shown that the s 82(1) claims are time-barred; thus, it is inappropriate to summarily dismiss or strike out the statement of claim on this basis. The applications for summary dismissal and strike out are dismissed. Further, the pleading of deceit is sufficiently arguable and should not be struck out summarily.

Parties
Applicant: Energex Limited; First Respondent: Alstom Australia Limited; Second Respondent: Rexel Australia Limited; Third Respondent: Richard Elliot; Fourth Respondent: Paul Bragham; Fifth Respondent: Colin James; Sixth Respondent: Wilson Transformer Company Pty Ltd; Seventh Respondent: Robert Wilson; Eighth Respondent: David Peck; Ninth Respondent: ABB Transmission and Distribution Limited; Tenth Respondent: Douglas Pitt; Eleventh Respondent: Chris Tape; Twelfth Respondent: David Toogood; Thirteenth Respondent: Graham Jones; Fourteenth Respondent: Russell Ellen; Fifteenth Respondent: Raymond Boyce; Sixteenth Respondent: Schneider Electric (Australia) Pty Ltd; Seventeenth Respondent: Russell Stocker; Eighteenth Respondent: Ashley Smout; Nineteenth Respondent: Wendy Minne
Jurisdiction
Australia
Judgment Date
07 May 2004
Procedural Posture
Application for Summary Judgment And/or Strike Out / Interlocutory Determination of Motions to Strike Out or Dismiss
Outcome
Applications for summary judgment/strike out dismissed
Legal Topics
Summary Judgment, Strike Out Applications, Limitation Periods, Abuse of Process, Tort of Deceit, Trade Practices Act – Cartel Conduct, Implied Misrepresentation
Competition Law Trade Practices Pleading and Civil Procedure Torts Summary Judgment Strike Out Applications Limitation Periods Abuse of Process +3 more

Case Brief

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Parties

Energex Limited

Applicant

Alstom Australia Limited

First Respondent

Rexel Australia Limited

Second Respondent

Richard Elliot

Third Respondent

Paul Bragham

Fourth Respondent

Colin James

Fifth Respondent

Wilson Transformer Company Pty Ltd

Sixth Respondent

Robert Wilson

Seventh Respondent

David Peck

Eighth Respondent

ABB Transmission and Distribution Limited

Ninth Respondent

Douglas Pitt

Tenth Respondent

Chris Tape

Eleventh Respondent

David Toogood

Twelfth Respondent

Graham Jones

Thirteenth Respondent

Russell Ellen

Fourteenth Respondent

Raymond Boyce

Fifteenth Respondent

Schneider Electric (Australia) Pty Ltd

Sixteenth Respondent

Russell Stocker

Seventeenth Respondent

Ashley Smout

Eighteenth Respondent

Wendy Minne

Nineteenth Respondent

Procedural Posture

Application for Summary Judgment And/or Strike Out / Interlocutory Determination of Motions to Strike Out or Dismiss

Legal Issues

  1. 1 Whether claims under s 82(1) of Trade Practices Act 1974 (Cth) are statute barred under s 82(2)
  2. 2 When does a cause of action for loss/damage accrue under s 82 – on purchase or on discovery of loss?
  3. 3 Should limitation defence be determined at interlocutory stage?

Ratio Decidendi

The Court held that it is at least arguable that loss or damage suffered by Energex did not arise until after the alleged cartel conduct became manifest—i.e., when Energex discovered or could reasonably have discovered that it paid higher prices due to anti-competitive conduct. In the context of complex competition cases, and at the interlocutory stage, it cannot be clearly shown that the s 82(1) claims are time-barred; thus, it is inappropriate to summarily dismiss or strike out the statement of claim on this basis. The applications for summary dismissal and strike out are dismissed. Further, the pleading of deceit is sufficiently arguable and should not be struck out summarily.

Court Disposition

Applications for summary judgment/strike out dismissed

Orders

  • The notice of motion filed on behalf of the first, second, third, fourth and fifth respondents on 20 August 2003, and amended on 15 October 2003, be dismissed.
  • The notice of motion filed on behalf of the sixth and seventh respondents, on 20 August 2003, be dismissed.