Bingo Holdings Pty Ltd v GC Group Company Pty Ltd [2021] NSWCA 184

Bingo Holdings Pty Ltd v GC Group Company Pty Ltd [2021] NSWCA 184

A defendant seeking to rely on a proportionate liability defence must identify and plead specific concurrent wrongdoers whose acts or omissions caused the loss the subject of the claim. Part VIA of the Competition and Consumer Act 2010 (Cth), not s 34 of the Civil Liability Act 2002 (NSW), applies to claims of misleading or deceptive conduct under the Australian Consumer Law. A defence based on a class of possible wrongdoers, without identification of individuals, is insufficient and cannot succeed.

Jurisdiction
Australia
Judgment Date
23 August 2021
Procedural Posture
Application for Leave to Appeal / Interlocutory Leave to Appeal From Refusal to Amend Pleading to Raise Proportionate Liability Defence
Outcome
Application for leave to appeal dismissed.
Legal Topics
['pleadings' 'proportionate Liability' 'amendment of Pleadings' 'identification of Concurrent Wrongdoers']
['civil Procedure'] ['pleadings' 'proportionate Liability' 'amendment of Pleadings' 'identification of Concurrent Wrongdoers']

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Procedural Posture

Application for Leave to Appeal / Interlocutory Leave to Appeal From Refusal to Amend Pleading to Raise Proportionate Liability Defence

Legal Issues

  1. 1 ['Whether a defendant can plead a proportionate liability defence under s 34 of the Civil Liability Act 2002 (NSW) or Part VIA of the Competition and Consumer Act 2010 (Cth) without identifying particular concurrent wrongdoers' 'Whether the relevant proportionate liability regime applies to misleading or deceptive conduct claims brought under the Australian Consumer Law' 'Whether the pleading requirements for proportionate liability include the identification of specific concurrent wrongdoers']

Ratio Decidendi

A defendant seeking to rely on a proportionate liability defence must identify and plead specific concurrent wrongdoers whose acts or omissions caused the loss the subject of the claim. Part VIA of the Competition and Consumer Act 2010 (Cth), not s 34 of the Civil Liability Act 2002 (NSW), applies to claims of misleading or deceptive conduct under the Australian Consumer Law. A defence based on a class of possible wrongdoers, without identification of individuals, is insufficient and cannot succeed.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • ['Dismiss the summons seeking leave to appeal filed 19 April 2021.' 'Order the applicants pay the costs of the summons.']