Duncan v Lipscombe Child Care Services Inc [2006] FCA 458

Duncan v Lipscombe Child Care Services Inc [2006] FCA 458

Section 31A applied because it is procedural and the strikeout application was heard after it commenced. The contractual claims based on the Grievance Procedure had no reasonable prospect of success because the policy post-dated the formal employment contract, was not pleaded as an agreed variation, and did not apply to grievances between the Director and Lipscombe Child Care. The Trade Practices Act claims had no reasonable prospect of success because the alleged termination-related conduct and publication were not in trade or commerce, and the pleaded unconscionability did not allege exploitation of a special disadvantage within the equitable doctrine. The defamation claim was not...

Jurisdiction
Australia
Judgment Date
28 April 2006
Procedural Posture
Strikeout Application in Proceeding Arising From Termination of Employment Alleging Breach of Contract, Trade Practices Act Contraventions and Defamation / Respondents' Application to Strike Out the Proceeding And/or Statement of Claim in Whole or in Part
Outcome
Application allowed in part; paragraphs 23-34 of the statement of claim struck out, with the defamation claim left standing.
Legal Topics
['strikeout' 'section 31 a Federal Court of Australia Act 1976 (cth)' 'termination of Employment' 'grievance Procedure' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'trade or Commerce' 'accrued Jurisdiction']
['practice and Procedure' 'employment Law' 'contract Law' 'trade Practices' 'defamation' 'federal Jurisdiction'] ['strikeout' 'section 31 a Federal Court of Australia Act 1976 (cth)' 'termination of Employment' 'grievance Procedure' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'trade or Commerce' 'accrued Jurisdiction']

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Procedural Posture

Strikeout Application in Proceeding Arising From Termination of Employment Alleging Breach of Contract, Trade Practices Act Contraventions and Defamation / Respondents' Application to Strike Out the Proceeding And/or Statement of Claim in Whole or in Part

Legal Issues

  1. 1 ['Whether s 31A of the Federal Court of Australia Act 1976 (Cth) applied to a strikeout application in a proceeding commenced before s 31A came into operation.' "Whether the Grievance Procedure formed part of the applicant's contract of employment or applied to grievances between the Director and Lipscombe Child Care." 'Whether publication of the termination letter was conduct in trade or commerce for the purposes of s 52 of the Trade Practices Act 1974 (Cth).' 'Whether the alleged dismissal and publication of allegations could constitute unconscionable conduct contrary to s 51AA of the Trade Practices Act 1974 (Cth).' 'Whether, if the federal claims were struck out, the Federal Court retained jurisdiction over the defamation claim.']

Ratio Decidendi

Section 31A applied because it is procedural and the strikeout application was heard after it commenced. The contractual claims based on the Grievance Procedure had no reasonable prospect of success because the policy post-dated the formal employment contract, was not pleaded as an agreed variation, and did not apply to grievances between the Director and Lipscombe Child Care. The Trade Practices Act claims had no reasonable prospect of success because the alleged termination-related conduct and publication were not in trade or commerce, and the pleaded unconscionability did not allege exploitation of a special disadvantage within the equitable doctrine. The defamation claim was not...

Court Disposition

Application allowed in part; paragraphs 23-34 of the statement of claim struck out, with the defamation claim left standing.

Orders

  • ['Paragraphs 23-34 of the statement of claim are struck out.' 'The respondents file and serve an amended defence on or before 12 May 2006.' 'The directions hearing is adjourned to 9.30 am on 6 June 2006.' "The applicant pay the respondents' costs of the strikeout application."]