JC Decaux Australia Pty Ltd v Adshel Street Furniture Ltd [2000] FCA 1118

JC Decaux Australia Pty Ltd v Adshel Street Furniture Ltd [2000] FCA 1118

There is no procedural impediment to the applicant pleading inconsistent claims under Parts IV and V of the Trade Practices Act in the alternative, even when such claims are against different parties, under Order 11 rule 8. Furthermore, the argument that s 45 of the Trade Practices Act is confined to horizontal arrangements is not so clearly established as to warrant summary dismissal; it is arguable that s 45 may apply to 'vertical' arrangements, thus the claim against the PTC should not be struck out.

Parties
Applicant: JC Decaux Pty Limited; First Respondent: Adshel Street Furniture Pty Limited; Second Respondent: Public Transport Corporation
Jurisdiction
Australia
Judgment Date
11 August 2000
Procedural Posture
Interlocutory Application / Ruling on Application to Strike Out Statement of Claim, Pleadings
Outcome
Applications to strike out or dismiss the statement of claim and related pleadings refused.
Legal Topics
Pleadings, Alternative and Inconsistent Claims, Trade Practices Act, Horizontal and Vertical Restraints, Misleading or Deceptive Conduct
Practice and Procedure Competition Law Consumer Protection Pleadings Alternative and Inconsistent Claims Trade Practices Act Horizontal and Vertical Restraints Misleading or Deceptive Conduct

Case Brief

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Parties

JC Decaux Pty Limited

Applicant

Adshel Street Furniture Pty Limited

First Respondent

Public Transport Corporation

Second Respondent

Procedural Posture

Interlocutory Application / Ruling on Application to Strike Out Statement of Claim, Pleadings

Legal Issues

  1. 1 Whether inconsistent claims under Parts IV and V of the Trade Practices Act can be pleaded in the alternative in the same proceeding
  2. 2 Whether s 45 of the Trade Practices Act applies to 'vertical' arrangements between non-competitors (such as between Adshel and the PTC)
  3. 3 Whether Order 11 rule 8 of the Federal Court Rules allows inconsistent facts or claims to be pleaded against different parties

Ratio Decidendi

There is no procedural impediment to the applicant pleading inconsistent claims under Parts IV and V of the Trade Practices Act in the alternative, even when such claims are against different parties, under Order 11 rule 8. Furthermore, the argument that s 45 of the Trade Practices Act is confined to horizontal arrangements is not so clearly established as to warrant summary dismissal; it is arguable that s 45 may apply to 'vertical' arrangements, thus the claim against the PTC should not be struck out.

Court Disposition

Applications to strike out or dismiss the statement of claim and related pleadings refused.

Orders

  • The application by the PTC to strike out or dismiss the applicant's claim under ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act is rejected.
  • No order for costs at this stage.