Herbert, John James v Active Leisure (Australia) Pty ltd [1984] FCA 341

Herbert, John James v Active Leisure (Australia) Pty ltd [1984] FCA 341

The federal claim under ss.52 and 53 of the Trade Practices Act is trivial and adds nothing of real value to the applicant's state law claims for breach of contract and negligence. Therefore, the substantial controversy should be dealt with by the state courts, and the statement of claim as pleaded should be struck out.

Parties
Applicant: John James Herbert; Respondent: Active Leisure (Australia) Pty Limited
Jurisdiction
Australia
Judgment Date
09 October 1984
Procedural Posture
Application for Damages for Breach of Contract and Negligence (federal Court of Australia, General Division) / Striking Out of Statement of Claim
Outcome
Statement of claim struck out with leave to replead. Applicant to file and serve an amended statement of claim. Proceedings stayed until further order, save as to amendment.
Legal Topics
Breach of Contract, Negligence, Trade Practices Act Jurisdiction, Federal Vs State Jurisdiction, Accrued Jurisdiction
Contract Law Tort Law Trade Practices Breach of Contract Negligence Trade Practices Act Jurisdiction Federal Vs State Jurisdiction Accrued Jurisdiction

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 4 Party arguments 2
Sign in to unlock

Parties

John James Herbert

Applicant

Active Leisure (Australia) Pty Limited

Respondent

Procedural Posture

Application for Damages for Breach of Contract and Negligence (federal Court of Australia, General Division) / Striking Out of Statement of Claim

Legal Issues

  1. 1 Whether the federal claim under the Trade Practices Act is substantial or trivial
  2. 2 Whether the non-federal aspects should be struck out
  3. 3 Whether striking out the statement of claim is appropriate

Ratio Decidendi

The federal claim under ss.52 and 53 of the Trade Practices Act is trivial and adds nothing of real value to the applicant's state law claims for breach of contract and negligence. Therefore, the substantial controversy should be dealt with by the state courts, and the statement of claim as pleaded should be struck out.

Court Disposition

Statement of claim struck out with leave to replead. Applicant to file and serve an amended statement of claim. Proceedings stayed until further order, save as to amendment.

Orders

  • The statement of claim is struck out.
  • Leave reserved to the applicant to replead.