Olson v Keefe [2019] FCA 339

Olson v Keefe [2019] FCA 339

Leave to appeal was refused because the proposed appeals did not satisfy the Decor test. The fiduciary duty and accessorial victimisation claims lacked a comprehensible and properly particularised pleaded basis; the unconscionable conduct pleading failed to identify why particular conduct was unconscionable and denied procedural fairness to the respondents; no House v King error was articulated in the refusal to allow further repleading; and the implied term claims did not demonstrate legal error or substantial injustice. Mr Olson could continue to advance his primary case and seek leave to plead any orthodox implied term case open to him.

Jurisdiction
Australia
Judgment Date
13 March 2019
Procedural Posture
Application for Extension of Time and Application for Leave to Appeal From Interlocutory Judgments / Extension of Time Granted for the 2017 Application; Applications for Leave to Appeal Dismissed
Outcome
The application for extension of time was granted, but both applications for leave to appeal were dismissed with costs.
Legal Topics
['extension of Time' 'leave to Appeal From Interlocutory Judgments' 'summary Dismissal' 'strike Out' 'pleading Sufficiency' 'fiduciary Duties' 'accessorial Liability Under S 1317 AC of the Corporations Act 2001 (cth)' 'unconscionable Conduct Under Ss 20 and 21 of the Australian Consumer Law' 'implied Contractual Terms']
['practice and Procedure' 'employment and Industrial Relations' 'corporations' 'consumer Law' 'contract'] ['extension of Time' 'leave to Appeal From Interlocutory Judgments' 'summary Dismissal' 'strike Out' 'pleading Sufficiency' 'fiduciary Duties' 'accessorial Liability Under S 1317 AC of the Corporations Act 2001 (cth)' 'unconscionable Conduct Under Ss 20 and 21 of the Australian Consumer Law' 'implied Contractual Terms']

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Procedural Posture

Application for Extension of Time and Application for Leave to Appeal From Interlocutory Judgments / Extension of Time Granted for the 2017 Application; Applications for Leave to Appeal Dismissed

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from orders summarily dismissing and striking out the Fiduciary Duty Case and Accessorial Victimisation Case in 2017.' 'Whether leave to appeal should be granted from orders refusing leave to file a further amended statement of claim pleading an Unconscionable Conduct Case and an Implied Term Case in 2018.' 'Whether the proposed appeals were attended with sufficient doubt and whether substantial injustice would result if leave were refused.' 'Whether the pleadings disclosed a comprehensible basis for fiduciary duties, accessorial victimisation, unconscionable conduct, or the alleged implied contractual terms.']

Ratio Decidendi

Leave to appeal was refused because the proposed appeals did not satisfy the Decor test. The fiduciary duty and accessorial victimisation claims lacked a comprehensible and properly particularised pleaded basis; the unconscionable conduct pleading failed to identify why particular conduct was unconscionable and denied procedural fairness to the respondents; no House v King error was articulated in the refusal to allow further repleading; and the implied term claims did not demonstrate legal error or substantial injustice. Mr Olson could continue to advance his primary case and seek leave to plead any orthodox implied term case open to him.

Court Disposition

The application for extension of time was granted, but both applications for leave to appeal were dismissed with costs.

Orders

  • ['The application for extension of time to seek leave to appeal from Orders 1-3 and 6 of the orders made by the primary judge on 16 October 2017 be granted, but the application for leave to appeal be dismissed.' 'The application for leave to appeal from the orders made by the primary judge on 18 December 2018 be...