Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd and Ors [1996] FCA 781

Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd and Ors [1996] FCA 781

The Statement of Claim was struck out because its defects infected the whole pleading: the claims under ss.45, 45A and 4D, s.46, and conspiracy stated conclusions in vague and oblique terms without pleading sufficient material facts, damage, causal connection, or, for s.46, a proper link between market power, taking advantage, and proscribed purpose. The proposed amendments did not cure those defects and were themselves embarrassing. As to the Fourth Respondent, reliance on s.83 findings from an earlier proceeding was insufficient because that Respondent had not been a party to the earlier proceeding.

Jurisdiction
Australia
Judgment Date
04 September 1996
Procedural Posture
Trade Practices Act Proceeding Including Claims Under Ss.4 D, 45, 45 A, 46 and 82, and Conspiracy, Transferred From the Supreme Court of South Australia Under Cross Vesting Legislation / Respondents' Motions to Strike Out the Statement of Claim or Summarily Dismiss the Proceeding, Heard Together
Outcome
Statement of Claim struck out, with conditional dismissal unless the Applicant files a motion for leave to file an amended statement of claim within 21 days and leave is granted.
Legal Topics
['pleading of Material Facts' 'strike Out Applications' 'contraventions of Ss.45 and 46 of the Trade Practices Act 1974' 'causation and Damage Under S.82 of the Trade Practices Act 1974' 'use of Findings Under S.83 of the Trade Practices Act 1974' 'fraudulent Concealment and Limitation']
['practice and Procedure' 'trade Practices' 'competition Law' 'limitation of Actions'] ['pleading of Material Facts' 'strike Out Applications' 'contraventions of Ss.45 and 46 of the Trade Practices Act 1974' 'causation and Damage Under S.82 of the Trade Practices Act 1974' 'use of Findings Under S.83 of the Trade Practices Act 1974' 'fraudulent Concealment and Limitation']

Case Brief

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Procedural Posture

Trade Practices Act Proceeding Including Claims Under Ss.4 D, 45, 45 A, 46 and 82, and Conspiracy, Transferred From the Supreme Court of South Australia Under Cross Vesting Legislation / Respondents' Motions to Strike Out the Statement of Claim or Summarily Dismiss the Proceeding, Heard Together

Legal Issues

  1. 1 ['Whether the Statement of Claim pleaded material facts with sufficient clarity and specificity to enable the Respondents to know and meet the case against them.' 'Whether the pleading of alleged arrangements or understandings under ss.4D, 45 and 45A of the Trade Practices Act 1974 was defective because it stated conclusions without material facts, damage, or causal connection.' 'Whether the s.46 pleading adequately alleged substantial market power, taking advantage of that power, proscribed purpose, and causally related damage.' 'Whether the conspiracy allegation pleaded material facts supporting a predominant purpose of injuring the Applicant by unlawful means.' 'Whether findings from Trade Practices Commission v. TNT Australia Pty Limited could be relied on under s.83 of the Trade Practices Act 1974 against the Fourth Respondent, which was not a party to that earlier proceeding.' 'Whether limitation issues based on concealed fraud and s.48 of the Limitation of Actions Act 1936 (S.A.) should be resolved on the strike out applications.']

Ratio Decidendi

The Statement of Claim was struck out because its defects infected the whole pleading: the claims under ss.45, 45A and 4D, s.46, and conspiracy stated conclusions in vague and oblique terms without pleading sufficient material facts, damage, causal connection, or, for s.46, a proper link between market power, taking advantage, and proscribed purpose. The proposed amendments did not cure those defects and were themselves embarrassing. As to the Fourth Respondent, reliance on s.83 findings from an earlier proceeding was insufficient because that Respondent had not been a party to the earlier proceeding.

Court Disposition

Statement of Claim struck out, with conditional dismissal unless the Applicant files a motion for leave to file an amended statement of claim within 21 days and leave is granted.

Orders

  • ['The Statement of Claim be struck out;' "The Applicant pay the Respondents' costs of and incidental to their motions to strike out the Statement of Claim and their costs thrown away by virtue of the defective pleading of the Applicant's claims;" 'Unless a motion for leave to file an amended statement of claim,...