Myriam Cauvin v Philip Morris Limited (ACN 004 694 428) & Ors [2006] NSWSC 185

Myriam Cauvin v Philip Morris Limited (ACN 004 694 428) & Ors [2006] NSWSC 185

Although the plaintiff's personal claim remained deficient because it pleaded the whole of the contravening conduct, including conduct of which the plaintiff had no knowledge, as causative of her loss without identifying the particular causative conduct, that deficiency could be addressed by requiring particulars. Leave to file the third amended statement of claim was therefore granted, but paragraph 2.8(a) was redundant and the words "or one or more of them" in paragraph 2.14 were embarrassing and excluded from the leave. Because significant deficiencies were conceded only at the hearing and further particulars were required, the plaintiff was ordered to pay the defendants' costs of the...

Jurisdiction
Australia
Judgment Date
24 March 2006
Procedural Posture
Civil Proceeding; Amended Notice of Motion for Extension of Time or Leave to Amend Statement of Claim / Interlocutory Application for Leave to File a Third Amended Statement of Claim
Outcome
Leave granted in part to file the third amended statement of claim, subject to deletions; plaintiff ordered to provide particulars and pay the defendants' costs of the motion.
Legal Topics
['leave to Amend Pleadings' 'misleading or Deceptive Conduct' 'particulars' 'causation' 'costs of Motion']
['civil Procedure' 'trade Practices' 'consumer Protection'] ['leave to Amend Pleadings' 'misleading or Deceptive Conduct' 'particulars' 'causation' 'costs of Motion']

Case Brief

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Procedural Posture

Civil Proceeding; Amended Notice of Motion for Extension of Time or Leave to Amend Statement of Claim / Interlocutory Application for Leave to File a Third Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the plaintiff should have leave to file a third amended statement of claim.' "Whether the pleading of the plaintiff's personal claim adequately identified the conduct alleged to have caused loss or damage or likelihood of loss or damage." 'Whether the plaintiff could plead her personal claim as derivative of a broader general claim under the Trade Practices Act 1974 (Cth).' 'Whether particular pleaded paragraphs or words were embarrassing, redundant or outside the leave previously granted.' "Whether the plaintiff should pay the defendants' costs of the motion."]

Ratio Decidendi

Although the plaintiff's personal claim remained deficient because it pleaded the whole of the contravening conduct, including conduct of which the plaintiff had no knowledge, as causative of her loss without identifying the particular causative conduct, that deficiency could be addressed by requiring particulars. Leave to file the third amended statement of claim was therefore granted, but paragraph 2.8(a) was redundant and the words "or one or more of them" in paragraph 2.14 were embarrassing and excluded from the leave. Because significant deficiencies were conceded only at the hearing and further particulars were required, the plaintiff was ordered to pay the defendants' costs of the...

Court Disposition

Leave granted in part to file the third amended statement of claim, subject to deletions; plaintiff ordered to provide particulars and pay the defendants' costs of the motion.

Orders

  • ['The plaintiff has leave to file her third amended statement of claim subject to the deletion of paragraph 2.8(a) and the words "or one or more of them" in paragraph 2.14.' 'The plaintiff is to provide particulars of her personal claim within six weeks.' "The plaintiff is to pay the defendants' costs of the motion."]