Media Ocean Limited v Optus Mobile Pty Limited (No 4) [2009] FCA 488

Media Ocean Limited v Optus Mobile Pty Limited (No 4) [2009] FCA 488

Paragraphs 21 and 21A were struck out with leave to replead because they pleaded a representation about applying definitions that did not exist, although the intended allegation could be repleaded by reference to terms. Paragraph 23 was struck out with leave to replead because paragraph 21C could not support a misleading or deceptive conduct claim based on a future representation, although it could remain relevant to unconscionability. The unconscionability claim was arguable at the pleading level. Paragraph 24 was struck out with leave to replead because, insofar as it connected loss to the s 52 misrepresentation claim, it sought an impermissible expectation measure of damages for...

Jurisdiction
Australia
Judgment Date
13 May 2009
Procedural Posture
Respondent's Application to Strike Out Parts of the Further Amended Statement of Claim / Interlocutory Pleading Application
Outcome
Application allowed in part; specified paragraphs struck out with leave to replead; costs in the cause.
Legal Topics
['strike Out of Pleadings' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'future Representations' 'causation and Loss' 'damages for Non Contractual Misrepresentation']
['civil Procedure' 'trade Practices' 'consumer Law'] ['strike Out of Pleadings' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'future Representations' 'causation and Loss' 'damages for Non Contractual Misrepresentation']

Case Brief

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Procedural Posture

Respondent's Application to Strike Out Parts of the Further Amended Statement of Claim / Interlocutory Pleading Application

Legal Issues

  1. 1 ['Whether paragraphs 21 and 21A should be struck out because the agreements did not contain definitions of "international call" or "international voice call" as pleaded.' 'Whether paragraph 21C could support a misleading or deceptive conduct allegation based on a representation as to future conduct.' 'Whether the unconscionability claim in paragraph 23A was sufficiently pleaded to proceed.' 'Whether the pleaded loss and damage in paragraph 24 was maintainable in relation to the misleading or deceptive conduct claim.']

Ratio Decidendi

Paragraphs 21 and 21A were struck out with leave to replead because they pleaded a representation about applying definitions that did not exist, although the intended allegation could be repleaded by reference to terms. Paragraph 23 was struck out with leave to replead because paragraph 21C could not support a misleading or deceptive conduct claim based on a future representation, although it could remain relevant to unconscionability. The unconscionability claim was arguable at the pleading level. Paragraph 24 was struck out with leave to replead because, insofar as it connected loss to the s 52 misrepresentation claim, it sought an impermissible expectation measure of damages for...

Court Disposition

Application allowed in part; specified paragraphs struck out with leave to replead; costs in the cause.

Orders

  • ["Paragraphs 21, 21A, 23 and 24 of the further amended statement of claim be struck out but that leave be granted to the applicants to replead those paragraphs in accordance with his Honour's reasons." 'The applicants file and serve a second further amended statement of claim by 1 pm on Thursday 14 May 2004.' 'The...