Media Ocean Limited v Optus Mobile Pty Limited (No 2) [2009] FCA 473

Media Ocean Limited v Optus Mobile Pty Limited (No 2) [2009] FCA 473

The amended application and amended statement of claim were struck out because the applicants did not seek to defend them and the pleading was uncertified. The Court allowed the further amended application and further amended statement of claim to be filed, rejected the challenge to paragraph 10 because the applicants could not reasonably be required before discovery to identify all recipients of SMS messages sent by Optus, but struck out paragraph 23 because the misleading or deceptive conduct claim needed properly to invoke s 51A and the unconscionability claim needed to be properly pleaded. The Court also required particulars of the Media Ocean Numbers and declined to set aside the...

Jurisdiction
Australia
Judgment Date
23 April 2009
Procedural Posture
Federal Court Interlocutory Proceeding Concerning Pleadings, Particulars, Notices to Produce and Related Matters in a Proceeding Alleging Misleading or Deceptive and Unconscionable Conduct / Interlocutory Hearing on the Respondent's Amended Notice of Motion; Security for Costs Motion Did Not Proceed
Outcome
Respondent's strike-out application succeeded in part; applicants were granted leave, to the extent necessary, to file further amended documents; paragraph 23 was struck out with leave to replead; particulars were ordered; the second prayer of the respondent's amended notice of motion was dismissed; matter stood over.
Legal Topics
['strike Out of Pleadings' 'amendment of Pleadings' 'particulars' 'notice to Produce' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'mobile Telecommunications Charges']
['civil Procedure' 'consumer Law' 'trade Practices' 'telecommunications'] ['strike Out of Pleadings' 'amendment of Pleadings' 'particulars' 'notice to Produce' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'mobile Telecommunications Charges']

Case Brief

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Procedural Posture

Federal Court Interlocutory Proceeding Concerning Pleadings, Particulars, Notices to Produce and Related Matters in a Proceeding Alleging Misleading or Deceptive and Unconscionable Conduct / Interlocutory Hearing on the Respondent's Amended Notice of Motion; Security for Costs Motion Did Not Proceed

Legal Issues

  1. 1 ['Whether the amended application and amended statement of claim should be struck out when the applicants did not seek to support them and the pleading was uncertified.' 'Whether the applicants required leave to rely on a further amended application and further amended statement of claim, or could amend as of right under O 13 r 3 of the Federal Court Rules.' 'Whether paragraph 10 of the proposed pleading was deficient because it did not identify which Plan Customers received the relevant SMS messages.' 'Whether paragraphs 21 to 23 of the proposed pleading adequately pleaded misleading or deceptive conduct and unconscionable conduct under the Trade Practices Act 1974 (Cth).' 'Whether the notice to produce should be set aside.' 'Whether the applicants should provide particulars of the Media Ocean Numbers pleaded in paragraph 4.']

Ratio Decidendi

The amended application and amended statement of claim were struck out because the applicants did not seek to defend them and the pleading was uncertified. The Court allowed the further amended application and further amended statement of claim to be filed, rejected the challenge to paragraph 10 because the applicants could not reasonably be required before discovery to identify all recipients of SMS messages sent by Optus, but struck out paragraph 23 because the misleading or deceptive conduct claim needed properly to invoke s 51A and the unconscionability claim needed to be properly pleaded. The Court also required particulars of the Media Ocean Numbers and declined to set aside the...

Court Disposition

Respondent's strike-out application succeeded in part; applicants were granted leave, to the extent necessary, to file further amended documents; paragraph 23 was struck out with leave to replead; particulars were ordered; the second prayer of the respondent's amended notice of motion was dismissed; matter stood over.

Orders

  • ['Grants leave to the respondent to file in Court an amended notice of motion and an affidavit of Caitlin Maria Murray sworn 22 April 2009.' 'Grants access to all parties in respect of all documents produced in Court today except for those documents contained in the envelope marked "CONFIDENTIAL".' 'Orders that an...