Conca, Paula & Anor v Permanent Trustee Company Ltd & Ors [1996] FCA 1092

Conca, Paula & Anor v Permanent Trustee Company Ltd & Ors [1996] FCA 1092

The Court answered the preliminary questions by holding that Trade Practices Act claims against the State were not maintainable; non-State respondents were immune from Trade Practices Act and Fair Trading Act claims to the extent the impugned conduct was within the State-devised HomeFund scheme or done at the State's direction or request; the proceedings remained maintainable in the Federal Court; and s 47 of the Legal Aid Commission Act 1979 (NSW) did not protect the applicants from costs liability because of inconsistency with the Federal Court's costs power.

Jurisdiction
Australia
Judgment Date
12 December 1996
Procedural Posture
Federal Court Proceeding Concerning Preliminary Questions About Trade Practices Act and Fair Trading Act Claims, Maintainability, Immunity, Jurisdiction and Costs Protection / Answers to Preliminary Questions and Consequential Strike Out, Declaration and Leave to Amend Orders
Outcome
Preliminary questions answered; certain claims struck out; declarations made; applicants granted leave to amend.
Legal Topics
['maintainability of Trade Practices Act Claims Against the State of New South Wales' 'immunity of Non State Respondents in Light of Bradken Principles' 'maintainability of Fair Trading Act Claims' 'federal Court Jurisdiction' 'legal Aid Costs Protection Under S 47 of the Legal Aid Commission Act 1979 (nsw)' 'inconsistency Under S 109 of the Constitution']
['trade Practices' 'fair Trading' 'constitutional Law' 'civil Procedure' 'costs'] ['maintainability of Trade Practices Act Claims Against the State of New South Wales' 'immunity of Non State Respondents in Light of Bradken Principles' 'maintainability of Fair Trading Act Claims' 'federal Court Jurisdiction' 'legal Aid Costs Protection Under S 47 of the Legal Aid Commission Act 1979 (nsw)' 'inconsistency Under S 109 of the Constitution']

Case Brief

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Procedural Posture

Federal Court Proceeding Concerning Preliminary Questions About Trade Practices Act and Fair Trading Act Claims, Maintainability, Immunity, Jurisdiction and Costs Protection / Answers to Preliminary Questions and Consequential Strike Out, Declaration and Leave to Amend Orders

Legal Issues

  1. 1 ['Whether the State is bound by the Trade Practices Act 1974 (Cth) and whether a claim under that Act against the State is maintainable.' 'Whether respondents other than the State are immune from the amended claims in light of the principles referred to in Bradken.' 'Whether, assuming the Fair Trading Act 1987 (NSW) claim against the State is not maintainable, respondents other than the State are immune from claims under that Act in light of Bradken principles.' 'Whether, on the answers to Questions 1 and 2, the proceedings are maintainable in the Federal Court.' 'Whether the applicants are protected by s 47 of the Legal Aid Commission Act 1979 (NSW) against liability for costs if unsuccessful.']

Ratio Decidendi

The Court answered the preliminary questions by holding that Trade Practices Act claims against the State were not maintainable; non-State respondents were immune from Trade Practices Act and Fair Trading Act claims to the extent the impugned conduct was within the State-devised HomeFund scheme or done at the State's direction or request; the proceedings remained maintainable in the Federal Court; and s 47 of the Legal Aid Commission Act 1979 (NSW) did not protect the applicants from costs liability because of inconsistency with the Federal Court's costs power.

Court Disposition

Preliminary questions answered; certain claims struck out; declarations made; applicants granted leave to amend.

Orders

  • ['The following answers be given to the preliminary questions: Question 1: No; Question 2: Yes, to the extent that the acts or omissions giving rise to those claims were not outside the scope of the HomeFund scheme as devised by the State of New South Wales, or that those acts or omissions were carried out pursuant...