Porter v OAMPS Ltd (No 2) [2005] FCA 729

Porter v OAMPS Ltd (No 2) [2005] FCA 729

The further amended statement of claim did not plead material facts showing that any respondent was the moving force behind the prosecution or that ASIC's or the Commonwealth Director of Public Prosecutions' independent discretion was overborne; it pleaded no more than the supply of allegedly false, misleading or deceptive information. The misleading or deceptive conduct claims also failed because the pleading did not allege reliance or a connection between the alleged conduct and the claimed loss and damage. The applicant had already been given an opportunity to replead and the proper inference was that he was unable to plead viable causes of action, so the proceeding should be dismissed.

Jurisdiction
Australia
Judgment Date
01 June 2005
Procedural Posture
Application to Dismiss Proceeding or Strike Out Pleading / Notices of Motion by Respondents After Filing of Further Amended Statement of Claim
Outcome
Proceeding dismissed with costs.
Legal Topics
['pleadings' 'dismissal of Proceedings' 'strike Out' 'reasonable Cause of Action' 'malicious Prosecution' 'misleading or Deceptive Conduct' 'vicarious Liability']
['practice and Procedure' 'torts' 'trade Practices and Consumer Law'] ['pleadings' 'dismissal of Proceedings' 'strike Out' 'reasonable Cause of Action' 'malicious Prosecution' 'misleading or Deceptive Conduct' 'vicarious Liability']

Case Brief

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Procedural Posture

Application to Dismiss Proceeding or Strike Out Pleading / Notices of Motion by Respondents After Filing of Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the further amended statement of claim disclosed a reasonable cause of action for malicious prosecution against the respondents.' 'Whether the first respondent could be vicariously liable for alleged malicious prosecution by the second to sixth respondents.' 'Whether the pleading disclosed an actionable misleading or deceptive conduct claim under s 52 of the Trade Practices Act 1974 (Cth) or s 11 of the Fair Trading Act 1999 (Vic).' 'Whether the proceeding should be dismissed or the pleading struck out under the Federal Court Rules.']

Ratio Decidendi

The further amended statement of claim did not plead material facts showing that any respondent was the moving force behind the prosecution or that ASIC's or the Commonwealth Director of Public Prosecutions' independent discretion was overborne; it pleaded no more than the supply of allegedly false, misleading or deceptive information. The misleading or deceptive conduct claims also failed because the pleading did not allege reliance or a connection between the alleged conduct and the claimed loss and damage. The applicant had already been given an opportunity to replead and the proper inference was that he was unable to plead viable causes of action, so the proceeding should be dismissed.

Court Disposition

Proceeding dismissed with costs.

Orders

  • ['The proceeding be dismissed.' 'The applicant pay the costs of the first respondent and the costs of the second to sixth respondents of and incidental to their notices of motion filed on 26 May 2005 on an indemnity basis, but otherwise the applicant pay the costs of the first respondent and the second to sixth...