Harris, Sam Edwin Leigh v Cigna Insurance Australia Ltd & Anor [1995] FCA 905

Harris, Sam Edwin Leigh v Cigna Insurance Australia Ltd & Anor [1995] FCA 905

The portions of the statement of claim relating to s.52 Trade Practices Act are so confusing and unclear as to how any conduct was causative and misleading, as to be embarrassing, and should be struck out; leave was granted to amend only in terms of paragraph 18A. No federal element remains and claim to be transferred to Supreme Court of Queensland. Indemnity costs ordered due to delay and persistent pleading deficiencies.

Jurisdiction
Australia
Judgment Date
10 November 1995
Procedural Posture
Civil / Motion to Strike Out/amend Statement of Claim, Transfer to Supreme Court
Outcome
Paragraphs of statement of claim struck out, leave to amend in part, indemnity costs awarded, action transferred to Supreme Court of Queensland.
Legal Topics
['striking Out Pleadings' 'misleading and Deceptive Conduct' 'limitation Period' 'costs']
['practice and Procedure' 'trade Practices' 'contracts'] ['striking Out Pleadings' 'misleading and Deceptive Conduct' 'limitation Period' 'costs']

Case Brief

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Procedural Posture

Civil / Motion to Strike Out/amend Statement of Claim, Transfer to Supreme Court

Legal Issues

  1. 1 ['Whether portions of the statement of claim should be struck out for being embarrassing, unclear, or confusing in relation to s.52 Trade Practices Act claims' 'Whether there was misleading or deceptive conduct contrary to ss.52 and 53B Trade Practices Act' 'When loss or damage became actual or reasonably ascertainable for limitation purposes under Trade Practices Act s.82(2)' 'Whether the remaining claims should be transferred to the Supreme Court of Queensland' 'Basis for awarding indemnity costs']

Ratio Decidendi

The portions of the statement of claim relating to s.52 Trade Practices Act are so confusing and unclear as to how any conduct was causative and misleading, as to be embarrassing, and should be struck out; leave was granted to amend only in terms of paragraph 18A. No federal element remains and claim to be transferred to Supreme Court of Queensland. Indemnity costs ordered due to delay and persistent pleading deficiencies.

Court Disposition

Paragraphs of statement of claim struck out, leave to amend in part, indemnity costs awarded, action transferred to Supreme Court of Queensland.

Orders

  • ['Paragraphs 17(vi), 18(ii), 22, 23 and 24 of the Statement of Claim filed on 15 September 1995 be struck out.' 'Applicant have leave to amend by adding paragraph 18A.' "Applicant to pay first respondent's costs on indemnity basis, taxed and paid forthwith." 'Upon conclusion of taxation of costs, matter transferred...