Sammy Russo Supplies Pty Ltd & Anor v Australian Safeway Stores Pty Ltd & Ors [1998] FCA 617

Sammy Russo Supplies Pty Ltd & Anor v Australian Safeway Stores Pty Ltd & Ors [1998] FCA 617

The proposed amended statement of claim failed to plead sufficient material facts to sustain causes of action under ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act, particularly as to the existence and character of any arrangement, or the relevant market and competition; nor was a causal link between contravention and loss adequately pleaded. However, applicants were given a further opportunity to plead claims under ss 48, 96, and s 75B as those claims, though inadequately pleaded, may be capable of proper articulation. Indemnity costs were awarded due to persistent inadequate pleadings despite respondents' repeated notice of deficiencies.

Parties
Applicant: Sammy Russo Supplies Pty Ltd; Applicant: Perfect Creations Pty Ltd; First Respondent: Australian Safeway Stores Pty Ltd; Second Respondent: Woolworths (Victoria) Pty Ltd; Third Respondent: Bartter Enterprises Pty Ltd
Jurisdiction
Australia
Judgment Date
04 June 1998
Procedural Posture
Application (practice and Procedure) / Interlocutory Application for Leave to Amend Statement of Claim; Cost Orders
Outcome
Leave to deliver the amended statement of claim refused in its current form; applicants may apply to plead limited claims under ss 48, 96, and 75B by specified date; applicants to pay respondents' costs on indemnity basis, payable forthwith.
Legal Topics
Pleadings, Statement of Claim, Resale Price Maintenance, Price Fixing, Causal Link for Damages, Indemnity Costs, Contract, Arrangement or Understanding Under Competition Law
Trade Practices Law Competition Law Pleadings Statement of Claim Resale Price Maintenance Price Fixing Causal Link for Damages Indemnity Costs +1 more

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Parties

Sammy Russo Supplies Pty Ltd

Applicant

Perfect Creations Pty Ltd

Applicant

Australian Safeway Stores Pty Ltd

First Respondent

Woolworths (Victoria) Pty Ltd

Second Respondent

Bartter Enterprises Pty Ltd

Third Respondent

Procedural Posture

Application (practice and Procedure) / Interlocutory Application for Leave to Amend Statement of Claim; Cost Orders

Legal Issues

  1. 1 Whether the proposed amended statement of claim pleaded material facts sufficient to establish causes of action under ss 45(2)(a)(ii), 45(2)(b)(ii), and 48 of the Trade Practices Act 1974 (Cth)
  2. 2 Whether a causal link between alleged contravention and damage suffered was sufficiently pleaded
  3. 3 Whether circumstances justified indemnity costs

Ratio Decidendi

The proposed amended statement of claim failed to plead sufficient material facts to sustain causes of action under ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act, particularly as to the existence and character of any arrangement, or the relevant market and competition; nor was a causal link between contravention and loss adequately pleaded. However, applicants were given a further opportunity to plead claims under ss 48, 96, and s 75B as those claims, though inadequately pleaded, may be capable of proper articulation. Indemnity costs were awarded due to persistent inadequate pleadings despite respondents' repeated notice of deficiencies.

Court Disposition

Leave to deliver the amended statement of claim refused in its current form; applicants may apply to plead limited claims under ss 48, 96, and 75B by specified date; applicants to pay respondents' costs on indemnity basis, payable forthwith.

Orders

  • Applicants refused leave to file and deliver amended application and statement of claim in current form (exhibits FR-1 and FR-2).
  • Applicants have leave, by 1 July 1998, to apply for leave to deliver an amended application and statement of claim limited to ss 48, 96, and 75B of the Act, with affidavit exhibiting proposed claim.