Spiteri v Nine Network Australia Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 13 June 2008
• Neutral Citation: [2008] FCA 905
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905

PRACTICE AND PROCEDURE – motion for summary dismissal of proceedings pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) – whether no reasonable prospects of successfully prosecuting the proceeding – appropriate standard to be satisfied - the onus on party seeking summary judgment is heavy – motion for pleadings in statement of claim be struck out pursuant to O 11 r 16(b) of the Federal Court Rules – whether a pleading has a tendency to cause embarrassment in the proceeding – where pleadings are confusing and inconsistent – leave granted to re-plead pleadings struck out – applicant claims misleading and deceptive conduct by the respondent and breach of contract in relation to employment

Federal Court ofAustraliaAct 1976 (Cth) s 31A

Federal Court Rules O 11 r 16(b)

Bartlett v Swan Television and Radio Broadcasters Pty Ltd (1995) ATPR 41-434 cited

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd(2006) 236 ALR 720applied

Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq.) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 considered

Dare v Pulham(1982) 148 CLR 658 cited

Davids Holdings Pty Ltd v Coles Myer Ltd (1993) ATPR 41-227cited

Hicks v Ruddock(2007) 156 FCR 574 considered

Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd[2008] FCAFC 60 considered

Trade Practices Commission v David Jones (Australia) Pty Ltd(1985) 7 FCR 109 cited

Vasyli v AOL International Pty Ltd (NG 219/96) (Lehane J, 19 August 1996, unreported) cited

White Industries Australia Ltd v Commissioner of Taxation(2007) 160 FCR 298 cited

CHRISTINE LORRAINE SPITERI v NINE NETWORK AUSTRALIA PTY LTD

NSD 232 OF 2008

EDMONDS J

13 JUNE 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	NSD 232 OF 2008

BETWEEN:	CHRISTINE LORRAINE SPITERI Applicant
AND:	NINE NETWORK AUSTRALIA PTY LTD Respondent

JUDGE:	EDMONDSJ
DATE OF ORDER:	13 JUNE 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The respondent’s motion dated 11 April 2008 insofar as it relies on s 31A(2) of the Federal Court of Australia Act 1976 (Cth) be dismissed.

2. The pleadings in paragraphs [8], [9], [10], [32], [33], [34], [38], [41], [42], [45], [46], [55], [63], [72] and [74] – [82] of the statement of claim be struck out pursuant to O 11 r 16(b) of the Federal Court Rules.

3. The applicant amend paragraphs [6], [17], [34], [47] – [51], [54], [62], [74] and [81] of the statement of claim in accordance with these reasons.

4. Leave be granted to the applicant to re-plead those pleadings and claims that have been struck out by Order 2.

5. The applicant file and serve an amended statement of claim on or before 27 June 2008.

6. The respondent file and serve its defence on or before 11 July 2008.

7. Insofar as the respondent regards it as necessary to request further and better particulars of the amended statement of claim, any such request is to be made on or before 11 July 2008.

8. The matter be listed for further directions on 18 July 2008.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 232 OF 2008

BETWEEN:	CHRISTINE LORRAINE SPITERI Applicant
AND:	NINE NETWORK AUSTRALIA PTY LTD Respondent

JUDGE:	EDMONDS J
DATE:	13 JUNE 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 By notice dated and filed on 11 April 2008, the respondent moves the Court for orders that:

(1) The proceeding be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (‘the FCA’) on the basis that the applicant has no reasonable prospects of successfully prosecuting the proceedings.

(2) in the alternative, the Statement of Claim (‘the SOC’) filed on 22 February 2008 be struck out pursuant to O 11 r 16(a) of the Federal Court Rules (‘the Rules’) on the basis that the pleadings disclose no reasonable cause of action; and

(3) in the alternative, the SOC be struck out pursuant to O 11 r 16(b) of the Rules on the basis that the pleadings are embarrassing.

2 By letter dated 20 March 2008, the respondent’s solicitors wrote to the applicant’s solicitors requesting further and better particulars of the SOC and by letter dated 4 April 2007, the applicant’s solicitors responded to that request. The respondent submitted that the response to the request was inadequate, but illustrated the inherent inconsistencies in the SOC.

3 At the time this motion came on for hearing on 23 May 2008, the respondent had not filed its defence.

4 At the outset, it needs to be said that it does not take an over-zealous scrutiny of the SOC to come to an early conclusion that, as pleadings go, it leaves a good deal to be desired in both its form and content. There are, as the respondent submitted, a number of inherent inconsistencies. Poorly drafted pleadings can never be cured by the provision of particulars, no matter how comprehensive they might be.

Section 31A of the FCA

5 Section 31A of the FCA relevantly provides:

‘(1) …

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) …’

Principles of Construction

6 Section 31A of the FCA was introduced effective 1 December 2005. The legislative context by which it was introduced and its historical antecedents are touched on by Lindgren J in White Industries Australia Ltd v Commissioner of Taxation(2007) 160 FCR 298 at [55] – [60]. I think it is fair to say that the standard which s 31A sets, relevantly in the case of subs (2), ‘… no reasonable prospect of successfully prosecuting the proceeding …’, apart from the fact that it does not require the proceeding to be hopeless or bound to fail (see subs (3)), has not been settled by an appellate court; and the recent decision of a Full Court in Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd[2008] FCAFC 60 did nothing to advance this cause. I shall return to this case later in these reasons.

7 In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd(2006) 236 ALR 720, Rares J said at [42] – [45]:

‘[42] I am of opinion that, properly construed, s 31A(2)(b) requires a person moving a motion for summary disposal (the moving party) to satisfy the court that there is no reasonable prospect of the party claiming relief (the plaintiff) successfully prosecuting the proceeding or the part of the proceeding in question. Experience shows that there are cases which appear to be almost bound to fail yet they succeed. As Dixon CJ once said (Pontifical Society for the Propagation of the Faith v Scales(1962) 107 CLR 9 at 20; [1962] ALR 775 at 781):

“Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told.”

[43] Brennan CJ and McHugh J applied that observation in Jackamarra [vKrakover(1998) 195 CLR 516] at [9] to a situation which an appellate court was exercising a discretion to permit a further step to be taken in an appeal that had already been instituted. Obviously, where there is a contested application under s 31A, both parties will be present to explain their case, but not in the context of a trial. The procedure envisaged by s 31A is summary. The concept of a party having “no reasonable prospect of successfully prosecuting a proceeding” has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell(1947) 75 CLR 125 at 130–1; [1948] 1 ALR 85 at 87-8 (Hocking (1947)), approving the following statement from the dissenting judgment of Latham CJ (Hocking v Bell(1945) 71 CLR 430 at 441–2 (Hocking (1945))):

If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony.But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case. [Emphasis added]

See also Swain v Waverley Municipal Council(2005) 220 CLR 517; 213 ALR 249; [2005] HCA 4 at [9] per Gleeson CJ, [128]–[131] per Gummow J and [203], [208]–[209] per Kirby J; see also at [33]–[34] per McHugh J.

[44] In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in...