7 | JUDGMENT No. 1. /. CATCHRORDS ote suena, Practice and Procedure - Trsde Practices - application to strike out statement of claim - whether statement of claim disclosed a cause of action - applicants' failure to prosecute the claim with due diligence - whether Federal Court appropriate forum. ' Trade Practices Act, 1974: ss. 52 JOHN ELDON PEIRCE and CAROL MAXINE PEIRCE v. K.G. MOTOPS PTY. LIMITED G.4 OF 1°85 LOCKHART J. SYDNEY & MARCH 1985 IN THE FEDEP2L COUPT OF _AUSTPALTA NEW SOUTH WALES DISTRICT PEGISTRY NO. G4 OF 1985 GENERAL DIVISTOAN ) } ) BETWEEN : JOHN ELDON PEIRCE and CAPOL MAXTINE PEIRCE Applicants AND: K.G. MOTORS PTY. LIMITED Respondent JUDGE MAKING ORDERS: LOCKHART J. WHERE MADE: SYDNEY DATE OF ORDER: 8 March 1985 MINUTE OF ORDER THE COURT ORDERS THAT: fa) The statement of claim filed in proceedings G4 of 9185 on 15 January 1985 he struck out. John Elden Peirce and Carol Maxine Peirce pay the costs of K.G. Motors Pty. Limited of the notice of motion filed en 7 March 19285. We further steno in this proceeding be taken by Ushn Eldon Peirce or Carol Maxine Peirce until the casts of this matter which the Ccurt has previously ordered them to pay and the costs of the notice of motion filed on 7 March 1985 have been paid. Note: Settlement and entry of orders is aealt with in Trder 26 cf che Federal Court "ules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTPY GENERAL DIVISTON BETWEEN : JOHN ELDON PETRCE and CAPOL MAXSINE PEIRCE Applicants AND: K.G. MOTORS PTY. LIMITED Respondent 8 March 19285 REASONS FOR JUDGMENT LOCKHART J. This eroceeding was commenced by an application filed in this Court on 15 January 1985. A statement of claim was filed on that same day. It 15, in essence. a Claim Dy the applicants to recover damages and seek certain other relief auncluding rescission in respect of an agreement said to have been made in 1983 for the purchase of a 19795 model Peugeot sedan for the sum of $7,400. I should sav at the outset that the Federal Court is net the appropriate court in which to have brought this proceeding. Netwithstanding that this Court probablv has jurisdiction in the matter, it 2S primarily a claim for damaces allegedly sufferea following the séle by the yvespendent to the applicants cf a second-hand motor car for a small sur. The parties axparentir carry on business ain or near Armidale, New South Wales. The paret D m ze]" will bear a substantial burden of costs as they and witnesseé in ey ra Ia w have to travel from Armidale to Sydnev for the trial. This Court coes net sit outside capital cities except in exceptional circumstances. This does not appear to be such a case. However, having said that, I proceed to deal with the hister of the matter. The matter came before the court for directions on 14 February 1985 and the applicants failed to apwear. The second directions hearing was on 28 February and, again, the applicants failed to appear. A letter was sent by the solicitors for the respondents dated 6 February 1985 to a he solicitors for the applicants seeking further and better particulars of certain paragrapks in the statement of claim. The letter asked that the particulars he furnished bv 11 February. I have been informed this morning that the - particulars were furnished vesterdav. 7 March, but no copy of them has been made available to mé, ner are the contents known by ccunsel for o ny party. A motion was filed in this Court on behalf of the resucndaents seeking an order that the statement of claim be struck out and in suppart of that there is an affidavit of Judith Mary Gerard Houseco sworn on 5 March 1285. I have carefully perused the statement of claim and, so far as I can ascertain, it promounds first a cause of action which appears to be based on common law f.aud arisino cut of what are sald to be representations br the respondent, a second-hand moter vehicle dealer. that the Peuyeot vehicle was in a <zournd mechanical and roadworthy condition. I do not understand paragraph 6 of the statement of clain. It does not establish any cause of action. Indeed, counsel for the applicants fairly concedes that the paragraph cannot stand and ought to be struck out. There follow what appears to be, as I discern them, causes of action seeking to invoke sections of the Trade Practices Act tel 1974 which are perhaps s. 52 or parts of s. 53; but I am not sure. Then one turns to the critical paragraph of the statement of clain, namelv, paragraph 3. It alleges:- "The respondent by its servants and agents represented to the applicants and each of them that the said motor vehicle was in a mechanically sound condition and was roadworthy regard being had to ats then age and apparent mileage." I assume from this that the vehicle was "a second-nand vehicle. The particulars then purported to set out the alileaed representations; but when they are analysed they do no more than repeat, it seems to me, the allegation made in paragraph 3. Then, after paragraph 6 to which I have already referred, there i5 an allegation that, in reliance on the representations, the applicants fale were induced to enter into the acreemert. In the circumstances 1t seems to me that the statement of claim. insofar as the Trade Practices Act is concerned, dcet nat allege a cause of action and I pro to therefore strike our these a] n ip) parts of the statement of claim. Havi iw Q p. a o w if) u By rae I- et ty! i ct b a bs " ry cr . A un i I perceive it. is some claim for commer law fraud. Conmsequent_r. I fia) think that in all the circumstances the only proper course to take is to strike out the whole of the statement of clain. Of course, that leaves the proceedings still on foot so that, if the applicants wish to do so, they can file a second statement of claim; but one hopes that they may nevertheless be mindful of the initial remarks which I made as to the appropriate forum for such a case as this. Then I must have regard to the fact that on the two prior directions hearings there was no appearance by the applicants and, although there was some explanation proferred from the Bar Table, I do not think that 1t answers the contention o Ph the respondents that the applicants have behaved in a cavalier fashicn in relation to the conduct of the case thus far by failing to appear at the first two directions hearings and by failing to provide relevant particulars within a reascnable time after they were souoht. I have in mind also, of course, the contents of the statement of claim which I propese to strike out. The applicants have been ordered to pay the costs of both 14 February and 28 Februarv. As T sropose to accede tc the notice of motion to strike our the statement of claim and to order the applicants tc pay the costs of that motion, I think in all the circumstances to which I have alreadv referred - including the conduct of the applicants in relation te this application, the tact that the statement of claim is to be struck ou., and the oraers fer costs to which I have referrec - that 17 lee rroper case ¢ erger that mo further ster be taken Ev the arnlicants in this proceeding until all those ccsts arcs paid. Accordingly the orders of the Court are as follows: 1. That the statement of claim be struck out. 2. That the applicants pay the respondent's costs cf the notice of motion filed on 7 March 1985 including the costs ef yesterday when the notice of motion first came before the court. 3. That the applicants take no further step in this proceeding until payment is made by them of the ccsts which this Court has previously ordered them to pay in this matter including the costs which I have today directed the applicants to pay. | certify -that this and the 4 | preceding pages are a true cory cf the Reasons for Judgment herein of tis Honour Mr Just ce Lockhart ¢ ON Associate Dated Mavet 175s wr