SS ~ >, | Wir Foew WsTArav Vrs IN THE FEDERAL COURT OF AUSTRALIA )} NEW SOUTH ES DISTRI REGISTRY No. G 280 of 1986 GENERAL DIVISION ~ reer _ ~ - ee) , a BETWEEN : TREVOR ALWYN COOK and a JANELLE MARGARET COOK Applicants AND: REX BUILDING CO. PTY. LIMITED First Respondent WYONG SHIRE COUNCIL Second Respondent REASONS FOR JUDGMENT LOCKHART J. This matter was commenced in this Court on 11 July 1986 by the filing of an application anda statement of claim. The first respondent, Rex Building Co. Pty. Limited, filed today a notice of motion to strike out paragraphs of the amended statement of claim or, in the alternative, for orders that further and better particulars be furnished by the applicant. The second respondent, the Wyong Shire Council, is not before the Court today as it is mot a party to the motion. By three letters, two dated in August and one in early September this year, the solicitors for the first respondent sought further and better particulars of certain allegations in the statement of claim. Particulars were furnished by the solicitors for the applicants in response to at least the first of those letters, but the first respondent asserts that they were inadequate. As a result the first respondent filed today's notice of motion. I have read the amended statement of claim, the notice of motion and the affidavit in support of Karyn Lillian Kinsella sworn on 22 September 1986. The case that is propounded against the respondents is based on alleged contraventions of ss. 52, 53 and 53A of the Trade Practices Act 1974 ("the Act") and is a claim for damages under s. 82 and other relief under s. 87. I raised with counsel, particularly counsel for the applicants, the question of this Court's jurisdiction to entertain this case. I have no view on whether the Court has or has not jurisdiction, but I have considerable doubt about it andI base my observations on the amended statement of clain. A real question may arise as to whether the first respondent is a trading or financial corporation. I do not know whether, even if it is such a corporation, the conduct that is pleaded against it was in trade or commerce. I emphasise that I do not know the answer to this as it has not been fully debated and there has not been full evidence. However, it would be most regrettable if at the end of a long hearing the Court was obliged to find an absence of jurisdiction against the first respondent. 3. The second respondent has filed a notice of objection to jurisdiction based essentially on its assertion that it is not a trading, financial or foreign corporation and therefore is not a corporation within the meaning of sub-s. 4(1) of the Act. I raised a further question for consideration by the solicitors for the Wyong Shire Council: namely, if the questions that are set out in its notice of grounds of objection to jurisdiction are answered in favour of the applicants, it may be that, even if the Council isa trading or financial corporation, the case propounded against it is not such as to have involved the Council in trade or commerce. The case against the Council, as I understand it, is essentially that it issued a certificate under s. 317A of the Local Government Act 1919 of New South Wales in circumstances which are said to have constituted negligence or improper conduct on the part of the Council. Whether, even assuming the facts as pleaded in favour of the applicants, the Council acted in trade or commerce inthe making of any alleged representations or engaging in any alleged conduct under the Act is obviously a matter of considerable contention. I say nothing more about it. If the applicants were at this stage to start again and sue in the Supreme Court of New South Wales or the District Court of New South Wales then they could possibly sue both respondents essentially for what they are seeking to recover without facing jurisdictional problems. I know not the answer to these questions as I have only become relatively familiar with the matter this morning as the case has proceeded. But I simply sound a cautionary note as to jurisdictional matters so that the applicants may give serious thought to the future of this case. Following discussion with counsel, I think the best course to take in this matter today is not to strike out any of the paragraphs of the amended statement of claim but to give leave to the applicants to further amend their statement of claim. They seek three weeks to do so, and I_ see no reason why I should not accede to that request. If they do not file an amended statement of claim, then I think it is important that the first respondent have the particulars which it has sought in the letters to which I have previously referred. The matter will be adjourned for mention and I can then review the matter one way or the other in the light of a further amended statement of claim, if any, or the amended particulars, if any. Aithough the Council is not a party to the notice of motion filed by the first respondent it will be put in the list for directions generally and I would expect to see the second respondent represented on that occasion. I would ask the solicitors for the applicants to ensure that the solicitors for the Council have notice of the adjourned date. I would also expect on that date that the parties be prepared, if necessary, to argue the question of jurisdiction before me because this Court must, being a Court exercising federal jurisdiction, be satisfied at all times that it has jurisdiction. Accordingly, the orders that I make are as follows: I give leave to the applicants to file and serve a further amended statement of claim on or before 28 October 1986; If no further amended statement of claimis filed by the applicants within the time limited then I direct the applicants to furnish in writing particulars as sought in the first respondent's requests for particulars dated 14 August, 1986, 25 August 1986 and 3 September 1986, saving all just exceptions; and that those particulars be furnished on or before 28 October 1986; The notice of motion filed by the first respondent on 29 September 1986 is adjourned to 3 November 1986; The matter is generally adjourned until 3 November 1986 for further directions; and I reserve the costs of today's proceedings. 1 coruty that ths and te Qeue (x) preceding p2r-5 avo a tua Ccry cf the Reacoen3 7 2 ory. fcr 3 ci lus Honour Bir, Josue ere ToT A.sec ate Dated: 7) Oc WEL WA