S71° NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) } VICTORIA DISTRICT REGISTRY ) VY. No. G 109 of 1383 ! ' GENERAL DIVISION BETWEEN: JET CORPORATION OF AUSTRALIA FIY. LIMITED (im 165 capacity as trustee or the det Corporation of Australia Trust) Applicant and PETRES PTY. LIMITED (in its own capacity and in its capacity as trustee of the Schutt Unit Trust) and OTHERS Respondents COURT: NORTHROP J. DATE: 29 OCTOBER 1386 PLACE: MELBOURNE EX TEMPORE REASONS FOR JUDGMENT I propose to adjourn the motion brought by Messrs. Sent and Forshaw; that the proceeding against them be dismissed on the grounds that it discloses no reasonable cause of action against them. ' The reason For the adicurnment has Secome apparent: during the course of submissions today, suf I tan summarise ul it, I hope, in a fairly pvrief wav. As Mr. Phipps of counsel for Messrs. Sent and Forshaw has indicated, there has been a long history of this matter and a case where a number of statements of claim, insofar as they affect Messrs. Sent and Forshaw are concerned, have been struck out and leave given to file and deliver amended statements of claim. Likewise, with respect to the application. For relevant purposes, it can be noted that in February 1985, the Court made a number or orders, including tne deletion of certain paragraphs of the statement of claim made on the motion of Messrs. Sent and Forsnaw. That appears from order 1 of the order made on 75 February 1335 as well as paragraph 3. Leave to amend the statement of claim in a form which was set out inan exhibit to the affidavits of Mr. Johnson at that time was granted. Likewise, leave was given un order 4 to amend the application and certain consequential orders were made. An appeal from those orders was disallowed by the Full Court by applying an earlier decision of the Full Court in relation to the correct interpretation and application of 5.387 of the Trade Practices Act. In November 1985, the position was changed once more and on that day leave was given to the applicant to amend the statement of claim ina form set Sut as an exhibit to an affidavit of Graham Alfred Levy and, at the same time, the application was amended to include paragraphs 4B and 3 1n 1ts application to Messrs. Sent and Forshaw. Subsequently, on 26 June 1985, che Hign Cours allowed an appeal from che order of tae Full Court which caa dismissed the appeal co it from coe order of tne Ccurt made un February i335 and made certain consequential orders iain relation to the orders made on cf February. [It as not precisely clear what effect that has in relation to any earlier statement of claim but, for practical purposes, it all relates to matters which had been overtaken by the orders made in November 1985, which allowed the amended statement of claim and application to be made. On earlier occasions the Court announced that, if in due course the High Court did allow the appeal, with the effect that the then existing authority of the Full Court of the Federal Court no longer was binding, the Court would be in a position to make any consequential orders to correct the position arising from the orders made in November 15335. In this regard, 1t is now clear that the Court should make orders giving effect to that and this can be done by making an order vacating the order made herein on 25 November 1585, insofar as 1t relates to the respondents, Messrs. Sent and Forshaw, and such an order will be made. The solicitor for the applicant first of all sought an adjournment of the hearing of the motion brought by the applicant to dismiss the proceeding. The Court ruled that it would proceed with the hearing on that motion to see what the Matter was all about. It became apparent from submissions made that in the statement of claim, which 15 presently in existence, and even allowing for the amendments which are necessary because of the order I will make in relation to the vacation of the order of November 1385, there remains in existence two paragraphs in the statement of claim, namely Paragraphs 25 and 49A, which on one view gives rise to a claim based on conspiracy which may be able to be brought within the accrued jurisdiction of the Court because of the fact that ait 15 50 tied up and intermingled witn matters properly before the Court, insofar a5 they relate to other respondents, that it 1S appropriate that they should be heard un the one proceeding rather than in two proceedings. The solicitor conceded that the application as 1t stands does not claim any damages against Messrs. Sent and Forshaw based upon the conspiracy claim but that he would seek leave to amend the application to include that claim for damages based upon the common law claim of conspiracy and would seek an order that this Court should hear that under its accrued jurisdiction. Counsel for Messrs. Sent and Forshaw have argued that this should not be allowed because of the history of this matter and the special circumstances relating to the number of times in which the statement of claim has been varied and amended; that there 15 nothing to stop the applicant commencing proceedings in the Supreme Court against Messrs. Sent and Forshaw in relation to any conspiracy claim and that 1t 1s only fair that that should be done rather than a further amendment to the existing proceedings. In all tne circumstances sf the case, © think it 15 inappropriate for tne Court ts decide all those issues at che present time in the apsencte of any document setting cut wat as the current position as far as the application and statement of claim 1s concerned following the order I propose to make based upon the Haigh Court decision and the non-application of s.87 of the Trade Practices Act to this case insofar as Messrs. Sent and Forshaw are concerned. It is put by counsel for Messrs. Sent and Forshaw that any claim based upon conspiracy, as appearing in Paragraphs 25 and 49A are merely part of a larger claim which 1s founded upon s.&87 of the Trade Practices Act and were not intended to have any separate existence. That may well be correct and 1t may well be a mere unintended consequence that the claim for conspiracy can have a life of its own. These are matters which will need to be considered in due course, together with a consideration of whether the Court, in the exercise of its discretion, should allow the claim based on accrued jurisdiction with respect to persons who are not otherwise within the jurisdiction of this Court, to proceed. Accordingly, I propose to adjourn the further hearing of this motion to a time to allow the applicant to prepare any necessary documentation as to what exactly 1t is seeking in relation both to the application and the statement of claim. This involves a re-drafting or re-drawing of the statement of claim by deleting from it all references to Messrs. Sent and Forshaw arising from any claims based upon s.87 of the Trade Practices Act but leaving in existence those paragranhs 25 and 43A, which may found a claim for damages for conspiracy together with any other paragraphs which could be directed along lines to support that claim. On the resumed hearing of the present motion by Messrs. Sent and Forshaw and any motion by the applicant, the Court would be in a position to decide firstly whether there 1s foundation for a claim based upon conspiracy, whether it 1S appropriate that this claim should come within the accrued jurisdiction of this Court to be heard as part of the current Proceedings, or whether the applicant should be left to seek their relief elsewhere and, in all the circumstances having regard to the then position, whether the proceeding against Messrs. Sent and Forshaw should be dismissed. Te 15 mot unusual in cases like this, where a statement of claim discloses no cause of action, to strike 1t out, giving leave to the plaintiff to re-plead. Likewise, in my Opinion, 1t 1s only fair that the applicant should be able to consider its position in relation to any accrued jurisdiction claim which at least comes within the existing pleading, so as to justify an amendment to the application to give effect to that matter. These are all questions which will need to be decided in the future. Accordingiy, f adjourn the hearing of tna motion certify that this and the SA ( 6) cceding pages are a true copy of the sasons for Judgment herein of the mourable Mr. Justice Nertirepe ' mang LWdord ec. ted: 24 (10 |B,