Toomer, William Frederick v Commonwealth of Australia [1997] FCA 1102

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - pleadings - whether statement of claim founded a claim of misfeasance in public office, conspiracy and negligence properly pleaded - whether claim should be struck out. Merit Protection (Australian Government Employees) Act 1984: s 56 Rookes v Barnard [1964] AC 1179 referred to Lonrho Plc v Fayed [1992] 1 AC 448 referred to Northern Territory of Australia v Mengel (1996) 185 CLR 307 applied WILLIAM FREDERICK TOOMER v COMMONWEALTH OF AUSTRALIA VG 274 of 1997 GOLDBERG J MELBOURNE 22 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 274 of 1997

BETWEEN: WILLIAM FREDERICK TOOMER

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 22 OCTOBER 1997

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The statement of claim is struck out. 2. The applicant have leave to apply by notice of motion within twenty‑one days for leave to deliver an amended statement of claim, which notice of motion is to be supported by an affidavit exhibiting the proposed amended statement of claim. 3. If the applicant applies for such leave to deliver an amended statement of claim the notice of motion shall be returnable at 9.30 am on 3 December 1997. 4. If the respondent wishes to oppose any leave sought to deliver an amended statement of claim it shall file and serve its submissions in opposition by 4.00 pm on 19 November 1997 and the applicant shall serve his submissions in answer by 4.00 pm on 26 November 1997. 5. The directions hearing be adjourned to 9.30 am on 3 December 1997. 6. The applicant pay the respondent's costs of the respondent's motion filed 15 July 1997. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.