Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 167

`FEDERAL COURT OF AUSTRALIA

Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 167 PRACTICE AND PROCEDURE – Representative proceedings under Part IVA of the Federal Court of Australia Act 1976 (Cth) - claims that negligence and misleading conduct caused economic loss as a result of cessation of supply of gas – application to strike out statement of claim – whether material facts pleaded assert a contractual rather than a tortious obligation in relation to the supply of gas– whether duty to avoid or prevent the loss suffered pleaded - whether pleadings allege misleading conduct

John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd and Another (1996) BCL 262 – considered Sutherland Shire Council v Heyman (1984) 157 CLR 424 – applied Bryan v Maloney (1995) 182 CLR 609 - cited Pyrenees Shire Council v Day (1998) 192 CLR 330 - cited Caparo Industries Plc v Dickman and Others (1992) AC 605 – cited Trade Practices Act 1974 (Cth) – s 52 JOHNSON TILES PTY LTD AND OTHERS V ESSO AUSTRALIA LIMITED AND ANOTHER VG 519 OF 1998 MERKEL J MELBOURNE 1 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 519 OF 1998

VG 524 OF 1998

BETWEEN: JOHNSON TILES PTY LTD AND OTHERS

(ACN 004 576 103)

Applicants

AND: ESSO AUSTRALIA LIMITED

(ACN 000 018 566)

First Respondent

ESSO AUSTRALIA RESOURCES LTD

(ARBN 000 444 860)

Second Respondent JUDGE: MERKEL J

DATE OF ORDER: 1 MARCH 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The Further Amended Statement of Claim dated 12 February 1999 be struck out. 2. The applicants have leave to deliver a further Amended Statement of Claim on or before 15 March 1999. 3. The applicants pay the respondents' costs of and incidental to the Notice of Motion dated 15 February 1999.