Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 1645 PRACTICE AND PROCEDURE – application to strike out part of statement of claim – whether pleading should be struck out where particulars are not reasonably capable of sustaining the substantive allegation – whether reliance on a failure to warn must be pleaded as causative of loss in a s 52 claim for damages
PRACTICE AND PROCEDURE – representative proceedings under Part IVA – whether proceeding should no longer continue as representative proceeding where the federal claim is struck out
JURISDICTION – whether s 52 and negligence claims are severable and therefore separate matters – whether the Court no longer has jurisdiction in the matter if the federal claim is struck out - whether s 52 claim has been brought to fabricate jurisdiction Federal Court of Australia Act 1976 (Cth) Pt IVA; ss 33G and 33N Trade Practices Act 1974 (Cth) ss 52 and 82
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 477 – applied Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 - applied Yorkshire Provident Life Assurance Co v Gilbert (1895) 2 QB 148 – cited
Trade Practices Commissioner v George Weston Foods Pty Ltd (1979) 39 FLR 182 – cited Davey v Bentinick (1893) 1 QB 185 – cited Minichin v Adamson (1975) 10 SASR 119 – cited Marks v GIO Australia Holdings Ltd (1998) 158 ALR 333 – cited Qantas Airways v Cameron (1996) 66 FCR 246 – cited Chappel v Hart (1998) 195 CLR 232 – cited Bright v Femcare [1999] FCA 1377 – cited Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 – cited Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 – cited Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 – cited Re Wakim; Ex parte McNally (1999) 163 ALR 270 – cited Fencott v Muller (1983) 152 CLR 570 – applied Burgundy Royale Investments Pty Ltd v Westbank Banking Corporation (1987) 18 FCR 212 - applied Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 – considered New South Wales Land Council v Australian Securities and Investments Commission (1995) 131 ALR 559 – cited
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