Jones v Daytrader HQ Ltd [2003] FCA 586

FEDERAL COURT OF AUSTRALIA

Jones v Daytrader HQ Ltd [2003] FCA 586

PRACTICE AND PROCEDURE – motion to strike out pleading – no point of principle

GLEN JONES and WINTEROAK PTY LTD v DAYTRADER HQ LTD, ROSS SMITH, CRAIG READHEAD, PETER MOLONEY and CHRISTOPHER TATE

S3007 of 2001

CARR J

13 JUNE 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY S3007 OF 2001

BETWEEN: GLEN JONES

First Applicant

WINTEROAK PTY LTD (ACN 070 526 144)

Second Applicant

AND: DAYTRADER HQ LTD (ACN 086 972 429)

First Respondent

ROSS SMITH

Second Respondent

CRAIG READHEAD

Third Respondent

PETER MOLONEY

Fourth Respondent

CHRISTOPHER TATE

Fifth Respondent

JUDGE: CARR J

DATE OF ORDER: 13 JUNE 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The respondents' motion, notice of which was filed on 5 March 2003, be dismissed. 2. The respondents pay the applicants' costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY S3007 OF 2001

BETWEEN: GLEN JONES

First Applicant

WINTEROAK PTY LTD (ACN 070 526 144)

Second Applicant

AND: DAYTRADER HQ LTD (ACN 086 972 429)

First Respondent

ROSS SMITH

Second Respondent

CRAIG READHEAD

Third Respondent

PETER MOLONEY

Fourth Respondent

CHRISTOPHER TATE

Fifth Respondent

JUDGE: CARR J

DATE: 13 JUNE 2003

PLACE: PERTH

REASONS FOR JUDGMENT

introduction 1 This is a motion on notice by the respondents to strike out numerous paragraphs of the further amended statement of claim. The facts which are pleaded in that document are, in summary, as follows. 2 The first applicant ("Mr Jones") was employed by the first respondent ("Daytrader") as its sales manager for South Australia between 9 November 1999 and 17 October 2001. The second applicant ("Winteroak") is a company owned and controlled by a Mr Stephen Dinnes ("Mr Dinnes"). Mr Dinnes was employed by Daytrader as sales executive for Western Australia between about 1 March 1999 and 5 October 2001. Daytrader was incorporated in Western Australia. This case is concerned with shares in its capital which were issued at or about the time the company was initially listed on the Australian Stock Exchange ("the ASX"). 3 The second respondent ("Mr Smith") was at all material times chief executive officer and an executive director of Daytrader. The third respondent ("Mr Readhead") was at all material times a director and the non-executive chairman of Daytrader. The fourth and fifth respondents ("Mr Moloney" and "Mr Tate") were at all material times directors of Daytrader. Mr Tate was also the managing director of Daytrader. 4 In paragraphs 10-18 of the statement of claim the applicants plead a series of statements which (at the end of paragraph 18) they say are thereafter together referred to as "the Daytrader Representations". They were said to be as follows: