FEDERAL COURT OF AUSTRALIA Angius Investments Pty Ltd v Randwick City Council [2003] FCA 941 PRACTICE AND PROCEDURE – original statement of claim defective – amended statement of claim filed – application to strike-out amended statement of claim – no appearance on motion to strike-out amended statement of claim – proceedings dismissed. ANGIUS INVESTMENTS PTY LTD v RANDWICK CITY COUNCIL N 0070 OF 2003 CONTI J 8 SEPTEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 0070 OF 2003 BETWEEN: ANGIUS INVESTMENTS PTY LTD APPLICANT AND: RANDWICK CITY COUNCIL RESPONDENT JUDGE: CONTI J DATE OF ORDER: 1 SEPTEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceedings be dismissed. 2. The applicant pay the respondent's costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 0070 OF 2003 BETWEEN: ANGIUS INVESTMENTS PTY LTD APPLICANT AND: RANDWICK CITY COUNCIL RESPONDENT JUDGE: CONTI J DATE: 8 SEPTEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant commenced the subject proceedings by statement of claim filed on 31 January 2003 accompanied by an affidavit made by its solicitor. Three causes of action were framed, namely breach of contract and breach of each of sections 51AC and 52 of the Trade Practices Act 1974 (Cth) ('TP Act'). The causes of action focused upon the conduct of the Council in causing or allowing circumstances to occur whereby free car parking would no longer be available to patrons of the applicant's business at a certain car parking station, constructed on realty of the applicant and partly on realty of the respondent. The respondent signalled from the outset of the proceedings its intention to demur to the causes of action pleaded by the applicant. 2 The proceedings were listed before me for directions initially on 14 February 2003. I granted the applicant an adjournment for seven days to enable the applicant to consider whether amendments should be made to the statement of claim in relation to each of the causes of action which it had propounded by its original statement of claim. 3 On 21 February 2003, the applicant was directed to file an amended statement of claim by the close of the Court's business on 24 February 2003, and I fixed 27 February 2003 for the hearing of the respondent's foreshadowed strike-out application in relation to whatever amended statement of claim might be pursued. An amended statement of claim was filed by the applicant on 24 February 2003. The respondent for its part was directed on 21 February 2003 to file and serve written submissions and its list of authorities by close of business on 26 February 2003. 4 On 24 February 2003, the applicant filed a substantially amended statement of claim upon the basis of the three causes of action already propounded in outline, namely breach of contract and contravention of each of ss 51AC and 52 of the TP Act. On 27 February 2003, the respondent filed a notice of motion to strike-out the amended statement of claim upon the asserted basis that the same did not disclose reasonable causes of action and had a tendency to cause prejudice, embarrassment or delay in the proceedings. 5 On 27 February 2003, some debate took place on the part of the respective legal representatives of the parties upon the viability of the causes of action pleaded by the amended statement claim. Also on 27 February 2003, the respondent council moved by a notice of motion to strike-out the applicant's amended statement of claim on the grounds that it disclosed no reasonable cause of action and had the tendency to cause prejudice embarrassment or delay in the proceedings. For that purpose, the respondent provided written submissions focused upon an asserted inadequacy of the amended statement of claim, and in relation to any evidence which might be relied upon to establish a prima facie case. 6 During the course of that strike-out application, I observed that the applicant was apparently of the view that there had been conduct in the nature of lack of good faith on the part of the Council in disposing of the car park in circumstances where, after so many years, the applicant's patrons would be denied free parking, and that in order to afford to the applicant the opportunity to further amend what seemed to me to be still a somewhat inadequate statement of claim, it would be appropriate for me to have an outline of the evidence by affidavit upon which the applicant relied to sustain the causes of action which it wished to pursue. I directed that any such evidence be presented by the applicant and filed and served by no later than 27 April 2003. The respondent council's strike-out application was stood over generally, on the basis of liberty to either party to apply on three days notice for directions as to the further conduct of the proceedings. 7 Strike-out proceedings relating to the existing amended statement of claim came on for hearing on 8 July 2003. This course occurred at the instigation of the respondent council's solicitor who had approached my Associate and requested that the matter be relisted for hearing for that purpose. On the occasion appointed for the hearing of the strike-out application, the respondent's legal representative informed the Court that my direction to the applicant to file and serve, on or before 27 April 2003, an affidavit or affidavits setting out the facts and circumstances said to give rise to the cause or causes of action upon which it relied, had not been complied with, and that such affidavit material as had been delivered to the Court on behalf of the respondent had been framed merely on a hearsay basis, and moreover had been provided by the applicant's solicitor to the respondent's legal representatives only a few moments prior to the proceedings being called on for an interlocutory hearing. One affidavit made by the applicant's solicitor purportedly addressed the reason for the considerable delay, namely because the solicitor had been committed to the conduct of two substantial court cases, and that due to his associate having taken maternity leave, the solicitor had no other professional staff available to assist him. 8 During the course of the July 8 2003 strike out hearing, I indicated to the applicant's legal representative as follows: '… at the moment I'm not persuaded that there's a cause of action. I think that two things have got to happen. One, your client is going to have to go into print personally in circumstances where [the respondent council's barrister] can cross-examine him. Two, I think you've really got to get advice on the cause of action that's going to attract the jurisdiction of this court.' 9 In the result, I stood the proceedings over to 1 September 2003, and directed the applicant to file and serve by 8 August 2003 any further amended statement of claim which might be formulated on its behalf, and affidavit evidence in support of the material allegations which might be thereby pleaded against the respondent council, such as to demonstrate a prima facie case against the respondent council. I also granted the applicant leave to issue further subpoenas and/or to serve a notice to produce upon the respondent council. 10 No such further amended statement of claim has been filed or served, nor has any notice to produce or subpoena apparently been issued pursuant to the leave granted. Nor has any further affidavit material been filed and served on behalf of the applicant. 11 On 1 September 2003, the applicant did not appear. I directed the court officer to call the applicant by name outside the court room, and was thereupon informed that there was no response or appearance by or on behalf of the applicant. I remain unpersuaded that the amended statement of claim discloses any viable cause of action. In the result, I ordered that the proceedings be dismissed pursuant at least to Order 30 Rule 5(1)(a) of the Federal Court Rules, and that the applicant bear the respondent's costs of the proceedings. I indicated that I would publish my reasons. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 8 September 2003 Counsel for the Applicant: No appearance by any legal representative for the applicant Solicitor for the Applicant: Beazley Singleton Lawyers Counsel for the Respondent: J Kildea Solicitor for the Respondent: Bowen & Gerathy Solicitors Date of hearing and orders: 1 September 2003 Date of reasons for judgment: 8 September 2003