Manolakis v Wesfarmers Ltd Trading as Kmart [2008] FCA 928

FEDERAL COURT OF AUSTRALIA

Manolakis v Wesfarmers Ltd Trading as Kmart [2008] FCA 928

ANASTASIOS MANOLAKIS v WESFARMERS LTD TRADING AS KMART

SAD 71 of 2008

MANSFIELD J

19 JUNE 2008

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 71 of 2008

BETWEEN: ANASTASIOS MANOLAKIS

Applicant

AND: WESFARMERS LTD TRADING AS KMART

Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 19 JUNE 2008

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The application for leave to appeal is refused. 2. The applicant to pay the respondent its costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 71 of 2008

BETWEEN: ANASTASIOS MANOLAKIS

Applicant

AND: WESFARMERS LTD TRADING AS KMART

Respondent

JUDGE: MANSFIELD J

DATE: 19 JUNE 2008

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from an interlocutory decision of the Federal Magistrates Court of 13 May 2008: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Décor Group Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 indicates that leave to appeal from an interlocutory decision should be given only if, in all the circumstances, the decision is attended by sufficient doubt to warrant the matter being reconsidered on appeal and, if substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong. 2 The decision complained of is a decision of Federal Magistrate Simpson. His Honour struck out the applicant's statement of claim in the proceedings, and gave leave to file and serve an amended statement of claim by 10 June 2008. The statement of claim was placed in a sealed envelope. That was because one of the reasons for striking out the statement of claim was that it contained "very offensive material". The other reason was that it did not disclose a cause of action. His Honour adjourned the matter for further directions to 14 July 2008. 3 The application and supporting affidavit in the Federal Magistrates Court concerned a transaction in which the applicant purchased at an unidentified Kmart store (in submissions he said the Firle store) an item (in submissions he identified it as a car battery) on an unidentified date (in submissions he said it was 29 August 2007), and then claimed a refund for it on an unspecified date (in submissions he said 22 September 2007). The applicant said in submissions that it did not work after two weeks, so he sought a refund of the price of $59.99. He was not given that refund. The applicant asserts that he was treated improperly by two employees of that store who refused to give him a refund because the returned product was not as new. In submissions, he also said that there was a dispute as to whether he had produced the original receipt for the purchase of the battery. 4 The application invoked various sections of Pt IVA and Pt V of the Trade Practices Act 1975 (Cth) as providing the entitlement to relief. The relief claimed was specified as an apology from the respondent and from the two staff members concerned, together with the refund sought, and "unspecified damages" for the conduct complained of including acting "in a bias (sic) manner against an individual of non Anglo Saxan (sic) appearance". The supporting affidavit did not enlighten the facts other than to identify the amount of the refund claimed. The Federal Magistrate, not surprisingly, directed the applicant to file and serve a statement of claim in light of the generality of the claims in the application and supporting affidavit. 5 The statement of claim was filed on 6 May 2008. It contains five paragraphs. The first three, although poorly drafted, relate to the transaction referred to. The fifth is only a general claim. They do not specify the date of purchase, the date the refund was sought, the nature of the product, the nature of the defect, the store concerned, or particulars of the conduct of the employees said to justify the claim (beyond the claim for a refund) for unspecified damages. In general, they identify that the claim is based upon the respondent's failure to adhere to its refund policy and to the circumstances in which the refund was refused. 6 In my view, those parts of the statement of claim are inadequate and it was appropriate for Federal Magistrate Simpson to strike them out. He gave leave to re-plead. There is no prejudice to the applicant in re-pleading his case to more accurately specify the nature of the claims and the circumstances in which they arise. I have set out what he told me in the course of oral submissions in a little detail to give some indication of what he might plead. 7 Those reasons are sufficient to refuse leave to appeal. 8 The remaining paragraph of the statement of claim contains allegations which are clearly unnecessary to, and unrelated to, the claim in the application. They could have been struck out on that basis. That paragraph of the statement of claim alleges discrimination by the respondent against the applicant "to ensure that the takeover of Coles Ltd (Kmart was a subsidiary of Coles Ltd at the time of the fraud) by Wesfarmers Ltd is not compromised …".) It then ranges into allegations of wrongful conduct by a number of public figures in relation to quite separate transactions and criminal conduct by a broad range of public figures. 9 Those allegations have nothing to do with the claim in the application. As I have said, it was appropriate to strike them out for that reason. In any event, they are expressed in only the most general terms. They are not substantiated by any detail whatsoever. Even if those problems were able to be overcome in relation to an application properly instituted, neither the Federal Magistrates Court nor this Court would have jurisdiction to entertain many of them. 10 In my view, Federal Magistrate Simpson therefore correctly struck out the statement of claim. There is no doubt as to the appropriateness of his order. In addition, the strike out of the statement of claim does not cause injustice to the applicant as he can re-plead the statement of claim, limited to the facts relevant to the transaction which is identified in the application, and to its consequences. 11 The time fixed by the Federal Magistrates Court to amend the statement of claim has expired, but no doubt in the circumstances his Honour would further extend that time provided a statement of claim in appropriate form is now filed and served promptly. There is still over three weeks within which the applicant might file and serve his amended statement of claim. As 10 days was allowed for that purpose previously, he would do well to do so by 30 June 2008. 12 I note that the question of any order for discovery of documents from the respondent was deferred until the completion of pleadings. It is at that point that, as Federal Magistrate Simpson said, any issue concerning the alleged destruction of a video recording of the occasion when the applicant sought the refund may be addressed. 13 The application for leave to appeal is refused. The applicant must pay the costs of the application to the respondent. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.