Lock v Australian Securities and Investments Commission [2016] FCA 31

FEDERAL COURT OF AUSTRALIA

Lock v Australian Securities and Investments Commission [2016] FCA 31 File number: NSD 1307 of 2014

Judge: GLEESON J

Date of judgment: 4 February 2016

Catchwords: NEGLIGENCE – duty of care – whether defendant owed plaintiffs duty of care to avoid causing economic harm to plaintiffs – where pleaded duty of care is affirmative duty on statutory authority – where claim for damages for pure economic loss – where pleaded duty is to control third party's conduct – where pleaded duty is duty to warn – where no direct relationship between plaintiffs and defendant – where defendant statutory authority with broad and multi-faceted functions and objects – whether duty inconsistent with defendant's function – whether salient facts support imposition of duty of care – whether defendant's control of risk sufficient to support imposition of duty of care – whether plaintiffs vulnerable – where no known dependence or assumption of responsibility – duty of care not so unarguable as to be struck out on that basis PRACTICE AND PROCEDURE – strike out application – whether pleadings would establish cause of action relied on – where causation not identified with sufficient clarity – further amended statement of claim struck out in its entirety – Federal Court Rules 2011 (Cth), r 16.21 PRACTICE AND PROCEDURE – strike out application – where further amended statement of claim pleads existence of duty of care TORTS – misfeasance in public office – whether certain decisions of the defendant constitute misfeasance in public office – whether defendant failed to take into account mandatory considerations – whether defendant failed to make decisions consistently with purposes for which powers were granted – whether any decision caused loss to plaintiffs –further amended statement of claim does not disclose reasonable cause of action based on the tort of misfeasance in public office TORTS – misfeasance in public office – whether further amended statement of claim pleads malice sufficiently – whether defendant's officers motivated by improper and unlawful motive – whether decisions made in bad faith – whether defendant failed to make a real attempt to comply with its obligations – whether defendant knew or suspected decisions would harm plaintiffs – whether defendant's later actions impeach its earlier inaction – further amended statement of claim does not plead malice sufficiently