Curtin v University of New South Wales

Supreme Court of NSW|2008-09-01|Before: Johnson J

CITATION : Curtin v University of New South Wales (No. 2) [2008] NSWSC 1236

DECISION : 1. Defendant's Notice of Motion to strike out parts of Amended Statement of Claim allowed. 2. Plaintiff to pay costs on indemnity basis payable forthwith.

CATCHWORDS : PRACTICE AND PROCEDURE - claims in Statement of Claim under Trade Practices Act 1974 (Cth), Fair Trading Act 1987 and Contracts Review Act 1980 summarily dismissed by Associate Judge - Plaintiff thereafter given leave to serve Amended Statement of Claim - Defendants contend that repleaded claims constitute abuse of process - repleaded claims said to re-agitate dismissed claims - other paragraphs said to disclose no reasonable cause of action - "in trade or commerce" - internal communications - challenged paragraphs of amended pleading struck out

Fair Trading Act 1987 LEGISLATION CITED : Trade Practices Act 1974 (Cth) Contracts Review Act 1980 Civil Procedure Act 2005

Curtin v University of New South Wales [2008] NSWSC 586 Walton v Gardiner (1993) 177 CLR 378 Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275 Horton v Jones (No 2) (1939) 39 SR(NSW) 305 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Curtin v University of New South Wales (No. 1) [2008] NSWSC 1234 Prestia v Aknar (1996) 40 NSWLR 165 CASES CITED : Fasold v Roberts (1997) 70 FCR 489 New Cap Reinsurance Corp Ltd v Daya [2008] NSWSC 64 McCormick v Riverwood International Australia Pty Ltd [1999] FCA 1640 Stoelwinder v Southern Health Care Network (2000) 177 ALR 501 Houghton v Arms (2006) 225 CLR 553 Mraz v The Queen (No 2) (1956) 96 CLR 62 Connelly v DPP (1964) AC 1254 Bond Corporation v Theiss Contractors (1987) 14 FCR 215

Peter John Curtin (Plaintiff) University of New South Wales (First Defendant) PARTIES : New South Global Pty Limited (Second Defendant) John Ingleson (Third Defendant) Alan Bowen-James (Fourth Defendant) Cognitive Systems Pty Limited (Fifth Defendant)

COUNSEL : Mr PE King (Plaintiff) Mr AS Bell SC; Mr MA Izzo (First, Second and Third Defendants)

SOLICITORS : Russell McLelland Brown (Plaintiff) Sparke Helmore (First, Second and Third Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20342/07 Peter John Curtin v University of New South Wales and Ors (No. 2)

JUDGMENT (on Defendants' Notice of Motion to strike out parts of the Amended Statementof Claim) 1 JOHNSON J: By Notice of Motion filed 31 July 2008, the Applicants, the First, Second and Third Defendants, being the University of New South Wales, New South Wales Global Pty Limited and John Ingleson, seek orders with respect to an Amended Statement of Claim filed by the Respondent, the Plaintiff, Peter John Curtin, on 11 July 2008. The relief sought in the Notice of Motion is as follows: "1. To the extent leave was given to amend the Statement of Claim on 20 June 2008 revoke such leave in relation to the amendments contained in paragraphs 24A, 24B, 24C, 24E, 24F, 24G, 24I, 24J, 24K, 24L, 24M and 24N of the Amended Statement of Claim filed on 11 July 2008. 2. In the alternative to the above, that paragraphs 24A, 24B, 24C, 24E, 24F, 24G, 24I, 24J, 24K, 24L, 24M and 24N of the Amended Statement of Claim filed on 11 July 2008 be struck out pursuant to Pt 14 rule 28 Uniform Civil Procedure Rules 2005. 3. Such further or other order as the Court deems fit. 4. The Plaintiff pay the First, Second and Third Defendants' costs forthwith." Background to Present Application 2 It is necessary to place the present application in context. On 5 October 2007, the Plaintiff commenced proceedings by the filing of a Statement of Claim which made a series of allegations concerning the employment of the Plaintiff with the First and Second Defendants and the termination of his employment with the latter by execution of a Deed of Release on 2 December 2003. It sought orders setting aside the Deed of Release, together with damages. Various causes of action were pleaded, including actions in contract and tort as well as claims alleging contravention of the Trade Practices Act 1974 (Cth) ("TPA") and the Fair Trading Act 1987 ("FTA"). Relief was also sought under the Contracts Review Act 1980. 3 I note that the Plaintiff has also sued two other parties, the Fourth and Fifth Defendants. They are not parties to this motion as the issues raised by it do not affect them. In this judgment, for convenience I will refer to the First, Second and Third Defendants as "the Defendants". 4 The Defendants applied for summary dismissal of the Plaintiff's claims. The applications were heard by Malpass AsJ on 10 and 11 June 2008 and were determined by his Honour on 13 June 2008: Curtin v University of New South Wales [2008] NSWSC 586. His Honour held that the TPA and FTA claims, as well as the Contract Review Act 1980 claims, ought be summarily dismissed (see [54], [55] and [61] of his Honour's judgment). His Honour indicated that deficiencies in the Plaintiff's claims for negligence and misfeasance in public office were better addressed by amending the pleading than by summary dismissal (see [57] and [59] of the judgment). 5 On 20 June 2008, orders were made by the Registrar, by consent, giving the Plaintiff leave to file and serve a verified Amended Statement of Claim by 4 July 2008. It is common ground that the Plaintiff's solicitors did not furnish a proposed Amended Statement of Claim to the solicitors for the Defendants between 13 and 20 June 2008. Thus the leave granted on 20 June 2008 occurred without the Defendants being aware of the proposed contents of the amended pleading. 6 On 11 July 2008, the Plaintiff filed the Amended Statement of Claim, part of which is under challenge on this motion. The Amended Statement of Claim deleted the TPA, FTA and Contract Review Act 1980 claims previously made by the Plaintiff in paragraphs 24 to 27 of the original Statement of Claim. The Amended Statement of Claim added fresh claims under the FTA and TPA in paragraphs 24A, 24B, 24C, 24E, 24F, 24G, 24I, 24J, 24K, 24L, 24M and 24N. 7 Outlines of submissions were provided by Mr Andrew Bell SC and Mr Izzo, for the Defendants, and Mr King, for the Plaintiff, at the hearing which proceeded before me on 1 September 2008. In addition, counsel spoke to those submissions at some length. At the conclusion of submissions on 1 September 2008, I reserved my decision until today. I have considered the submissions made by reference to the context of the challenged paragraphs in the Amended Statement of Claim.

The Broad Approaches of the Parties 8 Put shortly, the Defendants submit that the fresh FTA and TPA claims re-agitate the claims dismissed by Malpass AsJ. It is submitted that the conduct now alleged by the Plaintiff to be either misleading or deceptive, or unconscionable, is substantially the same conduct on which the Plaintiff had attempted to rely in the original Statement of Claim. 9 The Defendants submit further that paragraphs 24E(a) to (c) should be struck out as disclosing no reasonable cause of action. The Defendants submit that paragraphs 24K and 24L, a claim under s.43 FTA, ought fail for a reason additional to the principal ground, to which I will return later in this judgment. Finally, the Defendants submit that paragraphs 24I and 24J claim an entitlement to relief consequential on contraventions alleged in other paragraphs, and that those paragraphs should be struck out or disallowed. 10 The Defendants submit that, in circumstances where the Plaintiff makes fresh FTA and TPA claims that substantially re-agitate claims previously dismissed, and allege no new matter capable of sustaining those claims, the fresh claims are oppressive and vexatious and constitute an abuse of the processes of the Court: Walton v Gardiner (1993) 177 CLR 378 at 393; Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275 at 279. Alternatively, the Defendants submit that as far as the Amended Statement of Claim includes these objectionable fresh claims, the amendment is obviously futile and leave to amend should be revoked: Horton v Jones (No 2) (1939) 39 SR(NSW) 305 at 309. 11 Put shortly, the Plaintiff's case is that the causes of action under the FTA and TPA are very different from those contained in the Statement of Claim considered by Malpass AsJ. It is submitted further by the Plaintiff that the legal effect of the order made by Malpass AsJ does not prevent the matters contained in fresh pleading, as technically the order made, or purported to be made by Malpass AsJ dismissed nothing. Further, the Plaintiff submits that, as far as the Defendants seek to strike out parts of the Amended Statement of Claim on grounds other than the suggested replication of pleading grounds, these are issues for trial, involving questions of fact, and ought not be struck out.

Malpass AsJ's Judgment of 13 June 2008 12 It is appropriate to refer to the judgment of Malpass AsJ before moving to the issues for determination by me. At [1] and [2] of the judgment, his Honour observed, in summary, that documentation executed by the Plaintiff and the Second Defendant showed that the Plaintiff was an employee of the First Defendant as Operations Manager at its Educational Testing Centre. His employment was terminated and he accepted employment with the Second Defendant as Services Manager for a period of three years from 12 October 2001. The Second Defendant undertook a workplace change process and advised the Plaintiff that his position had been declared redundant. The Plaintiff elected to take retrenchment and a Deed of Release dated 3 December 2003 was executed by both the Plaintiff and the Second Defendant. 13 On 12 October 2007, the Plaintiff instituted proceedings in this Court. As Malpass AsJ observed at [7], the proceedings involved an attack upon the Deed of Release founded upon, amongst other things, provisions of the FTA, the TPA and the Contract Review Act 1980, and damages were sought pursuant to the provisions of the FTA and TPA and under general law. 14 His Honour proceeded to refer to causes of action against various Defendants and set out part of the then Statement of Claim, insofar as it pleaded claims under the FTA and TPA. At [14], Malpass AsJ noted that a number of causes of action were alleged against one or more of the Defendants, including claims in negligence, misfeasance in public office, breach of contract and conspiracy. 15 At [25] and following, the Associate Justice dealt with the claims under the FTA and TPA. His Honour moved to arguments advanced at that hearing (and also at the present hearing), with respect to the term "in trade or commerce", a concept relevant and necessary to claims of this type under the FTA and TPA. His Honour recited arguments which had been advanced and authorities referred to, including the seminal decision of the High Court of Australia in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. 16 An issue which attracted particular attention in argument before his Honour involved the question of internal communications, the internal versus external distinction being an important one with respect to the element of being "in trade or commerce". At [52], his Honour observed that the Defendants maintained their stand that the statutory claims for relief should be summarily dismissed, those of course being the claims under the FTA, TPA and the Contract Review Act 1980. 17 It appears that a further version of the Statement of Claim was produced, and was the subject of consideration at the hearing before Malpass AsJ. It was accepted that the claims for misfeasance in public office and negligence would be the subject of amendment in a further pleading. In that respect, as I have mentioned earlier, see [52], [57], [58] and [59] of his Honour's judgment. 18 His Honour observed, at [53], that summary relief is subject to well-known limits and is confined to clear cases, with the moving party seeking such relief bearing the onus. 19 I was taken by both sides in the present argument to [54], which I will set out in its entirety in this judgment: "In the case of the FTA and the TPA, I do not accept the submissions made on behalf of the Plaintiff and I make the further observations set forth in this paragraph. In applications for summary relief, the moving party accepts as being true allegations of fact made in a pleading. In the present case, a mere allegation that the relevant conduct took place in trade or commerce does not assist the Plaintiff. The particulars relied on to support that allegation cannot make it out. In my view, the involvement of the outsourcing does not change the character of what is relied on. The particulars merely look to an internal matter of what passed between the Plaintiff and the Defendants concerning the Plaintiff's employment. In my view, binding authority demonstrates that such a factual context cannot be characterised as conduct that takes place in the course of trade or commerce. It follows from what has been earlier said that I do not accept the argument that s 51AA should be given a broader and different construction. Accordingly, I consider that the FTA and TPA claims should be summarily dismissed."

20 It will be seen from his Honour's statements in [54], that the mere allegation that the relevant conduct took place in trade or commerce does not assist the Plaintiff. The particulars relied on to support the allegation need to be considered, and his Honour took the view that they could not make out that claim. His Honour observed that the particulars merely looked to an internal matter of what passed between the Plaintiff and the Defendants concerning the Plaintiff's employment. It is apparent that his Honour, having regard to the authorities referred to at [26] - [28] of the judgment, and in particular the decision in Concrete Constructions, formed the view that the claims for relief under the FTA and TPA ought be summarily dismissed. His Honour so ordered.

Hearing of the Present Application 21 I note that up to 1 September 2008 there was no appeal lodged from the decision of Malpass AsJ. The time expired in mid-July for an appeal to be brought as of right. No application was made for leave to appeal out of time. The Defendants' motion came on for hearing before me, and was argued at considerable length, on the basis that I take, as the starting point, Malpass AsJ's decision. 22 As I have observed in a judgment delivered earlier today (Curtin v University of New South Wales (No. 1) [2008] NSWSC 1234) in which I refused an application for adjournment by the Plaintiff, a Notice of Motion was filed this morning by the Plaintiff seeking an extension of time to appeal against the decision of Malpass AsJ. For reasons expressed in that earlier judgment, I declined to adjourn the hearing of this matter. I had proceeded to hear this Notice of Motion and was about to give my decision. I was not satisfied that the hearing of the Defendants' Notice of Motion ought be adjourned. 23 It was acknowledged during the course of the hearing on 1 September 2008 that I was not, of course, hearing a form of de facto appeal from the decision of Malpass AsJ. Why it was that the Plaintiff did not turn his mind to the question of an appeal from the decision of Malpass AsJ, if that is what he wished to do, prior to or on 1 September 2008, I find difficult to understand. 24 I propose to approach the application that I need to resolve on the basis on which it was argued, that I accept the decision of Malpass AsJ. I will assess the submissions of the parties on the Defendants' Notice of Motion, in particular as to abuse of process, by reference to the judgment of Malpass AsJ of 13 June 2008.

Resolution of Issues on Application 25 I turn then to the resolution of the issues before me. I indicate, at this point, that I generally accept the submissions of the Defendants with respect to the issues that fall for determination. 26 The Defendants submitted that there were four existing claims in the Amended Statement of Claim which ought be struck out or disallowed. It was submitted first that the claim for contravention of s.42 FTA made in paragraphs 24A to 24N for warranties lodged under 24A constituting misleading or deceptive conduct correspond with the matters particularised in paragraph 24(a) of the original Statement of Claim. Having examined the original Statement of Claim and the Amended Statement of Claim for the purpose of assessing the submissions, I am satisfied that that proposition is made good. 27 Secondly, the Defendants submit that the claim for contravention of s.42 FTA made in paragraphs 24A to 24G ought be struck out. It is submitted that the representations particularised in paragraphs 24E(d) and (e) as constituting misleading or deceptive conduct correspond with particularisation in paragraph 24(b) of the original Statement of Claim. A separate argument is advanced by reference to paragraphs 24E(a) to (c), to which I will return. Again, having undertaken the task of comparing the language of the claims, I accept that submission is made good. 28 Thirdly, the Defendants submit by reference to the claims for contravention of s.43 FTA in paragraphs 24K to 24L, that the matters particularised in paragraph 24K(b) as constituting unconscionable conduct correspond to the matters which were particularised in paragraph 25(a) to (e) of the original Statement of Claim. Again, having considered the context of the two pleadings, I accept that submission. 29 Fourthly, the Defendants submit that the claim of contravention of s.51AA TPA made in paragraphs 24M to 24N ought be struck out. It is submitted that the particulars of these claims are repeated in the particulars to paragraph 24K which, it is submitted, correspond with the matters particularised in paragraphs 25(a) to (e) of the original Statement of Claim. Again, having undertaken a comparison of the two pleadings, I accept that submission. 30 The Defendants and the Plaintiff made submissions with respect to the concept of "in trade or commerce". A good part of the hearing on 1 September 2008 involved submissions addressing that question and reference to authorities in which that phrase has been considered, dealing with the TPA and the FTA, where there is a statutory definition in s.4 which has been relied upon by the Plaintiff on the present motion. 31 The Defendants emphasise that Malpass AsJ relied upon Concrete Constructions, where the High Court explained that the phrase "trade or commerce" encompasses only conduct undertaken in the course of transactions which, of their nature, bear a trading or commercial character. Paragraph [54] of the judgment of Malpass AsJ contains that part of his Honour's reasons. 32 The Defendants submit that the fresh FTA and TPA claims allege substantially the same conduct against the First and Second Defendants as did the original Statement of Claim. It is submitted for the Defendants that it is significant that the Amended Statement of Claim alleges no new matter which would go to the conduct identifying the character of conduct "in trade or commerce". 33 The Defendants note that the Amended Statement of Claim now particularises the matters giving rise to the allegations that the conduct was "in trade or commerce" by reference to the allegation that conduct occurred in the course of or in relation to "a business or professional activity", being the business of educational assessment. 34 Section 4 FTA provides that "trade or commerce" includes any business or professional activity. In this respect the Amended Statement of Claim seeks to pick up the FTA provision. This is an aspect which was emphasised by Mr King in his submissions as being a point of distinction between the original Statement of Claim and the Amended Statement of Claim. I will return to that topic shortly. 35 The Defendants submit that the Amended Statement of Claim, in particular with respect to the aspect of "in trade or commerce", refers to conduct which is said to have occurred in the course of and for the purpose of the restructure of the First and Second Defendants' business, that the conduct is said to have occurred in the course of the commercial activity of outsourcing the First and Second Defendants' business, and that the conduct occurred in the course of and for the purpose of the ongoing business activity of the First and Second Defendants with a view to externalising their business. The Defendants submit that these particulars do not advance the Plaintiff's case. I accept that submission. 36 The Defendants submit that even if the matters particularised are accepted as true, as indeed they ought be for the purpose of an application such as this, it does not follow that the conduct alleged is conduct which occurred in trade or commerce. 37 The High Court in Concrete Constructions rejected a broad view of the phrase "trade or commerce" which would encompass conduct which does not of itself bear a trading or commercial character, but which is undertaken in the course of or incidental to the carrying on of some overall trading or commercial business. I accept the Defendants' submission that the requirement that the conduct must itself bear a trading or commercial character applies equally in the context of the FTA, notwithstanding its expanded definition of trade and commerce: Prestia v Aknar (1996) 40 NSWLR 165 at 189-190; Fasold v Roberts (1997) 70 FCR 489 at 528; New Cap Reinsurance Corp Ltd v Daya [2008] NSWSC 64 at [46]. 38 I do not consider that the cases relied upon by the Plaintiff, including McCormick v Riverwood International Australia Pty Ltd [1999] FCA 1640 and Stoelwinder v Southern Health Care Network (2000) 177 ALR 501, assist him on the present application. The arguments advanced in that respect, it seems to me, echo arguments not accepted by Malpass AsJ. As I accept the Defendants' submission with respect to the result of a comparison of the original pleadings with the current pleadings, those decisions continue not to assist the Plaintiff. 39 I accept the Defendants' submission that the determination of Malpass AsJ that the conduct alleged by the Plaintiff does not itself bear a trading or commercial character is decisive of the fresh FTA and TPA claims, as it was with the previous claims. I accept the submission of the Defendants that the extended definition of "trade or commerce" in the FTA does not eliminate or exclude the distinction drawn in Concrete Constructions: Houghton v Arms (2006) 225 CLR 553 at 565 [32] and the other cases referred to at [37] above, which have touched upon the FTA definition of "trade or commerce". 40 I accept the submission of the Defendants that it follows that there remains a need, in the context of the FTA, to examine the pleaded and particularised conduct to determine whether or not it is relevantly internal or preparatory to something done in trade or commerce or as part of the business or professional activities of the Defendants. I accept the submission of the Defendants that the employment of the person for the purposes of that business was professional activity and not relevantly, conduct in the course of that activity. 41 I accept the Defendants' submission that there is no material change in the particulars of conduct relied upon in terms of the representations alleged to have been made to the Plaintiff. 42 I do not accept the Plaintiff's submission that the legal effect of Malpass AsJ's order was that he dismissed nothing. I do not consider that Mr King's arguments by reference to Mraz v The Queen (No 2) (1956) 96 CLR 62 and Connelly v DPP (1964) AC 1254 assist the Plaintiff's case. His Honour summarily dismissed the claims under the FTA and TPA as they were contained in the original Statement of Claim. Those orders have legal effect when a Plaintiff seeks to plead again a claim which is, in effect, materially the same, in a later pleading. 43 I will, in due course, make orders striking out the paragraphs which I have held are affected in the manner contended for by the Defendants. In the circumstances of this case, I consider that the appropriate order is to strike out those paragraphs pursuant to r 14 r 28 Uniform Civil Procedure Rules 2005. 44 I turn to the Defendants' submissions based on other grounds. These arguments seek the striking out of parts of the Amended Statement of Claim. Like Malpass AsJ, I am conscious that summary relief of that type ought be granted only in a clear case and that the onus lies in that respect on the Defendants. 45 The Defendants submit, firstly, that the particulars given in paragraphs 24E(a) to (c) relate to alleged representations to the effect that outsourcing was in the interests of the business of the Defendants. The Defendants submit, and I accept the submission, that it is not apparent how representations of this kind, if they were made, would be capable of sustaining any case in which the Plaintiff could have suffered loss or damage "by" the alleged conduct within the meaning of s.68 FTA or s.82 TPA. 46 The Defendants submit, and I accept the submission, that in paragraphs 24E(a) to (c), there is no pleading of any reliance by either the Plaintiff or the representees for whom the representations in the subject paragraphs are alleged to have been made. I accept the Defendants' submission that this is fatal because, even on the so-called three-party scenario, there must be reliance and/or a clear pleading that the alleged misleading or deceptive conduct, which is here said to be the representations to third parties, caused the Plaintiff's loss or damage. 47 With respect to paragraph 24I, the Defendants submit that simply mimicking the language of the statute, namely, s.68 FTA, by using the word "by", is quite inadequate and there must be a pleading of material facts going to causation and that this is not simply a matter of particulars. In this respect the Defendants rely upon the decision of French J in Bond Corporation v Theiss Contractors (1987) 14 FCR 215 at 222-3. 48 I accept that submission. I note that no material facts are pleaded in paragraphs 24E or 24I. In the circumstances, I am satisfied that paragraphs 24E(a) to (c) should be struck out as disclosing no reasonable cause of action. 49 The Defendants submit that the claims under s.43 FTA contained in paragraphs 24K and 24L of the Amended Statement of Claim must fail for an additional reason to the primary argument advanced, being the replication of pleading ground. The Defendants submit that s.43 applies only to a supplier who engages in unconscionable conduct in connection with the supply or possible supply of goods or services to a consumer. A "consumer" is defined in s.5 as, relevantly, a person who acquires goods or services from a supplier. In the present case, there is no allegation that the Plaintiff himself acquired any goods or services from the Defendants. Although the reasons I have given to date will lead to orders striking out paragraphs 24K and 24L, I accept this additional argument advanced by the Defendants for taking the same course. 50 Finally, the Defendants submit that paragraphs 24I and 24J, which claim an entitlement to consequential relief on contraventions alleged earlier in the Amended Statement of Claim, ought be struck out insofar as the relief sought depends on the allegations made in paragraphs 24A, 24B, 24C, 24E, 24F and 24G. It seems to me that it follows, given the decision I have reached with respect to those paragraphs, that those parts ought be struck out as well. 51 I am satisfied that the Defendants have established an entitlement to relief as sought in the Notice of Motion. As I have observed already, it seems to me that the appropriate course is to strike out the relevant paragraphs rather than make an order revoking leave to amend. The leave to amend, which was granted by the Registrar on 20 June 2008, was leave which did not involve any knowledge on the part of the Defendants, at that time, that the Plaintiff intended to maintain against the Defendants claims under the TPA and the FTA. The appropriate order is one under r 14 r 28 Uniform Civil Procedure Rules 2005. 52 Accordingly, I make an order in accordance with paragraph 2 of the Defendants' Notice of Motion filed 31 July 2008 in the following terms: Paragraphs 24A, 24B, 24C, 24E, 24F, 24G, 24I and 24J (insofar as relief sought in those paragraphs depends on allegations made in paragraphs 24A, 24B, 24C, 24E 24F and 24G) and paragraphs 24K, 24L, 24M and 24N of the Amended Statement of Claim filed 11 July 2008 be struck out pursuant to r 14 r 28 Uniform Civil Procedure Rules 2005. [Submissions were made as to costs]

53 I have recently given judgment upholding the Defendants' claim for relief in the Notice of Motion filed 31 July 2008. Submissions have been made on the question of costs. The Defendants submit that an order should be made in terms of paragraph 4 of the motion, that the Plaintiff pay the Defendants' costs forthwith, but amended so that the costs order be made on an indemnity basis. 54 Mr King, for the Plaintiff, submits that although he cannot be heard in opposition to a costs order on the ordinary basis, he opposes the making of an order for costs payable forthwith and an order for costs on an indemnity basis. The question of costs is a discretionary matter for the Court. Section 98 Civil Procedure Act 2005 provides, for costs to be awarded on either the ordinary basis or indemnity basis. 55 Ms Bennett, for the Defendants, points to a letter of 21 July 2008 (part of Exhibit A) from her firm to the Plaintiff's solicitor, which complained of the inclusion in the Amended Statement of Claim of claims under the FTA and the TPA, contending that this was in fact a replication of what had been dealt with by Malpass AsJ. The letter foreshadowed that, if the Plaintiff pressed the Amended Statement of Claim filed 11 July 2008 in its then form, application would be made to the Court to strike out the offending paragraphs and that, if such an application was brought, reliance would be placed upon the letter of 21 July 2008 in support of an application that the Plaintiff pay the Defendants' costs of the application forthwith and on an indemnity basis. 56 The Plaintiff's solicitor replied by letter dated 22 July 2008 (also part of Exhibit A), disputing the assertion that the controversial paragraphs in the Amended Statement of Claim re-agitated claims already dismissed and asserting that these were, in effect, fresh claims or fresh causes of action. The Defendants moved as foreshadowed by filing the Notice of Motion on 31 July 2008, which I have heard, determined and allowed. 57 Central to the arguments advanced on the Notice of Motion was the resolution of the dispute as to whether the FTA and TPA claims in the Amended Statement of Claim were fresh, new or, in effect, a replication of that which had been dismissed by Malpass AsJ. It was accepted that there was some re-organisation of paragraphs and re-wording and there was a new argument advanced with respect to the definition of "trade or commerce" in s.4 FTA. 58 It is not irrelevant to the question of costs that the Plaintiff did not give notice to the Defendants of an intention to include in the Amended Statement of Claim the claims under the FTA and the TPA. Mr King asserts that if they were, in truth, fresh claims or new claims, then it was open to the Plaintiff to include them in the Amended Statement of Claim. I have held, of course, that they are not fresh claims or new claims, although there are some peripheral aspects where the claims are in a different category to what was advanced before Malpass AsJ. 59 In effect, I have held that the inclusion of the vast majority of these paragraphs is an abuse of process. It is true that to reach that decision I heard extended argument, but I have come down clearly on the side of upholding the argument that these amendments constitute an abuse of process. The Plaintiff came to court on Monday knowing what had been foreshadowed on 21 July 2008, that if the argument ran and was lost, the Defendants would seek an order for costs payable forthwith and on an indemnity basis. It is true that the Notice of Motion did not include the indemnity costs aspect, but it has not been submitted that there could have been any misunderstanding as to what the Defendants' application would be. 60 I accept Mr King's submission that it was necessary for me to resolve the argument. As I have said, I have come down firmly on the side of the Defendants' arguments. In the unusual circumstances of this case, where the Plaintiff moved to re-plead the statutory claims under these two Acts without notice to the Defendants and in circumstances where I have held they are an abuse of process, and in the circumstances where the Plaintiff was clearly on notice that an application for indemnity costs payable forthwith would be made, I am satisfied that the foundation has been laid for such an order. 61 Accordingly, I order the Plaintiff to pay the First, Second and Third Defendants' costs on an indemnity basis forthwith. I have included the order that the costs be payable forthwith because it seems to me, in the circumstances of this case, it is an appropriate order in the exercise of discretion.

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Trade Practices Act 1974(Cth)

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