Home Page / Cases / Auskay v Qantas

Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd

[2008] FCA 1458; (2008) ATPR 42-256 (29 September 2008) (original strike-out proceeding)
[2009] FCA 1464 (further strike-out proceeding)
[2010] FCAFC 96 (appeal)



Original strike-out proceeding

This application involved an application to strike out an amended statement of claim; consideration of whether amended statement of claim disclosed reasonable cause of action. Considered ss 4E, 45, 45A, 82 and 87 of the (then) TPA

The applicant was a representative party on behalf of a group of members who had (either directly or indirectly) paid for freight services provided by the respondents. It was alleged by the applicant that the respondents were members of a cartel which had agreed to and did fix charges for international airfreight into and out of Australia and that this increased prices through imposition of an agreed fuel surcharge, security surcharge and war-risk surcharge (para 3).

The respondents argued all or part of the applicant's Second Amended Statement of Claim (SASC) should be struck out 'on the grounds that it discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay.' (para 5)

Justice Tracey concluded that the SASC should be struck out, finding that the SASC was 'fundamentally flawed' (para 51).

Subsequent strike-out proceeding

A further amended statement of claim was also struck out by Justice Tracey in December 2009:

Appeal to the Full Court

Auskay appealed the strike out to the Full Federal Court; on 12 August 2011 the Full Federal Court granted leave to appeal and set aside the strike out orders made by Justice Tracey on 11 December 2009.




Case links