Allwest Clearwater Pty Ltd v C.C.Kenny Pty Ltd

[1986] FCA 369

NOT CONSIDERED SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
)
WESTERN AUSTRALIA DISTRICT REGISTRY	) NO. 37 of 1986
)

DIVISION	GENERAL	1
BETWEEN :

ALLWEST CLEARWATER PTY

LIMITED

Applicant

- AND :

C.C. KENNY PTY LIMITED

Respondent

- AND :

ALLWEST CLEARWATER PTY

LIMITED

Cross-respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

I have before me a Notice of Motion to strike out a

Cross-claim. It is argued that the Cross-claim clearly falls

outside the jurisdiction of the Court, and that it should

accordingly be struck out at this stage. Reference has been made

to Obacelo v . Taveraft Pty Limited (1985) 59 A.L.R. 571, and also

to the decision of M r . Justice Fitzgerald given on 21 February 1984 in Maisey v. First Coast Pty Limited which is referred to at

page 578 of the report of the former case.

i

i 2.

It does not seem to me that it has been shown, applying the princlples discussed by Mr. Justice Wilcox in Obacelo's Case, that, in the present case, the Cross-claim is outside the accrued jurisdictlon of the Court. It seems to me that there is a strong common thread of alleged representations linking the transaction the subject of the Cross-claim, with that the subject of the

Statement of Claim, so that in truth it has not been shown that they are not all part of a single justiciable controversy.

I do not think that, at this stage, the Cross-claim can

be struck out unless it is shown that it, to use the words of

Chief Justice Barwick In the General Steel Industries Case 112

C.L.R. 125 at 130 "cannot possibly succeed". (See also Hanimex

Pty Ltd v. Kodak (Australasia) Pty Ltd (1982) 4 A.T.P.R. 43593 at

43598-9 and Bill Acceptance Corporation Ltd V. GWA Ltd (1983) 50

A.L.R. 242 at 251-2.) I do not think the argument for the

applicant Cross-respondent comes up to that high level.

Accordingly, it is not necessary for me to consider certaln

proposed amendments to the Cross-claim which have been adumbrated

as providing a possible answer to the Motion.

As I think that further consideration should be given to

those proposed amendments before leave is given to amend the would be clear to those who, on behalf of the Cross-respondent, would have to prepare a defence, whether or not the proposed amendments allege that there was a prescribed consumer product

J .-

2   3 .

safety standard within s . 6 2 of the Trade Practices Act 1974,

which was relevant to the matters to be raised by the amendments

- I am not prepared, at this stage, to grant leave to	amend in
that fashion.

However, for the reasons I have already given, it is not

necessary to proceed to that point, in order to deal with the

Notice of Motion. I dismiss the Motion and I order that the

Cross-respondent pay the costs of the Motion.

I certify that this and the

precedlng two ( 2 ) pages are a

true copy of the Reasons for

Judgment herein of his Honour

Mr. Justice Burchett.

Dated: 20 August, 1986.