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

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

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.

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

that high level.

Accordingly, it

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

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.

CaseChat Overview and Summary

In the matter of Allwest Clearwater Pty Ltd v C.C.Kenny Pty Ltd, the Federal Court of Australia was tasked with deciding whether to strike out a cross-claim filed by the respondent, C.C. Kenny Pty Ltd. The applicant, Allwest Clearwater Pty Ltd, sought to have the cross-claim removed from the proceedings, arguing that it fell outside the court's jurisdiction. The court had to consider the principles established in relevant case law to determine whether the cross-claim was within the jurisdiction of the court.

The primary legal issue before the court was whether the cross-claim, which pertained to a transaction linked to the main claim, was justiciable and within the court's jurisdiction. The court examined the connection between the cross-claim and the main claim, considering if they constituted a single justiciable controversy. The court also had to assess whether the cross-claim could possibly succeed based on the evidence presented. Furthermore, the court needed to decide whether leave should be granted to amend the cross-claim to include a relevant consumer product safety standard under the Trade Practices Act 1974.

The court found that the cross-claim was not outside the jurisdiction of the court, as there was a strong common thread of alleged representations linking the transaction in the cross-claim with the main claim. The court held that the cross-claim could not be struck out unless it was shown that it could not possibly succeed, a standard that the applicant had not met. Consequently, the court dismissed the motion to strike out the cross-claim and ordered the cross-respondent to pay the costs of the motion. The court also declined to grant leave to amend the cross-claim at that stage, suggesting that further consideration should be given to the proposed amendments before leave to amend was granted.

This decision underscores the importance of demonstrating a clear and justiciable link between related claims in determining the court's jurisdiction over a cross-claim. It also highlights the court's reluctance to strike out a cross-claim at an early stage unless it is evident that the claim could not possibly succeed. The court's ruling ensures that all relevant aspects of a controversy are considered within a single proceeding, promoting efficiency and fairness in the judicial process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established