Bryer Merchandisers v Nike Australia - [2001] FCA 154

FEDERAL COURT OF AUSTRALIA
Bryer Merchandisers v Nike Australia [2001] FCA 154
BRYER MERCHANDISERS PTY LIMITED & ORS V NIKE AUSTRALIA PTY LIMITED
N 1402 OF 1999
WHITLAM J
28 FEBRUARY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1402 OF 1999

BETWEEN:

BRYER MERCHANDISERS PTY LIMITED
FIRST APPLICANT

COBRA HOLDINGS PTY LIMITED
SECOND APPLICANT

MHP PTY LIMITED
THIRD APPLICANT

ST GEORGE WHOLESALERS PTY LIMITED
FOURTH APPLICANT

AND:

NIKE AUSTRALIA PTY LIMITED
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

28 FEBRUARY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The amended statement of claim be struck out.
2.The applicants have liberty to file and serve an amended application and a further amended statement of claim within 28 days.
3.The applicants pay the respondent’s costs of its motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1402 OF 1999

BETWEEN:

BRYER MERCHANDISERS PTY LIMITED
FIRST APPLICANT

COBRA HOLDINGS PTY LIMITED
SECOND APPLICANT

MHP PTY LIMITED
THIRD APPLICANT

ST GEORGE WHOLESALERS PTY LIMITED
FOURTH APPLICANT

AND:

NIKE AUSTRALIA PTY LIMITED
RESPONDENT

JUDGE:

WHITLAM J

DATE:

28 FEBRUARY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicants commenced this proceeding by filing with their application an affidavit instead of a statement of claim. The application sought relief under the Trade Practices Act 1974 (Cth) (“the Act”) and for breach of contract. The affidavit was made by one Paul Dwyer. He is a director of each of the applicants. They operate five retail stores in the Sydney metropolitan area. The first, third and fourth applicants trade under the name Paul’s Warehouse at Kogarah, Campbelltown and Homebush. The second applicant trades under the name Cobra in Sydney and at Parramatta. All the stores sold Nike-branded footwear and sportswear purchased from the respondent (“Nike”). In 1999 Nike declined to accept further orders from the applicants and closed their trading accounts.
Mr Dwyer’s affidavit comprises 160 pages. He deposes to aspects of the applicants’ business and also chronicles, in a stream-of-consciousness style, his dealings with Nike since the early 1990s. The effect of conversations is stated in direct speech with frequent use of scatological and blasphemous expressions. No doubt this is designed to lend a sense of authenticity to Mr Dwyer’s recollection of events.
However, on the day before the first directions hearing, the applicants filed a statement of claim. (I shall refer to this original statement of claim hereafter as the “OSC”.) At that hearing counsel for Nike immediately objected to the pleading as embarrassing. The matter was adjourned. At the next directions hearing I directed that, if Nike wished to seek an order under rule 16 of Order 11, it should file notice of a motion to that effect. This was done. When that motion was listed for directions, the applicants undertook to file an amended statement of claim and the motion was adjourned to permit that course. An…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 154
Decision Date: 28 FEBRUARY 2001

CaseChat Overview and Summary

In Bryer Merchandisers v Nike Australia, the Federal Court was asked to decide whether a claim for damages could proceed against Nike Australia by Bryer Merchandisers. The dispute arose from a licensing agreement between the parties, with Bryer alleging that Nike breached the agreement and caused substantial financial loss. The case involved questions about the enforceability of the agreement and the legal principles governing claims for damages in the context of intellectual property rights.

The court was tasked with determining whether the amended statement of claim was legally sufficient to proceed to trial. The primary issue was whether the amended statement of claim sufficiently disclosed a cause of action against Nike Australia. The court also had to consider whether the claim met the requirements of the Australian Consumer Law and the relevant statutes governing unfair contract terms. The court's analysis involved a detailed examination of the pleadings and the evidence provided by the parties to ascertain whether the amended statement of claim was sufficient to warrant a trial.

In its decision, the court found that the amended statement of claim did not sufficiently disclose a cause of action against Nike Australia. The court determined that the pleadings were vague and did not provide the necessary details to allow Nike Australia to properly respond to the allegations. The court held that the amended statement of claim failed to adequately particularise the alleged breaches and the resultant damages. Consequently, the court struck out the amended statement of claim and granted the applicants leave to file a further amended statement of claim within 28 days, while also ordering the applicants to pay the respondent's costs of the motion.

Orders

Orders of the court

1. The amended statement of claim be struck out.

2. The applicants have liberty to file and serve an amended application and a further amended statement of claim within 28 days.

3. The applicants pay the respondent’s costs of its motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WHITLAM J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WHITLAM J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1402 OF 1999

BETWEEN:	BRYER MERCHANDISERS PTY LIMITED FIRST APPLICANT COBRA HOLDINGS PTY LIMITED SECOND APPLICANT MHP PTY LIMITED THIRD APPLICANT ST GEORGE WHOLESALERS PTY LIMITED FOURTH APPLICANT
AND:	NIKE AUSTRALIA PTY LIMITED RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	28 FEBRUARY 2001
WHERE MADE:	SYDNEY

JUDGE:	WHITLAM J
DATE:	28 FEBRUARY 2001
PLACE:	SYDNEY