FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARR v EMPIRICAL WORKS PTY LTD & ANOR | [2017] FCCA 1813 |
| Catchwords: PRACTICE & PROCEDURE – Application in a Case to amend Response and cross-claim – Application in a Case for strike out of cross-claim – sequence in which the applications should be considered. |
| Legislation: Competition and Consumer Act 2010 (Cth), s.18 of sch.2 Fair Work Act 2009 (Cth), s.340 Federal Circuit Court Rules 2001 (Cth), rr.1.03, 7.01, 16.01 |
| Applicant: | PETER CARR |
| First Respondent: | EMPIRICAL WORKS PTY LTD |
| Second Respondent: | PAUL LIN |
| File Number: | SYG 549 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 12 April 2017 |
| Date of Last Submission: | 12 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms U Okereke-Fisher |
| Solicitors for the Applicant: | Duc Legal |
| Counsel for the Respondents: | Ms K Jones |
| Solicitors for the Respondents: | PCC Lawyers |
ORDERS
The respondents’ (in the substantive proceedings) Application in a Case made on 7 December 2016 is allowed.
The applicant’s (in the substantive proceedings) Application in a Case made on 13 March 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 549 of 2016
| PETER CARR |
Applicant
And
| EMPIRICAL WORKS PTY LTD |
First Respondent
| PAUL LIN |
Second Respondent
REASONS FOR JUDGMENT
On 9 March 2016 Mr Peter Carr made an application to this Court seeking an extension of time within which to make a competent…
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- Case
- [2017] FCCA 1813
- Decision Date
CaseChat Overview and Summary
The court was required to determine two principal applications. First, Empirical Works sought leave to amend its Response and to file a cross-claim. Second, Mr Carr sought to strike out that proposed cross-claim. A key procedural issue was the sequence in which these applications should be considered.
Judge Nicholls determined that the application to strike out the cross-claim should be considered first. His Honour reasoned that if the cross-claim was to be struck out, there would be no need to consider the application to amend it. The principles applied concerned the court's power to manage its own proceedings and the proper approach to applications for strike out, which require the court to assume the truth of the material facts pleaded in the cross-claim and determine if, as a matter of law, it discloses a cause of action.
The court ordered that the application to strike out the cross-claim be heard and determined before the application for leave to amend the Response and file the cross-claim.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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