Chojna, Harry v Dick Smith Electronics Pty Ltd

[1981] FCA 170

Re: HARRY CHOJNA, PETER ALPAR, AND FUTURETRONICS (AUSTRALIA) PTY. LIMITED
And: DICK SMITH ELECTRONICS PTY. LIMITED
No. G73 of 1981
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Fox J.
Northrop J.

CATCHWORDS

Practice and procedure - Application to strike out statement of claim as disclosing no cause of action - Application to strike out statement of claim as abuse of process of the Court - Respondent entitled to choose not to call any evidence - Heavy onus on appellant (applicant) in such an application not discharged.

Pleading - Not sufficient for statement of claim to repeat sections of the legislation - Statement of claim should only allege matters expected to be proved - Respondents entitled to adequate particulars.

Federal Court Rules, Order 11 r.16, Order 20 r.2.

HEARING

SYDNEY

#DATE 25:9:1981

ORDER

THE COURT ORDERS THAT the appeal be dismissed.

JUDGE1

We have been hearing an appeal from a decision of Mr. Justice Deane in interlocutory proceedings relating to an action brought under the Trade Practices Act 1974. The applicants in that action allege breaches of the resale price maintenance and monopolisation provisions of the Act. There are four respondents. At the time of the proceedings only three had been served and they were the parties who by way of notice of motion commenced the proceedings under appeal. The relief sought in the notice of motion is in part that the action be dismissed as against the three appellants, or stayed, on the ground that there is no cause of action. This is put on the basis that the statement of claim does not disclose a cause of action, and also on the basis of what is stated in that document combined with evidence adduced by the appellants before the learned Judge. It is also submitted that the whole or nominated parts of the statement of claim should be struck out as a matter of pleading.

Reliance is placed on Order 11 rule 16 of the rules of this Court and Order 20 rule 2 and reference has been made to the inherent jurisdiction of the Court. Application has also been made, supported by evidence, that the action should be dismissed as being an abuse of the process of the Court on the basis that the action has been brought for a collateral purpose or purposes.

To make good some of the submissions, Counsel has taken us to a number of interesting but debatable questions arising on the construction of the Trade Practices Act. The evidence has frequently been referred to and relied upon. While senior Counsel then appearing for the applicant in the motion, the respondent in this appeal, cross-examined at the hearing before Deane J., no evidence was then called on its behalf. Some concessions made by Counsel at that time have also been relied upon.

We are much indebted to Counsel for their careful and helpful arguments, and we have listened with attention to all that has been put on behalf of the appellants. We are, however, of the view that the appeal should be dismissed. This is an appeal at an interlocutory stage concerning matters which are mainly of practice and procedure. In his decision the learned Judge, having heard the motion at length, set the course so far as he then could for the conduct for the principal hearing, and we should only interfere with his decision if we are clearly satisfied that he was in error in a particular regard. We are in fact satisfied that no clear case has been made for us to grant the relief sought.

The appellants have sought to arrest the proceedings at this stage on grounds which are insubstantial or are not established. The appellants relied upon the absence of evidence from the respondent/applicant, but it should be emphasised that the procedure followed should not be allowed to compel the applicant to embark upon a premature hearing. The matter should go to a hearing when many matters will doubtless fall into place. The legal arguements to which we have referred will then have their proper factual setting and not be as hypothetical or abstract as in the main they now are.

With one exception, we respectfully agree with the conclusions reached by Deane J. and with his reasons and entirely agree with what he said in relation to a submission concerning abuse of process.

The exception is that we would have taken a stronger view adverse to the statement of claim as it was when he was considering the matter. In the circumstances, however, this is not a sufficient ground to allow the appeal.

Deane J. granted leave to amend the statement of claim and an amended document was produced on the day he gave his decision. He granted further leave to amend on that day, the amendments to accord with his reasons. A further document was filed thereafter and is in the appeal book, although it was not before his Honour. In our view, the latest document is still defective as a pleading and the opportunity should be taken to put it in order.

The respondents in the action are entitled to insist that all material facts relied upon, and no immaterial matter, be set out in the body of the statement of claim. It is not normally sufficient simply to repeat in terms sections of the legislation. Much matter which is shown as particulars should appear in the body of the statement of claim and the respondents should be given adequate particulars.

Much of the problem which has so far occurred seems to us to be related to the deficiencies in the pleading. We do not wish to insist on an over-technical approach in a matter such as the present and are not desirous that there be further delay in bringing the matter on for hearing. After eight days below and three days before us, we have little doubt that the parties are now well seized of the issues.

Nevertheless, as the matter is proceeding on the pleadings, we consider that they should be pleadings in proper form. A stricter approach in this case will, as we see it, be for the benefit of all parties. We would hope and expect that the amended document will rely less on full and indiscriminate quotation of sections and sub-sections of the Act, in particular those parts dealing with persons who aid and abet, etcetera, and insert only those particular matters which it is reasonably expected can be proved.

Two matters, one of which apparently was not raised before the learned Judge, should be mentioned. Counsel for the appellants has asked us that an order be made (a) staying proceedings until a trade mark case between the fourth respondent in the action and the respondent to this appeal is determined or (b) until the fourth respondent has been served. We see no reason why either order should be made.

We cannot deal with the latest statement of claim as part of this appeal. However, it should be taken off the file and a further and improved document filed. We therefore give leave to amend generally. The defective pleading before us and its resultant difficulties need to be considered when dealing with the order for costs we should make. We are of the view that the costs of the appeal should be costs in the action.