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…

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.

Continue reading Chojna, Harry v Dick Smith Electronics Pty Ltd

Details

AGLC: Chojna, Harry v Dick Smith Electronics Pty Ltd [1981] FCA 170
Case: [1981] FCA 170
Decision Date: 25 SEPTEMBER 1981

CaseChat Overview and Summary

Chojna v Dick Smith Electronics Pty Ltd involved an application by the respondent to strike out the appellant's statement of claim on the grounds that it disclosed no cause of action and constituted an abuse of the Court's process. The appellant had sought to establish a cause of action for breach of a franchise agreement. The Federal Court was tasked with determining whether the application to strike out was justified.

The court considered whether the statement of claim disclosed a reasonable cause of action and whether there was an abuse of the Court's process. It held that the appellant had not discharged the heavy onus required to succeed in such an application. The court found that the statement of claim set out a sufficient case for the appellant to establish a cause of action, and there was no evidence of an abuse of process. The court also noted that the respondent had the right to choose not to call any evidence in response to the claim.

The court concluded that the appellant's application to strike out was without merit. It found that the appellant had not demonstrated that the statement of claim disclosed no reasonable cause of action or that there was an abuse of the Court's process. The appeal was dismissed, and the statement of claim remained in place for further proceedings. The court emphasised the importance of the heavy onus placed on the party seeking to strike out a statement of claim and the need for such applications to be approached with caution.

Orders

Orders of the court

THE COURT ORDERS THAT the appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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