Legal Research
Cases
Cilli v Abbott

Cilli v Abbott

Case [1981] FCA 70 5 June 1981

Resale Price Maintenance

No judgment structure available for this case.

Type to search within this case.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	NO. G31 of 1981
GENERAL DIVISION

BETWEEN: DICK SMITH

ELECTRONICS PTY.

LIMITED

Applicant

AND :	-	HARRY	CHOJNA
Flrst Respondent

AND :

PETER

ALPAR

Second Respondent

AND :

FUTURETRONICS

(AUSTRALIA) PTY.

LIMITED

Third Respondent

AND :

ATARA

INC.

Fourth Respondent

JUDGE MAKING ORDER:

Deane J.

DATE OF

ORDER:

5 June, 1981

WHERE MADE:

Sydney

ORDERS

I order

that

the

following

struck

out

of the

Statement of Claim:

-2-

( a )

The words "a power i n

r e l a t l o n

t o

the

market

in Aus t ra l ia wi th in the meaning of

s.46

t h e

Trade Practices Act

1974"

i n paragraph

16:

(b) The words

power

i n

r e l a t i o n

t o

t h e

s a i d

market i n Austral ia within the meaning

of s.46

the

Trade

Pract

ices

Act

1974"

paragraph

19:

( c )

The words

"market

i n A u s t r a l i a

f o r

t h e s a l e

t o

r e t a i l e r s o f e l e c t r o n i c c o m p u t e r

games

o f

t h e

same

c l a s s

a s

t hose

manufac tu red

under

l i c e n c e

f r o m

t h e

f o u r t h

r e s p o n d e n t "

i n

paragraph

the S ta tement of

C l a i m :

( d ) Paragraphs l1 and 2 1 of the

Statement

Claim.

2 .

o r d e r

t h a t

t h e

f o l l o w i n g

p a r t i c u l a r s

i n c l u d e d

i n

the S ta tement

Clalm be s t ruck out :

( a )

P a r t i c u l a r

( a )

u n d e r

p a r a g r a p h s

1 2 ,

1 3 ,

and

23 of

the

Statement

Clalm;

(b)

P a r t i c u l a r s 4,

6 , under

paragraph

1 7 of

t h e

Statement of Claim.

3 .

I give

the

applicant

leave

amend

the

Statement

of Claim in accordance with

the reasons for judgment.

Amended copy of the Statement

of Claim to be filed and served

on or

before 10 June, 1981.

4. I DIRECT:

(a)	That the applicant amend the Statement of Claim by adding new particulars in the place

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 Cilli v Abbott

Details

AGLC: Cilli v Abbott [1981] FCA 70
Case: [1981] FCA 70
Decision Date: 5 Jun 1981

CaseChat Overview and Summary

The case of Cilli v Abbott before the Federal Court of Australia involves a dispute between Dick Smith Electronics Pty. Limited, the applicant, and several respondents, including Harry Chojna, Peter Alpar, Futuretronics (Australia) Pty. Limited, and Atari Inc. The applicant initiated proceedings seeking injunctive relief and damages, alleging that Futuretronics engaged in resale price maintenance and monopolization in contravention of the Trade Practices Act. The first three respondents moved to dismiss the proceedings or have them struck out, arguing that the applicant's claims would inevitably fail, that the proceedings were an abuse of process, and that certain parts of the Statement of Claim should be struck out as a matter of pleading or due to embarrassing particulars. The court rejected the submissions regarding the dismissal of the proceedings, finding that the applicant was entitled to have its claims heard and determined according to the due course of procedure. The court also found that certain parts of the Statement of Claim should be struck out due to conclusions of law or lack of precision, but allowed the applicant to amend the Statement of Claim to address these issues. The court granted an interim injunction in a narrowed form sought by the first three respondents, reserving liberty to either side to bring the issues raised by the injunction on for further hearing. The court also allowed the first three respondents an opportunity to seek further and better particulars from the applicant.

Orders