Ferocem Pty Ltd v High Tech Auto Tools Pty Ltd

[1991] FCA 472

NOT SUITABLE FOR GENERAL DISTRIBUTION

THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGIST )

Ry 1 NG 633 of 1990

1

GENERAL DIVISION 1

BETWEEN:  D C E M PTY LIMITED and ANOTHER

Applicants

AND :  HIGH TECH AUTO TOOLS PTY LIMITED

Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE : 25 July 1991

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT .l.:

In this matter, a notice of motion has been taken out seeking an order striking out para. 7 of the statement of claim and para. 5 of the application. Paragraph 7 of the statement of claim, it was conceded in the course of argument, could be supported as alleging facts material to one way in which the claim under S. 52 of the Trade Practices Act might be sought to be made out at the hearing. For that reason, it is unnecessary to say any more about para. 7, and I will not strike it out. Paragraph 5 of the application raises more difficulty; however, it seems to me that a court should not strike out a prayer for relief unless a strong case is made

out.

mneral Steel Industries Inc v. Commissioner for Railwavs

jN.S.W.1 (1964) 112 CLR 125, of course, requires a strong case

to be made out for a grant of any relief of the nature of striking out, and I do not mean to suggest that any different test applies to an application from the test which applies to a statement of claim. However, in applying the test, it seems to me a court would be more reluctant to strike out a prayer, if there is some arguable footing propounded upon which the applicant would wish to go to trial and seek the relief specified. I cannot see any significant, or really, any, prejudice to the respondent in permitting the paragraph to remain in the application.

Furthermore, in this particular case it does appear to me that, despite what was put by counsel for the respondents, there is an arguable case to support the jurisdiction of the court to grant relief of the kind sought in para. 5 of the application. In part, the argument depends upon the meaning of S. 129(b) of the Patents Act 1990, a section which, at any

mixing of tenses. If only for that reason, I would be	rate at first reading, appears to involve a very confusing
reluctant to accede to a strike out application which depends upon giving a reading to the section, when any reading, either favourable or unfavourable to the applicants' case, requires the court to cut in some manner the Gordian knot of a quite inappropriate syntax.
I think eneral. Steel Industries Inc requires, in this case, that I take the view that there is an arguable case in favour of para. 5, and the applicants should not be shut out from raising that argument. For that reason, the motion will be dismissed with costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

Associate:  -%%W& -

c/

Date: 25 July 1991