Globelegance BV v Mantas, K

[1993] FCA 725

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IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY NO. VG 25 of 1991 t -

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GEMRAI. DIVISION	1	! .
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B E T W E E N :	I
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GLOBELEGANCE BV AND ANOR	I -
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Applicants

KONSTANTINOS MANTAS AND ANOR

Respondents

JUDGE:	Heerey J
DATE :
-	16 September 1993
PLACE :	Melbourne

REASONS FOR JUDGMENT

This is an application to strike out paragraphs of the defence

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and cross-claim, relying on 0.11 r.16 of the Federal Court

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Rules. It is well established that striking out will &ly

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ordered if the case appearing for the pleadings is "so

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untenable that it cannot possibly succeed": see General Steel

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Industries v The Commissioner for Railways New South Wales

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(1964) 112 CLR 125 at 130.

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The first complaint relates to paragraph 29 and following of

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the third amended defence. The following particulars are

given : 

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J gave leave to deliver an amended defence including these

I am somewhat influenced by the history of this matter. Olney

paragraphs. It is <rue that the particulars did not then appear in the draft of the proposed amendment and his Honour reserved liberty to the respondent to apply. Nevertheless the essential validity of the pleas under consideration in terms of their arguability have, in substance, already been before the court once. The case the respondents seek to make out is one of actual knowledge. The particulars they have given are, I think, sufficient particulars.

Whether or not a case proved consistently with those particulars will be enough to persuade the trial judge that the applicants did have actual knowledge of the kind alleged

is of course a matter for trial,  . - but I_ do not - - think _the -

particulars in themselves warrant the conclusion that the relevant paragraphs of the defence are so totally lacking in merit that they should be struck out.

As to the question of further and better particulars, that I

think does not assist the matter one way or the other. The applicants' complaint has to be assessed in the light of the

particulars as they are, and for the reasons that I have mentioned I do not think they lead to the conclusion that the paragraphs should be struck out.

There was then complaint made of the paragraphs of the defence and the cross-claim which assert, in essence, that the applicant's knowledge of the respondent's use of the disputed name "Valentino" in the early 1980s, coupled with the applicant's failure to complain or take any steps to stop the respondents, was misleading and deceptive conduct. The

assertion is that the conduct misled and deceived the

respondents into thinking that they were entitled to use that name. It is true that no positive act is alleged, but it is now clearly established that there can be misleading and deceptive conduct even if there are no positive acts of the person against whom that allegation is made: see Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31. Whether the allegations do in fact establish a breach of s .52 of the Trade Practices Act 1974 (Cth) is a matter for the trial judge.

.As to  ... costs, the motion to strike out was a discrete,-

substantial application in which the applicant failed. The applicants ought to pay the respondents' costs on that. In the circumstances of this case I do not think it is any answer to say directions would have occurred in any event when, if not for the motion, those directions would probably have been

made by consent. So I think there were quite separate costs

which the applicants will have to bear because of the result
of the motion.

1 will order that:

1.	The motion by notice dated 14 September 1993 is dismissed.
2.	The applicants file and serve a reply in defence to cross claim on or before 30 September.
3.	The parties file and serve any supplementary list of documents consequent upon the amended pleadings on or before 14 October.
4.	The applicants pay the respondents' costs of this day and that the costs reserved until today by Olney J on 15 July 1993 be costs in the cause.
5.	The applicants pay to the respondents costs thrown away by reason of the amendment to the applicants' statement of claim made pursuant to the order of Olney J on 15 July

"The knowledge of the applicants is to be inferred from the fact that the conduct and activities referred to in paragraph 17 have been publicly carried on in Australia as therein set out. Further particulars will be provided after discovery and interrogation."

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6.   The respondents pay to the applicants the costs thrown away by reason of the respondents' third amended defence.

I . - 7. . The summons- for directions be adjourned to 22 October . .

1993.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

ADDearances
Counsel for the applicants:	Mr M Goldblatt
Solicitor for the applicants:	Freehill Hollingdale & Page
Counsel for the respondents:	Mr A McNab
Solicitor for the respondents:	Galbally & O'Bryan
Date of hearing:	16 September 1993