Keshi Pty Ltd v Firefly Press (Australia) Pty Ltd - [2008] FCA 440

FEDERAL COURT OF AUSTRALIA
Keshi Pty Ltd v Firefly Press (Australia) Pty Ltd [2008] FCA 440
PRACTICE AND PROCEDURE – provision of particulars where the relevant facts are solely within the knowledge of the opponent – discovery before full particulars – particulars by stages – whether the inadequately particularised pleading is essential to any cause of action
Copyright Act 1968 (Cth)
Trade Practices Act 1974 (Cth) Pt V
Federal Court Rules O 12 r 3
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Bruce v Odhams Press Ltd [1936] 1 KB 697
Castlemaine Perkins Ltd v Queen Street Hotels Pty Ltd (1968) Qd R 501
Cyril Leonard & Co v Simo Securities Trust Ltd (1972) 1 WLR 80
Dare v Pulham (1982) 148 CLR 658
Egg & Egg Pulp Marketing Board v KH Korp Tocumal Trading Co Pty Ltd (1963) VR 378
Fieldturf Inc v Balsam Pacific Pty Ltd [2003] FCA 809
Fox v H Wood (Harrow) Ltd [1963] 2 QB 601
Goldsmith v Sandilands (2002) 190 ALR 370
Harbord v Monk (1878) 38 LT 411
Higgins v Weekes (1889) 5 TLR 238
Keogh v Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577
Keshi Pty Ltd v Firefly Press (Australia) Pty Ltd [2007] FCA 982
Lawson v Perpetual Trustee Co (Ltd) (1959) 76 WN (NSW) 367
Mann v Board of Health (ACT) (1996) 67 FCR 383
Marshall v The Inter-Oceanic Steam Yachting Co (1885) 1 TLR 394
Millar v Harper (1888) 39 Ch D 110
Murchison Zinc Company Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167
Palmos v Georgeson [1961] Qd R 186
Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd [2006] FCA 1395
R v Associated Northern Collieries (1910) 11 CLR 738
Rubenstein v Truth & Sportsman Ltd [1960] VR 473
Smith v Littlemore (1996) 15 WAR 289
Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228
KESHI PTY LTD (ACN 109 285 029) and DENYSE JOY RITCHIE v FIREFLY PRESS (AUSTRALIA) PTY LTD (ACN 064 482 579), BARBARA MURRAY and TERESA WATSON
WAD 212 OF 2007
MCKERRACHER J
2 APRIL 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 212 OF 2007

BETWEEN:

KESHI PTY LTD
(ACN 109 285 029)
First Applicant

DENYSE JOY RITCHIE
Second Applicant

AND:

FIREFLY PRESS (AUSTRALIA) PTY LTD
(ACN 064 482 579)
First Respondent

BARBARA MURRAY
Second Respondent

TERESA WATSON
Third Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

2 APRIL 2008

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The applicants to provide further and better particulars of paragraphs 6 and 16 of the statement of claim within 28 days.
2.The applicants to pay the first respondents’ costs of the motion to be taxed or agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 212 OF 2007

BETWEEN:

KESHI PTY LTD
(ACN 109 285 029)
First Applicant

DENYSE…

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.

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Details

Case: [2008] FCA 440
Decision Date: 2 April 2008

CaseChat Overview and Summary

Keshi Pty Ltd sought leave to amend its statement of claim against Firefly Press (Australia) Pty Ltd and two others in the Federal Circuit Court of Australia. The central dispute revolves around claims of breach of contract and associated damages. The applicants argued that the proposed amendments would not alter the case's substantive nature and were necessary to clarify the basis of their claims. The court had to determine whether the applicants could amend their statement of claim and, if so, under what conditions.

The court considered whether the proposed amendments were permissible under the rules of court and whether they would prejudice the respondents' ability to adequately respond to the claims. The applicants needed to demonstrate that the proposed amendments were necessary to ensure just and efficient resolution of the proceedings. The court found that while the applicants had a right to amend their pleadings, the proposed changes to paragraphs 6 and 16 were not sufficiently particularised and might prejudice the respondents. The court required the applicants to provide more detailed particulars before granting leave to amend.

The court ordered the applicants to provide further and better particulars of the specified paragraphs within 28 days. The applicants were also directed to pay the first respondent's costs of the motion, which were to be taxed or agreed. The court's decision underscores the importance of clarity and particularity in pleadings and the need to balance the right to amend with the potential for prejudice to respondents.

Orders

Orders of the court

1. The applicants to provide further and better particulars of paragraphs 6 and 16 of the statement of claim within 28 days.

2. The applicants to pay the first respondents’ costs of the motion to be taxed or agreed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MCKERRACHER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MCKERRACHER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 212 OF 2007

JUDGE:	MCKERRACHER J
DATE OF ORDER:	2 APRIL 2008
WHERE MADE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 212 OF 2007