McHutchison v Western Research and Development Ltd

FEDERAL COURT OF AUSTRALIA

McHutchison v Western Research and Development Ltd [2004] FCA 1234

Federal Court Rules O 45 r 7

McHutchison v Western Research and Development Ltd [2004] FCA 419 cited
Bloomsdale Greeting Cards Pty Ltd v Jai Li He [2004] FCA 321 distinguished

ROY NEIL McHUTCHISON v WESTERN RESEARCH AND DEVELOPMENT LTD
W208 of 2003

RD NICHOLSON J
10 SEPTEMBER 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W208 OF 2003

BETWEEN:	ROY NEIL McHUTCHISON APPLICANT
AND:	WESTERN RESEARCH AND DEVELOPMENT LTD RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	10 SEPTEMBER 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.   Leave be given pursuant to O 45 r 7(2) to the solicitors for the applicant to file and serve a notice of withdrawal.

2.   The respondent’s three interlocutory applications, namely:

(a)the application to strike out the statement of claim dated 10 November 2003;

(b)the application for a declaration that the decision of 8 April 2004 does not give rise to an issue estoppel in relation the question of whether Eastland Technology Australia Ltd entered into the consultancy agreement dated 7 September 2001 as agent for its subsidiaries, including Western Research & Development Ltd;

(c)the application for costs of the application dated 13 February 2004 to restrain the applicant’s solicitor;

be reserved for judgment on the written submissions presently before the Court.

3.   Following delivery of judgment on the three interlocutory applications, the proceeding be listed for further directions.

4.   Costs be reserved.

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	W208 OF 2003

BETWEEN:	ROY NEIL McHUTCHISON APPLICANT
AND:	WESTERN RESEARCH AND DEVELOPMENT LTD RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	10 SEPTEMBER 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This proceeding is listed this morning for the hearing of three matters arising on the motion of the respondent.  The first is an application for orders to strike out a statement of claim.  That motion was originally brought in relation to a statement of claim, in substitution of which the applicant has lodged a minute of proposed amended statement of claim but without curative steps being taken in relation to some or all of the issues raised by the motion.  Therefore, the substance of the motion remains to be resolved. 

2. The second matter is a motion from the respondent seeking a declaration in relation to issue estoppel.  That arises from reasons which I delivered on 8 April 2004 (McHutchison v Western Research and Development Ltd [2004] FCA 419). The question is whether the findings alleged to have been made there give rise to an estoppel as the applicant contends.

3. The third matter concerns costs in relation to a motion to restrain the applicant's former solicitor from acting for the applicant or being involved in any matter connected to the subject matter of this proceeding for reason of conflict of interest. 

4. This proceeding was commenced…