Parker v Churchill - [1985] FCA 425

425

No. G.8 of 1385

"ND:

LEWAS FOULTRY

PTY

LIMITED

Cross rlaimant

The Appl ica t ion

dismissed.

The

Cross

C l a i m

be d i smis sed .

The o r d e r nf t h e C m r t made on 1 March 1985 srherobp

l t was ordered tha t the p roceed inss entitled Lefkas

Poul t ry

Ptg.Limited

v Russel l

Hockhmg,

number

107 of

1985,

i n the Supreme court

,>f V i c t o r i s

b e

stayed be

r e sc inded .

The a p p l i c a n t pay to the respondent

i t s ccsts of

the

p r o c e e d m g s .

m c l u d l n q

the

c o s t s of

th is motion.

i s not

s u f f i c i m t (Tene ra1

i n t e re s t

IN THE	FEDERAL	i7QrJRT	OF .\USTPALIA	)
)

MEW SOUTH	MALES	DISTRICT REGISTRY	’
1

GENERAL

DIVISION

)

BETWEEM :

RrJSSELL HQlTKHIMG TRADIFJG

AS LAKEMBA FOULTRY

MJD

FPQZEN FOODS

Appl icant

LEFVAS

POULTRY

PTY

LIMITED

Respondent

P-EID :

LEFF-AS

FOrJLTF?

FT? LIMITED

Crgsz Clalmant

AND :

ETJFSELL HOL‘FHING TRADING

’

LAKEMBA PQULTRY AMI?

FPOZEM

FOQDS

This i3 the hearlnq of a Notlce qf Motion filed ?r?

behalf cmf

9 respondent co proceedinus said to have been

brought pursuant to

5 5 . 5 2 and 53 (of the Trade Practices Act

1974. The Appllcation,

which was filed on 21 January 1985,

claimed orders that the respondent had contravened those

sections and It l l s o claimed orders in respect of neqllqence

and breach of contract.

The Appllcaticn souuht damaqes and

interest as well as costs.

On 75 March l985 9 Statement of Claim was flled.

that Statement of Claim the

applicant alleged that he csrrles

on the busmess of a wholesaler and distributor of frozen pml%ry and operates Chrnuqh the whole of the Sydney rec(101:

providlnq and selling frozen poultry

t9 butchers' shops anil tg

clubs. This

alles?3tion is not in lssue.

HP fclrther a l l e ~ e d

that the respondent is a company duly incorporated and

llable

to be sued in its corporate name; and thls also is not	m
Issue.

3 .

The substance of these allegstions was nct in issue:

but there was dispute between the parties, as appeared when

the respondent's Ijefence was

filed, as to the subsequent

allecfations by rhe applicant that chickens which were supplied

were not of-good quality. In particular, the allegation was

made khat some of the chickens were not frozen. It was said

that 10 per cent of the frozen chlckens delivered to the

appllcant were not of

good quality and had not been properly

frozen by the respondent; vere thawed out prlor to dellrrer:~ to the applicant:…

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: [1985] FCA 425
Decision Date: 15 Aug 1985

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Parker v Churchill involved a dispute between Russell Hocking, trading as Lefkas Poultry, and Frozen Foods, who brought an application against the respondent, Lefkas Poultry Pty Limited. The application was made under sections 52 and 53 of the Trade Practices Act 1974, alleging that Lefkas Poultry had contravened these sections. The applicant also claimed orders in respect of negligence and breach of contract, seeking damages, interest, and costs. The core issue was whether Lefkas Poultry had supplied chickens that were not of good quality, specifically alleging that some chickens were not properly frozen and were unfit for human consumption.

The court found that the applicant's Statement of Claim was defective as it did not allege any representations made by Lefkas Poultry that would constitute misleading or deceptive conduct under section 52, nor did it specify any conduct amounting to a representation under section 53. The court held that the applicant's claims were essentially for breach of contract to supply frozen and merchantable quality chickens, which did not fall under the Trade Practices Act. Consequently, the court dismissed the application and struck out the Statement of Claim, noting that no good purpose would be served by allowing an amendment or adjournment. Additionally, the court rescinded the earlier order staying the proceedings in the Supreme Court of Victoria and ordered the applicant to pay the respondent's costs in this Court. The dismissal was made without prejudice to the right of either party to bring further proceedings in relation to their respective claims.

Orders