Showtime Touring Group Pty Ltd v Mosley Touring Inc

Showtime Touring Group Pty Ltd (the applicant) sought leave to appeal from interlocutory orders made by a primary judge concerning pleadings and costs in proceedings against Mosley Touring Inc and others. The dispute involved a claim for accessorial liability under section 75B of the *Trade Practices Act 1974* (Cth). The appeal was heard by Bathurst CJ, McColl JA, and Bergin CJ in Eq in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the pleaded facts sufficiently demonstrated that the alleged accessory participated in the misleading or deceptive conduct, and whether a variation of an interlocutory costs order under rule 42.7(2) of the Uniform Civil Procedure Rules 2005 (NSW) required the application to be made to the judge who made the original order.

The Court of Appeal reasoned that the paragraphs of the amended statement of claim relating to accessorial liability did not adequately plead the necessary elements of participation in the contravening conduct. Consequently, these paragraphs were struck out, but leave was granted to amend the claim against the second defendant. Regarding the costs order, the Court determined that a variation under rule 42.7(2) did not necessitate the application being made to the original judge.

The Court of Appeal granted leave to appeal, directed the applicant to file a Notice of Appeal, and varied the primary judge's order by deleting certain sub-paragraphs. It ordered that specific paragraphs of the amended statement of claim be struck out, with leave to amend the claim against the second defendant. The appeal was otherwise dismissed, and the applicant was ordered to pay the respondents' costs of the application for leave to appeal and the appeal.