Trade Practices Commission v The Gillette Company

[1993] FCA 798

7 9 8 / 9 3

JUDGMENT No. ...... ,.,o,,o.~ , ,,.,, ,, ,,,.

IN THE FEDERAL COURT OF AUSTFUGIA ) NO. NG 628 of 1992

1

GENERAL DIVISION 1

BETWEEN:	T R A D E	P R A C T I C E S
COMMISSION Applicant

AND :	THE GILLETTE COMPANY
First Respondent
W I L K I N S O N  S W O R D
LIMITED
Second Respondent
WSGAL Pty Limited (formerly "Wilkinson Sword Group Australia

1 Q MQV 1993 Limited" )

FEDERAL COURT OF

AUrnALIA	Third Respondent
PRINCIPAL REQISTRY
REGISTRAR OF TRADE MARKS
Fourth Respondent

CORM:	WILCOX J
PLACE	t SYDNEY
DATE :	1 NOVEMBER 1993

effected upon it in the United States. The other application

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: The applications before me today are for leave to appeal against two interlocutory decisions of Burchett J. One decision was made on a motion by the first respondent, the Gillette Company, an American corporation, whereby that

applicant sought to set aside the service of the Application

was made by an Australian company, WSGAL Pty Limited, the third respondent in the principal proceeding. This respondent asks that the Statement of Claim be struck out, as against it, because it fails to disclose a cause of action.

I do not propose to go into the detail of the matter. I have read the judgment delivered by his Honour, in which he dealt with the case pleaded in the Statement Of Claim. It should be noted that, at the hearing before his Honour, counsel for the applicants expressly put their submissions upon the basis of the Statement of Claim as drafted, eschewing any contention that the Statement of Claim was not supported by evidence. That position was maintained before me today. As the situation was described in discussion between myself and senior counsel for the two applicants for leave, the issue in the application is really whether or not the Statement of Claim is demurrable.

Counsel has taken me in detail through the Statement of Claim. He has commented about matters in respect of which	he says that the Statement of Claim lacks precision or
contains some inconsistencies. I do not think that these criticisms are made out. Even if they were, they would not, in my opinion, justify me in granting leave to the applicants to take either matter to the Full Court. In my firm view, the Full Court should not become involved with matters of practice and procedure, unless some point of general principle is at stake. This is for a number of reasons. One is the
disruption to the orderly progress of a case which occurs if pre-trial appeals are taken to the Full Court. Secondly, appeals are an expensive business. The Court should do what it can to discourage unnecessary litigation, in the interests of minimising costs. Thirdly, it is a strain upon the resources of the Court to provide Full Courts. This should not be done unnecessarily.
In the present case, having listened to everything put by counsel and - I think - understanding what he has said, there is no general point of principle. It seems to me that the cause of action pleaded in the Statement of Claim emerges with crystal clarity: that the respondents have breached s.50 of the Trade Practices Act 1974.
The Statement of Claim sets out a series of steps by which it says that the first respondent, Gillette Company, acquired the assets associated with the business formerly conducted in Australia by the second respondent, Wilkinson
blades and other products under the name "Wilkinson Sword", Limited. That business included the entitlement to sell razor Sword Limited, through the third respondent, WSGAL Pty
and associated intellectual property rights. The pleader elected to break up the history of the relevant events into three compartments. The pleader referred to them as "the first acquisition", "the second acquisition" and "the third acquisition". The reason for this course is, I think, apparent. It is arguable that s.50 was breached right at the
beginning, by the two transactions called "the first transaction". It is also arguable that the acquisition, and therefore the breach of 6.50 was not completed until the second acquisition or, alternatively, even the third acquisition. Wishing to cover all these possibilities, the pleader pleaded acquisition in the alternative. There is nothing improper, or even unusual, about that course. Nothing put to me suggests that the respondents, or any of them, are in the slightest doubt as to the case being alleged against them. It seems to me that the Statement of Claim is not demurrable.
I need not enter into the question whether or not there must be a prima facie case in respect of each one of a number of causes of action, where service has been effected overseas. In the present case, properly analysed, the Statement of Claim pleads only a single cause of action. The allegations of fact set out in the Statement of Claim support that cause of action, as pleaded. In saying that, of course I make no judgment as to whether the allegations in the
That is a matter which does not arise at this stage. I am Statement of Claim will be supported by evidence at the trial.
only saying that the case made by the applicant is, in my opinion, very clearly expressed by the Statement of Claim. If the allegations set out in the Statement of Claim are made good at the trial, in my opinion the applicant will make out a case for relief under s.50. Whether or not that relief will include a divestiture order is a matter for consideration by
the trial judge in the light of the then evidence, and in the exercise by the trial judge of the Court's discretion. The fact that this order is one open to a trial judge, in a case like this, does not mean that there is a second cause of action.
On behalf of WSGAL the position is put slightly differently. Here it is not a question of setting aside service; WSGAL is an Australian company. But it is claimed that the Statement of Claim should be set aside because it does not clearly identify the cause of action. I disagree with this. I think it is quite plain what the Trade Practices Commission is alleging against WSGAL, rightly or wrongly, on the facts.
In my opinion, in respect of both matters, an appeal would have little or no prospect of success. Indeed, I would go so far as to say that either appeal would be hopeless. Under such circumstances, I do not think it appropriate to
that is to say the Gillette Company and WSGAL Pty Limited, pay grant leave to appeal. I order that the applicants for leave to appeal, I dismiss the notices of motion.
to the applicant in the principal proceedings, the Trade Practices Commission, the costs of the applications made today.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment
of the Honourable Justice Wilcox.
Associate: -3 Dated: 1 November 1993
Counsel for the Applicant:  J S Hilton and P Comans
Solicitors for the Applicant:  Australian Government

Solicitor

Counsel for the Respondent:	J Campbell QC and P Durack
Solicitors for the Respondent:	Allen Allen & Hemsley
Date of hearing:	1 November 1993