Trade Practices Commission v The Gillette Company - [1993] FCA 798

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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,…

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: [1993] FCA 798
Decision Date: 1 Nov 1993

CaseChat Overview and Summary

In the Federal Court of Australia, the Trade Practices Commission sought leave to appeal against interlocutory decisions made by Burchett J. The first respondent, the Gillette Company, an American corporation, had sought to set aside the service of the application, while WSGAL Pty Limited, an Australian company, sought to have the Statement of Claim struck out on the basis that it failed to disclose a cause of action. Wilcox J was tasked with determining whether leave to appeal should be granted.

The primary legal issue before Wilcox J was whether the Statement of Claim was demurrable. The applicants argued that the Statement of Claim lacked precision and contained inconsistencies, which they claimed warranted the setting aside of service or the striking out of the claim. Wilcox J examined the Statement of Claim in detail and found that it clearly set out a single cause of action, alleging that the respondents had breached s.50 of the Trade Practices Act 1974. Wilcox J noted that the applicants had not contested the validity of the service of the claim, and that there was no general point of principle that would warrant the involvement of the Full Court.

Wilcox J held that the Statement of Claim was not demurrable and that the cause of action pleaded was clear and supported by the allegations of fact. Wilcox J also found that the applications for leave to appeal had little or no prospect of success and would likely be hopeless. Consequently, Wilcox J dismissed the notices of motion and ordered that the applicants pay the Trade Practices Commission's costs.

In summary, Wilcox J found that the Statement of Claim was not demurrable and that the applications for leave to appeal were without merit. The court dismissed the motions and ordered the applicants to pay the Trade Practices Commission's costs.

Orders