Polystyrene Australia Pty Ltd v Trebol Plastics Pty Ltd [2000] FCA 723

Polystyrene Australia Pty Ltd v Trebol Plastics Pty Ltd [2000] FCA 723

The existing s 46 pleading was inadequate and paragraphs 52-70 were struck out. However, because the Court did not have material by which to evaluate the foreshadowed repleading against the General Steel test and was not satisfied that Trebol had acted in bad faith, Trebol was not barred from seeking to have a properly pleaded s 46 claim heard. The manner in which Trebol conducted the pleading of the cross-claim warranted indemnity costs.

Jurisdiction
Australia
Judgment Date
30 May 2000
Procedural Posture
Trade Practices Act 1974 (cth) S 46 Misuse of Market Power Claim in Defence and Cross Claim / Strike Out Motion and Application for Leave to Replead
Outcome
Paragraphs 52-70 of the Second Further Amended Defence and Cross-Claim were struck out; Trebol was given liberty to apply for leave to file and serve a further cross-claim with a repleaded s 46 claim; indemnity costs were ordered against Trebol.
Legal Topics
['misuse of Market Power' 'strike Out of Pleadings' 'leave to Replead' 'indemnity Costs']
['competition and Consumer Law' 'civil Procedure'] ['misuse of Market Power' 'strike Out of Pleadings' 'leave to Replead' 'indemnity Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Trade Practices Act 1974 (cth) S 46 Misuse of Market Power Claim in Defence and Cross Claim / Strike Out Motion and Application for Leave to Replead

Legal Issues

  1. 1 ['Whether paragraphs 52-70 of the Second Further Amended Defence and Cross-Claim pleading a Trade Practices Act 1974 (Cth) s 46 misuse of market power claim should be struck out or dismissed.' 'Whether Trebol Plastics Pty Ltd should be permitted to seek leave to file and serve a further cross-claim with a repleaded s 46 claim.' 'Whether costs of the strike out motion should be ordered on an indemnity basis.']

Ratio Decidendi

The existing s 46 pleading was inadequate and paragraphs 52-70 were struck out. However, because the Court did not have material by which to evaluate the foreshadowed repleading against the General Steel test and was not satisfied that Trebol had acted in bad faith, Trebol was not barred from seeking to have a properly pleaded s 46 claim heard. The manner in which Trebol conducted the pleading of the cross-claim warranted indemnity costs.

Court Disposition

Paragraphs 52-70 of the Second Further Amended Defence and Cross-Claim were struck out; Trebol was given liberty to apply for leave to file and serve a further cross-claim with a repleaded s 46 claim; indemnity costs were ordered against Trebol.

Orders

  • ['Paragraphs 52-70 of the Second Further Amended Defence and Cross-Claim be struck out.' 'The cross-claimant be given liberty to apply for leave to file and serve a further cross-claim, with a repleaded s 46 claim to replace the one struck out by virtue of order 1 (any such application to have annexed to it a copy...