Fleming's Nurseries Pty Ltd v Siciliano [2006] FCA 757

Fleming's Nurseries Pty Ltd v Siciliano [2006] FCA 757

Sub-paragraphs (c) and (d) of paragraphs 34 to 52 of the Amended Statement of Claim, alleging commercialisation/offering for sale or selling protected material, are not supported by sufficient particulars and must be struck out; the remaining claims are sufficiently pleaded and not so untenable as to be struck out; leave to amend is granted to clarify relief and pleadings.

Jurisdiction
Australia
Judgment Date
22 May 2006
Procedural Posture
Application to Strike Out/amend Pleadings / Interlocutory (pleading Stage, Notice of Motion)
Outcome
Interlocutory orders—partial strike out and leave to amend; notice of motion otherwise dismissed; costs order
Legal Topics
['pleadings' "plant Breeder's Rights" 'infringement' 'particulars of Infringement' 'wrongful Interference With Contractual Rights']
['practice and Procedure' 'intellectual Property'] ['pleadings' "plant Breeder's Rights" 'infringement' 'particulars of Infringement' 'wrongful Interference With Contractual Rights']

Case Brief

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Procedural Posture

Application to Strike Out/amend Pleadings / Interlocutory (pleading Stage, Notice of Motion)

Legal Issues

  1. 1 ['Whether claims in the statement of claim are properly pleaded and disclose a reasonable cause of action' 'Whether claims are so untenable that they cannot possibly succeed' 'Whether the particulars are sufficient to support the allegations in the statement of claim' "Whether pleadings specify manner and instances of alleged infringement under the Plant Breeder's Rights Act"]

Ratio Decidendi

Sub-paragraphs (c) and (d) of paragraphs 34 to 52 of the Amended Statement of Claim, alleging commercialisation/offering for sale or selling protected material, are not supported by sufficient particulars and must be struck out; the remaining claims are sufficiently pleaded and not so untenable as to be struck out; leave to amend is granted to clarify relief and pleadings.

Court Disposition

Interlocutory orders—partial strike out and leave to amend; notice of motion otherwise dismissed; costs order

Orders

  • ['Sub-paragraphs (c) and (d) of paragraphs 34 to 52 of the Amended Statement of Claim are struck out.' 'Applicants granted leave to amend the Amended Statement of Claim.' 'Applicants granted leave to amend the Application.' 'Notice of motion dated 19 April 2006 filed by the Respondents is otherwise dismissed.'...