Australian Competition & Consumer Commission v Golden West Network Pty Ltd & Ors [1997] FCA 792

Australian Competition & Consumer Commission v Golden West Network Pty Ltd & Ors [1997] FCA 792

Although the proposed pleading, particularly paragraphs 25 and 26A, stated conclusions, it also stated basic or constitutive facts, and in some instances the two were inextricably mixed. As a matter of case management, the appropriate course was to allow the ACCC's amendments, dismiss the strike out motions, and refuse further particulars because the respondents could plead and the ACCC's evidence would clarify the particulars sought.

Jurisdiction
Australia
Judgment Date
19 August 1997
Procedural Posture
Federal Court Proceeding Alleging Contraventions of the Trade Practices Act 1974 / Interlocutory Notices of Motion for Leave to Amend, Strike Out, and Particulars
Outcome
The ACCC's motion for leave to amend was granted; the respondents' strike out and related motions were dismissed; the costs of all three motions were made the applicant's costs in the proceeding.
Legal Topics
['trade Practices Act 1974 Part Iv' 'exclusive Dealing' 'anti Competitive Agreements' 'pleadings' 'amendment of Pleadings' 'strike Out Applications' 'further and Better Particulars' 'case Management']
['competition Law' 'civil Procedure'] ['trade Practices Act 1974 Part Iv' 'exclusive Dealing' 'anti Competitive Agreements' 'pleadings' 'amendment of Pleadings' 'strike Out Applications' 'further and Better Particulars' 'case Management']

Case Brief

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Procedural Posture

Federal Court Proceeding Alleging Contraventions of the Trade Practices Act 1974 / Interlocutory Notices of Motion for Leave to Amend, Strike Out, and Particulars

Legal Issues

  1. 1 ['Whether the ACCC should be granted leave to file and serve an amended application and a further amended statement of claim.' 'Whether paragraphs of the amended statement of claim should be struck out because they asserted conclusions rather than material facts.' 'Whether the respondents should be ordered further and better particulars of allegations in the amended statement of claim.']

Ratio Decidendi

Although the proposed pleading, particularly paragraphs 25 and 26A, stated conclusions, it also stated basic or constitutive facts, and in some instances the two were inextricably mixed. As a matter of case management, the appropriate course was to allow the ACCC's amendments, dismiss the strike out motions, and refuse further particulars because the respondents could plead and the ACCC's evidence would clarify the particulars sought.

Court Disposition

The ACCC's motion for leave to amend was granted; the respondents' strike out and related motions were dismissed; the costs of all three motions were made the applicant's costs in the proceeding.

Orders

  • ['Leave be granted to the applicant to file and serve an amended application substantially in the form attached to the notice of motion dated 31 July 1997 and marked "A" thereto.' 'Leave be granted to the applicant to file and serve a further amended statement of claim in the form attached to the said notice of...