Dick Smith Electronics v Harry Chojna & Ors [1981] FCA 70

Dick Smith Electronics v Harry Chojna & Ors [1981] FCA 70

The court held that it would be improper to strike out or dismiss the proceedings or major allegations in the Statement of Claim at this stage, as it is not inevitable the applicant will fail; some specific pleading defects identified were ordered struck out with leave to amend; some particulars which were embarrassing were struck out; the applicant was granted leave to amend the Statement of Claim and ordered to provide further particulars; an interlocutory injunction restraining prejudicial publicity by the applicant was granted in narrowed terms pending further hearing.

Parties
Applicant: Dick Smith Electronics Pty. Limited; First Respondent: Harry Chojna; Second Respondent: Peter Alpar; Third Respondent: Futuretronics (Australia) Pty. Limited; Fourth Respondent: Atari Inc.
Jurisdiction
Australia
Judgment Date
05 June 1981
Procedural Posture
Civil / Interlocutory (rulings on Pleadings, Particulars, and Interlocutory Injunction)
Outcome
Statement of Claim partially struck out with leave to amend; certain particulars struck out; interlocutory injunction granted; further and better particulars to be provided; liberty to apply reserved; costs reserved.
Legal Topics
Resale Price Maintenance, Monopolization, Statement of Claim, Pleading Requirements, Abuse of Process, Particulars, Interlocutory Injunction
Competition Law Trade Practices Civil Procedure Resale Price Maintenance Monopolization Statement of Claim Pleading Requirements Abuse of Process +2 more

Case Brief

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Parties

Dick Smith Electronics Pty. Limited

Applicant

Harry Chojna

First Respondent

Peter Alpar

Second Respondent

Futuretronics (Australia) Pty. Limited

Third Respondent

Atari Inc.

Fourth Respondent

Procedural Posture

Civil / Interlocutory (rulings on Pleadings, Particulars, and Interlocutory Injunction)

Legal Issues

  1. 1 Whether the proceedings or parts of the Statement of Claim should be struck out on the ground that they must fail or are vexatious/abuse of process.
  2. 2 Whether certain paragraphs and particulars in the Statement of Claim are objectionable as a matter of pleading or are embarrassing.
  3. 3 Whether the applicant is entitled to amend its Statement of Claim.

Ratio Decidendi

The court held that it would be improper to strike out or dismiss the proceedings or major allegations in the Statement of Claim at this stage, as it is not inevitable the applicant will fail; some specific pleading defects identified were ordered struck out with leave to amend; some particulars which were embarrassing were struck out; the applicant was granted leave to amend the Statement of Claim and ordered to provide further particulars; an interlocutory injunction restraining prejudicial publicity by the applicant was granted in narrowed terms pending further hearing.

Court Disposition

Statement of Claim partially struck out with leave to amend; certain particulars struck out; interlocutory injunction granted; further and better particulars to be provided; liberty to apply reserved; costs reserved.

Orders

  • Certain words and paragraphs (specified) in the Statement of Claim struck out.
  • Applicant given leave to amend Statement of Claim per reasons and to file amended Statement on or before 10 June 1981.