Fullflow Systems Ltd v Armpower Pty Ltd & Ors [1997] FCA 458

Fullflow Systems Ltd v Armpower Pty Ltd & Ors [1997] FCA 458

Paragraph 6 of the statement of charge was ambiguous as to whether the promotional material had been distributed before the undertaking, was being distributed generally, or was distributed during the period of the undertaking, and it did not identify how, by whom, to whom, or when the alleged representation was made. The defect was fundamental and would require a substantially new statement of charge, so leave to amend should not be granted and the relevant parts of the motion should be dismissed.

Jurisdiction
Australia
Judgment Date
23 May 1997
Procedural Posture
Application for Contempt of Court by Notice of Motion / Hearing Confined to Objection to the Form of the Statement of Charge; No Evidence Was Read
Outcome
Motion dismissed in so far as it included paragraphs 2 and 3; applicant ordered to pay the costs of the first, second and third respondents of the hearing of the motion in so far as it comprised those paragraphs.
Legal Topics
['statement of Charge for Contempt' 'particularity of Contempt Charge' 'amendment of Documents in Proceedings' 'dismissal of Defective Contempt Motion']
['civil Procedure' 'contempt of Court'] ['statement of Charge for Contempt' 'particularity of Contempt Charge' 'amendment of Documents in Proceedings' 'dismissal of Defective Contempt Motion']

Case Brief

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Procedural Posture

Application for Contempt of Court by Notice of Motion / Hearing Confined to Objection to the Form of the Statement of Charge; No Evidence Was Read

Legal Issues

  1. 1 ['Whether the statement of charge adequately specified the contempt alleged against the first, second and third respondents under Federal Court Rules, O 40, r 6.' 'Whether leave should be granted to amend the statement of charge or the motion should be dismissed.' 'Whether dismissal for formal defect would prevent the applicant from bringing a fresh contempt motion on a properly formulated statement of charge.']

Ratio Decidendi

Paragraph 6 of the statement of charge was ambiguous as to whether the promotional material had been distributed before the undertaking, was being distributed generally, or was distributed during the period of the undertaking, and it did not identify how, by whom, to whom, or when the alleged representation was made. The defect was fundamental and would require a substantially new statement of charge, so leave to amend should not be granted and the relevant parts of the motion should be dismissed.

Court Disposition

Motion dismissed in so far as it included paragraphs 2 and 3; applicant ordered to pay the costs of the first, second and third respondents of the hearing of the motion in so far as it comprised those paragraphs.

Orders

  • ['The motion brought by notice of motion filed by the applicant on 16 May 1997, in so far as it includes paras 2 and 3, be dismissed.' 'The applicant pay the costs of the first, second and third respondents of the hearing of the motion, in so far as is it comprises those two paragraphs.']