Lamb v Hog’s Breath Company Pty Ltd (No 2) [2007] FCA 201

Lamb v Hog’s Breath Company Pty Ltd (No 2) [2007] FCA 201

The statement of claim was struck out in its entirety for being too general, insufficient, and potentially embarrassing, as it failed to distinguish claims and causes of action against specific respondents and to provide sufficient particulars of the alleged infringing acts. The applicant was ordered to file a substituted statement of claim with greater particularity, and respondents were given liberty (but not required) to provide information to facilitate this. Discovery or interrogation may be allowed if information is not provided voluntarily.

Parties
Applicant: John Charles Lamb; First Respondent: Hog's Breath Company Pty Ltd ACN 011 054 970; Second Respondent: Hog's Breath Cafe (Australia) Pty Ltd ACN 071 132 655; Third Respondent: HB Investments Pty Limited ACN 060 678 328; Fourth Respondent: Hog's Breath Clothing Co Pty Ltd ACN 060 678 355; Fifth Respondent: Donald Richard Algie
Jurisdiction
Australia
Judgment Date
26 February 2007
Procedural Posture
Interlocutory Motion / Ruling on Motion to Strike Out Statement of Claim
Outcome
Statement of claim struck out with leave to replead
Legal Topics
Copyright Infringement, Moral Rights, Pleadings, Particularisation of Claims, Discovery
Intellectual Property Practice and Procedure Copyright Infringement Moral Rights Pleadings Particularisation of Claims Discovery

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Parties

John Charles Lamb

Applicant

Hog's Breath Company Pty Ltd ACN 011 054 970

First Respondent

Hog's Breath Cafe (Australia) Pty Ltd ACN 071 132 655

Second Respondent

HB Investments Pty Limited ACN 060 678 328

Third Respondent

Hog's Breath Clothing Co Pty Ltd ACN 060 678 355

Fourth Respondent

Donald Richard Algie

Fifth Respondent

Procedural Posture

Interlocutory Motion / Ruling on Motion to Strike Out Statement of Claim

Legal Issues

  1. 1 Whether the statement of claim should be struck out for insufficient specificity and failure to distinguish between respondents and causes of action
  2. 2 Whether the applicant should be permitted to replead following provision of information by respondents

Ratio Decidendi

The statement of claim was struck out in its entirety for being too general, insufficient, and potentially embarrassing, as it failed to distinguish claims and causes of action against specific respondents and to provide sufficient particulars of the alleged infringing acts. The applicant was ordered to file a substituted statement of claim with greater particularity, and respondents were given liberty (but not required) to provide information to facilitate this. Discovery or interrogation may be allowed if information is not provided voluntarily.

Court Disposition

Statement of claim struck out with leave to replead

Orders

  • Applicant to file and serve substituted statement of claim by 26 March 2007.
  • Respondents at liberty to provide applicant by 12 March 2007 with information regarding corporate responsibilities and use of alleged infringing works and trade marks.