Blow Bar Co Pty Limited v McGann (No 3) [2018] FCA 980

Blow Bar Co Pty Limited v McGann (No 3) [2018] FCA 980

The proper course, where the pleadings are inadequate but it is not certain that no reasonable cause of action could be pleaded, is to strike out the defective paragraphs with leave to replead, rather than summarily dismiss the claims.

Jurisdiction
Australia
Judgment Date
02 July 2018
Procedural Posture
Interlocutory Application / Orders Following Application to Strike Out and for Summary Judgment
Outcome
Respondents' application for summary judgment dismissed; selected paragraphs struck out with leave to replead; other orders as to joinder, mediation, and case management; costs reserved.
Legal Topics
['summary Judgment' 'strike Out Application' 'passing Off' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'confidentiality Agreement' 'pleading Requirements']
['practice and Procedure' 'intellectual Property'] ['summary Judgment' 'strike Out Application' 'passing Off' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'confidentiality Agreement' 'pleading Requirements']

Case Brief

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Procedural Posture

Interlocutory Application / Orders Following Application to Strike Out and for Summary Judgment

Legal Issues

  1. 1 ['Whether paragraphs of the Amended Statement of Claim should be struck out for failure to state material facts' 'Whether any cause of action should be summarily dismissed for lacking reasonable prospects of success' 'Adequacy of particulars for claims of passing off, misleading and deceptive conduct, unconscionable conduct, and breach of confidentiality agreement']

Ratio Decidendi

The proper course, where the pleadings are inadequate but it is not certain that no reasonable cause of action could be pleaded, is to strike out the defective paragraphs with leave to replead, rather than summarily dismiss the claims.

Court Disposition

Respondents' application for summary judgment dismissed; selected paragraphs struck out with leave to replead; other orders as to joinder, mediation, and case management; costs reserved.

Orders

  • ['Paragraphs [32]-[37], [66]-[81], [82]-[98], [99]-[107] and [108]-[123] of the Amended Statement of Claim are struck out, with leave to replead and incorporation of particulars per Exhibit B.' 'Directions made for parties to file and serve submissions on costs.' 'Timetable set for repleading, joinder, defence,...