Elms v Ansell Ltd [2007] NSWSC 618

Elms v Ansell Ltd [2007] NSWSC 618

The plaintiff's claims under s75AD and s74B of the Trade Practices Act 1974 (Cth) cannot be maintained because s75AI provides a defence where workers' compensation is, or could be, claimed, and the plaintiff was not a 'consumer' who 'acquired' goods within the statutory definitions; therefore, paragraphs 7-9 of the Statement of Claim should be struck out.

Parties
Plaintiff: Susan Mary Elms; Defendant: Ansell Ltd
Jurisdiction
Australia
Judgment Date
20 June 2007
Procedural Posture
Civil / Interlocutory Application Motion to Strike Out Pleading
Outcome
Strike-out of pleadings allowed
Legal Topics
Strike Out Application, Trade Practices Act, Workers' Compensation, Statutory Construction
Civil Procedure Commercial Law Strike Out Application Trade Practices Act Workers' Compensation Statutory Construction

Case Brief

Summary, issues, holding and outcome

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Parties

Susan Mary Elms

Plaintiff

Ansell Ltd

Defendant

Procedural Posture

Civil / Interlocutory Application Motion to Strike Out Pleading

Legal Issues

  1. 1 Whether paragraphs 7-9 of the Statement of Claim should be struck out for failing to disclose a cause of action under s75AD and s74B of the Trade Practices Act 1974 (Cth) given the plaintiff's entitlement to workers' compensation.
  2. 2 Whether the plaintiff could be considered a 'consumer' who 'acquired' latex gloves within the meaning of the Trade Practices Act 1974 (Cth).

Ratio Decidendi

The plaintiff's claims under s75AD and s74B of the Trade Practices Act 1974 (Cth) cannot be maintained because s75AI provides a defence where workers' compensation is, or could be, claimed, and the plaintiff was not a 'consumer' who 'acquired' goods within the statutory definitions; therefore, paragraphs 7-9 of the Statement of Claim should be struck out.

Court Disposition

Strike-out of pleadings allowed

Orders

  • Paragraphs 7-9 of the Statement of Claim are struck out.
  • The plaintiff is to pay the costs of the Notice of Motion.