Chojna, Harry & Ors v Dick Smith Electronics Pty Ltd [1981] FCA 170

CATCHWORDS - Practice and procedure - Application to strike out statement of claim as disclosing no cause of action - Application to

strike out statement of claim as abuse of process of the Court ~ Respondent entitled to choose not to call any evidence -

Heavy onus on appellant (applicant) in such an application not

discharged. Pleading - Not sufficient for statement of claim to repeat sections of the legislation - Statement of claim should only

allege matters expected to be proved - Respondents entitled to

adequate particulars.

Federal Court Rules, Order 11 r.16, Order 20 r.2.

HARRY CHOJNA & ORS. v. DICK SMITH ELECTRONICS PTY. LIMITED

N.S.W. No. G73 of 1981

Bowen C.J., Fox and Northrop JJ.

25 September 1981

Sydney.

IN THE FEDERAL COURT OF AUSTRALIA) )

NEW SOUTH WALES DISTRICT REGISTRY) No. G73 of 1981 ) GENERAL DIVISION ) BETWEEN:

HARRY CHOJNA, PETER ALPAR, and FUTURETRONICS (AUSTRALIA) PTY.

LIMITED Appellants AND: DICK SMITH ELECTRONICS PTY. LIMITED Respondent ORDER JUDGES MAKING ORDER: Bowen C.J., Fox and Northrop JJ. DATE OF ORDER: 25 September 1981. WHERE MADE: Sydney.

THE COURT ORDERS THAT the appeal be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA) )

NEW SOUTH WALES DISTRICT REGISTRY) No. G73 of 1981 ) GENERAL DIVISION ) BETWEEN:

HARRY CHOJNA, PETER ALPAR, and FUTURETRONICS (AUSTRALIA) PTY. LIMITED

Appellants

AND:

DICK SMITH ELECTRONICS PTY. LIMITED

Respondent

CORAM: Bowen C.J., Fox and Northrop JJ.

25 September 1981.

REASONS FOR JUDGMENT

We have been hearing an appeal from a decision of Mr. Justice Deane in interlocutory proceedings relating to an

action brought under the Trade Practices Act 1974. The

applicants in that action allege breaches of the resale price maintenance and monopolisation provisions of the Act. There are four respondents. At the time of the proceedings only three had been served and they were the parties who by way of notice of motion commenced the proceedings under appeal.