Allwest Clearwater Pty Ltd v C.C.Kenny Pty Ltd & Anor [1986] FCA 369

F364

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NOT CONSIDERED SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY No. 37 of 1986

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GENERAL DIVISION

BETWEEN: ALLWEST CLEARWATER PTY LIMITED Applicant AND: aoe C.C. KENNY PTY LIMITED , ON ~) - so Respondent Si RECEIVED AND: mt OSE al SEP 1986 ALLWEST CLEARWATER PTY

LIMITED

PaiNcsPaAL CLShey, Cross-respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

I have before me a Notice of Motion to strike out a Cross-claim. It is argued that the Cross-claim clearly falls outside the jurisdiction of the Court, and that it should accordingly be struck out at this stage. Reference has been made

to Obacelo v. Taveraft Pty Limited (1985) 59 A.L.R. 571, and also

to the decision of Mr. Justice Fitzgerald given on 21 February

1984 in Maisey v. First Coast Pty Limited which is referred to at

page 578 of the report of the former case.

2.

It does not seem to me that it has been shown, applying the principles discussed by Mr. Justice Wilcox in Obacelo's Case, that, in the present case, the Cross-claim is outside the accrued jurisdiction of the Court. It seems to me that there is a strong common thread of alleged representations linking the transaction the subject of the Cross-claim, with that the subject of the Statement of Claim, so that in truth it has not been shown that

they are not all part of a single justiciable controversy.

I do not think that, at this stage, the Cross-claim can

be struck out unless it is shown that it, to use the words of

Chief Justice Barwick in the General Steel Industries Case 112

C.L.R.- 125 at 130 "cannot possibly succeed". (See also Hanimex

Pty Ltd v. Kodak (Australasia) Pty Ltd (1982) 4 A.T.P.R. 43593 at

43598-9 and Bill Acceptance Corporation Ltd v. GWA Ltd (1983) 50 A.L.R. 242 at 251-2.) I do not think the argument for the