F364 fa "Ye 4] / NOT CONSIDERED SUITABLE FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY No. 37 of 1986 eee 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 applicant Cross-respondent comes up to that high level. Accordingly, it is not necessary for me to consider certain proposed amendments to the Cross-claim which have been adumbrated as providing a possible answer to the Motion. As I think that further consideration should be given to those proposed amendments before leave is given to amend the Cross-claim - since it is not clear to me and I do not think would be clear to those who, on behalf of the Cross-respondent, would have to prepare a defence, whether or not the proposed amendments allege that there was a prescribed consumer product 3. safety standard within s.62 of the Trade Practices Act 1974, which was relevant to the matters to be raised by the amendments ~ I am not prepared, at this stage, to grant leave to amend in that fashion. However, for the reasons I have already given, it is not necessary to proceed to that point, in order to deal with the Notice of Motion. I dismiss the Motion and I order that the Cross-respondent pay the costs of the Motion. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. 2.t. Anelar — Associate Dated: 20 August, 1986.