Cultivaust Pty Ltd v The Grain Pool of Western Australia [2001] FCA 1812

FEDERAL COURT OF AUSTRALIA

Cultivaust Pty Ltd v The Grain Pool of Western Australia [2001] FCA 1812

Plant Variety Rights Act 1987 (Cth) Plant Breeders Rights Act 1994 (Cth)

JL Holdings Pty Ltd v State of Queensland (1997) 189 CLR 146 considered McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 referred to Sanders v Snell (1998) 196 CLR 329 applied Deepcliffe Pty Ltd v Council of the City of Gold Coast [2001] QCA 342 referred to Gray v Motor Accident Commission (1998) 196 CLR 1 considered CULTIVAUST PTY LTD & THE STATE OF TASMANIA v THE GRAIN POOL OF WESTERN AUSTRALIA & THE STATE OF WESTERN AUSTRALIA S 104 of 1999 MANSFIELD J 30 NOVEMBER 2001 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 104 OF 1999

BETWEEN: CULTIVAUST PTY LTD

FIRST APPLICANT

THE STATE OF TASMANIA

SECOND APPLICANT

AND: THE GRAIN POOL OF WESTERN AUSTRALIA

FIRST RESPONDENT

THE STATE OF WESTERN AUSTRALIA

SECOND RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 30 NOVEMBER 2001

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Leave be granted to the applicants to file and serve a further amended statement of claim in terms of the document entitled Proposed Consolidated Amended Statement of Claim, being Exhibit MK5 to the affidavit of Mark William Kurtze sworn herein on 26 October 2001 and incorporating the following amendments: (a) in par 28 thereof, under the heading "Particulars of the Market", adding in the sixth line after the words "(in Western Australia)" the words "as competitors in the market", (b) in par 29A adding at the end of the fifth line the words "and with the intent of injuring the economic interests of the first applicant", and (c) in par 44(e) thereof deleting the word "applicants" at its end and substituting the words "first applicant". 2. The time by which the applicants may file and serve their amended statement of claim in the form in respect of which leave has been given is 5 December 2001. 3. Leave be granted to the respondents to file and serve an amended defence or defences to the Further Amended Statement of Claim as they may be advised by 8 January 2002. 4. The applicants pay to the respondents in any event costs of the notice of motion of 25 October 2001 and costs incurred and thrown away by reason of the amendment to the statement of claim, including the costs of filing and serving their amended defences. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.