Hearn v O'Rourke [2002] FCA 1179

FEDERAL COURT OF AUSTRALIA

Hearn v O'Rourke [2002] FCA 1179 PRACTICE AND PROCEDURE – whether statement of claim ought to be struck out - whether facts pleaded and particularised give rise to a contravention of s52 of the Trade Practices Act 1974 (Cth). TRADE PRACTICES – whether conduct alleged took place in trade or commerce – whether conduct alleged of a trading or commercial character - where statements made in context of a proposed documentary - whether connexion between conduct alleged in statement of claim and respondents commercial activities in making and distributing films sufficient – whether correct to have regard to respondents' wider enterprise to gain necessary commercial element – where no commercial relationship between applicants and respondents.

Statutes Trade Practices Act 1974 (Cth) s 52

Cases Barto v GPR Management Services Pty Limited (1991) 33 FCR 389 Not Followed Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Applied Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169 Cited Martin v Tasmania Development and Resources (1999) 163 ALR 79 Cited TACCARA JAYNE HEARN AND KELLIE ANNE ALLARDICE V DENNIS O'ROURKE AND CAMERAWORK PTY LTD. Q90 OF 2002 KIEFEL J 20 SEPTEMBER 2002 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q90 OF 2002

BETWEEN: TACCARA JAYNE HEARN

FIRST APPLICANT

KELLIE ANNE ALLARDICE

SECOND APPLICANT

AND: DENNIS O'ROURKE

FIRST RESPONDENT

CAMERAWORK PTY LTD (ACN 002 277 296)

SECOND RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 20 SEPTEMBER 2002

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The statement of claim be struck out. 2. The applicants pay the respondents' costs on the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.