Delta Metallics v Hawley-Jacobs T/A Fightboi Health & Fitness Centre [2006] FCA 334

FEDERAL COURT OF AUSTRALIA

Delta Metallics v Hawley-Jacobs T/A Fightboi Health & Fitness Centre [2006] FCA 334 PRACTICE AND PROCEDURE – application to strike out paragraphs of defence – failure to particularise allegations of misrepresentation – failure to particularise breaches of statutes – defective pleadings struck out – respondent granted leave to file amended defence and cross-claim Trade Marks Act 1995 (Cth) Federal Court Rules, O 11 r 10, O 12 r 2 and O 12 r 3 Banque Commerciale SA (In Liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279 referred to Johnson Tiles Pty Ltd v Esso Australia (2001) ATPR 41-794 referred to Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 cited DELTA METALLICS PTY LTD (ACN 004 801 147) TRADING AS AUSTRALIAN ACADEMY OF BOXING v ALLAN HAWLEY JACOBS TRADING AS FIGHTBOI HEALTH AND FITNESS CENTRE VID 1113 OF 2005 KENNY J 31 MARCH 2006 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1113 OF 2005

BETWEEN: DELTA METALLICS PTY LTD

(ACN 004 801 147)

APPLICANT

AND: ALLAN HAWLEY JACOBS TRADING AS FIGHTBOI HEALTH AND FITNESS CENTRE

RESPONDENT

JUDGE: KENNY J

DATE OF ORDER: 31 MARCH 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. All but the first sentence of paragraphs 6, 7, 9, and 21 of the Defence and Cross-claim dated 9 December 2005, together with and paragraphs 2 and 3 of the Cross-claim's prayer for relief, be struck out. 2. The respondent pay the applicant's costs of the motion dated 17 March 2006 on a party and party basis, to be taxed in default of agreement. 3. By 4:30 pm on Friday 21 April 2006, the parties file and serve submissions on: (1) whether or not the proceeding should be transferred to the Queensland District Registry; and (2) whether or not the proceeding should be referred to mediation under O 72 of the Federal Court Rules. AND THE COURT GRANTS: 1. Liberty to the respondent to file and serve an amended Defence and Cross-claim by 4:30 pm on Friday 21 April 2006.