Lamb v Hog’s Breath Company Pty Ltd (No 2) [2007] FCA 201

FEDERAL COURT OF AUSTRALIA

Lamb v Hog's Breath Company Pty Ltd (No 2) [2007] FCA 201

PRACTICE AND PROCEDURE – pleadings – insufficient specificity – rolled up plea against various respondents – failure to distinguish between respondents – failure to identify specific causes of action – times at which causes of action accrued – insufficiency of information available to applicant – no excuse for inadequate pleading – substituted statement of claim directed – respondents at liberty to provide basic information as to corporate responsibilities and application of alleged infringing works inter se – leave to obtain limited discovery and to interrogate absent such information foreshadowed Copyright Act 1968 (Cth) s 195AZA(b) Lamb v Hog's Breath Company Pty Ltd (No 1) [2007] FCA 49 cited JOHN CHARLES LAMB v HOG'S BREATH COMPANY PTY LTD ACN 011 054 970, HOG'S BREATH CAFE (AUSTRALIA) PTY LTD ACN 071 132 655, HB INVESTMENTS PTY LIMITED ACN 060 678 328, HOG'S BREATH CLOTHING CO PTY LTD ACN 060 678 355 AND DONALD RICHARD ALGIE WAD300 OF 2006

FRENCH J

26 FEBRUARY 2007

PERTH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD300 OF 2006

BETWEEN: JOHN CHARLES LAMB

Applicant

AND: HOG'S BREATH COMPANY PTY LTD ACN 011 054 970

First Respondent

HOG'S BREATH CAFE (AUSTRALIA) PTY LTD ACN 071 132 655

Second Respondent

HB INVESTMENTS PTY LIMITED ACN 060 678 328

Third Respondent

HOG'S BREATH CLOTHING CO PTY LTD ACN 060 678 355

Fourth Respondent

DONALD RICHARD ALGIE

Fifth Respondent

JUDGE: FRENCH J DATE OF ORDER: 26 FEBRUARY 2007

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The applicant is to file and serve a substituted statement of claim on or before 26 March 2007. 2. The respondents are at liberty to provide to the applicant on or before 12 March 2007 information by way of letter or disclosure of documents or by an affidavit sworn by their solicitor upon instructions, setting out: (i) their respective functions as members of the Hog's Breath group of companies in Australia; (ii) their respective roles in the use of the Hog's Breath Works as defined in the statement of claim and/or the registered trade marks referred to in the statement of claim; (iii) the ways in which the Hog's Breath Works and/or the registered trade marks have been used by them in respect of the classes of goods and services to which they relate. 3. The applicant is to pay the respondents' costs of the motion so far as it relates to the application to strike out parts of the statement of claim. 4. Liberty to the respondents to apply for payment of interlocutory costs forthwith at the next directions hearing 5. The proceedings are otherwise stayed pending the provision of security for costs by the applicant in accordance with the order made on 30 January 2007. 6. The directions hearing is adjourned to 11 April 2007 at 9.15 am WST. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.