Australian Competition and Consumer Commission v Australialink Pty Ltd (No 3) [2009] FCA 552

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Australialink Pty Ltd (No 3) [2009] FCA 552

PRACTICE AND PROCEDURE – striking out of a pleading – whether the Defence ought to be stuck out pursuant – whether the Defence complies with O 11 r 1B(1) , O 11 r 13(3) and O 11 r 18 of the Federal Court Rules – whether it is sufficient for the respondents to deny the making of allegations in certain paragraphs of the Statement of Claim or whether it is necessary in addition to the denial to plead specifically to the allegation – in the absence of a specific denial or non-admission there is deemed to be an admission – appropriate to give an opportunity to the respondents to consider their position in relation to the non-pleading of the allegations – respondents have leave to file a fresh Defence Federal Court Rules O 11 r 1B(1), O11 r 13(3), O 11 r 16(b), O 11 r 18 Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1 Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] ATPR 41-522 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AUSTRALIALINK PTY LTD ACN 092 507 483, RACHEL LOUISE DARGIE and DESMOND JOHN O'KEEFE

QUD 406 of 2008

SPENDER J

27 MAY 2009

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 406 of 2008

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: AUSTRALIALINK PTY LTD ACN 092 507 483

First Respondent

RACHEL LOUISE DARGIE

Second Respondent

DESMOND JOHN O'KEEFE

Third Respondent

JUDGE: SPENDER J

DATE OF ORDER: 27 MAY 2009

WHERE MADE: BRISBANE

THE COURT DIRECTS THAT: 1. The respondents have leave to file and serve a defence on or before 4 pm on 29 May 2009, and that such defence: (i) specifically plead to each allegation in each paragraph and sub-paragraph of the Statement of Claim, and specifically identify the matter in issue, if any, in each paragraph and sub-paragraph of the Statement of Claim; (ii) specifically traverse any matter that is not admitted; (iii) be accompanied by a certificate in accordance with Form 15B signed by a legal practitioner, and otherwise comply with O 11 r 1B. THE COURT ORDERS THAT: 1. The respondents pay the applicant's costs of and incidental to the applicant's Notice of Motion filed 9 April 2009, such costs to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA