John Robertson & Co Ltd (In Liq) v Ferguson Transformers Pty Ltd [1973] HCA 21

High Court of Australia McTiernan A.C.J. Menzies, Walsh, Gibbs and Mason JJ. John Robertson & Co Ltd (In Liq) v Ferguson Transformers Pty Ltd [1973] HCA 21

ORDER Plaintiff's demurrers to pars 26, 27 and 28 of the defence allowed and defendant's demurrer to par. 2 (b) of the plaintiff's reply overruled. Defendant Philips Industries Pty. Ltd. to pay the costs of the demurrers.

Cur. adv. vult.

The following written judgments were delivered:—

1973, Aug. 7 McTiernan A.C.J.

This action is brought in the original jurisdiction of the High Court in pursuance of s. 11 (1) of the Australian Industries Preservation Act 1906-1950 Cth. This section, which is in Pt II of the Act, provides that any person who is injured in his person or property by any other person, by reason of any act or thing done by that other person in contravention of this Part of this Act, or by reason of any act or thing done in contravention of any injunction granted under this Part of this Act, may, in the High Court, before a Justice without a jury, sue for and recover treble damages for the injury. Section 3 of the Act provides that "person" includes corporation. Section 14, which is in Pt II, provides, by sub-s. (1), that no proceeding for an indictable offence or for the recovery of penalties shall be instituted under this Part except by the Attorney-General or some person authorized by him, and, by sub-s. (2), that no other proceeding shall be instituted under this Part without the written consent of the Attorney-General.

The action is a proceeding to which s. 14 (2) is applicable, because it is not a proceeding which falls within s. 14 (1). The action was commenced by a writ of summons which was issued on 27th January 1967 from the Adelaide Registry of the High Court. The writ was issued at the instance of John Robertson & Co. Ltd. (In liquidation), the plaintiff, against five defendants, which included a defendant of the name of Philips Electrical Pty. Ltd., but not of the name of Philips Industries Pty. Ltd. An endorsement was made on the writ before it was issued. The endorsement was made pursuant to O. 2 r. 1. The endorsement read thus: