CATCHWORDS

PRACTICE and PROCEDURE - application to strike out further amended defence and enter judgment - further amended defence in identical terms with previous defence - whether leave should be granted to file another further amended defence.

CHINAWIND ENTERTAINMENT PTY LTD & ORS v

LING SHEN trading as MI MI VIDEO & ORS

No NG 507 of 1994

Tamberlin J

Sydney

25 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA)                 

NEW SOUTH WALES DISTRICT REGISTRY)    No. NG 507 of 1994          

GENERAL DIVISION                  )

              BETWEEN:      CHINAWIND ENTERTAINMENT PTY LTD

                             ACN 058 514 855

                             First Applicant

                             CHINA TV PROGRAM AGENCY

                             Second Applicant

                             CHINA CENTRAL TELEVISION (CCTV)

                             Third Applicant

              AND:          LING SHEN trading as

                             MI MI VIDEO

                             First Respondent

                             XIN XIN ZHANG trading as

                             MI MI VIDEO

                             Second Respondent

                             RUI HONG QU trading as

                             MI MI VIDEO

                             Third Respondent

CORAM:        TAMBERLIN J

PLACE:        SYDNEY

DATED:        25 AUGUST 1995

                   MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.   Time for service of both the applicants' and the respondents' motions be abridged to make them returnable before the Court on 18 August 1995.

2.   Leave be granted to the respondents to file a further amended defence in the form annexed to the affidavit of Caron Jo-Ann Cato sworn on 17 August 1995 but excluding paragraph 5 and the counter claim in paragraph 6.

3.   Such further amended defence in respect of which leave has today been given for filing and service, shall be filed and served within fourteen (14) days from the date hereof.

4.   Any further pleadings by the applicants shall be filed and served within a further fourteen (14) days.

5.   The matter is to be listed for further directions at 9.30am on 29 September 1995.

6.   The respondents are to pay the applicants' costs of the applicants' and the respondents' motions heard on 18 August 1995 on an indemnity basis.

7.   The parties have liberty to apply on two days notice.

NOTE:     Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)    No. NG 507 of 1994

GENERAL DIVISION                  )

              BETWEEN:      CHINAWIND ENTERTAINMENT PTY LTD

                             ACN 058 514 855

                             First Applicant

                             CHINA TV PROGRAM AGENCY

                             Second Applicant

                             CHINA CENTRAL TELEVISION (CCTV)

                             Third Applicant

              AND:          LING SHEN trading as

                             MI MI VIDEO

                             First Respondent

                             XIN XIN ZHANG trading as

                             MI MI VIDEO

                             Second Respondent

                             RUI HONG QU trading as

                             MI MI VIDEO

                             Third Respondent

CORAM:        TAMBERLIN J

PLACE:        SYDNEY

DATED:        25 AUGUST 1995

                    REASONS FOR JUDGMENT

Before me is a Notice of Motion to strike out the further amended defence of the respondents in this matter. The motion also seeks an order that judgment be entered for the applicants in terms of orders (1) to (11) sought in the statement of claim and that the respondent's Notice of Motion seeking transfer of these proceedings to Brisbane be dismissed. Also an order is sought that time for filing and service of the Notice of Motion be abridged to make it
returnable on Friday 18 August 1995 and that the respondents pay the applicants' costs.

It does not appear that any order was made in relation to the abridgment of time. I will abridge that time.

However, it is clear that the further amended defence must be struck out. It is in identical terms with the amended defence filed on 25 November 1994, which did not comply with the rules. I made orders on 18 August 1995 striking out the further amended defence.

When the matter came before me on Friday, 18 August 1995, the representative of the respondents, Ms Cato, resisted the application for judgment and the other relief in the statement of claim.  She also sought leave to file yet a further amended defence, together with a counter claim.

At this early stage of the proceedings I am not prepared to enter judgment for the applicants nor will I make any order to transfer the proceedings to Brisbane.

I have considered the further amended defence and am prepared to grant leave to file and serve the defence subject to the amendments which I mention. The pleading in paragraph 5 does not comply with the rules and is clearly grossly inadequate and I do not grant leave to file a defence which includes this paragraph of this document. Nor do I grant leave in relation to the counter claim which simply incorporates paragraph 5.

The total inadequacy of the paragraphs is illustrated simply by quoting them:

          "5. The First and Second Respondents say that the First, Second and Third Applicants by their acts and omissions have infringed the provisions of Section 47 of the Trade Practices Act 1974 (as amended).

                   PARTICULARS

          The said acts and omissions were:-

          (i)  made by the First Applicant in trade or commerce;

          (ii)  made so as to have the effect or likely to have the effect of supplying or offering to supply goods referred to in paragraph 13 of the Statement of Claim at particular prices;

          (iii)  made such (sic) offer to supply the said goods on the condition that the First and Second Respondents or any other person or corporation will not acquire the said goods of a particular kind or description directly or indirectly from a competitor of the First Applicant.

          AND BY WAY OF COUNTER-CLAIM

          6.  The First and Second Respondents repeats (sic) and relies upon the matters referred to in paragraph 5 herein and has suffered loss and damages particulars of which will be supplied prior to hearing."

This matter was commenced by application filed on 9 August 1994. The notice of appearance of the respondents was filed on 8 September 1994 and amended on 27 October 1994. The statement
of claim was filed on 4 October 1994.  Almost one year later the matter has progressed only to the stage where three defences have not been allowed and an application has been granted for leave to file an amended further defence. This is a most unsatisfactory state of affairs.

The history of this matter is lamentable in the extreme and the previous pleadings clearly illustrate a gross failure on the part of the respondents to come to grips with the rules in relation to pleading.

I do not accept that the particulars furnished to date by the applicants are inadequate, as alleged by the respondents. This matter has become bogged down in a series of additional requests for particulars. At this stage I do not think it is appropriate that any further particulars be provided.

Because the applicants brought this motion on before me in the light of what was clearly a pleading which flouted earlier rulings and could not be sustained, I will order that the applicants should have the costs of the applicants' Notice of Motion on an indemnity basis.

In relation to the respondents' motion for leave to amend the further amended defence, I grant leave to file a further amended defence in the form annexed to Ms Cato's affidavit, but as indicated above, I refuse leave in relation to paragraphs 5 and 6 which are not in compliance with the rules.
The respondents should also pay the applicants' costs of this application for leave to file the further amended defence on an indemnity basis.

In an endeavour to get this matter moving, I make the following orders:

1.   I abridge the time for service of both the applicants' and respondents' motions to make them returnable before me on 18 August 1995. 

2.   Leave be granted to the respondents to file a further amended defence in the form annexed to the affidavit of Caron Jo-Ann Cato sworn on 17 August 1995 but excluding paragraph 5 and the counter claim in paragraph 6.

3.   Such further amended defence in respect of which I have today given leave for filing and service, shall be filed and served within fourteen (14) days from the date hereof.

4.   Any further pleadings by the applicants shall be filed and served within a further fourteen (14) days. 

5.   The matter is to be listed before me for further directions at 9.30 am on 29 September 1995.

6.   The respondents are to pay the applicants' costs of the applicants' and the respondents' motions heard on 18 August 1995 on an indemnity basis.

7.   Liberty to apply reserved on two days notice.

I certify that this and

the preceding five (5)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date:                         25 August 1995                                                         

Counsel for Applicants:       Ms R Winfield                                                          

Solicitor for Applicants:     W Chan & Co

Solicitor for Respondents:    Ms C J Cato of Messrs HCF Lawyers (Brisbane)

Date of Hearing:              18 August 1995                                       

Date Judgment Delivered:            25 August 1995