Case: Dart Industries Inc v Grace Bros Pty Ltd (1990) 18 IPR 87
Outcome: considered
Mr Caine, senior counsel for the applicants, referred me to several authorities dealing with a like provision to O 58 r 27(1) concerning patent pleadings: see s 117 of the Patents Act 1990 (Cth) and Dart Industries Inc v David Jones Ltd [1990] AIPC 90-689 (' Dart v David Jones' ); and Dart Industries Inc v Grace Bros Pty Ltd (1990) 18 IPR 87 (' Dart v Grace Bros' ). 25 In Dart v Grace Bros, another case involving a retailer, the defendants argued that the particulars alleging the instances of sales of goods were inadequate. Marks J held that it was appropriate, given the early stage of the pleading, to accept the adequacy of the particulars that had been given. In reaching this conclusion, his Honour referred to the fact that more detailed information was not in the possession of the plaintiff, but it was clearly within the possession of the manufacturers and retailers of the products. In addition, Marks J observed that defendants failed to put on affidavit that they did not deal in the subject goods at the relevant time. His Honour noted that defendants were well aware that 'they and they alone hold the key to the solution of the problem whether they deal in these goods or not': at 89. 26 In my view, there are distinctions between the above authorities and the present case. The principal allegation against the respondents is that they have grown trees of the relevant varieties in the course of their orchard and wholesale fruit business and that they have sold fruit of the relevant variety. The facts particularised go no further than raising a case of that kind. While the relevant particulars can support (at least to the necessary threshold stage in a pleading) the allegations in, for instance paragraphs 34(a), (b) and (e), they do not lend any support to the allegations in paragraphs 34(c) and (d). Accordingly, I propose to strike out the unsupported subparagraphs (c) and (d) in paragraphs 34 to 52 of the Amended Statement of Claim. 27 Mr Hess, senior counsel for the respondents, argued that the other allegations of infringement of plant breeder's rights were not supported by material facts. It was argued that the particulars merely identify that trees have been found in existence at the properties and, in the case of Arctic Star and Earliqueen, provide some factual material indicating sales. In my view, a sufficient case is raised by the allegations that have been pleaded and the facts that have been particularised. The respondents' attack on the other aspects of the pleadings concerning contravention of plant breeder's rights therefore fails. 28 The respondents criticised other minor aspects of the pleading in argument. The respondents argued that some illogicality or inconsistency arose because paragraphs 4, 5 and 8 of the Amended Statement of Claim allege that each of Fred, Bruno and Tony are and were at all relevant times in effective control of fourth and fifth respondents. Mr Caine submitted that there was no logical inconsistency in alleging that each of the brothers was in effective control of the two companies. Be that as it may, Mr Caine indicated that if pleading requires some attention, it would be appropriate to address this matter by adding some words to paragraphs 4(f), 5(e) and 8(e) of the Amended Statement of Claim, to the effect that the relevant individual was in effective control 'either alone or in conjunction with his brothers'. I consider that the additional words suggested by Mr Caine may assist the clarity of the pleading; however I decline to make a specific finding that the pleading as it stands is illogical or inconsistent in this regard. 29 It was also submitted that there were deficiencies or pleading inadequacies in relation to the allegations of breach of contract in the Amended Statement of Claim. I do not accept these submissions. The breach of contract claims are pleaded at an appropriate level of generality, and the particulars are capable of supporting the allegations.