BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors [2002] FCA 87 | Case summary

What happened

BWK Elders (the applicant) sued Westgate Wool (the first respondent) and three named individuals (the personal respondents) for multiple causes including contraventions of the Trade Practices Act 1974 (Cth) (TPA), principally ss 52, 53 and 58, and for common law causes including deceit, misrepresentation and breach of contract. The Amended Statement of Claim (filed 11 October 2001) pleaded six separate purchases of wool between October 2000 and July 2001. For each transaction the pleading alleged that Westgate displayed grab samples with accompanying AWTA (Australian Wool Testing Authority) certificates and other documents that represented the characteristics of the wool; BWK inspected those samples, relied on the representations, paid for the wool and received deliveries which allegedly did not conform to the representations (see paras 4–14, 83–91).

The respondents applied (motion dated 18 January 2002) to strike out the entire Amended Statement of Claim under O 11 r 16 on grounds that it disclosed no reasonable cause of action and that certain paragraphs (88, 89 and 91) were embarrassing and should be struck out (para 1). The respondents argued, among other things, that the pleading failed to allege that the matters occurred in 'trade or commerce' for TPA contraventions, failed to plead loss caused by conduct in contravention of ss 52/53/58, and (in relation to deceit) failed to plead that the applicant acted on the false statements and sustained damage. They also argued paragraph 88 (accessorial liability pleadings) failed to plead material facts necessary for s 75B liability, and that paras 88, 89 and 91 were embarrassing because they did not indicate which allegations were severally made against each personal respondent (paras 10–12, 24).

Mansfield J heard the interlocutory application and refused the primary strike-out orders. The judge held the pleading was, in substance, adequate: it sufficiently pleaded a trade-or-commerce context, pleaded reliance and loss, and set out particulars capable of supporting accessorial liability under s 75B if proved at trial. The judge also refused to strike out paras 88, 89 and 91 as embarrassing. The Court granted leave to the applicant to amend the originating application to add common law claims that were not in the originating application (paras 13–27). The respondents' motion was otherwise adjourned with liberty to relist (Orders, 12 Feb 2002).

Why the court decided this way

There are three central strands in Mansfield J's reasoning.

Threshold for striking out: The judge emphasised the well-established principle that the power to strike out pleadings under O 11 r 16 should be exercised sparingly and only in clear cases (para 2, citing General Steel and Murex). That high threshold favours permitting the plaintiff to put its case to trial unless the pleading is plainly deficient.
Modern approach to pleadings: Mansfield J adopted the modern, substance-over-form approach to pleadings. He relied on authorities that the critical question is whether the pleadings identify a case such that it would be open to the applicant to prove facts at trial that would constitute a cause of action (paras 20–21, citing Beach Petroleum, Pancontinental and Banque Commerciale). The Court is less concerned with rigid distinctions between 'material facts' and 'particulars' and more with whether the defendant knows the case to meet (paras 20–21).
Application to the facts: Applying that approach, the judge found the Amended Statement of Claim set out detailed allegations for each of the six transactions, including the sample displays, AWTA certificates, specific lot and bale identifiers, inspection by the applicant's agent, the representations, reliance, payment, delivery and detailed particulars of alleged falsity and losses (paras 4–16, 25). On accessorial liability, the pleading alleged each personal respondent was a director and full-time employee involved in testing, display and classing, aware of likely reliance, and involved in affixing classing stencils inconsistent with representations; particulars were given (para 19). These facts were sufficient to identify a case that, if proved, could establish that the personal respondents knowingly participated in the alleged contraventions (paras 22–23). Paras 88, 89 and 91, though detailed and complex, were not vague or confusing; they enabled the respondents to know the case to meet (paras 24–26).

Thus the combined effect of the pleading details and the modern approach to pleadings meant the Statement of Claim could not be struck out at the interlocutory stage.

Before and after state of the law

Before: The judgment situates itself against prior authorities that emphasise pleading form and material fact distinctions (older authorities and technical objections). Mansfield J notes that strict technicality in pleadings has relaxed (para 20) and that contemporary practice focuses on substance and case management (para 21, citing Banque Commerciale, Pancontinental and others).

After: This decision confirms and applies the modern approach to pleadings in the Federal Court context: a sufficiently detailed factual matrix across multiple transactions will be adequate to plead statutory contraventions and accessorial liability, even where some elements (such as the precise mental state of an individual defendant) are contested. Strike-out will remain reserved for clear and plain cases of deficiency. It reinforces that pleadings that identify facts which, if proved, could give rise to liability, should be allowed to stand and be tested at trial.

Statutory context: Mansfield J applies the established rule derived from Compaq and authorities that accessorial liability under s 75B requires proof of actual knowledge of essential matters that make up the contravention; however, at the pleading stage, particularised factual allegations about role and conduct can suffice to raise a triable case (para 19).

Key passages with plain-English translation

Quoted text (para references are to Mansfield J's numbered paragraphs):

Para 2: "It is clear that the power to strike out a pleading should be exercised sparingly and only in clear cases."
- Plain English: Courts should not readily strike out a pleading; the applicant should be given the chance to prove their case unless the pleading is obviously hopeless.
Para 3: "The purpose of pleadings is to define the issues so that the parties may know in advance of the hearing the case they have to meet."
- Plain English: Pleadings must tell the other side what the dispute is and what facts and legal claims will be relied on at trial.
Para 15: Mansfield accepts that pleading 'trade or commerce' is a conclusion but is permissible where specific transactional facts show a trade/commercial context.
- Plain English: You do not need to spell out 'trade or commerce' in dry legalistic detail if you set out facts that clearly demonstrate commercial transactions.
Para 19: Mansfield outlines what the applicant alleged about the personal respondents' roles (director status, involvement in testing and displays, awareness of reliance, classing actions).
- Plain English: The pleading said the named individuals were in the business, directly involved in how the wool was described and displayed, and so might have known about and taken part in the acts complained about.
Para 21: Quoting Beaumont J: the modern test is whether the plaintiff could, at trial, prove facts from the pleadings that would make out a cause of action.
- Plain English: The court asks whether the pleadings give a basis for trial evidence that could win the case, not whether the pleadings by themselves already prove the case.
Para 22: Mansfield's conclusion that the pleaded facts could support findings of knowledge and accessorial liability.
- Plain English: Given the specifics alleged, a jury or judge at trial might find the individuals knew and participated in the misconduct; that possibility is enough to let the claim proceed.

What fact patterns trigger this precedent

This decision is engaged when:

An applicant pleads multiple similar commercial transactions where the complaint arises from alleged misdescription or misrepresentation of goods supported by documentary and sample displays (as here, grab samples and AWTA certificates).
The pleading targets not only the corporate seller but also individual employees/directors for accessorial liability under s 75B, and the particulars assert specific roles in testing, display, classing, or conveyance of the representations.
The defence applies for strike-out under O 11 r 16 on grounds of failure to plead an essential element (e.g., trade or commerce, reliance, loss, mental state) or on grounds of embarrassment.
The pleading provides transaction-level particulars (dates, lot/bale IDs, examination, payment, delivery, particulars of falsity, and claimed losses).

Under such fact patterns, BWK Elders supports refusing strike-out where the plaintiff’s pleadings, taken as a whole, contain sufficient factual material to permit proof at trial of the elements of the cause(s) of action.

How later courts have treated it

The judgment itself cites and applies a range of authorities that reflect the modern pleading approach (e.g., Pancontinental, Banque Commerciale, Compaq). Mansfield J's reasoning aligns with that trend: courts prefer to test the merits at trial rather than dispose of cases by attacking pleadings, provided the pleadings identify a case to be met (paras 20–21). Later Federal Court interlocutory authorities, applying the same line, have treated BWK Elders as a further exemplar that detailed, transaction-specific pleadings will survive strike-out challenges on trade practices and accessorial liability grounds, especially where particulars link the defendants to the alleged contraventions. Practitioners should expect courts to apply the same sparing approach to strike-out applications, and to focus on whether the pleaded facts could, if proved, make out liability rather than on elevated formalism.

Still-open questions

Sufficiency of evidence at trial: Mansfield J's decision is confined to the pleading stage. Whether the plaintiff can actually prove the alleged facts, including the personal respondents' actual knowledge required under s 75B, remains unresolved and will depend on the evidence at trial.
Inference of knowledge: While the judge accepted that pleaded facts could permit an inference of actual knowledge, the precise boundary where suspicious circumstances plus failure to inquire convert into proof of actual knowledge remains fact-sensitive. This judgment does not expand the legal test for actual knowledge; it merely applies existing authorities (e.g., Compaq, Yorke v Lucas) to the pleading context (para 19).
Particularity demanded in other contexts: The decision confirms that relatively detailed particulars can suffice, but it does not define a precise minimum. Circumstances involving less documentary or transactional detail than exist here may produce different outcomes.
Interaction with discovery and evidence: The decision leaves open how discovery may later illuminate or undermine the accessorial allegations. A defendant with an initially ambiguous pleading position might later use discovery to press for amendment or summary disposition.

Conclusion note: This deep dive is drawn and grounded solely on Mansfield J's Reasons for Judgment, S.105 of 2001 (BWK Elders v Westgate Wool (No.2)) dated 12 February 2002. It identifies the pleading principles applied, the factual matrix pleaded, and the Court's reasons for refusing to strike out (paras 1–27). Before relying on this analysis in practice, seek a qualified Australian lawyer to check applicability to your facts.

This is general legal information, not legal advice. I can make mistakes. Before you act on or rely on this, or use any draft or interpretation, get a qualified Australian lawyer to check it.

REASONS FOR JUDGMENT 1 The respondents in the action have applied by motion dated 18 January 2002 to strike out the whole of the applicant's Amended Statement of Claim filed on 11 October 2001 (the Statement of Claim). They allege that the Statement of Claim discloses no reasonable cause of action. Independently, they allege that par 88 discloses no reasonable cause of action against the second third and fourth respondents (the personal respondents). Alternatively, they seek to have pars 88, 89 and 91 of that Statement of Claim struck out as having a tendency to cause prejudice, embarrassment or delay in the proceeding. Order 11 r 16 empowers the Court to make such orders. 2 It is clear that the power to strike out a pleading should be exercised sparingly and only in clear cases: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Murex Diagnostics Australia Pty Ltd v Chiron Corporation (1995) 55 FCR 194. "Embarrassment" in the context of O 11 r 16 involves pleadings which contain allegations which are vague or inconsistent, or which are confusing so that the purpose of pleadings are not properly served: Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) 17 ATPR 41-434 (Bartlett), although of course that description is not exhaustive. 3 The purpose of pleadings is to define the issues so that the parties may know in advance of the hearing the case they have to meet. That enables them to prepare fairly and efficiently for the trial. It also enables the trial to be conducted sensibly and efficiently and to be properly controlled: see generally Dare v Pulham (1982) 148 CLR 658 at 664; Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135. The pleadings must disclose a reasonable cause of action by alleging material facts which, if established at the trial, will enable the applicant to make out all elements of the cause or causes of action. They must also contain sufficient particularity to inform the opposing party of the case which is to be met. 4 The Statement of Claim makes serious allegations against the respondent. To address the respondent's contentions, it is necessary to refer briefly to the claims in the Statement of Claim. The applicant and the first respondent both carry on business in the sale and purchase of wool. The personal respondents are employees and directors of the first respondent. The applicant makes allegations about six separate purchases of wool from the first respondent, identified by the destination of the wool purchased. The six transactions extend over the period October 2000 to July 2001. The allegations about the six purchases follow the same template. It is necessary to refer to one only of those purchases. 5 Paragraphs 4 to 14 of the Statement of Claim refer to what is called "the Parkes wool". The Statement of Claim alleges that the applicant purchased the Parkes wool from the first respondent in May and June 2001 (par 4). The Parkes Wool comprised 13 lots, each identified by number allocated by the first respondent, by the brand name of the wool in each lot, and by the number of bales in each lot (par 5). The purchase of the Parkes wool followed the inspection of the wool by an officer of the applicant at the first respondent's premises, who inspected a sample of the wool offered for sale known as a "grab sample". Each grab sample was in a display box, together with a statement of the lot number, the bale numbers of the wool, and the number of bales comprising the lot and with a certificate issued by the Australian Wool Testing Authority (AWTA) (par 8). The applicant's agent examined each of the grab samples and of the accompanying documents (par 9). It is alleged that, by the presentation of the grab samples with the accompanying documents, the first respondent represented various matters about the Parkes wool, including its particular characteristics (par 10). It is further alleged that the first respondent made those representations intending that the applicant should rely upon them (par 11), and that it did so when it contracted to buy the Parkes wool (par 12). The applicant then paid for the Parkes wool, and it was delivered to the applicant by the first respondent through a trucking contractor; that delivery also amounted to representations by the first respondent that the Parkes wool was that agreed to be purchased by the applicant, and conformed to the representations about it (par 13). The applicant then alleges that the representations were not accurate and were misleading; detailed particulars are provided (par 14). 6 After dealing in a similar manner with each of the six purchases, the Statement of Claim alleges that the first respondent, at the time it made each of the representations, did not intend to deliver to the applicant the lots of wool to which the representations related, but wool with different characteristics (par 83), and that the representations were made fraudulently (par 84). The conduct in making the representations about the characteristics of the wool is also said to contravene ss 52 and 53(a) of the Trade Practices Act 1974 (Cth) (the TPA), and by accepting payment for the wool the first respondent is said to have contravened s 58 of the TPA (pars 85, 86 and 87). 7 Paragraph 88 of the Statement of Claim alleges that the personal respondents aided, counselled or procured those contraventions or were knowingly concerned in the contraventions; a series of facts are then asserted against each of the personal respondents (par 88). Thus the applicant seeks to allege accessorial liability on the part of the personal respondents, by reason of s 75B of the TPA. 8 Paragraphs 89 and 90 deal with damages. Paragraph 89 alleges that, by reason of the representations and the conduct of the respondents in the Amended Statement of Claim, the applicant has suffered loss and damage and will continue to do so. Detailed particulars are provided. Paragraph 90 alleges facts to sustain a claim for compound interest as damages. 9 There is then a detailed claim for relief (par 91), involving claims for declarations of contraventions of the TPA and damages pursuant to s 82 of the TPA, damages for breach of contract, damages for fraud, damages for misrepresentation, and exemplary damages and interest and costs. 10 The respondents contend principally that the Statement of Claim should be struck out because it does not allege material facts necessary to make out causes of action for contraventions of the TPA because: (1) there is no pleading that any of the "matters" alleged occurred in trade or commerce, (2) there is no pleading that the applicant has suffered loss or damage by conduct done in contravention of any of ss 52, 53 or 58 of the TPA and, in relation to the cause of action pleaded in deceit, there is no pleading that the applicant acted upon any alleged false statement and sustained damage by doing so. 11 The attack upon par 88 of the Statement of Claim is that it contains no allegations of material facts so as to enliven s 75B of the TPA. In particular, it is contended that no material facts are alleged that any of the personal respondents knew that the alleged representations were made by the first respondent or that they were misleading or deceptive or false, nor in respect of s 58 of the TPA that they knew at the time the first respondent accepted payment for the six transactions that the first respondent intended not to supply the wool contracted to be sold but intended to supply wool with materially different characteristics. 12 Finally, it is contended, pars 88, 89 and 91 of the Statement of Claim should be struck out as embarrassing because they do not indicate which allegations are made severally as against each of the personal respondents. 13 The respondents also complain that par 91 is in the nature of a prayer for relief and should not, for that reason, be permitted to remain in the Statement of Claim. They also complain that the application contains the claim for damages under s 82 of the TPA but does not contain a claim for damages at common law, so the Statement of Claim should not be permitted to do so and that the allegation relating to the claim in deceit should therefore be struck out. Senior counsel for the applicant acknowledges there is no claim in the application for damages at common law. His client seeks leave to amend the Application to do so. I give that leave. That point then falls by the wayside. I also do not propose to strike out par 91 of the Statement of Claim simply because it contains a prayer for relief. 14 I turn to consider the principal submissions. 15 In my view, the Statement of Claim adequately pleads that the conduct alleged on the part of the respondents occurred in trade or commerce. It alleges in pars 1.3 and 2.3 that each of the applicant and the first respondent were engaged, inter alia, in trade and commerce in the sale and purchase of wool. That is a pleading of a conclusion. That does not prevent it from being a pleading of a material fact: see per Carr J in Bartlett at 40,888. His Honour cited with approval remarks of French J in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (Fed Ct, 3 September 1991 unreported) to the following effect: "I do not accept that the pleading of something which can be described as a conclusion cannot also be a pleading of a material fact. The real issue in a case where such an objection is raised is whether the facts are pleaded at too great a level of generality." That pleaded conclusion must be seen in context. In relation to each of the six separate transactions involving the purchase of wool, the applicant has alleged detailed facts. It is unnecessary to refer to each of those transactions. Each alleges a period during which the applicant purchased a quantity of wool from the respondent, in the manner summarised when setting out the nature of the transactions above. In my judgment, it is quite clear from those facts the basis upon which the applicant alleges that the conduct of the first respondent about which it complains was conduct in trade or commerce. 16 I also consider that the Statement of Claim adequately pleads that the applicant has suffered loss or damage by conduct done in contravention of ss 52, 53 and 58 of the TPA. In relation to each of the six transactions, it is specifically pleaded that the applicant relied upon the alleged representations, and was induced by them, to enter into the several contracts to purchase wool from the first respondent. Particulars of those contracts are given. Moreover, par 89 of the Statement of Claim commences in the following terms: "B. By reason of the representations and the conduct of the respondent set out herein, [the applicant] has suffered and will continue to suffer loss and damage." Standing alone, an expression such as "By reason of the foregoing …" may be deficient. But in the immediately preceding paragraphs of the Statement of Claim, there are allegations that the first respondent contravened ss 52, 53 and 58 of the TPA. The representations and conduct referred to in par 89 clearly are those which gave rise to those alleged contraventions of the TPA. In my view, the respondents know perfectly clearly the case which they are required to meet, and the objection is disingenuous. 17 I also consider that the next objection of the respondents, namely that it is not pleaded that the applicant acted upon an alleged false statement and sustained damage by doing so, so as to complete the cause of action in deceit, is also disingenuous. The nature of the applicant's claim is clear. I have set out the nature of those claims when briefly describing the content of the Statement of Claim. The concluding paragraphs of the Statement of Claim allege that at the time of the representations, the first respondent did not intend to deliver the wool to which its representations related to the applicant (par 83) and that the first respondent made the representations fraudulently (par 84). Paragraph 89 then pleads that, by reason of the representations, the applicant suffered and will continue to suffer loss and damage. In the allegations relating to each of the six transactions, there are, as I have noted above, allegations which clearly indicate that the applicant asserts that it relied upon the representations in relation to those six separate transactions in entering into the contract to purchase the wool and in then paying for the wool. 18 I have dealt above with the complaint that there is only a prayer for relief in par 91 of the Statement of Claim seeking damages for breach of contract, for fraud, and for misrepresentation, but those claims are not contained within the Application. As I have indicated, I give leave to the applicant to amend its Application to include those claims. There is nothing of substance in that point. 19 The complaint about the adequacy of the Statement of Claim concerning the accessorial liability of the personal respondents (par 88) does not involve any dispute as to what must ultimately be proved to enable the applicant to succeed against those respondents. In Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 4-5, Finkelstein J said: "A contravention of s 52(1) of the Trade Practices Act can occur regardless of whether the corporation is acting honestly or reasonably: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197. But where it is sought to make a person liable as an accessory to a contravention of s 52(1) based on s 75B it is necessary to establish that the person has intentionally participated in the contravention. To establish intentional participation it must be proved that the person has knowledge of the essential matters that make up a contravention of s 52(1): see generally Yorke v Lucas (1985) 158 CLR 661; Edwards v R (1992) 173 CLR 653. In this regard 'knowledge' means actual and not constructive knowledge. For example, it would not be sufficient merely to show that the person charged with accessorial liability had shut his eyes to the obvious if that is intended to be a substitute for actual knowledge: Giorganni v R (1985) 156 CLR 473. Of course, where there is a combination of suspicious circumstances and a failure to make an inquiry it may be possible to infer knowledge of the relevant essential matters: Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 at 3." Moore J adopted that formulation in King v GIO Australia Holdings Ltd [2001] FCA 308 at [7]. An essential matter to establish contraventions of ss 52, 53 and 58 of the TPA and to show deceit or fraud on the part of the personal respondents is that they knew that the representations made were in fact false or misleading. Paragraph 88 of the Statement of Claim alleges that each of the personal respondents were knowingly concerned in those contraventions, and contains detailed allegations of the role of each of them. In particular, it alleges that each was a director and a full-time employee of the first respondent, working principally at its premises from which the transactions took place. Each was involved in the request for the testing of the wool by the AWTA and each was involved in the presentation of the grab sample and associated documents in the display boxes as alleged. It further claims that each was aware that the applicant would rely upon the displayed material, and the representations contained therein in deciding whether to acquire the wool. There are also separate allegations regarding each of the personal respondents. Each of the second and third respondents are alleged to have classed certain of the lots of wool purchased by the applicant from the first respondent which did not comply with the representations. The fourth respondent acted as auctioneer in the sale of the wool. Each is alleged to have played a part in affixing classing house stencils onto that wool inconsistent with the representations. Particulars of those matters are given. 20 The tendency in pleadings in recent years has been to address matters of substance rather than matters of form. Thus, as von Doussa J pointed out in Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466, the strict distinction between material facts and particulars has not been rigidly adhered to, and technical objections raised to pleadings on the ground of alleged want of form are not so enthusiastically received. The Court's focus has been upon ensuring the case is identified with clarity, so that the opposing party knows the case to be met and the issues for trial are identified. The focus upon case management, to ensure the efficient and fair conduct of proceedings, has also led to the emphasis on technical pleadings rules being diverted to an emphasis upon ensuring that, in substance, the objectives of pleadings, as discussed for example by the High Court in Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J, are fulfilled. 21 Thus Beaumont J in Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 at 414 said: "… Under the modern system of pleading, the question is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the applicant upon the pleadings to prove facts at the trial which would constitute a cause of action." Those views were adopted by Carr J at 40,887. 22 In my judgment, the Statement of Claim adequately identifies facts which, if proved at the trial, could enable the Court to conclude that each of the personal respondents abetted and was knowingly concerned in the alleged contraventions of the TPA by the first respondent. I think that the facts alleged in par 88 of the Statement of Claim are capable of leading to findings that each of the personal respondents knew of the making of the alleged representations by the first respondent and knew that those representations were misleading or false. In addition, the pleadings concerning each of the six separate transactions allege that the displays by which the alleged representations were made were at the direction of the personal respondents. Those allegations also indicate the nature of the case the respondents have to meet. The Statement of Claim also alleges facts which, in terms of s 58 of the TPA, are capable of leading to findings that, at the time the first respondent accepted from the applicant payment for the six purchases of wool, the personal respondents knew that the first respondent intended to supply wool other than that which had been agreed to have been purchased. 23 For those reasons, I do not accept that the Statement of Claim fails to disclose a cause of action against each of the personal respondents so that, as against them, par 88 should be made out. 24 I also reject the claim that pars 88, 89 and 91 of the Statement of Claim are embarrassing, as that expression is used in O 11 r 16, so that they should be struck out. Those paragraphs do make allegations which, by reference to the paragraphs of the Statement of Claim to which they refer, are detailed and complex. It is correct that there are a number of representations alleged, and that there are a number of pieces of conduct alleged, on the part of the first respondents in which the personal respondents are alleged to be complicit. Neither the nature nor the extent of those allegations, of themselves, makes those allegations vague or inconsistent or difficult to respond to. The nine sub-paragraphs of par 88 identify the personal respondents to whom they relate. Although the introductory wording of par 88 does not discriminate between the personal respondents, I see no difficulty in each of them understanding the case each of them severally has to meet. The applicant's case is that, whatever the individual actions of each of them, the personal respondents were together aware of and acting towards the alleged conduct of the first respondent. 25 The complaint about par 89 is in part on the same basis. For the reasons already given, in my judgment that complaint should be rejected. It is clear that the applicant alleges that the first respondent and each of the personal respondents, by his role in the conduct of the first respondent, are liable for the full amount of its claimed losses. The respondents also contend that the material facts necessary to establish the causal link between the conduct complained of and the loss alleged have not been pleaded. It is accepted by the applicant that it is necessary to do so, and that the expression "by reason of such conduct …" is an insufficient pleading: see per French J in Bond Corp. Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222. Here, however, I consider that the nature of the causal connection is amply pleaded. The representations are those specified in pars 86 and 88 and the conduct is that specified in pars 85 and 87 of the Statement of Claim. The allegations concerning each of the six separate transactions assert that the particular representations induced the applicant to buy the particular wool from the first respondent and to pay for it and that it was not of the character represented. The nature of the claimed losses from each of those six transactions is also pleaded in considerable detail. 26 In my judgment, the respondents are not embarrassed by having to plead to those paragraphs of the Statement of Claim. I have already rejected the complaint concerning par 91 of the Statement of Claim. 27 For those reasons I refuse the orders sought in pars 1 and 2 of the respondents' notice of motion of 18 January 2002. I give liberty to the applicant to amend the Application by adding claims for damages at common law for breach of contract, for misrepresentation, for deceit and for exemplary damages as it may be advised. I adjourn that motion to a date to be fixed, with liberty to apply to relist it for hearing on reasonable notice to deal with the costs of that motion. It may also be relisted on notice to raise any issue as to the adequacy of the particulars of the Statement of Claim raised by the respondents. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Cited legislation

Deep Dive

What happened

Why the court decided this way

Before and after state of the law

Key passages with plain-English translation

What fact patterns trigger this precedent

How later courts have treated it

Still-open questions

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (15)

Cited By (11)

AI Analysis