BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd

Federal Court of Australia|2002-07-03|Before: Mansfield J

REASONS FOR DECISION 1 The respondents seek further and better particulars of the Further Amended Statement of Claim filed on 8 March 2002 (the FASC). This application, hopefully, will signal the end of pleadings issues between the parties. The pleadings have been the subject of earlier decisions: BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd and Ors (No.2) [2002] FCA 87 including a description of the general nature of the applicant's allegations in [4]-[9]; BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd and Ors (No.3) [2002] FCA 88 including a description of the general nature of the applicant's allegations in [3]-[4]; and BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd and Ors (No.4) [2002] FCA 369including a description of the nature of the applicant's allegations in [7]-[8]. 2 In those circumstances, I shall refer to the allegations in the FASC only to the extent necessary to deal with the particular requests of the respondents. I have been considerably assisted in addressing those requests by the helpful submissions of counsel for the parties, including in particular the manner of presentation of the respondents' submissions which contains extracts from relevant pleadings, cross-references to the paragraphs of the FASC dealing with each of the six general transactions involving the purchase of wool, and the relevant request and response of the applicant. 3 There is no issue between the parties as to the relevant legal principles. The purpose of pleadings including particulars is to define the issues so that the parties may know in advance 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; Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. Order 12 rule 1 of the Federal Court Rules obliges a party to include in a pleading "the necessary particulars" of the claim. What is "necessary" will depend upon the circumstances of the case. The measure of necessity is the fulfilment of the purposes of pleadings, relevantly in the present matter whether the respondents have adequate knowledge of what the applicant alleges to be the facts. That is the case they have to meet. The applicant should not plead the evidence by which it proposes to prove the facts it alleges: O 11 r 2 of the Rules, and is directed that the pleading should be as brief as the nature of the case admits: O 11 r 3. 4 In part, the disputed request for particulars relates to the Amended Statement of Claim as it stood prior to the FASC. The relevant paragraphs of the Amended Statement of Claim did not change in any material way in the FASC. It is convenient therefore to refer to those requests by reference to the FASC, rather than to an earlier non-current pleading.

Paragraphs 12.1, 27.1, 27.2, 42.1, 42.2, 57.1, 57.2, 68 and 80 of the FASC 5 The particulars of the contracts with respect of each of the six transactions identify the date, the price, the bales and the lots of wool agreed to be bought and sold. It is pleaded that each contract was "partly oral and partly in writing". The respondents have requested the "usual particulars" of each contract. The applicant has declined to provide further particulars. The "usual particulars" are defined to include identifying the documents which comprise the written terms and identifying the occasion of the participants in, and the substance of, the oral conversations. They contend that the pleading does not identify which terms of the alleged contracts are oral and which are written, or adequate particulars of each of those terms. 6 In my judgment, the FASC provides necessary particulars of the contracts. It identifies the parties, the date, the wool and the price. It identifies the documents which contain the written terms, and the persons (so far as the applicant can) who took part in the oral communications. It identifies the particular features of the wool which are said to be the subject of express or implied terms. In my reasons for decision in BWK Elders Pty Ltd v Westgate Wool Company Pty Ltd and Ors (No.4) at [11] and [12], I found that the pleading identified which of those terms were oral, and which were either express and written including specifying the relevant documents, or were implied and the facts from which the implication was said to arise. I will not repeat those reasons.

Paragraphs 12AA, 27AA, 42AA, 57AA, 68AA and 80AA of the FASC 7 I have in effect dealt with the respondents' complaint about these paragraphs of the FASC in [6] above. The applicant has identified the documents by which the particular terms of the contracts were express, and alternatively the facts by which they are said to be implied. I am not persuaded that the respondents require any further information to know the case they have to meet. 8 The respondents complain that these paragraphs of the FASC are introduced by the words "Insofar as …". Such introductory words may result in the pleading being uncertain: see e.g. Hunt Contracting Co. Pty Ltd v Roebuck Resources NL (1992) 110 ALR 183; Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd [1999] FCA 1458. However, in this matter I have found that those words do not reveal ambiguity in the pleading. The FASC identifies which pleaded terms are express and oral (those relating to price), and which are express and written or alternatively implied (the other pleaded terms). I do not think it is necessary to secure the proper interests of the respondents that the use of those words in this matter requires further clarification.

Paragraphs 12B.1, 27B.1, 42B.1, 57B.1, 68B.1 and 80B.1 of the FASC 9 In part, I have also dealt with the respondents' complaint about these paragraphs of the FASC in [6] above. The applicant has identified the documents by which the particular terms of the contract were express, and has identified which of the pleaded terms are express and in writing. 10 One aspect of these paragraphs of the FASC requires further particularisation. The express written terms are pleaded (e.g. per 12AA), and the documents in which they were contained are also pleaded, namely the wool statements and the AWTA certificates applicable to each transaction. What is unclear, in my view, is whether each of the express written terms is contained in each of the documents, or whether some and which of the express written terms are contained in the wool statements and whether some and which of them are contained in the AWTA certificates. 11 I will order that the applicant provide further and better particulars of those matters.

Paragraphs 12B.2, 27B.2, 42B.2, 57B.2, 68B.2 and 80B.2 of the FASC 12 I have dealt with the respondents' complaint about these paragraphs of the FASC in [6]. In my view, the oral terms of the agreements are adequately identified and pleaded.

Paragraphs 14AA, 29AA, 44AA, 59AA, 70AA and 82AA of the FASC 13 In the reasons for decision in BWK Elders Pty Ltd v Westgate Wool Company Pty Ltd and Ors (No.4), I indicated my view at [14] that these paragraphs of the FASC indicated facts which the applicant proposed to prove to show that the pleaded contractual terms were breached. I consider that the respondents are thereby adequately put on notice of the case they must meet. The reference to "brand" and "property" names is clear. The request for details of matters alleged by which the brand or property names, or identification numbers or letters, are fictitious is in reality a request for details of the means by which the applicant proposes to prove the allegation. That is not required, nor permitted, to be pleaded: O 11 r 2(a). 14 The applicant alleges that the fictional information was inserted in the relevant "AWTA Core Test Request" by the first respondent. As the pleadings show, the AWTA Core Test Requests would have emanated from the first respondent. The applicant has pleaded that it is presently unable to more accurately provide particulars of those documents. Discovery has not been given by either party. Until that occurs, I do not consider the applicant should be required to further identify documents which are within the peculiar knowledge of the respondents, except to the extent they are already pleaded.

Paragraphs 14AAA, 29AAA, 44AAA, 59AAA, 70AAA and 82AAA of the FASC 15 The respondents' request for particulars of pars 14AAA, 29AAA, 44AAA, 59AAA, 70AAA and 82AAA of the FASC is, in my view, unnecessary to ensure they are apprised of the case they must meet. These paragraphs plead that specified terms of the wool sale contracts were not satisfied. The applicant, moreover, has pleaded in par 14.1 to 14.6 (and corresponding paragraphs) the particular characteristics of the wool which it alleges was supplied.

Paragraphs 10, 21, 22, 36, 52, 66 and 78 of the FASC 16 The request concerns the "usual particulars" of the several representations pleaded as being made to a representative of the applicant. The representations are identified discretely as having been made by display of particular wool samples and documents. The respondents, in my view, are given particulars necessary to know the case they have to meet.

Paragraphs 25, 39, 40 and 55 of the FASC 17 In respect of three wool sales transactions, representations are said to have been made by and in certain auction catalogues, as well as by the display of "grab samples". The respondents' complaint is that particulars of the representations should be provided. I think the particulars provided are adequate. They identify discretely which representations are made by the displayed grab samples and which by the catalogues. The catalogues are adequately identified. I consider the respondents know the case they have to meet.

Paragraphs 14, 29, 44, 59, 70 and 82 of the FASC 18 The respondents' complaint is that these paragraphs of the FASC allege that the pleaded representations were "false and/or inaccurate and misleading". In my view, contrary to the contention of the respondents, the applicant has pleaded the facts by reason of which it claims that the representations were false. It is also complained that there is insufficient particularity of falsity because the applicant has alleged further that the representations were made fraudulently (par 84). It is necessary to fully plead the facts and matters upon which a plead of fraud is made: O 12 r 2. However, in my view, adequate particulars have been provided to ensure the respondents know the case they must meet. Subject to what is said in [21] below, it is not now submitted that the pleading should be struck out as failing to disclose a cause of action in fraud. The applicant, on the other hand, will be limited at trial to proving the particular facts it has pleaded and particularised.

Paragraph 83 of the FASC 19 Paragraph 83 of the FASC pleads that the first respondent did not intend to deliver to the applicant the wool which it agreed to supply, but different wool. Particulars of the first respondent's intention have been supplied, to be inferred from particularised conduct. The complaint is that, because the allegation is of fraudulent intention, the particulars are insufficient. In my view, the applicant has sufficiently pleaded its case that the alleged conduct of the first respondent was fraudulent. The applicant will, of course, be restricted at trial to proving the facts it has pleaded. But the issue is whether the respondents were properly put on notice as to the case they must meet at trial. In my judgment, they have been put on such notice.

Paragraphs 84 of the FASC 20 For the reasons given in [19] above, I also reject this complaint. The applicant has identified each of the false representations, and the role of each of the respondents in relation to the wool sales transactions to indicate that the respondents had control of the circumstances by which the wool supplied came not to meet the contracted description. 21 The respondents contend that, even if the facts alleged are proved, they will not establish fraudulent conduct on the part of any of the respondents. To the extent that this contention seeks to have the allegation of fraud struck out under O 20 r 2 of the Rules, I reject it. I referred to the relevant principles in BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd and Ors (No.2) at [2]. I do not think that it is clear that, if those alleged facts are made out at trial, the allegation of fraudulent behaviour against the respondents could not succeed.

Paragraph 87 of the FASC 22 For the reasons given in [19] above, I also reject this complaint.

Paragraph 88.5 of the FASC 23 Paragraph 88.5 of the FASC alleges that the second, third and fourth respondents were aware that the applicant would rely on the grab samples, the AWTA test certificates, and the representations alleged to have been made by the first respondent. The applicant asserts that it has pleaded facts necessary to establish that awareness, and otherwise is not "in a position to provide particulars until discovery and interrogation". The respondents assert that the applicant "should now be able to provide particulars". 24 I concluded in BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd (No.2) at [19]-[24] that par 88 of the FASC did allege facts which could support the claim that each of the second, third and fourth respondents abetted and was knowingly concerned in the alleged contraventions of the Trade Practices Act 1975 (Cth) by the first respondent. I will not repeat the reasons for that conclusion. In proving that accessory liability on the part of the second, third and fourth respondents, the applicant at trial will be restricted to the facts which it has alleged in the FASC and any relevant particulars. It has not presently sought to add to the particulars. If it later seeks to extend the particulars it alleges of the basis upon which those respondents were aware of the matters referred to in par 88.5, it will need to seek leave to do so. Its reason for seeking to extend the particulars at that time, if such an application is made, may be relevant to whether the leave sought should be granted.

Paragraphs 88.6, 88.7 and 88.9 of the FASC 25 In my view, the FASC adequately identifies the ways in which each lot of wool alleged to have been classed by the second respondent and by the third respondent, on retesting, did not comply with the certificates provided by the first respondent to the applicant. I also consider that it adequately identifies the ways in which the classing house stencil of the first respondent alleged to have been applied to certain bales of wool, on retesting, did not comply with the certification provided by the first respondent to the applicant.

Paragraphs 89.5 and 89.5.4 of the FASC 26 Paragraph 89.5 of the FASC is part of the applicant's claim on damages. It refers to compensation paid to its customers because the wool supplied to them did not accord with the wool agreed to be supplied by the first respondent. Paragraphs 89.5 and 89.5.4 refer to the sale of certain wool to nominated customers and details those sales. The respondents sought particulars of the dates on which the compensation was paid, and the "usual particulars" of the agreements under which the compensation was paid. The applicant provided certain particulars, including that the compensation agreements were "partly written and partly oral", the terms of the agreement and the following: "In so far as the agreement was partly oral, conversations took place between …" unnamed representatives of the applicant and of the customers between June 2000 and January 2002 in one case, and between June and July 2001 and July and September 2001 in the other. 27 The respondents now complain only that the applicant does not fully particularise the relevant conversations, including which terms of the agreements are oral. The applicant's response is that the agreements were made orally, and then fully reduced to writing. It has offered to the respondents' solicitors the documents comprising those agreements. 28 In the light of the applicant's ultimate response, it is now clear that the applicant asserts that the relevant agreements are in writing, after prolonged negotiations, and the applicant proposes to prove the terms of the agreements by the written documents. That position is different from that pleaded and, previously, partly particularised. In the light of that position, which I have recorded in these reasons to avoid the need for the applicant to amend its present particulars, I do not propose to accede to the respondents' request. It becomes unnecessary for the respondents to receive the information they request. At present there is no reason to anticipate that the quantification of the applicant's claim (if it becomes necessary to be quantified) will require the Court, on this aspect of quantum, to go behind the written agreements.

Paragraph 90.2 of the FASC 29 The applicant claims by par 90.2 of the FASC to be entitled to "compound interest at prevailing rates at all material times". The respondents seek particulars of the times during which compound interest is sought and the prevailing rate from time to time. 30 The applicant does not dispute the respondents' entitlement to such particulars. It proposes to provide them by means of an expert report "prior to trial". It also claims to be concerned about the commercial sensitivity of the information it will need to disclose. 31 Commercial sensitivity is not, in this matter, a reason why the respondents should not know the case they have to meet. Orders can be made which will protect any commercial sensitivity. In addition, "the prevailing rates" applicable to the applicant's banking arrangements are not on first impression likely to be of particular commercial sensitivity. Whether the delivery of an expert report is an adequate vehicle to provide the proposed particulars, so as to ensure that the respondents know the case they have to meet is for the Court to determine rather than the applicant. It is, however, a means of providing such particulars commonly used in complex litigation. At present, I do not see why it should not be appropriate in this matter, at least in the first instance. 32 I propose to order that the requested particulars of par 90.2 of the FASC be provided, at least in the first instance, by the provision of an expert report. I will hear the applicant as to the time within which it should be ordered to provide those particulars. I will give it liberty to apply to seek an order restricting the publication of that report to nominated persons or classes of persons, if it is so advised. I do not expect that report to be available in the immediate term, but I do not see why that should delay the respondents' preparation of its case in any other respect.

conclusion 33 Apart from the matters referred to in [10] above with respect to pars 12B.1, 27B.1, 42B.1, 57B.1, 68B.1 and 80B.1 of the FASC, and in [32] above with respect to par 90.2 of the FASC, I decline to order the applicant to provide further and better particulars of the FASC. 34 I order the applicant to provide to the respondents the further and better particulars of pars 12B.1, 27B.1, 42B.1, 57B.1, 68B.1 and 80B.1 of the FASC referred to in [10] above within 14 days. These particulars may be provided by correspondence. That will be sufficient to let the respondents know the case they have to meet, and to tie the applicant to those particulars in the presentation of its case. 35 I will hear the parties as to the time by which the applicant should be directed to provide the requested particulars of par 90.2 of the FASC. In the first place, those particulars may be provided by the service of an expert report. The respondents have liberty to apply to seek the particulars in a more formal document if, for some reason, that is necessary to ensure a fair trial. The applicant will have liberty to apply for an order restricting the publication of that report. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant and Cross-respondent: Mr R White QC with Mr R Kennett

Solicitor for the Applicant and Cross-respondent: Kelly & Co.

Counsel for the Respondents and Cross-claimants: Mr J Hammond QC with Mr N Russell

Solicitor for the Respondents and Cross-claimants: Andrew Woolfe & Co.

Date of Hearing: 7 June 2002

Date of Judgment: 3 July 2002

Trade Practices Act 1975(Cth)

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