CABOOLTURE PARK SHOPPING CENTRE PTY. LTD. v WHITE INDUSTRIES

was filed on 25 February 1987 but it furnished no particulars of the loss and damage allegedly suffered by Caboolture Park. Pincus Jd then, on 25 February 1987, ordered that Caboolture

Park supply the best particulars it could in respect of:-

(a) the allegations of negligence in paragraph 12(a)

(b) the allegations of fraud in paragraph 12(b); and

In response to that order, a further amended statement of claim was filed on behalf of Caboolture Park on 3 March 1987 in which the following particulars of damage were

Had the Applicant not entered into the said agreement in reliance upon the representations referred to in paragraph 7 hereof and the beliefs thereby induced referred to in paragraph 8 hereof, it would have entered into an agreement for the performance of the works provided for in the said agreement for a fixed contract sum.

At the time when the Applicant entered into the said agreement with the Respondent, the Applicant could have entered into a contract for the performance of the works provided for in the said agreement for a fixed contract sum of

approximately FOURTEEN MILLION, EIGHT HUNDRED THOUSAND DOLLARS ($14,800,000.00).

In the premises, the loss and damage suffered by the Applicant by reason of the aforesaid misleading and deceptive conduct, negligence and fraud of the Respondent is the difference between the said sum of approximately FOURTEEN MILLION, EIGHT HUNDRED THOUSAND DOLLARS ($14,800,000.00) and the total sum which the Respondent claims is payable to it by the

Applicant in respect of the works provided for in the said agreement, less any part of that sum

which is referable to variations to the original contract works authorised by the Applicant during the course of construction.

The Applicant is unable to particularise the precise amount of its damages until the Respondent has made its final claim upon the Applicant in respect of the works performed by the Respondent in purported pursuance of the said agreement, or has given discovery in this action.

The best particulars which the Applicant is presently able to give are as follows. To date, the Respondent had claimed from the Applicant in respect of works performed by the Respondent in purported pursuance of the said agreement sums amounting to approximately TWENTY MILLION, FOUR HUNDRED THOUSAND DOLLARS ($20,400,000.00), of which approximately TWO MILLION, SIX HUNDRED THOUSAND DOLLARS ($2,600,000.00) relates to variations approved by the Applicant during the course of construction or claimed by the Respondent as variations without the approval of the Applicant, and which claims are not admitted by the Applicant. On the basis of those figures, the amount of loss and damage suffered by the Applicant to date is as follows-

Respondent $20,400,000.00 Less variations $ 2,600,000.00 Accepted or claimed $17,800,000.00

Less cost to the Applicant of the contract works under a "fixed sum"

contract (approx) $14,800,000.00 (approx) s 3,000,000.00"

The question of the sufficiency of the particulars of

damages was again considered by Pincus J on 28 May 1987. On that occasion, Senior Counsel for WIQ complained that no particulars had been given of the "contract that was available for entering into but was not entered into because of our misrepresentations". In the course of argument,

"They might call a quantity surveyor to say, you could have got a contractor to do this for 14.8

million. They do not necessarily have to show that there was a physical contractor available who volunteered at the time to do it for that, do they, to prove their case?

-»» They could have entered into a contract. Mr Callinan ESenior Counsel for Caboolture Park] could prove that by calling a quantity surveyor

and saying many contractors would have done it for that sort of money."

The following exchange then occurred between his Honour

and Mr Callinan, Q.C., who appeared for Caboolture Park:-

"HIS HONOUR: Could you tell me what your case is about?

MR CALLINAN: It is really, as your Honour put it, a lost opportunity case.

HIS HONOUR: Have you got a specific contractor in mind?

MR CALLINAN: No, and indeed, we do not allege that we did. If your Honour looks at the allegation you will see that we say we could have entered into a contract; in other words, we lost the opportunity of entering into a contract for a fixed sum of about $14,800,00."

In the light of that intimation on behalf of Caboolture Park, Pincus J then ordered that Caboolture Park:-

"With respect to the allegation in the first and third paragraph on page 20 of the amended statement of claimed filed on 3 March 1987 supply particulars in the form of a statement that it is not alleged that any specific contractor or any

specific contract of an alternative kind was available."

On 22 October 1987, again before Pincus J, a suggestion was made by Counsel for WIQ which Mr Callinan 9.C. neither supported nor opposed, that each of WIQ and Caboolture Park should provide to the other party, statements or affidavits of the evidence on which each proposed to rely. By 15

December 1987 when the matter first came before me for directions, Mr Callinan Q.C. was able to announce:-

"Could I mention the matter of the exchange of evidence on affidavit? ... Pincus J made an

order, for such an exchange. We have no objection to that, and I do not think my learned friend has any objection. I think there is

agreement now between us that evidence should be taken on affidavits and in due course, those affidavits exchanged.

Upon the basis that we would file and deliver our affidavits on the claim, there would then be affidavits on the counterclaim, and then we would file and deliver affidavits onthe reply and answer. I think that has either been ordered or is something the parties will attend to."

Accordingly, an order which I made on that day included

"(4) That the applicant CCaboolture Park] file and serve by 20 February 1988, any affidavit or affidavits containing the evidence on which it proposes to rely in support of its claim at the hearing of this application;

(5) That the respondent CWIQ] file and serve, by 20 February 1988, any affidavit or affidavits containing the evidence on which it proposes to rely in support of its cross-claim at the hearing of this application;

(6) That the applicant file and serve, by 21 March 1988, any affidavit or affidavits on which it proposes to rely in answer to the respondent's affidavits referred to in paragraph (5) of this order;

(7) That the respondent file and serve, by 21 March 1988, any affidavit or affidavits on which it proposes to rely in answer to the applicant's affidavits referred to in paragraph (4) of this order."

Those time limits were not observed, or insisted on, perhaps partly because orders were made between 14 March and 8 April 1988 for the joinder as respondents herein of some fourteen sub-contractors to WIQ who had been involved in different aspects of the construction of the Caboolture Park Shopping Centre. Accordingly, on 8 April 1988, directions

"1. That Caboolture Park Shopping Centre Pty. Ltd. ('Caboolture Park') file and serve, by 4 May 1988, affidavits containing the evidence-in-chief which it proposes to adduce in support of its claims against White Industries (Qld.) Pty. Ltd. ('WIQ') and by way of defence to the claims in WIQ's cross-claim, except to the extent that such claims raise

performance of work by any of the subcontractors which are the subject of orders

2. That WIQ file and serve, by 27 May 1988, affidavits containing the evidence-in-chief which it proposes to adduce in defence of the claims against it by Caboolture Park and in support of its cross-claim against Caboolture Park, except to the extent that such claims raise issues pertaining to the subcontract of, or the performance of work by any of the subcontractors which are the subject of orders for separate trials already made herein."

extended on 4 May 1988 by one week, and on 25 May 1988 I

granted leave to Caboolture Park to amend further its amended statement of clain. The permitted amendments included

particulars raising two alternative bases on which Caboolture Park claimed that its damages should be measured. Those bases were indicated by the following new introductory paragraph

which it was proposed should be inserted in the particulars subjoined to paragraph 15 of the statement of claim as

"Had the Applicant not entered into the said agreement in reliance upon the representations referred to in paragraph 7 hereof and the beliefs thereby induced referred to in paragraph 8 hereof, it would have:-

(i) entered into an agreement for the performance of the works provided for in the said agreement for a fixed contract sum; or

(ii) alternatively, undertaken the performance of the said works itself; or

(iii) alternatively sold the land without constructing the shopping centre thereon." Despite the extension of time given on 4 May 1988, by 25 May 1988 Caboolture Park had not filed any of the affidavits which it had been ordered to provide containing the evidence on which it proposed to rely in relation to issues other than those touched on by the sub-contractors'

claims. Accordingly, on 25 May 1988 orders were made which included, with the acquiescence of Counsel for Caboolture

"2. That the order of 8 April 1988 be varied further by extending to 3 June 1988 the time by which Caboolture Park is to file and serve affidavits containing the evidence which it Proposes to adduce in support of its claims against WIQ and by way of defence to the

claims in WIQ's cross-claim, except to the extent that such claims raise issues pertaining to the sub-contract of, or the performance of work by, any of the sub-contractors which are the subject of orders for separate trials already made herein.

That in default of compliance by Caboolture Park with paragraph 1 of the order of 8 April 1988 as varied this day, Caboolture Park's proceedings be dismissed as to the whole of the relief claimed by it herein."

of the affidavits on which it proposed to rely, that

Arthur George Briggs sworn 23 May 1988. order made on 25 May, it filed, on 3 June 1988, three further

Pursuant to Order 20 Rule 2 or in the inherent jurisdiction of this Honourable Court, that the proceedings by the Applicant be dismissed on the grounds that no reasonable cause of action is disclosed, or that the proceedings are frivolous and vexatious, or are an abuse of the process of the Court.

Alternatively, a declaration that the proceedings commenced by the applicant stand dismissed as to the whole of the relief claimed by it herein, consequent upon the Applicant's failure to comply with Orders of this Honourable Court made in paragraph 1 of the Order of 8 April 1988, as varied by paragraph 1 of the Order of 4 May 1988, as further varied by paragraph 2 of the Order of 25 May 1988."

As argued by Mr Fraser of Counsel for WIQ, that motion proceeded from two bases. In the first place it was contended that significant deficiencies became apparent - when one examined against the background of Caboolture Park's amended reply and answer, Caboolture Park's affidavits, and particularly the longer of the two affidavits sworn by Mr Bennett. That affidavit, it was submitted, was no more than a draft containing much tendentious and speculative reference

to alleged "anomalies" and "discrepancies" but no assertions

of fact to support particular allegations in the reply and answer. From that critical examination of its affidavits, I was invited to infer that Caboolture Park intended, when they were filed, later to adduce further evidence and that, therefore, it had not complied with the self-executing order of 25 May 1988 that it "file and serve affidavits containing

the evidence which it proposes tao adduce in support of its claims against WIQ and by way of defence to the claims in

One specific aspect in which Mr Fraser contended Caboolture Park's affidavits filed in purported compliance with that order were deficient, was in proof of the damage which it alleged in its statement of claim it had suffered as a result of WIQ's contraventions of the Trade Practices Act, fraudulent misrepresentation, or negligent missstatement. It was said that Caboolture Park accepted that the measure of damages applicable to those three causes of action is the

measure in tort as indicated by the High Court in Gates v

The City Mutual Life Assurance Society Ltd (1986) 160 CLR 1.

That acceptance, Mr Fraser argued, entailed the requirement

of showing that, had it mot been for WIQ's conduct, Caboolture Park would, and could, have let a contract for the

erection of the shopping centre by some other contractor for a price less than that ultimately claimed by WIQ. It was then urged that nothing in any of the four affidavits filed on behalf of Caboolture Park even arguably satisfied that

In addition, Mr Fraser identified other matters which

pointed up further deficiencies in the affidavits filed on

behalf of Caboolture Park. He referred first in this context to the following paragraph on sheet 158 of Mr Bennett's

"With respect to that trade package concerning East Coast Plastering I say that the applicant was in I think March, 1988 serviced with a writ seeking relief in the Supreme Court of Queensland pursuant to the Subcontractors Charges Act. In view of the joinder of the Subcontractors currently before this Honourable Court I say that it is the intention of the applicant to join East Coast Plastering in these proceedings and to proceed in a manner similar to that in respect of the other subcontractors."

By thus claiming that it was relieved from including in any of the affidavits filed in compliance with the order of 8 April 1988, Caboolture Park, according to Mr Fraser, had

Secondly, Mr Fraser referred to the omission from Caboolture Park's affidavits of any reference to "trade

package 9" which was the subject of specific allegations in

Caboolture Park's reply and answer. Finally, in this context, Mr Fraser contended that Caboolture Park could not

defend its failure to comprehend in its affidavits all of the matters raised by its pleadings, by asserting that the omissions were in respect of issues "pertaining to the sub-contract of or the performance of work by any of the sub-contractors which are the subject of orders for separate trials". Separate trials, Mr Fraser pointed out, have been ordered in respect of only twelve sub-contractors, whereas there were in all about forty sub-contractors' trade packages

giving rise to issues between Caboolture Park and WIQ.

On the question of whether there has been compliance with the order of 8 April 1988, I consider, with respect, that the approach taken by a Full Court of this Court (Bowen CJ, Deane and Ellicott JJ) in _Broers v Forster (1981) 36 A.L.R. 605 correctly requires me, first, to construe the language of the self-executing order of 25 May 1988 and then to determine whether the facts on which the order is

The stipulation that Caboolture Park, by 3 June 1988, "file and serve affidavits containing the evidence which it proposes to adduce in support of its claims against WIQ and by way of defence to the claims in WIQ's cross-claim", does not permit the Court to measure the sufficiency of Caboolture

Whether there has been default in compliance with that order turns not on the adequacy of Caboolture Park's affidavits to prove all of the allegations asserted in its pleadings, but on whether, by 3 June 1988, there had been filed in good faith documents which could fairly be regarded as affidavits containing the evidence then available to it on which Caboolture Park, by its directors and legal advisers, intended to adduce in chief in support of its claim against WIQ, or by way of defence to WIQ's cross-clain. Thus in Reiss v Woolf (£19523 2 All E.R. 3 Devlin J, with whom the

Court of Appeal agreed on appeal (£19521 2 Q.B. 557),

"If 'default' means default in the sufficiency of one or more of the answers, I should not consider that the event was defined with precision. Whether or not it had taken place might be the subject of a genuine conflict of opinion which could only be resolved by further adjudication. If I thought this to be the right construction of the order, I should follow Abalian v. Innous £19361 2 All E.R. 834 and treat it as inoperative. The order can conform with the principle in that case only if it is treated as an order that is dealing with the time of compliance rather than with the mode of

compliance. The order does fix a time very precisely, and I think it can and should fairly be construed as atime order. So construed,

'default' refers to default in the delivery of a document within the specified time. I do not, of course, mean that any document with writing on it will do. It must be a document made in good faith which can fairly be entitled 'Particulars'. It must not be illusory. That is the word used by Mr. Bankes in argument in Davey v. Bentinck {£19833 1 Q.B. 185, at 1861. That, in my judgment, is the test, and not, as the plaintiff

contends, whether each demand for particulars has been substantially met."

Consistently with that approach, I decline, for present

purposes, to examine the affidavits filed on behalf of

Caboolture Park to determine whether they contain evidence of each element of each cause of action or defence raised by its pleadings. If there are omissions like those conceded to exist in relation to trade package 9, and the sub-contract of East Coast Plastering, or deficiencies like those asserted by Me Fraser in proof of any damage allegedly suffered by Caboolture Park, leave may be necessary, as its Counsel accepted in their written submissions, before evidence can be adduced in chief on behalf of Caboolture Park in respect of those areas. Whether that leave should be granted will depend on a discretionary review of all the relevant circumstances, including the reasons for the failure to incorporate the evidence in the affidavits ordered to be

filed by 3 June, and any prejudice suffered by WIQ as a

The second basis for WIQ's motion for the dismissal of Caboolture Park''s proceedings was said to be founded on 0.20 r.2 of the Rules of this Court and the Court's inherent jurisdiction. Order 20 r.2 provides:-

"(1) Where in any proceeding 1t appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding-

(c) the proceeding is an abuse of the process of the Court,

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1)."

The language of that rule is identical with that of Pt 13, r.5 of the New South Wales Supreme Court Rules 1970 which

was considered by Cross J in Brimson v Rocla Concrete Pipes Ltd., £19821 2 N.S.W.L.R. 937 where his Honour observed, at

944, "On such a motion the court's consideration is not limited to the statement of claim, i.e. to whether it has the

defects or negative qualities specified in this rule, but to

the 'proceedings generally'. His Honour also expressed the

view, with which I respectfully agree, that the principles governing the application of this rule are substantially the

same as those which should guide the exercise of the inherent jurisdiction of the Court to stay or dismiss proceedings which are an abuse of its process as being frivolous or

vexatious. His Honour then went on to observe, also at 944:-

case, either under its statutory rules or its inherent jurisdiction, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases. True, the court will not look merely at the suggested weakness of the Plaintiff's case but - though to a less extent - at the suggested strength of the defendant's case; and, true, forensic argument and subsequent judicial reflection are not necessarily inconsistent with a firm conclusion that the cause of action should not be allowed to proceed. But fatal defects in the plaintiff's case must be very clear before the court will intervene in this fashion."

The facility afforded by 0.20 r.2(2) for the Court to

receive evidence on the hearing of an application for an

order under 0.20 r.2(1) enables a respondent to seek to

demonstrate by evidence, either oral or on affidavit, that notwithstanding that a cause of action is disclosed on the face of the pleadings there is no factual basis on which it can be made out in the pleadings. Here, WIQ has attempted to discharge that onus, not by relying on evidence filed or adduced on its own behalf, but by pointing to deficiencies and omissions in the affidavits filed on behalf of Caboolture Park pursuant to the order of 25 May 1988. It claims to be assisted in that task by the presumption arising from the terms of that order that those affidavits contain the whole of the evidence which Caboolture Park proposes to adduce in support of its claims against WIQ and by way of defence to WIQ's cross-clain. However, that presumption is not conclusive because, first, it remains open to Caboolture Park to rely in support of its own claims, or as part of its general defence to WIQ's cross-claim, on evidence which emerges in one or other of the separate trials of issues pertaining to the sub-contracts of, or the performance of work by, the cross-claiming sub-contractors. Secondly, Caboolture Park may seek to rely on documents produced on subpoena by sub-contractors or strangers to the litigation, the existence of which was not known to it or its advisers on 3 June 1988. Another consideration which precludes a conclusive presumption that the affidavits filed on that date by Caboolture Park are exhaustive is the possibility, to which I adverted earlier in these reasons, that leave may be granted to adduce evidence to supplement that contained in

A more fundamental objection to this ground of WIQ's application for summary dismissal of Caboolture Park's

proceedings is that it essentially involves a submission that, having regard to the totality of the evidence contained

in Caboolture Park's affidavits filed by 3 June 1988, WIQ has no case to answer in respect of the substantive claims against it. A question arises at the outset of any consideration of a contention of that kind, as to whether the party advancing it should be permitted to do so without being put to its election to call evidence or not. That question

may be resolved in one of three ways identified as follows by

Tadgelil J in Protean (Holdings) Ltd. v_ American Home Assurance Co. £1985] V.R. 187 at 237:-

"Normally, however, the dudge would not feel justified in refusing outright to hear a submission of no case if to hear it would carry the prospect of justly facilitating the disposition of the litigation. Usually there would be three courses open to him, short of refusing altogether to entertain the submission, namely:-

1. He might decline to entertain the submission at that stage unless the moving party were to elect before making it not to call any evidence, either generally or on the issue on which the ruling was sought; or

2. He might allow the submission to be made without putting the moving party to any election at that stage but leaving, until he had heard it, the question whether or not he would rule on it without requiring an election to be made; and having heard the submission, and any answer to it by the respondent party, he could either rule on it or not, perhaps requiring an election to be made as a prerequisite to his doing so; or

3. He might indicate that he would both entertain the submission and rule on it without

requiring an election to be made by the moving party."

Australasia Ltd. v Puddy £1949] V.L.R. 242, it was the second of those courses which was taken. I therefore reject the contention on behalf of Caboolture Park that by making the submission which it did, WIQ had positively elected not to call evidence in support of its defence to the causes of

action raised by Caboolture Park's statement of claim.

Having heard, at least in outline, the submission advanced on behalf of WIQ and Caboolture Park's answer to it, I consider that I should not rule on it at this stage. I have been influenced to reach that conclusion principally by

the possibility, referred to earlier in these reasons, that Caboolture Park may supplement the evidence contained in its

affidavits filed, pursuant to the order of 25 May 1988, by reliance on evidence given in the course of one or other of the separate trials of sub-contractors' issues, by the tender of documents obtained from a sub-contractor or a stranger to the litigation such as the architect, a structural engineer or one of the other consultants, or by adducing, by leave, further evidence not contained in its four affidavits filed between 25 May and 3 June. The principal reason for the general rule that a party making a no-case submission must first elect to call no evidence himself, is that a judge should not express an opinion on the sufficiency of the evidence until it has been completed. Thus in Alexander v

Rayson £19361] 1 KB 169 at 178 the Court of Appeal observed at 178:-

"Where an action is being heard by a jury, it is, of course, quite usual and often very convenient at the end of the case of the piaintiff ... for the opposing party to ask for the ruling of the judge whether there is any case to goto the jury, who are the only judges of fact. It also seems to be not unusual in the Kings Bench Division to ask for a similar ruling in actions tried by a judge alone. We think, however, that this is highly inconvenient. For the judge in such cases is also the judge of fact, and we cannot think it right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed. Certainly no one would ever dream of asking a jury at the end of a plaintiff's case to say what verdict they would be prepared to give if the defendant called no evidence, and we fail to see why a judge should be asked such a question in cases where he and not a jury is the judge that has to determine the facts. In such cases we venture to think that the responsibility for not calling rebutting evidence should be upon the other party's counsel and upon no one else."

That passage was cited with approval by Toohey J in this

Court in James v ANZ Banking Group Ltd (No 2) (1985) 9 F.C.R. 448 at 451.

In my view, that policy applies with even more force where the possibility remains that the plaintiff or applicant

Had I been able to regard Caboolture Park's evidence as

complete, I would still have required WIQ to make the é€lection, before ruling on its submission. As developed, the submission did not isolate a discrete question of law capable of being resolved without a detailed examination of the evidence including the identification of inferences available to be drawn from it. Accordingly, I do not regard Mr Fraser's

submission as coming within the exception to the general rule

noted by Young Cd in Protean (Holdings) Ltd. v American Home

"When a trial judge has to consider an application to be allowed to submit that there is no case to answer, whether by a defendant or by a plaintiff, he must first decide whether he will allow such a submission to be made without requiring the party

wishing to make the submission to elect to call no evidence. It will not often be right for a judge to allow that course to be followed except perhaps where the answer depends principally ona question of law." Indeed, when I canvassed with Mr Fraser the possibility of deciding as a separate question of law, pursuant to 0.29 Division 1, whether Caboolture Park had suffered any damage as a result of the contraventions of s.52 of the Trade Practices Act, fraudulent misrepresentation or negligent misstatement alleged in its statement of claim, the concession was made that:- "T would assume that if the matter was set down for the trial of a separate question, then presumably a prudent defendant would take the course of treating it as a trial, and gaining

whatever advantage it could gain by cross-examination or evidence."

My refusal to entertain its submission, at this stage, should not be taken as precluding WIQ from renewing it later in these proceedings when the relevant evidence can more conclusively be regarded as complete. Nor should I be taken as having expressed any view on whether the Court should, at some appropriate point, determine, before investigating the other allegations in Caboolture Park's statement of claim, a suitably formulated question of law as to Caboolture Park's

proof of the damage which it allegedly suffered. Because the

issues with which these reasons are concerned may be revived in one or other of those ways, and because I have not considered the sufficiency of the affidavits filed by Caboolture Park pursuant to the order of 25 May 1988, I shall reserve the costs of WIQ's motion on notice dated 8 June 1988

which, for the reasons indicated above, is refused.

I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Ryan.