Plaintiff v Defendant

Supreme Court of Victoria|2005-07-18|Before: BONGIORNO, J

Practice and procedure - Pleadings - Statement of Claim - 360 pages - necessity for certainty in pleading - function of particulars - prolixity - striking out/refusing leave to file. RSC O.13.01 r. 23.02.

For the Seventh, Eighth, Ninth, Fourteenth, Fifteenth, Sixteenth and Seventeenth Defendants

2 On 13 December 2004, the plaintiffs filed a Writ to commence this proceeding against seventeen individuals and three corporate entities, the Wilderness Society, the Huon Valley Environment Centre and Doctors for Native Forests. The writ was accompanied by a 216 page statement of claim comprising 529 paragraphs. It claimed damages, including aggravated and exemplary damages, injunctions and costs for disruption of the plaintiffs' businesses allegedly caused by various tortious actions of the defendants.

3 After a number of directions hearings, it became clear that most, if not all, the defendants would be seeking to attack the plaintiffs' statement of claim on various grounds. At the same time, the plaintiffs' solicitors were seeking to provide further particulars of that statement of claim in response to requests from various of the defendants. That such requests would be made ought to have been (and probably was) foreseen by the plaintiffs' advisers, having regard to the form and substance of the statement of claim. In any event, so as to bring some order to the procedure for obtaining particulars, on 8 April 2005 the Court made an order that any request for further particulars be served not later than 22 April 2005 and be complied with by the plaintiffs by 10 June 2005.

4 On 9 May 2005, the Court fixed 4 July 2005 as the date for the hearing of strike out applications by any defendant who sought to take that interlocutory step. By letter dated 10 June 2005, received by the Court on 14 June 2005, the plaintiffs' solicitors advised the Court that they were experiencing difficulty in providing further particulars as requested by many of the defendants and that they would not be able to fully and finally provide those particulars to all defendants before 8 July 2005. They said that the plaintiffs intended to amend their statement of claim and proposed a revised timetable for the interlocutory steps which had, at that stage, been ordered. That timetable would have caused the date of 4 July 2005 for the hearing of strike out applications to be vacated and require the matter to be refixed later in the year.

5 A directions hearing was held on 17 June 2005. At that hearing, the Court refused the plaintiffs' application to vacate the 4 July fixture and encouraged them to provide their proposed amended statement of claim to the defendant prior to that date so that on the strike out application the plaintiffs' proposed amended statement of claim could be considered rather than their original statement of claim which would become, in any event, redundant.

6 On 1 July 2005, the plaintiffs filed a summons seeking leave to deliver an amended statement of claim. They served the defendants with the amended statement of claim that day. It is a document of 360 pages, the increase in length having been brought about by the insertion of a large number of new paragraphs in the body of the document.

7 Upon the matter being called on on 4 July 2005, counsel for the plaintiffs again sought an adjournment of the defendant's applications for six weeks to enable them to provide outstanding particulars. That adjournment application was refused for reasons which the Court published on that day. Accordingly, the strike out applications were then heard over the succeeding four days, and it is those applications with which this ruling is concerned. Although, in form, each of the defendants who sought to have the plaintiffs' statement of claim struck out initially based their applications and written outlines of argument on the statement of claim which was filed with the writ when the proceeding commenced, they all accepted the plaintiffs' amended statement of claim as being the document to which they should direct their arguments. There was some discussion at the hearing as to whether the plaintiffs could amend their statement of claim without leave pursuant to RSC r.36.03(a), in respect of those defendants who had not yet filed a defence but would need leave in respect of the rest. There was, however, no need to explore that matter further as the applications before the Court were treated by all parties as directed to the substantial efficacy of the plaintiffs' amended statement of claim. The orders the Court will make upon those applications will reflect the reality of the situation.

8 The amended statement of claim makes a number of discrete claims against various of the defendants, each of which relates to a specific area of the first plaintiff's business and/or a specific time period. The document designates those claims as follows:

9 The second and third plaintiffs appear to be referred to in the amended statement of claim only in respect of the Styx Action where their partnership makes a claim for damages on similar grounds to the first plaintiff. Neither they nor their partnership were mentioned during the hearing.

10 The plaintiffs' amended statement of claim consists of nine separate sets of allegations, five of which are designated as logging operations disruption campaigns. The other four are said to constitute instances of alleged "corporate vilification." The document concludes by seeking to tie all of this allegedly tortious conduct by the defence together as "the Campaign against Gunns." Counsel for the plaintiffs explained the "Campaign again Gunns" as resulting in greater damage to the plaintiffs than the sum of the damage suffered by them as a result of each of the nine sets of allegations referred to, although it was pointed out by counsel for a number of defendants that the total claimed ($6.36m) by the plaintiffs is, in fact, the total of the damage attributed to the nine actions.

11 The plaintiffs' pleading does not allege that all defendants engaged personally in all the tortious acts enumerated, but it does seek to implicate many of them in liability for many of the torts by wide ranging allegations of agency, particularly involving the corporate defendants as principals. The torts relied upon include interference with trade or business by unlawful means, wrongful interference with contractual relations, conspiracy to injure and defamation. The plaintiffs claim damages, including aggravated and exemplary damages and injunctions.

12 Not all defendants joined in the application to strike out the plaintiffs' statement of claim. The second, sixth, thirteenth and eighteenth defendants did not appear or make submissions on the applications. Their right to seek to have the plaintiffs' statement of claim struck out was preserved by orders made on 17 June 2005, but having regard to the order which will be made on the applications of all of the other defendants, that right will now become redundant.

13 As has already been noted, the plaintiffs produced an amended statement of claim shortly before the hearing of the defendants' applications. In this statement of claim, there was a significant increase in the number of allegations of fact with respect to the plaintiffs' cases on conspiracy, especially with respect to the logging operations disruption campaigns. There was also a change in the way in which they sought to combine all of the individual tortious claims into the "Campaign against Gunns." There were other changes, but there is no need for any further analysis of these changes as all parties accepted, for the purposes of the strike out application, that the operative document was the amended statement of claim - whether filed as of right against those defendants in respect of whom pleadings had not closed or sought to be filed by leave in respect of the remainder.

14 It is trite to observe that the function of a statement of claim is to set out with sufficient clarity the case which the defendant must meet. Incidentally, when read with the defendants' defence and any subsequent pleadings, the issues for determination by the Court are defined. But its primary function is to serve a basic requirement of procedural fairness, namely notifying the defendant of the case he has to meet. [1]

15 The fundamental rule of pleading is contained, for this Court, in RSC r.13.02(1)(a) which requires every pleading to contain, in a summary form, a statement of all the material facts upon which a party relies, but not the evidence by which those facts are to be proved. That the pleading must allege material facts is fundamental. That they must be alleged with certainty follows from the principle stated that the pleading must convey a clear conception of the case being made. If it does not, it will be embarrassing in the sense that that word is used in this area of legal discourse and, in particular, for present purposes, in RSC r.23.02 and its predecessors both here and in England. The full Court of this Court has described a pleading as being embarrassing -

".....where the pleading is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him."[2]

16 That a pleading must contain all necessary particulars of any fact or matter pleaded is prescribed by RSC r.13.10(1). The following parts of r.13.10 set minimum requirements for particulars without limiting the generality of the general requirement expressed in r.13.10(1).

17 There are a number of legitimate functions which particulars perform. They inform the opposite party of the nature of the case which has to be met. In R v Associated Northern Collieries[3], Isaacs J quoted Buckley LJ in G W Young & Co Ltd v Scottish Union and National Insurance Company[4] to the effect that the principle underlying particulars was that they were given in order to make the plaintiff's case "plain."

18 Another object of particulars is to limit the generality of the allegations in a pleading and so to limit and define the issues to be tried.[5] In so refining the issues, they determine the relevance of evidence and the width and scope of interlocutory processes. Finally, they prevent surprise or "ambush."[6] But, however wide-ranging the function of particulars might be, it is not to fill gaps in a statement of claim which is missing some essential material allegation. This is so, even if in recent times there has been a tendency to blur the distinction between the allegations in a pleading and the particulars supplied either pursuant to the requirements of r.13.10 or its equivalent in other jurisdictions or in response to a request from an opposite party.[7]

19 Paragraphs 1 to 15 of the impugned document are described by the plaintiffs as introductory paragraphs. However, paragraphs 9, 10 and 11 make significant allegations against the sixth defendant, the Wilderness Society. Paragraphs 9 and 11 seek to set up a form of fluid agency to enable a case to be made against the Wilderness Society based upon the acts of any person or body which could be brought within the particulars given under paragraph 9.

20 Paragraph 10 defines the "Campaign against Gunns" as being one of interference and disruption against the first plaintiff by unlawful means. There follows nine pages of "particulars" of that campaign. They consist of long paragraphs which make general allegations against a very large number of individuals and organisations including many defendants in this proceeding. The particulars also incorporate the allegations contained in approximately 40 other paragraphs in the statement of claim. The allegations in these particulars generally employ conclusionary verbs and are non-specific as to acts which it is sought to impute to individuals. The overall impression of them is that of a collection of very general allegations of wrongdoing by a large number of people over an approximately five year period from 1999 to about 2004. Even if those defendants mentioned could successfully navigate their way through the labyrinth of allegations in these particulars, they would still not be able to understand the case the Wilderness Society would be required to meet to defend the allegation in paragraph 10, much less could they defend their own positions in respect of any act which they, individually, are accused of having engaged in.

21 Although the Wilderness Society did not appear on this application and accordingly not much attention was given to these paragraphs in argument, the fact that the plaintiffs' amended statement of claim will not be permitted to remain on the record will mean that these paragraphs will fall with the rest of the document. Should the plaintiffs propose to maintain all or some of the allegations sought to be made in them or in the particulars given under them, significant alteration to the way in which they are constructed will need to be undertaken.

22 Paragraph 12 incorporates by reference paragraph 526 of the amended statement of claim. Paragraph 526 is one of seven paragraphs at the end of the document which expand the concept of the "Campaign against Gunns" by incorporating by reference a large number of other paragraphs of the statement of claim which, in turn, incorporate a number of other paragraphs. Some of the incorporated paragraphs also have particulars annexed.

23 Whilst cross-referencing of facts alleged in a statement of claim might, in appropriate circumstances, be a convenient way of avoiding repetition and achieving economy of expression, the extensive use of this technique in this document has made a significant contribution to rendering large parts of it either unintelligible or intelligible only after the most careful and painstaking analysis of the content of individual paragraphs to ensure that no reference is missed and to make sense of the paragraphs when read together. Even when every reference is followed up, the disparate nature of many of the referenced allegations and, in many cases, their vagueness, often renders the original paragraph at best ambiguous and at worst misleading.

24 Paragraph 12 alleges that the seventeenth defendant has been an active participant in the "Campaign against Gunns." This allegation seems to be repetitive of the allegation contained in paragraph 526 and probably also that contained in paragraph 10 if one accepts the particulars given under paragraph 10 as defining the scope of the allegation which it makes. In any event, paragraph 12 and its particulars suffer from the same difficulties already identified and require extensive reconsideration as pleadings.

25 Paragraph 13, like its counterpart with respect to the Wilderness Society, paragraph 11, alleges that the acts of the seventeenth defendant, the Huon Valley Environment Centre were performed by employees, officers, members, servants, agents or subsidiaries. This pleading is otiose, as the Huon Valley Environment Centre is an incorporated body which can only act through individuals. The particulars given under this paragraph do not fulfil the proper function of particulars.

26 Paragraphs 14 and 15 make similar allegations concerning the twentieth defendant as are made with respect to the seventeenth defendant. They suffer from the same deficiencies and require reconsideration and if they are to be persisted with, recasting as pleadings.

27 In paragraphs 16 to 333A of the amended statement of claim, the plaintiffs make allegations of tortious conduct by various of the defendants by reference to five separate "actions" which, they say, were all part of the "Campaign against Gunns" and which, individually, gave rise to causes of action in conspiracy, interference with trade or business by unlawful means, and unlawful interference with the performance of contracts. These actions, which are designated as the Lucaston Action, the Hampshire Mill Action, the Triabunna Action 2003, the Triabunna Action 2004 and the Styx Action, all involved activity by or on behalf of various defendants in the forest areas to which they refer.

28 Although in respect of each of the forest actions named, defendants have specific allegations of tortious conduct made against them, because of the various allegations of agency in amended statement of claim (including in the introductory paragraphs to which reference has already been made) and the extensive and confusing cross-referencing used in substantive paragraphs and particulars, it would be extremely difficult, if not impossible, for any particular defendant to determine with certainty whether he or she was alleged to be liable for any particular act of tortious conduct in respect of any particular forest action. One has only to embark upon the exercise of trying to ascertain exactly what is alleged against any particular defendant to rapidly come to the realisation that not only is the exercise an extremely frustrating and barren one, but it is also one not likely to lead to a certain conclusion. Thus, the pleading fails its fundamental purpose of informing each of the defendants of the case he, she or it has to meet. As James, LJ said in Davy v Garrett[8]:

"But a defendant may claim ex debito justitiae to have the plaintiffs' case presented in an intelligible form, so that he may not be embarrassed in meeting it; and the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery. If pleadings such as this are to be allowed, the gentlemen who took such pains in the preparation of the rules may say, as Oliver Cromwell did after an unsuccessful attempt to reform abuses, 'The sons of Zeruiah be too hard for me.'''

29 Counsel for the plaintiffs helpfully provided the Court with two documents which, by way of example, set out the way in which the case could be traced through the amended statement of claim in respect of two defendants, the nineteenth and twentieth. That relevant to the nineteenth defendant shows that the case against him is pleaded in 33 paragraphs which are to be found in various parts of the document. He was alleged to have performed certain acts in paragraphs 377 and 378; he was engaged in meetings (or might have been engaged in meetings) referred to in paragraphs 99D and 99E and he is said to have been involved in the "Campaign against Gunns" in paragraphs 527C and 528. The document goes on to set out those further causes of action in which the nineteenth defendant is said to be relevant to the outcome. A further 24 paragraphs of the document are involved ranging from paragraphs 166 to 525. It could not be said that the plaintiffs' case against him is presented in an intelligible form. An analysis of the document with respect to the twentieth defendant would yield, I am sure, a similar result.

30 Each of the logging operations actions is said to have been conducted in furtherance of a conspiracy to injure the plaintiffs, or at least the first plaintiff. Accordingly, each of the actions has a pleading of conspiracy involving a number of named defendants. For example, paragraph 47 alleges a conspiracy between nine of the defendants (together with other persons) to injure the first plaintiff by unlawful means by the acts constituting the Lucaston Action. The particulars of that conspiracy refer to a very large number of other paragraphs in the statement of claim. Further, paragraphs 50A and those following refer to a number of meetings said to have been held at various times between about December 2002 and June 2003 which were attended by a number of people at which the conspiracy alleged was either created or acted upon. Allegations of similar meetings can be found in the 18 or so paragraphs following paragraph 99.

31 Quite aside from the problem of ascertaining with precision who is said to have been at any particular meeting by reading the pleading, the pleadings with respect to these meetings, the particulars of the conspiracy given under paragraph 47 and the allegations with respect to the conspiracy lack sufficient precision. Indeed many of them are imprecise as to whether any particular defendant is alleged to have been present at any particular meeting. As a result, many of the allegations of the meetings at which the conspiracy was effected, or which were held in furtherance of the conspiracy, would be impossible for many of the defendants to plead to. They are embarrassing.

32 Counsel for the plaintiffs sought to excuse the lack of precision with respect to the conspiracy pleadings as having been caused by the fact that, of their nature, conspiracies of this type are clandestine such that their details are unlikely to be known to the plaintiffs. He referred to State of Queensland v Pioneer Concrete (Qld) Pty Ltd.[9] In that case Drummond J acknowledged that where a claim is based on a clandestine compact between a number of persons, a plaintiff might be expected to be unable to give precise particulars of material facts sufficient to support its allegation of the making of the conspiracy. He referred to the necessity for the plaintiff to plead the overt acts it intends to rely upon to justify an inference that a conspiracy of the nature alleged was made. But in the pleading with which this Court is presently concerned, it is not a lack of particularity which has led to deficiencies in the pleading of the conspiracies alleged. It is the nature of the pleading itself. It is one thing to excuse a plaintiff from provision of precise particulars of conversations which are said to have constituted the conspiracy. It is quite another to excuse pleadings which are embarrassing in the sense that a defendant cannot plead to them because he cannot determine with any precision whether any, and if so, what allegation is made against him.

33 The second part of the plaintiffs' action is designated in the amended statement of claim as the "Corporate Vilification Campaign." This campaign is said to have been constituted by four separate actions. They are designated the Burnie Action, the Banksia Award Action, the Japanese Customers Action and the Banks Action.

34 The Burnie Action is a claim in defamation and conspiracy with respect to two statements allegedly made by the nineteenth defendant as agent for the twentieth defendant concerning piles of woodchips in the vicinity of the wharf at Burnie in Northern Tasmania.

35 So far as the claim in defamation against the nineteenth and twentieth defendants are concerned, the pleadings in paragraphs 376 to 383 are probably unexceptionable apart from an arguable technical defect in paragraph 382. The libel is presumed to have injured the plaintiffs' reputation. It would not seem necessary to plead that it was likely to do so.

36 However, once again, the allegation of conspiracy is fraught with considerable difficulty. The conspiracy is pleaded in paragraph 384 and, in particulars given under that paragraph, is said to be inferred from the overt acts. But the overt acts are, it would seem, confined to the publication of the allegedly libellous statements and none of the defendants other than the nineteenth (and perhaps the twentieth as principal) are alleged to have been involved in those publications. In other respects, the particulars do nothing to enlighten the reader as to the way in which the conspiracy alleged in paragraph 384 is said to have come about. The statements made in the particulars are conclusionary in nature and, in many cases, circular and accordingly meaningless. .

37 In paragraph 386B and those following, allegations of complicity between the sixth, eighteenth, nineteenth and twentieth defendants in perpetration of the defamation alleged in earlier paragraphs is made. Paragraph 390 is a discursive series of allegations which are unparticularised except as to the damages sought against each of the relevant defendants.

38 In the course of argument, the question was raised as to whether a conspiracy to commit a tort was actionable if in fact the tort was ultimately committed and was, thus, actionable itself. The question can be put to one side for the moment. It would seem however, that if, in this case, liability could be established against parties other than the nineteenth defendant, then whether that liability is established by agency or by reference to some conspiracy in which all those parties were involved would seem to be of little moment. As the plaintiffs will have the opportunity of reconsidering these causes of action before deciding on their form in another statement of claim, it is not necessary to say anything further concerning them at this stage.

39 This claim by the first plaintiff is pleaded in paragraphs 391 to 427. The causes of action pleaded are interference with trade and business, interference with contractual relations, procuring a breach of contract and conspiracy to injure. These causes of action are raised in paragraphs 399, 400, 401, 402 and 403. Each of those paragraphs contain particulars which do not explain the plaintiff's case or provide information to enable the relevant defendants to know the case they have to meet. They are prolix, conclusionary and fail to particularise the case which the plaintiff seeks to make.

40 Paragraph 405 appears to repeat the conspiracy pleaded in paragraph 403 using different words. It is unclear as to whether a different agreement is being alleged or whether the same agreement is being alleged twice.

41 The use of the word "vilification" in paragraphs 405 and 406 renders the pleading uncertain. If the act is tortious then it will be tortious because it consists of the publication of defamatory material. There is no tort of "vilification." The word is conclusionary. What the pleading must contain is a statement of the primary facts alleged, that is to say what actions the relevant defendant is said to have performed. The inclusion of that word in those paragraphs where it appears renders those paragraphs embarrassing.

42 Overall, the pleading of the Banksia Awards Action is unsatisfactory. It should be repleaded succinctly with such particulars as are necessary to give the relevant defendants full notice of the claim made against them which they have to meet.

43 This part of the first plaintiff's claim concerns alleged interference with its business interests in Japan. It relies upon causes of action including malicious interference with trade and business by unlawful means and conspiracy. Again, the conspiracy pleaded in paragraph 431 seems to be repeated in paragraph 432 using different phraseology. Further, the phrase "Japanese Customers Action" appears to have an undefined meaning derived from the fact that in paragraph 428 there is reference to three Japanese customers of the first defendant. It might relate to everything alleged against all defendants mentioned in this part of the pleading or it might not.

44 The particulars given in paragraphs 430 and 431 and, to a lesser extent 432, are formulaic. They do not apprise the relevant defendants of the case they have to meet and are prolix.

45 Paragraphs 434 to 495 of the pleading consist of a discursive narrative of events between about December 2000 and March 2004 concerning aspects of the first plaintiff's business dealings with various of its Japanese customers. The paragraphs include extensive quotations from letters, newspapers and media releases.

46 Not only do these paragraphs offend the formal rules of pleading set out in RSC O.13, they do not clearly apprise the relevant defendants of the case they have to meet. In some instances the actions of third parties are pleaded without any plea of a connecting link to any act attributed to a relevant defendant.

47 If any of the material in these paragraphs constitutes appropriate allegations of fact which, if proved, would establish a cause or causes of action against some or all of the defendants referred to, then they must be re-cast in an acceptable form, such that they can be sensibly pleaded to by those defendants who are affected by them. They could not be sensibly pleaded to in their present form. They are embarrassing.

48 Paragraph 488 and those following allege a number of bases of liability of various persons, including, but not limited to, various defendants. Some of them appear to be merely a re-statement of allegations in paragraph 430 and those following.

49 An allegation of agency in paragraph 495 is supported by particulars similar in form to many other sets of particulars of agency in various parts of the amended statement of claim. These particulars not only suffer from extreme prolixity, but they do not adequately inform the relevant defendants of the case made against them on the issue of agency. In many instances they are confusing and resort to formulas such as -

"the agency of the natural persons referred to in paragraph (a) arose either from their employment by the Wilderness Society, one of the Branches, or a relationship arising outside of an employment relationship."

Such a statement is of no assistance to someone seeking to understand the case made against him or her.

50 The part of the plaintiffs' case designated as the Japanese Customers Action cannot be permitted to proceed in its present form.

51 Paragraphs 496, 424, 99, plead causes of action in the usual terms supported by particulars which, as in many other instances in this pleading, incorporate by reference a large number of other paragraphs. They have the same problem of prolixity as many other sets of particulars throughout the document and do not adequately expose the case which the first plaintiff seeks to make against those defendants said to have been involved in the activities covered by this part of the pleading.

52 Paragraph 500 and those following set out a narrative similar to that already referred to with respect to the Japanese Customers Action. They do not comply with the formal rules of pleading. They contain quotations from newspapers, websites and correspondence which are inappropriate in form. The same comments can be made about these allegations as are made with respect to the Japanese Customers Action.

53 The Banks Action cannot be permitted to proceed in the form in which it is presently pleaded.

54 The "Campaign against Gunns," which is first mentioned in paragraph 10 of the statement of claim, is taken up in paragraphs 526 to 528. Reference has already been made to the difficulties posed by the extensive cross-referencing in paragraph 526, and those comments need not be repeated here. The rest of this part of the pleading seeks to combine all of the allegations against all of the defendants in the rest of the pleading to support an allegation that there was, independently of the individual torts already alleged, another over-arching tort of wrongfully and maliciously interfering with the trade and business of the first plaintiff with the intention of injuring it by unlawful means. As well, paragraphs 527B, 527C and possibly 527D appear to raise other causes of actions or different ways of establishing the same cause of action. In either case, their vagueness renders them of little use to a defendant seeking to ascertain what case was being made against him, her or it.

55 In its present form, at least, the "Campaign against Gunns" would appear to be misconceived. Whether it can be repleaded in an acceptable form must be regarded as doubtful. However that may be, it will not be permitted to proceed as presently pleaded.

56 The criticisms made of the amended statement of claim in this ruling are by no means all those that could have been made. As the pleading will not be permitted to be placed on or remain on the record, it would be a singularly unprofitable exercise to attempt to describe every defect in it which needs correction. Some parts of it may not be able to be corrected. Others may be able to be repeated in a new pleading with little modification.

57 It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent, and intelligible statement of its case. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r.23.02. Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent and detailed form.

58 In the course of his argument, counsel for the plaintiffs properly conceded that some amendment was required to some parts of this pleading. He agreed that some of the cross-references might need some modification. He submitted that the Court ought to permit the amended statement of claim to stand with leave granted to the plaintiff to make further amendments. This submission cannot be acceded to. The defects in the pleading are such that to salvage those parts which are not objectionable may well result in greater confusion than is at present created by the document as it stands.

59 Subject to the overriding principle that it is not for the Court to draw a party's pleading, it may be suggested that the conceptual basis of the plaintiffs' case be subjected to serious reconsideration. Any pleading which seeks to make numerous cases against twenty defendants is going to be a complicated document. That is all the more reason why strict compliance with the requirements of a proper pleading must be enforced. For example, sweeping allegations of agency supported by formulaic uninformative particulars can work injustice to the person against whom they are made. Again, allegations of conspiracy must be specifically made even if full particularisation of those allegations must await further interlocutory process. As Lord Oliver of Aylmerton, speaking for the Privy Council, in Wharf Properties Ltd v Eric Cumine Assoc.[10] said:

"It is for the plaintiff in an action to formulate his claim in an intelligible form and it does not lie in his mouth to assert that it is impossible for him to formulate it and that it should, therefore, be allowed to continue unspecified in the hope that, when it comes to trial, he may be able to reconstitute his case and make good what he then feels able to plead and substantiate."

60 The amended statement of claim contains 360 pages. Undoubtedly, the production of a document of that length which attempts to set out allegations against twenty individual defendants, must have been difficult. It may be that an exposition of the plaintiffs' case against each defendant in more precise terms would lead to a reduction in the size and complexity of a new statement of claim. That is a matter for the plaintiffs and their advisers. They should be aware however that the Court will not tolerate laxity of pleading or deficiency of particulars to the disadvantage of those against whom the proceeding is brought. The case will be managed strictly. After all, the plaintiffs had as much time as they required to prepare it before it even commenced. They cannot now complain of having to formulate their claims properly in a timely manner or, as a last resort, face summary dismissal of them.

61 Any new statement of claim delivered pursuant to the order the Court will make should be accompanied by a detailed table of contents or even an index, a glossary of every term or phrase used in it which requires definition, and it should employ a uniform method of referring to parties, both plaintiffs and defendants. In the amended statement of claim an unexplained switch from referring to the second and third plaintiffs by that designation to referring to them by their partnership name caused considerable difficulty in attempting an electronic search, particularly when the partnership name was sometimes written with the word "and" and sometimes with an ampersand. Again, use of the phrase "thirteenth to seventeenth defendants" or similar, means that an electronic search may not pick up that the relevant paragraph refers to those defendants between the two mentioned. Whilst matters such as these might be of little moment in a statement of claim of more manageable proportions, if it is sought to serve a lengthy document, aids to its interpretation might render it acceptable in circumstances where an absence of those aids might render it liable to require further amendment or even to be struck out.

62 In the course of their submissions, counsel for a number of defendants submitted that not only should the amended statement of claim be struck out but that judgment should be entered for their clients against the plaintiffs. Those submissions must be rejected. As has already been pointed out there are, within the amended statement of claim, allegations of fact which can probably be re-cast in the form of an appropriate pleading. The plaintiffs should have the opportunity to undertake that revision on strict terms as to time. Any new statement of claim must be filed and served within four weeks. It should be drawn without reference to either of its two predecessors and should be designated: Statement of Claim (Version 3).

63 Subject to hearing counsel on the question of costs and any submissions as to form, the Court will make the following orders:

The plaintiffs' application for leave to file an amended statement of claim in the form of the draft amended statement of claim served on all defendants on 1 July 2005 be dismissed.
If and insofar as the said amended statement of claim has been filed without leave pursuant to RSC r.36.03(a) in respect of any defendant or defendants, it be struck out.
The plaintiffs have leave to file and serve an amended statement of claim designated Statement of Claim (Version 3) on or before 15 August 2005.
The plaintiffs' summons of 1 July 2005 be dismissed.

[1] Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1991) 69 CLR 279 per Mason CJ and Gaudron J at 286.
[2] Meckiff v Simpson [1968] VicRp 7; [1968] VR 62 at 70 per Winneke CJ, Adam and Gowans JJ; see also Davy v Garrett (1878) 7 Ch.D. 473 and Philipps v Philipps (1878) 4 QBD 127 at 139.
[3] [1910] HCA 61; (1910) 11 CLR 738.
[4] 24 TLR 73 at 74.
[5] Zanardo v Ford Motor Company of Australia [1964] VicRp 99; (1964) VR 769 per Hudson J at 769.
[6] R v Associated Northern Collieries, above.
[7] Bruce v Odhams Press Limited [1936] 1 KB 697 per Scott J at 711-713; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] FCA 1040; (1997) ATPR 41-591 per Goldberg J.
[8] (1877) 7 Ch.D. 473 at 486.
[9] [1999] FCA 499; (1999) ATPR 41-691.
[10] (1991) 52 BLR 8 at 23.

At a glance

Court

Decision date

Before

Source

Judgment (73 paragraphs)

Parties

Cases Cited (2)