Al-Kandari v J R Brown & Co [1988] EWCA Civ 13; [1988] 2 WLR 671

Business Computers International Ltd v Registrar of Companies [1988] 1 Ch 229

Canwan Coals Pty Ltd v FCT (1974) 4 ALR 223

Elguzouli-Daf v Commissioner of Police [1994] EWCA Civ 4; [1995] QB 335

Ex parte Callan; re Smith [1968] 1 NSWR 443

Grimwade v State of Victoria (1997) Aust Torts Rep 81-422

Hammond v Bussey (1888) 20 QBD 79 (CA)

Henderson v Henderson [1843] EngR 917; (1843) 67 ER 313

Holloway v Public Trustee [1959] SR (NSW) 308

In re Dickens (1912) 32 NZLR 374

Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986

Lyons v Kern Konstructions (Townsville) Pty Ltd [1983] FCA 33; (1983) 47 ALR 114

Re Finn [1942] VicLawRp 27; [1942] VLR 125

Re Hodgkinson v Hodgkinson [1895] 2 Ch 190

Re J Hart (d): Smith v Clarke [1963] NSWR 627

Re Latham (d) [1962] Ch 616

Re Seymour [1934] VicLawRp 24; [1934] VLR 136

Standfield Properties Ltd v National Westminster Bank PLC [1983] BCLC 197

The amended statement of claim pleads the following factual background to the defendant's application brought under the Rules of the Supreme Court 1971 (WA) O21 r19, for an order striking out various nominated paragraphs of the statement of claim upon the particular grounds provided in the rule that they disclose "no reasonable cause of action" or "may prejudice, embarrass or delay the fair trial of the action". By r19(2) no evidence is admissible on such an application where reliance is placed upon the contention that the pleading discloses no reasonable cause of action, and so the facts as pleaded are to be accepted.

A Mr Johnston died on 18 August 1993. He was predeceased by his wife Ruth, who died on 25 March 1992. Under his will made on 25 May 1989, certain pecuniary legacies were left to his sister, to the plaintiff, and to a Mrs Sweet. The plaintiff and Mrs Sweet appear to be daughters of the deceased. In the event that the deceased was predeceased by his wife, the plaintiff and Mrs Sweet were to take the residuary estate as tenants in common in equal shares.

Perpetual Trustees WA Ltd was appointed the executor of the will, but it renounced its entitlement to probate of the will by instrument dated 17 September 1993. Having regard, no doubt, to her vested interest as a beneficiary of the estate, the plaintiff applied to this Court on 1 December 1993 for a grant of letters of administration with the will annexed. It is pleaded that on 2 February 1994 the defendant "by reason of a request by Sweet claimed an interest in the deceased's estate and lodged a caveat against any application for a grant of letters of administration of the deceased's estate". The pleading does not reveal the nature of the interest claimed, a claim which I presume was made in the caveat lodged. I could have been asked to look at the caveat (Day v William Hill (Parklane) Ltd [1949] 1 KB 632) on the ground that, having been referred to, the caveat became part of the pleading, but I was not asked to do so and, in the end, I think it matters not, although I shall need to discuss later in these reasons the nature of a caveatable interest which might support the lodgment of such a caveat.

Ultimately, by a process which is for present purposes unimportant, the caveat prevented a grant being made upon the plaintiff's application. Thereafter, on 15 March 1994, the defendant, again it is pleaded "at the request of Sweet", made its own application for a grant of letters of administration with the will annexed, pursuant to the provisions of the Public Trustee Act 1941 (WA), s10(1)(g).

As in those circumstances the matter was taken out of the non-contentious probate business of the court, the plaintiff commenced a probate action pursuant to the Rules of the Supreme Court, O73 against Mrs Sweet who is, of course, not a party to this action, and the defendant. In that litigation the plaintiff and the defendant in this action each sought the grant of letters of administration with the will annexed of the estate of the deceased, by claim and counterclaim respectively. In the course of that action, on 14 July 1994, the defendant was appointed as the interim receiver of the deceased's estate. I have presumed (perhaps wrongly) that that appointment was in fact as administrator of the personal estate and receiver of the real estate of the deceased, pending the determination of the litigation, under the Administration Act 1903 (WA), s35.

The action was not discontinued, as it could not be having regard to O73 r18, but neither, it appears, did it go to trial. I was told by counsel for the defendant, without objection for the plaintiff, that on 4 September 1997, by consent, both the claim and counterclaim were dismissed and it was ordered that, "There be no order as to costs." I will need to return later to the form of that order.

It is convenient to commence my consideration of the defendant's application by referring to the nature of the application under O20 r19. Properly used, the rule will have considerable benefits in respect of the efficient disposition of litigation. At least it may, by ensuring that a pleading is in proper form, help to eliminate surprise and confusion at trial. The orders made on such an application may make more efficient the preparation for trial and reduce the cost of the litigation by disposing before trial of issues raised by the pleadings which are without merit. However, the court hearing such an application should not overlook the fact that it is ultimately the process of trial, at which evidence is heard, facts are found and issues of law determined, which will provide the litigants with a just result. As Barwick CJ put it in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130, although his Honour agreed:

"... that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality, a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

That observation will, of course, be particularly relevant where, as in this case, it is argued that there is no reasonable cause of action disclosed by the pleading. In Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91, Dixon J said that the power conferred by such a rule "is not to be used in cases of doubt or difficulty or where the pleading raises a debatable question of law" or "once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it". In Packhard v Transport Trading and Agency Co Ltd (1912) 14 WALR 191 at 195, Burnside J said, "It is obvious from the decisions that the rule is intended to apply only to cases which are really not arguable."

Therefore, as Cross J put it in Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942, "The mere fact that the case is weak and not likely to succeed is not a ground for striking out a validly formulated pleading." On the other hand, as Malcolm CJ said in a rather different statutory context in Dempster v NCSC (1993) 9 WAR 215 at 262, "an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success", so that a "reasonable cause" is one "which has some chance of success".

So far as the defendant's contentions that particular pleadings should be struck out depend upon the proposition that they are embarrassing, it is to be noted that the phrase employed in O20 r19(1)(c) is that the pleading "may prejudice, embarrass or delay the fair trial of the action". The phrase is a composite one. It imports the notion that the character of the pleading is such as to make the fair trial of the action so as to enable the court to do justice between the parties more difficult to achieve, that the trial will be unduly protracted or delayed, or the form of the pleading is in any other way calculated to prejudice the legal process. There are many cases in the books where, upon this ground, pleadings have been struck out because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general. Little point would be served in my collecting any of the many cases here.

The defendant first seeks to have paras 14 and 15 of the amended statement of claim struck out. They are in the following terms:

"14. In lodging the caveat the Defendant knew, alternatively recklessly disregarded the means of ascertaining the extent of its rights and powers, that:

14.1 it had no right and no power (respectively) to obtain and apply (respectively) for a Grant of Letters of Administration of the estate of the deceased by reason of the provisions of section 10(1)(b) of the PTA.

14.2 by exercising a right and power it did not possess it was foreseeable that there was a risk of harm to the Plaintiff.

15. The Plaintiff, by reason of the Defendant's misfeasance has suffered harm in that she has sustained loss and damage, hurt and humiliation and been put to expense trouble and inconvenience.

1. The Plaintiff expended additional legal fees of $500.00 in obtaining a Grant of Letters of Administration.

2. The Plaintiff was prevented from administering the deceased's estate valued at approximately $500,000.00, her presumptive share being half thereof, in consequence whereof she has lost the use of $250,000.00 since 9 March 1994.

(iii) Stationery, facsimile and photocopying charges in the sum of $10,000.00

(iv) Telephone charges in the sum of $8,000.00, and

in and in relation to Supreme Court Action CIV 1552 of 1994 in which:

(a) she sought a Grant of Letters of Administration;

(b) the Defendant opposed the application for such grant; and

(c) the Defendant applied for a Grant of Letters of Administration.

4. The Plaintiff suffered stress anxiety and anguish, affecting her health and well being."

Speaking generally, it is clear that these paragraphs raise a cause of action of misfeasance in public office against the defendant. That such a cause of action was part of the common law of Australia and that the differently stated principle in Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145, 156 should not be followed, was made clear by the High Court in Northern Territory v Mengel (1995) 185 CLR 307. It is clear, I think, from the judgments of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ at 347-8, Brennan J at 356-7 and Deane J at 370-1, that the elements of the tort of misfeasance in public office may be set out as follows -

(i) There must be an unlawful act in the sense that it is contrary to law or an unauthorised act in the sense that it is invalid or ultra vires the power relied upon for any of the reasons for which the purported exercise of administrative power may be struck down as being devoid of legal effect.

(ii) The act must have been done by a public officer acting as such in the purported discharge of the public duties of the office.

(iii) The act must be done with a mental element, which may be described as malice in the sense of an intention to injure, or knowing of the invalidity of the act or the lack of power and that it is foreseeable or likely that the act will cause injury, or that the act is done with reckless indifference or deliberate blindness to the invalidity or lack of power and to the likelihood of injury resulting.

(iv) The act must cause loss or harm to the plaintiff according to ordinary principles, and that loss or harm may be not only personal injury but also pure economic loss.

Some particular matters require discussion in the context of this application. It is clear, I think, that when the pleading in para 15 refers to the harm suffered "by reason of the defendant's misfeasance" that is a reference to what is pleaded in para 14. It will be noted that the damage suffered is said to be both personal injury and economic loss. The defendant raises an argument about the legal efficacy of the third particular of economic loss, but as the argument affects other paragraphs of the amended statement of claim which are challenged by the defendant, it is appropriate that I leave this argument to be dealt with later. It is sufficient, at present, for me to say that I regard the reference to misfeasance in para 15 as a clear reference to the allegations made in para 14 and I do not think the pleading in para 15 is so unclear or ambiguous as to require me to conclude that it should be struck out upon the ground that it may embarrass the fair trial of the action.

As to para 14, it is argued that on two grounds it fails to disclose a reasonable cause of action. In the first place it is contended that, by reason of the mental element in the tort, misfeasance in public office can only be committed by a public officer who is a natural person and it is pointed out that in para 1 of the amended statement of claim, the defendant is described as a body corporate constituted under the provisions of the Public Trustee Act. Then it is argued that the act of misfeasance upon which reliance is placed in para 14 is the act of lodging the caveat and that, it is submitted, could not, in the circumstances and having regard to the relevant provisions of the Administration Act and the Public Trustee Act, be an invalid act or one unauthorised by the law.

As to the first point, for the plaintiff it is argued that a corporation might be vicariously liable for the tort committed by its officer or agent, but in any event a corporate person might itself possess the necessary mental state and directly commit the tort of misfeasance in public office, even though this is what might be generally described as one of the "intentional torts". If correct, those arguments do not necessarily establish the sufficiency of the pleading, but they must first be considered.

It is clear from para 1 of the amended statement of claim that it is the defendant as a body corporate which is sued. As is pleaded, the defendant is a corporation sole by virtue of the Public Trustee Act, s4(2), which is in the ordinary form, providing that:

"The Public Trustee and his successors in office shall be and continue to be a body corporate, under the name of the "Public Trustee", and shall by that name have perpetual succession and a common seal, and be capable in law of suing and being sued and of holding and disposing of real and personal property."

Incidentally, it is the case under s4(1) that the Public Trustee is also a natural person who is the chief executive officer of the office established by the section, which is called the "Public Trust Office", and it is clear that in some of its provisions the Act refers to the Public Trustee as a natural person rather than as a corporate entity. There is, of course, a clear distinction in law between the artificial corporate personality of a statutory office, which has been described as "a figment of the law" and the natural person who, from time to time, may hold the office: Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22 at 35-6.

For the plaintiff, Mengel was relied upon to support the proposition, not in broad terms denied for the defendant, that it might be vicariously liable for the tort of public misfeasance. But, in my opinion, Mengel provides no guidance in that regard because apparently the Northern Territory accepted that if the cattle inspectors employed by the Northern Territory government were found to be liable to the plaintiff, then the Territory would itself be vicariously liable. At 329, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ commented, "Presumably, the Territory takes the view that there was defacto authority for the acts in question." And at 347 their Honours observed that, "although the tort is the tort of a public officer, he or she is liable personally and, unless there is defacto authority, there will ordinarily only be personal liability."

In relation to those comments, their Honours referred to James v The Commonwealth [1939] HCA 9; (1939) 62 CLR 339 per Dixon J at 359-60, where his Honour, in discussing an argument presented for the Commonwealth that by reason of Crown immunity from suit, a servant of the Crown committing a tort might become individually liable but could not impose vicarious responsibility upon the Crown, said:

"But it is important to see that, once there is found a defacto authority from the Crown in right of the Commonwealth within the scope of which an alleged tort is committed, the doctrine of ultra vires is not used to produce the same immunity as formerly arose from the incompetence of an officer at common law to bind the Crown by his tortious acts."

There, the concept of defacto authority was a reference to a purported authority actually given, regardless of the fact that otherwise, as a matter of law, the individual concerned had no authority to act on behalf of the Crown or any instrumentality of the Crown which might attract the umbrella of Crown immunity.

This is not the place for a discussion of the application of such doctrines which may, of course, give rise to vexed questions of law. It is sufficient to note that the application of such doctrines, if available in the particular case, would be a matter for the defendant to plead because they would constitute a fetter upon the legal conclusion about the defendant's vicarious liability which might otherwise result from the application of the general law.

In that regard it would no doubt be necessary to consider the operation of the Public Trustee Act, s56, which is in the following terms:

"56.(1) Subject to this Act, where any person, by act or thing done or omitted by the Public Trustee, or by any person acting or bona fide assuming to act for him, sustains any injury which would have entitled such person to a remedy in respect thereof, if such act or thing had been done or omitted by a private person, then such person shall be entitled to the same remedy against the Public Trustee in his corporate capacity as he would be entitled to against a private person and shall be entitled to be indemnified under this Act.

Provided that, where the injury is one to which neither the Public Trustee nor any of his officers or agents has in any way contributed, and which neither he nor any of them could by the exercise of reasonable diligence have averted, the Public Trustee shall not be subject to any liability.

(2) The Consolidated Fund or such other fund as may be prescribed, shall be liable to make good all sums required to discharge any liability of the Public Trustee in his corporate capacity."

I am satisfied that s56(1) is concerned to make it clear that where a person would have a remedy at law in respect of some matter which would provide a cause of action against "a private person", whether the plaintiff and/or defendant were natural persons or corporate persons, then the same remedy is to be available against the Public Trustee sued "in his corporate capacity" by virtue of s4(2), without regard to the public nature of that corporate personality and without regard to the question whether or not the Public Trustee in that corporate capacity would be regarded as an instrumentality of the Crown, but subject to the special defence that the harm suffered by the plaintiff could not have been averted "by the exercise of reasonable diligence" on the part of the Public Trustee as a natural person, his officers or agents, none of whom has in any way contributed to causing the injury. Again, if that is to be raised, it will be by way of defence.

For the plaintiff it was argued that s56 makes it clear that the acts of the officers and agents of the Public Trustee and their state of mind are to be attributed to the Public Trustee as a corporation. It follows from what I have written above that I do not think it is arguable that such is the purpose or effect of s56.

Ordinarily of course, the question of vicarious liability will arise in the context of an allegation that legal liability for a tort committed by one person may, as a matter of strict liability, be imposed on another whose conduct or mental state may not have been such as to directly implicate that person as a principal in the commission of the tort. The liability is genuinely vicarious and arises out of the relationship between the two, the hallmarks of which will be that the person for whose conduct the defendant is to be held vicariously liable will be a person under the control or within the organisation of the defendant, and apparently acting as such. The most common examples of such a relationship are those of master and servant or principal and agent: see generally eg Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.

A difficulty which may emerge is that the tort of public misfeasance is one of those intentional torts to which I referred earlier. It requires an act which is in fact and in law unauthorised, and which is done with the mental element that there was an actual intention to cause injury, or that it was known that there was a lack of power and injury might well result, or that there was reckless indifference to the existence of power and the likelihood of injury. That being so, it is difficult to conceive that the ordinary rules about vicarious liability could apply.

Perhaps the position would be governed by the more confined test which emerges from cases such as Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370, a case which concerned a deliberate assault by the servant, who was a barmaid, where the question was the vicarious liability of the owner of the hotel who employed her. It was held that vicarious liability would not arise because, as Dixon J put it at 381, the assault was not:

"one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master's work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master."

Further, and generally with respect to the applicable law when a public authority such as the Public Trustee as a corporate entity is sought to be made liable for a tort committed by a servant who is a public officer, see Oceanic Quest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626.

Whatever be the position with respect to vicarious liability and the limitations which may operate upon the capacity to draw that conclusion, I see no reason why the defendant, as a corporate entity, might not be held liable for the commission of the tort of public misfeasance if the circumstances enabled the relevant act and state of mind of an officer or agent of the defendant to be attributed to it. The plaintiff relied on Citizens' Life Assurance Co Ltd v Brown [1904] AC 423, but in my opinion, that case is not relevant to this aspect of the matter because, as I read it, it was a case of vicarious liability.

In the context of the criminal law, where a company owning supermarket stores was charged with a breach of trade description legislation, it was held in Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; [1972] AC 153, that the company could be directly liable for the commission of the offence in circumstances where not only were those individuals who breached the Act properly to be regarded as people through whom the company acted, but also they were so closely identified with the management and operation of the company that their minds and wills were properly to be regarded as collectively or individually the directing mind and will of the company. At 170, Lord Reid stated the general principle to be applied as follows:

"I must start by considering the nature of the personality which, by a fiction, the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case, any liability of the company can only be a statutory or vicarious liability."

Lest that be thought to be a principle which is applicable solely to the criminal law, the cases upon which reliance was principally placed as supporting those conclusions were civil cases: Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 and the judgment of Denning LJ in H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd [1957] 1 QB 159, 172.

Of course, the question for me is not whether on the facts as they might ultimately be found it might be held that the defendant, as a corporate entity, was vicariously liable for the tort of public misfeasance if committed by any of its officers or agents, or whether in the circumstances it might be held that the acts of a particular officer of the defendant and the mind and intention or knowledge of that officer might be directly attributed to the defendant. The question is whether, in the circumstances pleaded, it might be seen that either route to liability is pleaded to be open, as a matter of law, so as to reveal a reasonable cause of action.

The Rules of the Supreme Court, O20 r8(1) requires the pleading to "contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim ..., but not the evidence by which those facts are to be proved". Such facts, although they should be briefly stated, must be stated with sufficient particularity so that the defendant may not be taken by surprise and may know with reasonable certainty the case which it has to meet.

In my opinion, para 14 of the amended statement of claim is deficient in that regard. It states no more than the general terms of the elements of the cause of action for misfeasance in public office, upon which, with the additional element of the harm caused by the alleged misfeasance which emerges from para 15, the plaintiff proposes to rely. In effect, what is pleaded are certain conclusions of law. Nothing is pleaded by way of material facts to support the conclusion that the lodging of the caveat was in some way to be attributed to the defendant, nor is it pleaded how the relevant state of mind to establish the cause of action sought to be pleaded was to be attributed to the defendant. On that ground, para 14 should be struck out: cf National Mutual Property Services (Aust) Pty Ltd v Citibank Savings Ltd [1995] FCA 1628; (1995) 132 ALR 514, 534.

However, as I would in this case entertain an application to further amend the amended statement of claim, I should also deal with the defendant's second argument in relation to para 14, to which I have referred above. That is the argument that the act of lodging the caveat could not, in law, be an invalid or unauthorised act so as to ground an action for public misfeasance.

The caveat was lodged under the Administration Act, s63(1), which provides:

"Any person may lodge with the Principal Registrar a caveat against any application for probate or administration, or for the sealing of any probate or letters of administration under this Act, at any time previous to such probate or administration being granted or sealed."

In every such case, under s64, any application for probate or administration or to seal a grant must be served on the caveator and on hearing that application, if the court proposes to make the grant or to seal the probate or letters of administration, it may remove the caveat to enable that to be done.

In those circumstances it is perfectly clear, I think, that the function of the caveat is to register the interest claimed by the caveator in the estate or its administration and to require notice to be given in relation to any application affecting the estate or its administration, so that the caveator may take such action as is considered to be appropriate in relation thereto. The purpose of the caveat is therefore the same as that lodged in respect of land or any estate or interest in land under the Transfer of Land Act 1893 (WA), s137. Under that section, however, the power to lodge a caveat forbidding dealings in the land, either absolutely or conditionally, is conferred upon "any beneficiary or other person claiming any estate or interest in land". The operation of such a caveat is often described as being similar in its practical effect to the grant of interim relief by way of injunction: eg see Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 per Malcolm CJ at 44-5 and Owen J at 48-50; and Milne Feeds Pty Ltd v Bride (1993) 10 WAR 542 per Malcolm CJ at 550.

It is interesting to note that although, in contrast to the situation under the Transfer of Land Act, the power to lodge a caveat in relation to an estate or its administration conferred by the Administration Act, s63, is not conferred upon a limited class of persons but upon "any person", the terms of r33 of the Non-Contentious Probate Rules 1967 (WA) are consistent with the view that a caveator will be a person claiming to be interested in an estate or its administration. Under r33(1):

"A person having any interest in an estate in which application is being made for a grant or the sealing of a grant, and intending to oppose the application, shall either personally or by his solicitor enter a caveat in the Registry."

Subrule (2) provides for a form of caveat which is to "state fully the nature of the interest of the caveator" and which demands that nothing be done in the identified estate without notice to the caveator. A caveat so lodged will remain in force for six months unless its operation is extended by the court. The caveator is given power to apply to a Judge or the Registrar for an order directing the executor or applicant for administration to proceed with an application for the obvious purpose of thus providing a forum and context in which the competing claims of the caveator and the applicant for the grant may be tried out.

In that context it is, I think, to be accepted that the power conferred by the Administration Act, s63, although in terms apparently unfettered, is in truth a power conferred upon a person claiming an interest in an estate or its administration, which may be adverse to that of an executor or other administrator, so that the caveator may be assured that regard will be had to its claim in settling the authority to administer the estate. That is the view which has been taken of the equivalent section in Victoria: In Re Finn [1942] VicLawRp 27; [1942] VLR 125 per Lowe J at 127, where his Honour said:

"The section does not allow any officious inter-meddler to lodge a caveat. The language is restricted to a person having an interest in the matter, eg, either by reason of being interested under the will propounded or in the estate if that will is set aside."

As his Honour went on to point out, the interest of the caveator will generally be a proprietary interest, although that will not necessarily be the case.

In this case, the interest of the defendant must, I think, arise under the combination of ss9 and 10(1) of the Public Trustee Act, which provisions are in the following terms:

"9. Upon the death of any person, and until probate or administration is granted in respect of his estate, the real and personal estate of such deceased person shall be deemed to vest in the Public Trustee, but without any charge being leviable therefor. Any estate or property at the commencement of this Act vested in the Chief Justice under the provisions of section 22 of the Administration Act 1903, or any corresponding previous enactment, shall, by virtue of this Act, vest in the Public Trustee.

10. (1) Where any person has heretofore died or hereafter dies, or is reasonably supposed to have died testate or intestate in or out of Western Australia, leaving property in Western Australia, the Court may, on the application of the Public Trustee, grant to the Public Trustee an order to administer the estate of such deceased person in any of the following cases -

(a) where such person dies testate, but leaves no executor willing and capable of acting in execution of his will resident within the jurisdiction;

(ab) where such person dies intestate, and the person first entitled to the administration of his estate is unwilling to act or incapable of acting in such administration or is not resident within the jurisdiction: Provided that if some other person in the State who, if it were not for this paragraph, would be entitled to such administration applies for such administration, then the Court may grant administration to such person;

(b) where the executor renounces probate of the will of the deceased and all the persons first entitled to administration by writing filed in the office of the Court decline to apply for administration;

(c) where probate or administration is not applied for within 3 months after the death of such person;

(d) where, after the expiration of 30 days from such death, there appears to the Court to be no reasonable possibility of application being made within such period as aforesaid;

(e) where the estate or any portion thereof is unprotected or liable to waste and the executor or widow, husband or next of kin is absent from the locality of the estate or of such portion thereof or is not known or has not been found;

(f) where the estate or any substantial portion thereof is of a perishable nature or is in danger of being lost or destroyed;

(g) in any other case where the Court considers it expedient or proper."

No doubt it may be the case that the proprietary interest conferred upon the defendant by s9 will support the lodgment of a caveat, but that must, I think, remain a lodgment for the purpose of protecting the interest of the defendant in securing the proper administration of the estate and therefore it would be expected, as was pleaded to have been the case here, that the lodgment of the caveat would be followed by the defendant's application for a grant, or at least, as was also pleaded to be the case here, its objection to an application by another.

In the amended statement of claim the plaintiff clearly makes no complaint about the application for a grant of letters of administration per se which, as has been seen, it contends was made under s10(1)(g). It will be noticed that it is pleaded in para 14, in effect, that in lodging the caveat the defendant knew or was recklessly ignorant that it had no ground for an application for an order to administer the estate under s10(1)(b). As I understand it, that provision is specifically referred to because, so it is argued for the plaintiff, it is the only specific ground for an application which might conceivably be thought to have applied. I must confess that I do not for myself understand the need to refer to s10(1)(b).

As senior counsel put it to me in argument for the plaintiff, her proposition is that the defendant had no power to lodge the caveat and follow it with an application for a grant of administration because none of paras (a) to (f) inclusive could possibly apply to the case and there was no other circumstance in existence upon which the court might consider it "expedient or proper" to make a grant in favour of the defendant, who must have known that to be the case, or who may be established to have recklessly disregarded the question whether or not there was any ground upon which a grant in its favour might be made. In those circumstances, it does seem to me that the form of the pleading in the amended statement of claim, para 14, is embarrassing in the sense in which that word is used in relation to such applications as this, but it is not a defect which is incapable of cure by amendment.

It seems to me to be reasonably arguable, as I think the plaintiff seeks to advance, that the lodgment of the caveat was an invalid or unauthorised act which may be attributed to the defendant because it was not merely to notify the proprietary interest created by the Public Trustee Act, s9, but it was directed to ensuring that no grant occurred which might prejudice the proper administration of the estate and so to ensure that the defendant would be heard in respect of any such application and would have the opportunity to pursue an application under s10(1). It might be pleaded that the lack of authority or invalidity in the lodgment of the caveat arose because there was in truth no ground upon which the Public Trustee could legitimately pursue a caveatable interest of a kind which would be sufficient to support the caveat, including by the process of application under s10(1). The ground upon which it would be asserted that there was a want of power in that way would need to be pleaded in a form which revealed the thrust of the plaintiff's case and the nature of the invalidity or want of power upon which she relied.

It would need to be made clear, for example, that reliance was placed upon one or more of the considerations which might result in a declaration that the purported exercise of power to lodge the caveat was ultra vires, for example, because it was done at the mere dictation of Mrs Sweet (although all that is pleaded thus far is that the defendant acted at the request of Mrs Sweet), that there was a failure to have regard to relevant considerations, that the caveat was lodged for an improper purpose or in bad faith, or that it was an entirely unreasonable action in the sense of that concept derived from Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 233 (see Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36). For the purpose of these reasons it is unnecessary to develop any of the possible grounds upon which the exercise of the power may be reviewed. It is sufficient to say that, in my opinion, para 14 is not pleaded so as to fairly raise any such matter and for that reason also it fails to disclose a reasonable cause of action, but again, its failure in that regard might be cured by appropriate amendment.

The defendant next seeks to have paras 16, 17 and 18 of the amended statement of claim struck out. Paragraphs 16 and 17 are in the following terms:

"16. Further, and in the alternative, by reason of Section 9 of the PTA, the Defendant was, between 17 September 1993 and 16 February 1994, and from 9 March 1994, the Trustee of an estate of which the Plaintiff and Sweet were the two principal beneficiaries by reason of which the Defendant owed the Plaintiff the duties of a Trustee, namely:

16.1 To act with absolute impartiality between the Plaintiff and Sweet.

16.2 Not to put itself in a position of conflict with and between the beneficiaries or either of them.

16.3 To disclose to each beneficiary all and any information pertaining to the administration of the Trust estate.

16.4 To exercise reasonable care in the use of its powers.

17. In breach of its duties as Trustee, the Defendant:

17.1 failed to exercise reasonable care and acted partially between the Plaintiff and Sweet, accepting the unsworn uncorroborated allegations of Sweet against the Plaintiff that the Plaintiff was, in effect, a lunatic, and filing its caveat in consequence thereof without first ascertaining whether the assertions were true or false, alternatively credible and reliable.

17.2 thereby put itself in a position of conflict between the beneficiaries.

17.3 failed to disclose to the Plaintiff the allegations of Sweet."

Paragraph 18 makes the claim for damages for the breaches of duty alleged. It is in identical terms to para 15 and at this stage I need say no more about it than I have said about para 15.

There is a relatively minor argument raised about para 17 that it is embarrassing in the relevant sense because it is uncertain whether the subparagraphs, particularly 17.1 and 17.2, are to be read conjunctively or as alternatives. In my opinion, the meaning and effect of this paragraph is clear in its particularisation of the nature of the alleged breaches of the defendant's duty as a trustee and no ground exists to strike out this paragraph upon the particular ground adverted to. It is not suggested that the breach of a duty as a trustee of the kind described would not give rise to a reasonable cause of action for damages against the trustee.

What is contended relates particularly to para 16 and the pleading that, by reason of the Public Trustee Act, s9, from the time when Perpetual Trustees WA Ltd renounced its entitlement to a grant, except for the period from 16 February to 9 March 1994 when a grant had in fact been made (albeit in error) in favour of the plaintiff, the defendant was the trustee of the deceased estate of which the plaintiff and Mrs Sweet were the two principal beneficiaries, so that the duties of a trustee towards those persons pleaded in para 16 were imposed upon the defendant.

The simple proposition argued by the defendant is that the operation of the Public Trustee Act, s9 does not make the defendant a trustee of the estate for the benefit of those who are beneficially entitled to it. For the plaintiff, on the other hand, it is argued that under s9 the legal interests in the real and personal estate of the deceased person are deemed to vest in the defendant, and so much is indeed clear, as also would appear to be the proposition that the beneficial interests in the real and personal estate are, as from the date of death, vested in interest in those beneficially entitled to share in the estate. The crucial question, however, for present purposes is whether there is a relationship of trust between those persons and the Public Trustee, so as to import the duties of a trustee, such as those pleaded in para 16 of the amended statement of claim, under the general law.

The authority upon which the defendant principally relies is the decision of Wallace J in Re Cameron; Cameron v Public Trustee [1982] WAR 55, which was an action for the due administration of several deceased estates sought to be brought against the Public Trustee as defendant, in which it was put that by reason of the Public Trustee Act, s9 and the vesting thus achieved, the Public Trustee could be compelled to undertake duties in respect of the administration of the estates. Wallace J had to deal with applications by the Public Trustee for dismissal of the plaintiffs' claims on the ground that the Public Trustee was improperly joined as a defendant and no reasonable cause of action was disclosed in the statement of claim. Those were propositions which Wallace J upheld.

His Honour concluded that, whatever might be the powers of the Public Trustee derived from the operation of s9, it was not established by the decided authorities that the Public Trustee, during the period of any vesting, had any active duties. His Honour followed an earlier decision in Ex p Public Trustee; Re Birch (1951) 51 SR(NSW) 345 and he distinguished the case of Andrews v Hogan [1952] HCA 37; (1952) 86 CLR 223. He noted the English decision of Re Deans (Dec'd) [1954] 1 All ER 496, where Wynn-Parry J held that the Administration of Estates Act 1925, s9, the English provision equivalent to the Public Trustee Act, s9, did not make the Probate Judge, in whom, by the section, the real and personal estate of the deceased was vested pending the grant of administration of the estate, a trustee within the meaning of the Trustee Act, so as to enable orders to be made for the transfer of various stocks and shares deposited with a bank by the deceased by way of guarantee in respect of certain debts and liabilities upon which the deceased had defaulted.

"In my view, the senior Judge of the Probate Division cannot be said, by virtue of the language of s9 of the Administration of Estates Act, 1925, to be a trustee within the meaning of that word for any of the purposes of the Trustee Act, 1925. He has no duties whatsoever to perform. No obligations fall upon him. It is a mere matter of necessary convenience and protection which has led to the introduction of s9 in the Administration of Estates Act; ... The whole operation of that section is that where the condition is fulfilled of a person dying intestate, his estate, real and person, vests in the senior Judge of the Probate Division, and that property remains vested in him until the second condition is fulfilled, namely, that administration is granted in respect of that property. That appears to me to be plain language ... ."

In Re Cameron, Wallace J was of the same view. To his reliance on earlier authority he added:

"Further, on a pure question of construction and having regard to the opening two lines to s9 of the Act, I am of the opinion that it was never intended that the administration of the deceased person's estate should vest in the Public Trustee other than for the momentary holding purpose prevailing between death and the point of probate or administration and to satisfy the need to give ownership to real and personal estate. The very fact that no charge was leviable by the Public Trustee does, in my opinion, confirm this view."

By the use of the word "momentary", his Honour was clearly intending to convey the fact that the deemed vesting achieved by the section was to be of a temporary kind to fill a period of hiatus so as to give ownership and protection to the real and personal assets of the estate. The decision in Re Cameron was followed by Seaman J in State Housing Commission v Public Trustee, unreported; SCt of WA; Library No 7118; 10 May 1988, and, although for the plaintiff I was invited to hold that it is at least arguable that Re Cameron would not now be followed and is not good law, I can see no warrant to so conclude.

Indeed I think it is, with respect, correct to say that the decision of the High Court in Andrews v Hogan was not directly in point, requiring a decision about whether the provision equivalent to s9 imposed duties like those of a trustee upon the Public Trustee, and it is correct to say that nothing in that decision derogated in any way from the authority of earlier decisions in NSW, where the conclusion had been reached that the section did indeed impose no duties, but only powers which the Public Trustee might choose to exercise for what was conceived to be the protection of the estate.

The facts and the nature of the argument in Andrews v Hogan were quite dissimilar from this case and I need not refer to them. At 233, Dixon CJ appears to accept that the Public Trustee might be regarded "as a mere repository of the estate". However, as his Honour made clear at 234, this did not mean that the Public Trustee was "altogether without power". See also per McTiernan J at 239, Webb J at 241 and Fullagar J at 250 where, referring to the NSW equivalent to s9, his Honour said:

"It is unnecessary to attempt to define generally the position of the Public Trustee under s61. That he has some rights and powers would seem also necessarily to follow, though it may very well be that he has no active duties."

Judicial views about the NSW provision are of interest because the section is in identical terms to s9 of the Public Trustee Act. The provision was referred to by Gibbs J in Laybutt v Amoco Australia Pty Ltd [1974] HCA 49; (1974) 132 CLR 57 at 77, where his Honour merely observed that:

"There is no doubt that at the time when the notice was given the estate of the deceased had by virtue of the operation of s61 become formally vested in the Public Trustee, although it is not altogether clear what capacity and powers the Public Trustee had as a result."

It was unnecessary in that case to consider whether the section imposed any duties upon the Public Trustee but, in my opinion, consistently with the authorities to which I have referred and as a matter of construction of s9, the position is abundantly clear.

The purpose of the section may be described as, by a notional or deemed vesting of the real and personal estate of the deceased, to prevent any lacuna in the chain of title and to ensure that by reposing title in this public official, that office is clothed with power to take such action as may appear to be immediately necessary to preserve and protect the estate, pending a grant of probate or administration. Upon such a grant being made, the title of the executor or administrator is thereby confirmed and vests in that officer retrospectively as from the date of death: Administration Act, s8.

The Public Trustee Act, s9 is therefore a temporary expedient and it would be quite inconsistent with its functions, in my view, that the deemed vesting of the legal estate should be taken to import the duties of a trustee to the ultimate beneficiaries. There is no reason why the section should be so interpreted and, as Wallace J observed, if it was the intention that the Public Trustee would have imposed upon it duties of that kind, one might expect that the section would authorise the levy of a charge in respect of the discharge of such duties. In my opinion, the contrary proposition upon which the plaintiff's case depends is not arguable and it follows that paras 16 and 17 of the amended statement of claim, and with them para 18, should be struck out. The difficulties discussed above would not, of course, be capable of cure by amendment.

Then the argument shifts on to paras 19 to 22 of the amended statement of claim and it is as well that I set out the terms of paras 19, 20 and 21. They are as follows:

"19. Further, and in the alternative, at all material times the Defendant knew or should have known that:

19.1 the Plaintiff had applied for Letters of Administration of the deceased's estate.

19.2 the Plaintiff was granted Letters of Administration of the deceased's estate on 16 February 1994.

19.3 the Plaintiff had an insurance bond in respect of her administration of the deceased's estate.

19.4 if it applied for Letters of Administration of the deceased's estate, the Plaintiff would foreseeably suffer damage by way of lost legal fees, incapacity to administer the estate and payment of its administration fees.

20. By reason of the matters pleaded in paragraphs 16 and 19 hereof of the Defendant owed the Plaintiff duties:

21. In breach of its duties described in paragraph 20 above, the Defendant:

21.1 failed to use its powers lawfully, claiming an interest in the deceased's estate it did not have.

21.2 failed to use its powers carefully, lodging a caveat and applying for Letters of Administration of the deceased's estate upon the unsworn, uncorroborated allegations of Sweet, and, after obtaining an affidavit from Sweet on the 11th March 1994, acting upon the uncorroborated evidence of Sweet without first making due and proper inquiry of:

21.2.2 the credibility or reliability of Sweet as an informant.

21.3 failed to use its powers impartially by reason of the matters pleaded in 21.2 above."

Paragraph 22 claims loss and damage particularised in precisely the terms set out in para 15, to which I have referred above, which loss and damage is said to have been caused by reason of the defendant's breaches of its duties described in paras 20 and 21.

It will be observed that para 20 states duties said to be owed by the defendant to the plaintiff by reason of the matters pleaded in paras 16 and 19. Paragraph 16 sets out the duties which might be attendant upon the relationship of trustee and beneficiary. I have held that there is no arguable case that such a relationship existed as pleaded between the plaintiff and the defendant. To so hold requires that para 20 in its present form be struck out. Paragraph 21, particularly in respect of subparas 21.1 and 21.3 would, in my view, be similarly affected and that paragraph, in its present form, should suffer the same fate.

But that is not an end of these paragraphs because it does seem clear that following upon the pleading in para 19, the allegation is that by reason of the pleaded relationship between the plaintiff and the defendant, the defendant owed the plaintiff a duty of care not to take the action of lodging the caveat and following that up by its application for a grant without first taking reasonable steps to satisfy itself that there were good grounds for its actions. For the plaintiff, little argument was presented in support of this alternative plea. It was simply argued that the defendant owed the plaintiff a duty of care arising out of their proximal relationship, citing Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424.

For the defendant, it was argued that the pleading appeared to be based on the proposition that the alleged breaches of duty arose out of the defendant's conduct of the litigation in question, and so it was argued that no reasonable cause of action might arise in negligence by reason of the conduct of parties to litigation, one of whom could not be said to owe another a tortious duty of care in relation to its pursuit of the litigation. No doubt that is correct, but it does not, I think, provide a sufficient basis upon which the pleading may be questioned in respect of its capacity to reveal a reasonable cause of action.

And yet the defendant's application does raise a fundamental question whether a reasonable cause of action is revealed upon the ground that its relationship of proximity to the plaintiff was such as to give rise to a duty of care not to cause loss or damage or injury to the plaintiff by reason of its conduct in lodging the caveat and its subsequent application for a grant of letters of administration with the will annexed. If that may be the case, the relevant relationship can only be that of the defendant exercising the functions of its statutory office and the beneficiary of an estate which may be affected by such activity. What appears to be asserted is that in those circumstances the defendant owed the plaintiff a non-delegable duty of care.

In Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, Mason J, with whose judgment Deane and Dawson JJ agreed, discussed a number of the commonly encountered situations in which the law has recognised that the relationship of proximity between plaintiff and defendant is such as to give rise to such a duty of care. The categories identified included adjoining owners of land, hospital and patient, school and student, employer and employee, or indeed, in some circumstances, employer and independent contractor. At 687 his Honour identified the common characteristic of such relationships as being that the person upon whom the duty is imposed "undertakes the care, supervision and control" of the other or his property, or "assumes a particular responsibility" for the other person or his or her property.

In Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 at 551, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ observed that to so describe the nature of the relationship was to identify "the central element of control" of the plaintiff by the defendant and from the point of view of the plaintiff to identify some element of "special dependence or vulnerability." See also Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 per Brennan CJ at 332-3, Dawson J at 344-5, Toohey J at 350, Gaudron J at 361, McHugh J at 368 and Kirby J at 395-7.

Mere foreseeability of harm by way of economic loss or personal injury would not be enough and I find it impossible to see how the pleaded relationship, which I have described above, may be categorised as being of the character which would give rise to a duty of care owed by the defendant to the plaintiff. Certainly in relation to the question of injury to her proprietary interest or the causation of economic loss, there seem to be none of the elements of the cause of action in negligence identified by the High Court most recently in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8; (1997) 188 CLR 241. Neither does there appear to be any relationship of a contractual kind, or under the Public Trustee Act, or any circumstance by which it is alleged that the defendant was in any relevant sense able to control the nature of the benefit to be received by the plaintiff from the estate, such as was held to be sufficient to give rise to a duty of care owed by the solicitor to an intended beneficiary under a will in respect of an ineffective testamentary disposition, in Hill v Van Erp (1997) 188 CLR 159.

I would therefore conclude that the relationship between the parties is not arguably such as to give rise to the duty of care alleged, which appears to be to take no action by lodging the caveat and pursuing an application for a grant which might delay or interfere with the plaintiff's capacity to take a benefit under the will of the deceased, or which might cause loss in respect of other proceedings, unless there appeared to be reasonable grounds to suppose that the proper performance of the duties of the defendant required such action and that it had reasonable prospects of success. I put to one side, therefore, the adequacy of the pleading to raise such an issue, the adequacy of the pleading of the alleged breach and questions of causation of damage. It is sufficient to say that, having regard to my view in respect of what I conceive to be the pleaded duty of care, in addition to the reasons expressed in relation to the pleading of a trust relationship, I consider that paras 20 to 22 inclusive of the statement of claim should be struck out and there would appear to be no occasion for the grant of leave to amend.

I turn then to the defendant's challenge to the pleading within the amended statement of claim, paras 23 to 25 inclusive, which are in the following terms:

"23. Further and in the alternative, between 17 September 1993 and 14 July 1994 on dates particulars of which will be supplied by the Plaintiff upon discovery being given and interrogatories answered by the Defendant, the Defendant:

(a) unlawfully held itself out as the administrator of the deceased's estate;

(b) in the course of holding itself out as the administrator of the deceased's estate unlawfully sought and obtained from various banking institutions monies beneficially owed by the deceased's estate and caused the same to be deposited in its common fund.

24. The conduct of the Defendant pleaded in paragraph 23 hereof constituted conduct in trade or commerce which was misleading or deceptive or which was likely to mislead or deceive contrary to the provisions of Section 52 of the TPA and/or, alternatively, Section 10 of the Fair Trading Act 1987 as amended.

25. By reason of the matters pleaded in paragraphs 23 and 24 hereof the Plaintiff has suffered loss and damage, hurt and humiliation, and been put to expense.

1. The Defendant failed to realise the best return on the cash assets of the deceased's estate;

2. The Defendant failed to properly account for the cash assets of the deceased's estate and interest thereon to (inter alia) the Plaintiff;

3. The Defendant unlawfully debited costs and charges to the deceased's estate;

4. The Defendant utilised the cash assets of the deceased's estate for its own benefit.

The Plaintiff will further particularise her loss and damage upon discovery being given and interrogatories answered by the Defendant."

The principal argument here raised by the defendant is not that the pleading discloses no reasonable cause of action, but that the pleading is in a form which is embarrassing because it fails to plead the material facts. It is argued that para 23 refers to no misrepresentations about the position of the defendant and says nothing about how it "held itself out" as the administrator of the deceased person's estate; nor is it pleaded how, when, by whom or in what circumstances the defendant allegedly "sought and obtained" monies which were part of the deceased's estate and caused them to be deposited in its common fund. As to para 25, it is contended that there is insufficient pleading of material facts as to the nature of the loss and damage allegedly suffered.

As I have mentioned, the obligation to plead the material facts upon which the plaintiff relies emerges from the Rules of the Supreme Court, O20 r8. The question which arises is not the distinction between material facts and the evidence by which those facts may be established, to which reference is made in r8(1), but the distinction between material facts and particulars. There is a requirement in O20 r13(1), generally speaking, that "every pleading must contain the necessary particulars of any claim, defence or other matter pleaded".

In Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-3, Scott LJ said of the English equivalent of r8(1), that, "The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' fact is omitted, the statement of claim is bad [and] is liable to be 'struck out' ... or 'a further and better statement of claim' may be ordered". His Lordship continued:

"The function of 'particulars' under r.6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a 'material fact' and a 'particular' piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them."

The same approach is taken in this State. In Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566 at 569, Franklyn J, with whom Walsh J agreed, referred to the distinction between material facts and particulars, describing the latter as "the detail necessarily to be given to tie the hands of the party so that he cannot without leave go into any matter not included". At 570, Franklyn J continued:

"... the plaintiff has claimed, and it would seem, without dispute, that at this stage it does not have the details sought by the defendant and that to order those details to be pleaded at this stage would deny the plaintiff the right to bring the claims. Implicit in that statement is the acceptance ... that the facts necessary for the particulars to be provided, if they exist, are facts at this stage solely within the knowledge and control of the defendant which can be obtained by discovery and/or interrogatories. There is authority for the proposition that when one party knows the facts and the other does not, an insufficiently particularised allegation may be made in a statement of claim and the plaintiff be permitted to obtain discovery of documents and answers to interrogatories before providing the necessary particulars."

In my opinion, the defendant's complaint about para 23 of the amended statement of claim is justified to this extent. Whilst it may be held that the material facts as to the nature of the conduct pleaded to be misleading or deceptive conduct in trade or commerce are (albeit poorly) stated, I think they are insufficiently particularised to enable the defendant to know with sufficient certainty what is the nature of the case which is to be put against it at trial. That being the case, the court is compelled to conclude that the pleading is embarrassing in the sense of that term as it is used in O20 r19(1)(c). I would order that the pleading in paras 23-25 be struck out 14 days after the date of my order unless the plaintiff amends para 23, as I would give her leave to do, so as to adequately particularise the nature of the holding out, in the course of which money was obtained, the occasions upon which that occurred, the money obtained and the banking institutions involved. In addition, as to para 25, the plaintiff should properly particularise upon what basis it is alleged that the defendant failed to realise the best return on the cash assets of the estate, failed to properly account for them, wrongly or unlawfully debited costs and charges to the estate and utilised the cash assets of the estate for its own benefit.

In my view the defendant is entitled to that information before it is required to plead by way of defence. I notice that in paras 23 and 25 the plaintiff pleads that she will further particularise relevant dates and her loss and damage after discovery and the answering of interrogatories. If it should be the case that it is truly impossible to particularise any aspect of the nature of this claim and the damage said to arise upon the ground that any particular information is known only to the defendant and not to the plaintiff, then, of course, the incapacity to give further particulars until after discovery and interrogatories should be pleaded and will suffice for the moment.

The defendant raises a similar contention that paras 26 to 28 inclusive of the amended statement of claim are embarrassing in the relevant sense for much the same reasons of lack of proper particularisation as are raised with respect to paras 23 to 25 inclusive. The paragraphs are presently in the following form:

"26. By reason of its appointment as interim receiver of the estate in the manner pleaded in paragraph 13 hereof the Defendant:

26.1 was under a duty to preserve the assets of the deceased's estate

26.2 owed a duty of care alternatively a fiduciary duty to the Plaintiff to properly manage the deceased's estate and to properly and faithfully account to the Plaintiff with respect thereto.

27. In breach of the duties pleaded in paragraph 26 hereof the Defendant:

27.1 failed to realise the best return on the cash assets of the deceased's estate;

27.2 failed to properly account for the cash assets of the deceased's estate and interest thereon to the Plaintiff;

27.3 unlawfully debited costs and charges to the deceased's estate;

27.4 utilised the cash assets of the deceased's estate for its own benefit.

28. By reason of the matters pleaded in paragraphs 26 and 27 hereof the Plaintiff has suffered loss and damage and been put to expense trouble and inconvenience full particulars of which will be supplied upon discovery being given and interrogatories answered by the Defendant."

In my opinion, the proper conclusion with respect to this contention is that to which I have come in respect of paras 23 and 25. So far as the pleading of the nature of the duties alleged to have fallen upon the defendant by reason of its interim receivership of the estate are concerned, I think that para 26 is adequately expressed, because the defendant does not argue that the pleaded duties do not arise as a matter of law. But para 27 and para 28 inadequately particularise the nature of the breaches pleaded and the loss and damage suffered. The same course should be taken. I would order that paras 26 to 28 inclusive be struck out 14 days after the date of my order, unless, in the meantime, the plaintiff amends paras 27 and 28 so as to plead with proper particularity the matters very generally referred to therein, as I would give her leave to do. The pleading should be of the same degree of particularity and be subject to the same limitation in respect of information known only to the defendant and not to the plaintiff, as I have discussed with respect to paras 23 and 25.

Paragraph 29 would survive, in my view, as a pleading that the defendant's conduct described in para 14 exhibited a contumelious disregard for the plaintiff's rights for which a claim of exemplary, or alternatively aggravated, damages is made. The summons before me seeks an order that this paragraph be struck out, but as no argument was advanced in support of that application, I would make no such order.

Finally then, it remains for me to deal with the argument raised about the third particular of economic loss set out in the amended statement of claim, para 15. The same argument was raised in respect of the third particular in para 18 and para 22, but as these paragraphs would not survive my judgment for other reasons, there is no need to mention those pleadings further.

The action number CIV 1552 of 1994 referred to in the pleading was that brought by the plaintiff against Mrs Sweet and the defendant, in which the plaintiff and the defendant each sought the grant of letters of administration, with the will annexed, of the estate of the deceased. As I have mentioned, on 4 September 1997, by consent, both the claim and the counterclaim were dismissed and the order was made that, "There be no order as to costs." It is the costs incurred by the plaintiff in that action which are the subject of the third particular of damage set out in paragraph 15. It is clear that the final consent order that there be no order as to costs had the effect that each party had to bear their own costs. It is not to be interpreted as if nothing was said about the costs of the litigation: Trikas v Rheem (Aust) Pty Ltd [1964-5] NSWR 645, 646.

For the defendant, it is argued that the final order so made is an end to the matter and there can now be no pleading that damages in this action for public misfeasance may include the costs pleaded to have been incurred by the plaintiff in the previous action. No doubt, it is said, the defendant might raise in its defence an estoppel of the kind discussed in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 598. But, it is argued, that the proper view is that any cause of action sounding in damages related to the costs incurred by the plaintiff in the previous litigation, it will not be maintainable because any such cause of action would merge in the judgment made by consent in the previous litigation: Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502. I accept that argument and, in view of that, the proper conclusion is that the pleading making that claim should be struck out. It might be, but it is not necessarily limited to being, a point which could be raised by way of defence.

I was referred to Berry v British Transport Commission [1962] 1 QB 306. That was a case where the plaintiff had been prosecuted, convicted and fined for a regulatory offence. She appealed successfully and was awarded costs. She then sued the complainant for malicious prosecution, giving as particulars of her damage the costs she had incurred on her defence and on her appeal, to the extent that they exceeded those which had been awarded to her on appeal. She was able to recover because the original proceedings had been criminal proceedings, although it was held, as the head note records, that in civil cases it was well established that extra costs incurred in excess of the sum allowed on taxation could not be recovered as damages. In my opinion, that case assists the defendant, as does the very similar decision of Macrossan J in QIW Retailers Ltd v Felview Pty Ltd [1989] 2 QdR 245, 261-2, to which the defendant also referred me.

To the extent which I have indicated, the defendant's application succeeds and the strike out or amendment orders to which I have referred should be made.