16 / CATCHWORDS Practice and procedure - application for proceedings to be dismissed - joinder of parties - application for amended statement of claim and amended application to be struck out. 0.6 r.9, 0.11 r.16, 0.20 r.2 Rules of Court JET CORPORATION OF AUSTRALIA PTY. LTD. (in its capacity as Trustee of the JET CORPORATION OF AUSTRALIA TRUST) v. PETRES PTY. LIMITED (in its own right and in its capacity as Trustee of The Schutt Unit Trust) and OTHERS V. No. G.109 of 1983 Northrop J. 8 February 1985 Melbourne October 1984 the Court, as presently constituted, ordered that Andrew Grimwade and Kelvin John Dyer be added as respondents to the application and that Jet Corporation have leave to amend its application and statement of claim and that the directions hearing be adjourned to 9 November 1984. The application and Statement of claim as so amended are hereinafter called "the amended application" and "the amended statement of claim" respectively. By notice dated 5 November 1984, Grimwade gave notice that at the directions hearing he would move the Court for orders including the following three, namely: That the proceedings against him be dismissed, or alternatively that he cease to be a party to the proceedings; see 0.6 r.9 of the Rules of Court. That the amended application, or alternatively Paragraphs 1, 3 and 6 thereof, insofar as it or they sought relief against him, be dismissed or struck out; see 0.11 r.16 and 0.20 r.2 of the Rules of Court. That the amended statement of claim, or alternatively paragraphs 17, 18, 19, 20, 40, 41, 42, 43, 44, 45 and 46 thereof, insofar as 1t or they related to him, be struck out; see 0.11 r.16 and 0.20 r.2 of the Rules of Court. By its amended application Jet Corporation is seeking, inter alia, a deciaration that specified conduct by five natural persons, imcluding Grimwade, constituted conduct by each of them, in trade or commerce, which was misleading or deceptive, or likely to mislead or deceive contrary to 5.52 of the Act, a declaration that each of those Matural persons, including Grimwade, 1s bound to account to Jet Corporation for specified sums of money, and an order that the respondents, including Grimwade, pay to Jet Corporation the amount of loss and damage suffered by Jet Corporation by and in consequence of specified conduct by the respondents, including Grimwade. Under 0.6 r.9 of the Rules of Court, the Court has power to order that a party who has been improperly joined toa proceeding cease to be a party to that proceeding. That rule has application irrespective of whether the party was joined when the application was first issued or whether the party was joined pursuant to leave granted after the application had been issued. Counsel for Grimwade contended, quite correctly, that 5.52 of the Act proscribes conduct by a corporation in trade or commerce and that Grimwade is not a corporation. He contended, therefore, that it was apparent that the amended application disclosed no cause of action against Grimwade which came within the Dipson paid or agreed to pay to each of them specified sums of money including the $800,000 to or at the direction of Grimwade, and that each of those natural persons, including Grimwade, in breach of his fiduciary duty, did not disclose those matters to Jet Corporation and in so doing engaged in conduct in contravention of s.52 of the Act. That alleged contravention is expressed in various ways. Jet Corporation claims damages against Grimwade and the other natural persons as well as all the respondents, being damages suffered ~ by Jet Corporation as the result of conduct in contravention of 5.52 of the Act. Counsel for Jet Corporation submitted that under the Rules of Court an application must be accompanied by either an affidavit or a statement of claim; see 0.4 r.6, and that under 0.11 the statement of claim should contain only a statement in a summary form of the material facts on which the applicant relies. Often, as a matter of convenience, a pleading contains matters of law and of contention, but those matters are not necessary to be set out in the pleading. He contende* that a reference to the whole of the amended statement of claim showed that Jet Corporation alleges that the three company respondents are corporations under the Act and in trade or commerce engaged in conduct 1n contravention of 5.52 of the Act and that Jet Corporation suffered loss or damage by reason thereof. In very brief outline, Jet Corporation 4A seeking a declaration that the conduct referred to in paragraphs 50, 50C and S50E by each of the five natural persons, including Grimwade, aided and abetted, -counselled and procured the contraventions by the three companies of s.52 of the Act and that each of them was directly or indirectly knowingly concerned in and party to the said contraventions. Paragraph 50 of the further amended statement of claim alleges that each of the five natural persons, including Grimwade, knowing that specified conduct by the three companies was false, caused agreements to be entered into and carried into effect by Jet Corporation and thereby rendered themselves liable under s.75B of the Act. By paragraph 50A, Jet Corporation alleges specified conduct by the companies constituted a scheme whereby assets were to be sold and in fact were sold to Jet Corporation at a price higher than their true value and ata price which would allow the making of the payments by Dipson to the five natural persons, including Grimwade. Paragraphs 50C and 50E are expressly related to 5.75B of the Act. Counsel for Grimwade did not dispute the legal principles to be applied in deciding anterlocutory matters of this kind; see the cases cited at the beginning of these reasons. He contended, however, that paragraph 50 of the further amended statement of claim did not have particulars appended to it and that the principles expressed by Adam J. in Rubenstein v. Truth and Sportsman Ltd. €19603 V.R. 473 at 475-6 should be applied with the result that paragraph 50 of the further amended statement of claim should be struck out. He referred to 0.12 r.2 of the Rules of Court and contended that the conduct alleged against Grimwade was in substance fraud and that particulars should be given. In my opinion, for the purposes of deciding this motion, sufficient particulars have been given by paragraph 50. In that paragraph specific mention is made to conduct alleged in earlier paragraphs of the statement of claim and that reference constitutes sufficient particulars for the purposes of deciding this motion. Counsel referred also to what was said in Sent and Another v. Jet Corporation of Australia Pty. Limited and Others, above, that in order to be involved under 8.75B of the Act a person had to have more than mere knowledge, namely the person had to take positive action. The further amended statement of claim does allege sufficient matters in the nature of positive action being taken by Grimwade to bring him within 5.75B. In all the circumstances I am not satisfied that the claims against Grimwade are 50 hopeless as to justify the making of the orders sought by him. This