NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G99 of 1985 BETWEEN: KIMBERLEY NZI FINANCE LIMITED Applicant and TORERO PIY. LID. First Respondent and STEVEN ALICK MASEL Second Respondent and TORERO PIY. LID. Cross Claimant and TRAYDA PITY. LID. Cross Respondent CORAM: MUIRHEAD J. 1 August 1986 REASONS FOR DECISION In this action the applicant seeks damages pursuant to the Trade Practices Act, the cause of action arising out of proposals for the financing by the applicant of a proposed development plan and the construction of units. The facts are r Pen oe ee ner tee _ Pais so = ee wear wpe ore — complex and proceedings are pending in another jurisdiction in which the first respondent seeks a declaration as to the validity of certain contracts entered into with the cross-respondent in this action, Trayda Pty. Ltd. Basically the applicant asserts that certain representations made to it by the respondents were false and formed part of a scheme arrangement or understanding designed, and successfully designed, to mislead and deceive the applicant which thereby suffered damage. I have before me a Notice of Motion seeking first an order that the applicant "do answer paragraphs 5,7, 8 and 9 of the respondent's Request for Particulars of the Applicant's Statement of Claim and give further and better particulars of paragraph 3 of the respondents said request consequent upon discovery and inspection in another action in this Court". Circumstances require that I should give my decision briefly but I have the benefit of full argument by counsel. 0.12 r.5 of the Federal Court Rules deals generally with orders for particulars. In this case the respondents' application is made after the filing of the defence. In this situation the objectives of particulars are generally regarded as having three prime objects, the first to inform the other side of the nature of the case to be met as distinguished from the mode in which the case is to be proved, secondly to limit the generality of the pleadings, to limit and define the issues to be tried (and as to which discovery may be required and evidence given) and thirdly to enable a respondent to sufficiently comprehend the applicant's case to enable exercise of the right to pay into court (where apa eae oor + wat a We , I re hy 7 applicable) or to file an offer of consent to judgment. See Wilson v. Dun's Gazette Ltd. C1912] V.L.R. 342 and the authorities referred to in Williams Supreme Court Practice 2nd Edn. (Vol.1) at p.1307 et seq. "The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to save costs." Astrovianis Compania Naviera v. Linard (1972) 2QB 611 at 620. See also Bullen and Leake and Jacobs Precedents of Pleadings (12th Ed.) pp.112-113. See also CCA Australian High Court and Federal Court Practice 60.751 et seq., and the authorities there referred to. The many pri.uciples enunciated do not always easily stand together, and on Motions such as this some selectivity is unavoidable. The Court in the case of conflicting argument before evidence is given, can only take an objective view upon the material before it, particularly upon the pleadings filed. Here I must say that the Statement of Claim appears to be a carefully drawn document and indeed the defence itself illustrates the same qualities. The applicant has already given particulars and I am informed by its counsel that in fact at the present time the applicant has given all such particulars which are presently within its power to supply. The fact that a party is unable to eee ~ ane ot como give particulars is of course a cogent factor to consider; in some cases that may illustrate some weaknesses in the claim, in others 1t means little bearing in mind the inferential processes of fact finding. Paragraph 5 of the request seeks further and better particulars of the allegations in para.15 of the Statement of Claim which pleads that the second respondent was aware or should have been aware of the applicant's reliance on the fact that units in question had been resold pursuant to enforceable contracts. The respondent's answers to the request were comprehensive. I do not consider that para.(g) of the answer which refers to the applicant's inability to give further particulars until discovery in another action in this Court (No.94 of 1985) justifies an order. Should such discovery enable the provision of further relevant particulars they should be provided to the respondents. If they do not do so the matter may rest. Paragraph 7 of the request refers to para.36 of the Statement of Claim which after referring to false representations previously pleaded allege that they formed part of a scheme arrangement or understanding on the part of the first respondent which deceived the applicant. Particulars are pleaded in six subsequent sub paragraphs. There is some reiteration in the drafting of those particulars and some appear to me to be somewhat inept as particulars. (See H. 1976 Nominees Pty. Ltd. v. Galli and Apex Quarries (1979) 40 F.L.R. 242 at 246; Trade Practices Commission v. David Jones (Australia) Pty. Ltd. and Others (1985) 7 F.C.R. 109 at 112 et seq.) oppo rye ee oe ae & ° z. (TENE eens = a seine pe mn Particulars when supplied should not assume the role of pleadings. Such a practice tends to complicate the issues and delay finalisation. It must always be remembered that an applicant in presentation of his case is bound by his pleadings. If he has no evidence or factual material to support essential allegations of fact, the applicant will fail. In the past it has frequently appeared to me that unnecessary use of interrogatories by a defendant tends to work in the long run in favour of a plaintiff. The same may be said of unnecessary use of requests for particulars, although they may on occasions preface an application to strike out. I do appreciate that actions under s.52 which are often based on a totality of conduct of different types, and sometimes silence, and which cover situations between innocent misrepresentation and fraud raise difficult problems. Absolute precision cannot always be expected of an applicant who enters into contractual arrangements and then finds the outcome so at odds with his expectations that logic requires an inference or conclusion that he has been misled or deceived. In such cases particularity in pleading, before the processes of discovery may be difficult. The request is in effect for further and better particulars of the particulars, and particulars are not pleadings. However, I order that the respondent supply the further and better particulars sought in paras.(c) and (d) of request No.7, which as I have said refers to para.36 of the Statement of Claim. Seeaiarnet aeeeneetiid posta ee ee ee ae ~ oa ee Request No.8 seeks particulars of loss and damage referred to in paras.37 and 43 of the Statement of Claim. The applicant reiterates, what the Statement of Claim originally asserted "that full particulars of loss and damage will be provided prior to trial". Order 12 r.4(1) provides that "Where a party pleading claim damages which include moneys which he has paid or is liable to pay, he shall give particulars of those moneys". This is not broad enough to cover loss or damage of a nature which may lead to an assessment akin to general damages. The history of assessments under Part IV andvV of the Trade Practices Act 1974 is now sufficient to indicate that damages may fall for assessment under many heads. Here I assume the applicant will seek damages assessed on the basis of any residual loss (including possibly loss of profit) after it has exercised its powers as mortgagee over the land, as until this has been done loss cannot be calculated. Be that as it may, I consider the respondents are entitled to know the heads under which damages are to be claimed and I order that the applicant should provide particulars of monetary loss as soon as it can be assessed, i.e. after it has realised its securities and further that within six weeks of this date it provide the respondent with particulars of the heads of loss, including loss of interest, under which damages will be claimed. Request No.9 refers to para.41 of the Statement of Claim. which in the alternative pleads that the respondents, at a time when the first respondent was possessed "with special skill and knowledge" concerning certain representations, or was in a special a ve ee .T we rer ar co ver en ee oe oo whoo. ce pmricsseien eats een ee er ae . a seein ae gt Rn ererne or : relationship with the applicant negligently failed to ensure the accuracy of the representation. Particulars are sought as to all "specific facts, documents or overt acts" upon which the applicant intends to rely. The plea has for its essential foundation proof of the relationship between the parties and the respondents' knowledge at the relevant times. The applicant in answer to this request refers to particulars previously given. I am not persuaded that further particulars should be ordered. Save where expressly otherwise provided I direct that the few further particulars required be supplied within 28 days of this date. By the same motion the second respondent seeks an order in its capacity as cross-claimant against Trayda Pty. Ltd. the cross-respondent. The cross-respondent has not entered an appearance to the cross-claim which solely seeks a declaration "that the Trayda contracts have been discharged hy reason of the cross-respondent's repudiation thereof". 0.5 v.13 provides "Where a respondent to a cross-claim does not enter an appearance or file a defence, if and as required by these Rules, or does not file a defence in accordance with an order to do so, a judgment (including a judgment by default or by consent) or decision (including a decision by consent) on any claim, question or issue in the proceeding on the originating process or on any other cross-claim in the proceeding shall, unless the Court otherwise orders, be binding as between the cross-claimant and the respondent to the cross-claim so far as the judgment or decision is e rr a a ee a eT Soa telede ia hahaa -enaien telat onde waanet te a 7 Soy - ot aay feo MOTO moter cope oe aya . ee akg Mey ee re relevant to any claim, question or issue in the proceeding on the cross-claim." The applicant, assuming he has status so to do, asks that I should not make such a declaration in default of the cross-respondent's appearance. It seems to be common ground that Trayda Pty. Ltd. is now without assets and whilst it appears to have figured prominently in the matters the subject of this litigation, it indicates no further interest in the proceedings. The applicant's counsel has drawn my attention to paras.25, 33 and 34 of the Statement of Claim which allege that the first respondent "wrongfully refused to complete the purchase of the units" (para.28), that it "failed to complete the purchase of the Trayda contracts" (para.33) and that it "has continued to wrongfully refuse to complete the Trayda contracts (para.34)". The power of this Court to enter judgment in default of compliance with directions as to the filing of pleadings is contained in 0.10 r.7. Directions were made in this matter in November last year but did not of course relate to parties not then joined. For that reason Order 5 is required to deal with cross-claims. 0.5 r.13 does not bind the applicant and respondent to default orders which may be entered in such cross proceedings. The rule has another purpose, namely to bind a cross-respondent who does not appear or file a defence to the cross-claim toa judgment in the proceedings relevant to issues raised on the cross-claim. But assuming I have power to make the declaration sought merely upon default of appearance and without any evidence going to the merits of the declaration (which I very much doubt), I decline to do so. Determination of this issue as to the Trayda ose 1-7 yon oc arene pe press ayers eee - 9. contracts may be vital. It would be singularly inappropriate and embarrassing to have on record in the proceedings a declaration by this Court, which goes to primary issues, entered without consideration of the merits and without indeed full understanding of the relationship (if any) of Trayda Pty. Ltd. to the other parties, a declaration which may prove to be at odds with the considered conclusion of the Court on the issue. There is much authority for the proposition that the power to make a declaration is discretionary and it is a discretion which ought to be exercised with care (Slee v. Warke (1949) 86 CLR 271 AT 279,280) and "with great care and jealousy" and "with great caution" (London Passenger Transport Board v. Moscrop (1942) A.C. 332 at 344). See also Bacon v. Rose and another (1972) 2 NSW LR 793 at 796. The issue considered by the House of Lords in New Brunswick Railway Company and British and French Trust Corporation Limited (1939) A.C. 1 related to estoppel and the construction of documents. But Lord Maugham's remarks (at p.22) are relevant. "I think it right to observe that it is in my view undesirable that judges should make declarations as to the true construction of documents on motions for judgment in default of defence..... As far as possible the Court should make such declarations only when the matter has been argued by counsel on each side, and is then the subject of adjudication by the judge". The motion for the declaration must be refused. The orders are as follow:- wu ae Has Sey Y Bian ate td. rT ce Cerne : whe oe be Baie Bas "a rane a, tH had L eT | ra ts me aut te tt a7Lt. ees a re tenit y ret * PT ae soos ane a . wenn te eee Nee A ak ee eS aatichaats (1) (2) (3) (a) (b) 10. The Motion that the applicant do provide further particulars of paras. 15 and 41 of the Statement of Claim is refused. The applicant shall within 28 days provide further and better particulars of para.36 of the Statement of Claim limited to the particulars sought in paras (c) and (d) of request No.7. The applicant shall provide particulars of its alleged loss and damage as soon as it is practicable to estimate such loss and damage. The applicant shall within 6 weeks of this date supply the respondents with particulars of the heads of damages and loss claimed. Paragraph 2 of the Motion, in which the declaration is sought is refused. I have considered the question of costs and have decided the appropriate order is that costs of and incidental to the motion be costs in the cause. I certify that this and the nine preceding pages are a true copy of the Reasons for Decision herein of his Honour Mr. Justice Muirhead. Associate Dated: 1 August 1986 a ro I gee nee re rte wo . Mane Ta HL eee ne eens aS Ts ae Se ee er wht Ls er peven nuns es . rt re, ese