Bugis ey L, ec Nek VL ON IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. WAG 114 of 1986 BETWEEN: BOND CORPORATION PTY LTD Applicant and THIESS CONTRACTORS PTY LTD First Respondent and OVE ARUP PTY LTD, ARUP PARTNERS PTY LTD and OVE ARUP CONSULTANTS PTY LTD Second Respondents MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 29 APRIL 1987 WHERE MADE: Perth THE COURT ORDERS THAT: i. The applicant do on or before 7 May 1987 file and deliver a statement of claim further amended in the following respects:- (i) as to paragraph 22 to make explicit the allegation that the representations as to the first respondent's capacity set out in paragraph 19 were false; aye ROOT IVED ~ SMAY 1987 FEDERAL COURT OF AUSTRALIA " PRINCIPAL ON REGISTRY 2. (ii) as to paragraph 27 to make explicit the allegation that the representation as to the first respondent's capacity set out in paragraph 26 was false; (iii)as to paragraph 26 to specify the approximate time at which the alleged representations were made. 2. The applicant will otherwise have leave to amend generally. | 3. The first respondent is to pay the applicant's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. et eer ene re IN THE FEDERAL COURT FOR LIMITED DISTRIBUTION OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION ee ee NO. WAG 114 of 1986 BETWEEN: BOND CORPORATION PTY LTD Applicant and THIESS CONTRACTORS PTY LTD First Respondent and OVE ARUP PTY LTD, ARUP PARTNERS PTY LTD and OVE ARUP CONSULTANTS PTY LTD Second Respondents CORAM: FRENCH J. 29 April 1987 REASONS FOR JUDGMENT The first respondent moves the Court for orders striking out various paragraphs of the applicant's amended statement of claim and in the alternative in relation to certain of those paragraphs seeks orders for the provision of particulars. It also seeks to extend the time for delivery of its defence. This litigation has already been productive cof two reserved decisions on interlocutory matters and it is unnecessary to repeat here the description of the background to the proceedings which appear in the reasons for those earlier decisions. 2. On 17 March 1987 on the motion of the second respondents, paragraphs 45 to 55 of the statement of claim were Struck out for reasons then published. An amended statement of claim was filed on 16 April 1987. The first respondent's attack is on certain paragraphs of that amended statement of claim. Insofar as it seeks strike out orders the motion does so in each case on the ground that the paragraph complained of tends "to cause prejudice or alternatively embarrassment or alternatively delay" in the action. It invokes 0.lir.16(b) which provides:- "Where a pleading - (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out." The power conferred by the rule is designed:- ",..to prevent pleadings from being evasive or from concealing or obscuring the real questions in 3. controversy between the parties, and to ensure as far as the pleadings are concerned, a trial on fair terms between the parties 1n order to obtain a decision which is the legitimate object of the action". -~ Bullen and Leake Precedents of Pleadings 12th Edition p.146 Berdan v Greenwood (1878) 3 Ex.D.251 at 256 per Thesiger LJ. A frequently quoted passage from the judgment of Bowen LJ in Knowles v Roberts (1888) 38 Ch.D.263 at 270 sets out the general framework within which such applications may be considered:- "It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, 1s one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and 1t tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right." The motion first attacks para. 17 of the amended statement of claim. In the context of allegations that the first respondent lacked represented capacities relevant to its ability to carry out the disputed works, para. 17 alleges that the first respondent "failed to complete the works as varied by 10 December 1985, the period allowed by Ove Arup". Of this para. the first respondent says in its submissions:- 4. "1. The plea is entirely irrelevant to the cause of action 1n respect of which it is pleaded. The evidence and legal argument at trial in respect of the same would be considerable. 2. There 1s no plea:- (a) defining how and in what respects "the Works" are alleged to have been "varied", {b) as to how the date 10th October 1985 is calculated, or (c) stating the manner in which it is alleged that Ove Arup "allowed" for the completion of"the Works as varied"." The only point of substance made in relation to para.17 is that it introduces the concept of "the works as varied". By reference to sub-para.10(a) and paras. 5 and 9 it is evident that "the Works" is to be understood as the earth works and road and drainage construction for stage 1 of the development of land at Millendon known as Brigadoon into a residential subdivision. The reference to "the Works as varied" in para. 17 is reflected in para. 24 which alleges failure on the part of the first respondent to "complete the Works as varied by Ove Arup..." There 1S also a reference to the term in para. (2) of the particulars to para.18. As I read the statement of claim the Works are initially defined in general terms as "earthworks and road and 5. drainage construction for stage 1" and not by reference to the tender and specifications proposed for the applicant or any particular quantities. Even "as varied" it appears the works were still within the description of "the Works" as defined earlier in the amended statement of claim. The words "as varied" therefore appear unnecessary and somewhat confusing. Subject to that difficulty the paragraph plays a legitimate role in asserting a casual link between the misleading and deceptive conduct alleged against the first respondent and the damage suffered by the applicant. It has been said that the mere fact that a pleading contains unnecessary matter, is not sufficient ground to strike it out or that part of 1t which contains the offending matter if it is otherwise harmless ~- Tompkinson v S.E.Ry. (1857) 57 LT 358, 360, Hocking & Co. v Hocking (1886) 3 RPC 291. While in my opinion it is desirable in the interests of clarity and felicitous expression that the paragraph be amended, I will not strike it out. That is not to say that the first respondent is not entitled to further and better particulars if the paragraph remains in its present form. 6. The motion next deals with paras. 19 and 26 of the amended statement of claim. following Paragraph 19 is a plea made in the alternative in the terms:- "Further, and in the alternative:- (a) (b) at the time of submitting the Thiess Tender Thiess represented to Ove Arup that it was able to and would carry out the Works for a price of $2,169,256; Prior to 12 March 1985 Thiess represented to Ove Arup that it was able to and would carry out the Works for a price of $1,722,453." Paragraph 22 pleads, in relation to those representations:— "The representations referred to in paragraph 19 were, at the time they were made, untrue to the knowledge of Thiess,. (1) (2) and" in each of sub-paras. {a) and (b) of para. 19 allege a See PARTICULARS Thiess knew, at the time of submitting the Thiess Tender, that it would not carry out the Works for $2,169,256 and had not intention of doing so; Thiess knew, at the time it made the representation referred to in paragraph 19(b) hereof that it would not carry out the Works for $1,722,453 and had no intention of doing so." The first respondent submits that the words "was able to representation which is nowhere said to be false. tea + Mees oo v8 - «6 1 Ure ert =, ea eer RT, ee mee 7. It 1s evident that para. 19 alleges representations both as to capacity and intention to carry out the works for the prices specified. Paragraph 22 as particularised falsifies only the representation as to intent. It does not in its substantive part or in the particulars make clear that it alleges the falsity of the representation as to capacity. Counsel for the applicant contends that it is intended by the pleading to falsify both representations. In my opinion this is a comparatively minor drafting point. It can and should be cured by amendment. The first respondent is entitled to know with precision what is alleged in respect of the representations pleaded in para.19. Given the statement by counsel for the applicant as to the intended meaning of para.22, I will give leave to amend that paragraph accordingly. ' Paragraph 22 is independently attacked as amounting to a plea of fraud for which no particulars are given. The appiicant however contends that the paragraph is not intended to raise fraud which is raised separately and distinctly in para.28. It is suggested that the issue of knowledge of the 8. falsity of the alleged representations is somehow relevant to the cause of action arising under ss.52 and 82 of the Trade Practices Act. Just how it is relevant to that cause of action in this case is not at all clear. However in the absence of full argument in light of the facts it would not be appropriate to strike the paragraph out on that basis. Paragraph 4 of the motion seeks in the alternative an order that for each of the representations referred to in para.19 the applicant file and serve on the first respondent proper particulars of the allegation that:- (a) The same were "untrue"; and (b) The same were untrue "to the knowledge of Thiess". To the extent that further and better particulars are sought, I am not satisfied that, subject to the necessary amendment of para.22, they will be needed prior to the delivery of the defence. I will therefore make no order for particulars as sought in para.4 of the motion. If a request for further and better particulars is made and not answered to the satisfaction of the 9. first respondent in this regard, it will be open to it to seek an appropriate order at a later stage. Paragraph 5 asks for an order striking out para.24 of the amended statement of claim. Paragraph 24 alleges:- ""Thiess fairled to complete the Works as varied by Ove Arup for $2,774,573 the price as varied but claims that it is entitled to be paid a sum greatly in excess of such price for carrying out the Works as varied." The submissions in respect of para.24 are the same in substance as those made for para.17. For the same reasons as apply in relation to para.17 I decline to make an order striking out this paragraph. Paragraph 6 of the motion attacks para.27 of the statement of claim which must be read in conjunction with para.26. Taken together they read as follows:- "26. Further, and in the alternative, in order to induce Bond to engage Thiess to carry out the Works Thiess represented to Ove Arup acting on behalf of Bond that it was able to and would carry out the Works for a price of $1,722,453. 27. The representation referred to in paragraph 26 was false and untrue." 10. The point here made by the first respondent in its submission is in substance that made in relation to paras. 19 and 22. As I proposed in respect of para.22 so also in respect of para.27, I will give leave to the applicant to amend para.27 to make it clear that the paragraph relates to each of the representations alleged in para.26. That amendment being made, further particularisation is not required in the body of the pleading. The order to that effect sought in para.7 of the motion will therefore be declined. Paragraph 8 seeks to strike out para.28 of the statement of claim. Referring to the representations alleged in para.26, para. 28 is in the following terms:- "Thiess, at the time 1t was made such representation, knew it to be false and untrue or made it recklessly not caring whether it was true or false (sic)." The complaint here is that no particulars are given of the alleged fraud. a = ll. The pleading of fraud is not confined to what appears in para.28. It comprises the fact of the representation (para.26), the falsity of it (para.27), the relevant state of knowledge on the part of the first respondent (para.28) and the fraudulent untention (duplicated in paras. 26 and 29). These paragraphs do not specify the time at which the allegedly fraudulent representation was made but it appears by reference back to para.19 to be "prior to 12 March 1985". The approximate time of the alleged fraud is a particular which would ordinarily be required to comply with 0.11 r.2. In my opinion this is a matter which should be pleaded as a necessary particular of the alleged fraud. I will give leave to amend for that purpose. By para.9 of its motion the first respondent seeks an order that the applicant give "proper particulars" of the allegations in its amended statement of claim that:- "(a) the First Respondent "knew" the alleged representation to be false and untrue; and (b) the First Respondent made the alleged representation "recklessly not caring whether it was true or false." I was not assisted by any clear indication of what the "proper particulars" would be. further and better particulars of the allegations perhaps going to such issues as the identity of the person or persons said to be 12. No doubt in due course the first respondent would seek the repositories of the corporate knowledge alleged in para.28. a blanket Again however, it is not necessary in my opinion to make order for "proper particulars" at this stage. Paragraph 37(a) was also attacked in the motion but that attack was not pressed before me. "40. Paragraph 40 alleges that:- In or about February 1985 Thiess and Leighton made an arrangement or arrived at an understanding that each of them would submit to Ove Arup acting on behalf of Bond a tender for the carrying out of the Works which tender would be:- (a) for a similar amount; (b) for an amount substantially less than either Thiess or Leighton intended in fact to charge for carrying out the Works; and (c) for an amount substantially less than the price at which any other suppliers of such services in Western Australia would offer to carry out the Works." of this the first respondent says that:- This is a plea of fraud and collusion of which no particulars are given as to the alleged "arrangement" or "understanding". No proper particulars are given as to the alleged falsity of the allegation (sic). 13. In my opinion the paragraph, read together with Paragraphs 42 to 44 is sufficiently clear to enable the first respondent to plead to it in its defence. Again it may well be entitled at a later stage to further and better particulars including possibly particulars of the overt acts relied upon by the applicant to establish the arrangement. As to that however I make no ruling now. Paragraph 44 of the amended statement of claim particularises the falsity of representations as to. the independence, realism and competitiveness of the first respondent's tender, representations said to have been made by the act of submitting the tender. The motion aiso seeks to strike out this paragraph and in the alternative, an order for particulars. I am of the view that the first respondent is in a position to plead to para. 44 and that particulars at this stage are not necessary. I therefore decline to make the order sought in respect of that paragraph. 14, I hereby certify that the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice French. Associate: Aigo dlenderon Dates: 2A nl IAS 7 Counsel: » for the Applicant: Mr S. Archer and Mr B. Luscombe instructed by Robinson Cox . for the First Respondent: Mr P. Clifford and Mr 8. Penglis instructed by Freehill Hollingdale & Page Date of Hearing: 24 April 1987 Date of Judgment: 29 April 1987