- IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION BETWEE RN: JUDGE MAKING ORDER: DATE MADE: WHERE MADE: THE COURT ORDERS THAT: l. The applicant has leave on or before 23 June 1987 to file and deliver a further amended statement of claim. 2. The respondents are to file and deliver any defence to the further amended statement of claim on or before 7 July 1987. 3. Any xeply to the amended defence to be filed on or before 14 July 1987. 4. The applicant is to pay the respondents' motion and any costs thrown away by reason of the No. WAG 122 of 1986 C. SPAGNOLO PTY LTD Applicant and WESFARMERS INSURANCE LTD First Respondent and LESLIE EDWARDS Second Respondent MINUTE OF ORDER FRENCH J. 9 JUNE 1987 PERTH further amendment in any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ae ee ee oo costs of the NOT INTENDED FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. WAG 122 of 1986 BETWEEN: C. SPAGNOLO PTY LTD Applicant and WESFARMERS INSURANCE LIMITED First Respondent and LESLIE EDWARDS Second Respondent CORAM: FRENCH J. 9 JUNE 1987 REASONS FOR JUDGMENT In this case the applicant is claiming damages for a contravention of s.52 of the Trade Practices Act 1974. The claim arises out of the alleged failure of the first respondent to issue a workers' compensation insurance policy to cover the applicant in respect of claims by its employees and the erroneous issue of such a policy to a related partnership with no employees. The respondents move to strike out the amended statement of claim under 0.11 r.16 as disclosing no reasonable cause of action. . 2. Alternatively they seek to strike out paragraphs 7 and 9 as embarrassing and irrelevant, paragraphs 6, 8, 11, 12 and 14 as vague and embarrassing and sub-paragraph 14 4) as vexatious. Further or in the alternative they seek an order that the applicant provide proper particulars of 1ts amended statement of claim pursSuant to a request by the respondents dated 23 April 1987, The applicant is a company incorporated in Western Australia and carrying on the business of fruit growers and wholesalers. At some time which 1s not disclosed in the amended Statement of claim 1t alleges that one Cono Spagnolo on behalf of the applicant conducted negotiations with the second respondent who was said to be acting on behalf of the first respondent. The negotiations were conducted with a view to securing the issue by the first respondent of a policy of insurance for workers' compensation (para.6). Paragraph 7 of the amended statement of claim alleges quite unnecessarily to the cause of action relied upon that:- "It was at all material times the intention of the Applicant that the First Respondent do provide a Workers' Compensation Insuxance Policy in respect of all employees of the Applicant." fer reer i - , 3. Paragraph 8 then alleges, again without specifying any dates, that various representations were made in the course of the negotiations. The plea 1s expressed as follows:- "At all material times during negotiations leading up to the policy of the insurance, the Second Respondent represented to the Applicant as follows: (a) That the policy of the insurance was to be taken out in the name of the company C. Spagnolo Pty. Ltd. (b) That Cono Spagnolo as an employee of C. Spagnolo Pty. Ltd. was covered by the policy of insurance. (b) That all employees of the Applicant were to be covered by the Policy of Insurance." Paragraph 9, again unnecessarily to the cause of action relied upon, pleads that the representations were made by the second respondent with the intention of inducing the applicant to enter into a policy of insurance and to pay premiums thereon to the first respondent. Paragraphs 10 and 11 then allege:- "10. By reason of the representations referred to in paragraph 8 herein and relying upon the truth the Applicant was induced to sign an application for a policy of insurance and accordingly paid the premiums thereof to the First Respondent. ll. In the premises, the representations referred to in paragraph 8 were false in that the insurance policy was made out by the First Respondent in the name of C. & F. Spagnolo (being a partnership which has no employees) ." The statement of claim goes on to allege that on 6 January 1986 Cono Spagnolo, an employee of the applicant suffered injuries to his right thumb which was subsequently amputated. It is not alleged that the injuries were suffered in circumstances which would render the applicant liable to pay him workers' compensation. It 1s further alleged that the applicant applied to the first respondent for payment pursuant to the provisions of the policy of insurance but the application was refused. The basis of the refusal is not disclosed. Paragraph 13 then goes on:- "13. In the premises the First and Second Respondents have engaged in conduct that is misleading or deceptive or likely to mislead or deceive and a result of which the Applicant has suffered damage. (sic) Alternatively, the First and Second Respondents have engaged in conduct that 1s likely to mislead the public as the nature, the characteristics, the suitability for their purpose of the quantity of any services and as a result of which the Appliant has suffered damage. (sic)" Paragraph 14 then sets out the claim for damages against both respondents, the measure of which is "the cost of the claims arising out of injuries to employees of the Applicant." There 18 a claim for exemplary damages but this was abandoned before me on the hearing of the motion. Wt one en Sig Oa _ Se The representations pleaded 1n paragraph 8 appear on the face of 1t to be promissory in character. The use of the past tense 1n paragraph 8(b) is a little confusing but in context appears to have been a slip and intended to refer to a promise. Nothing 1s pleaded to indicate any implied misrepresentation as to fact. It 1S not suggested that at the time these promises were made the first respondent had no intention of honouring them. Nor 18 it suggested that there was then in existence a state of facts that would render 1t impossible for the promises to be honoured. In the circumstances what 1s pleaded is the making of promises and a failure to meet them. That does not of itself constitute a contravention of s.52. In the course of his submissions on behalf of the applicant, counsel seemed to suggest that the applicant had been led to believe that it had a policy covering claims by the employees and had in that respect been led into error. That may well indicate the true basis of the cause of action upon which the applicant relies. 6. It 18 not a matter for the Court, on a motion such as the present to suggest waysS in which the statement of claim could be recast. That 18 a matter for the applicant. In 1ts present form the statement of claim does not, in my opinion, disclose a cause of action and I am prepared to make an order stciking 1t out. It seems to me, however, that the defects may be curable by further amendment and for that reason I will allow the applicant 14 days in which to file and deliver a further amended statement of claim. The applicant, however, will have to pay the costs of the motion and any costs thrown away by reason of the further amendment. I will hear from the parties as to the precise form of the orders to be made. I certify that this and the preceding five (5S) pages are a true copy herein of the Reasons for Judgment of his Honour Mr Justice French. Associate: Deis oW = Date: g 6 37