NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. No. G 357 of 15986 GENERAL DIVISION BETWEEN : AMODIN PTY. LTD. and INFORMATION MARKETING SERVICES PTY. LTD. Applicants and THE AUSTRALIAN SOCIETY OF ACCOUNTANTS Respondent COURT: NORTHROP J. DATE: 11 MAY 1987 PLACE: MELBOURNE EX TEMPORE REASONS FOR JUDGMENT In this matter the applicants are moving the Court for an order that the respondent provide further and hetter particulars of paragraphs 6 and 7 of its defence. In summary form the claim 1s brought by the applicants against the respondent pursuant to s.46 of the Trade Practice relation to a market which is defined in paragraey 3 of \n statement of claim. ix} ' =D \ ! sAL COURT ff -] aa FEE ISTAALIA om Paragraph 6 of the statement of claim Bliegesrn that ,2 REGISTPY fa the respondent publishes and has published a monthly "journal © aay called "The Australian Accountant" which contains or includes information and advertisements of professional relevance and assistance to accountants which it sells and distributes to 1ts members and others and has monthly sales of approximately to that paragraph, the it 69,000 copies. In its defenc respondent admits that 1t publishes and distributes and has at all material times published and distributed a monthly journal called "The Australian Accountant" which includes information and advertisements of professional relevance and assistance to accountants and save as aforesaid it does not admit any of the allegations in paragraph 6. Paragraph 7 of the statement of claim in substance alleges that the respondent has prior to and since 1 June 1986 conducted and has continued to conduct for reward professional seminars, courses and conferences on topics of accountancy and finance relevant and of assistance to practitioners in the accounting, legal and medical professions and has published and continues to publish for reward, books, manuals and technical assistance guides on topics of accountancy and finance relevant and of assistance to practitioners in the accounting, legal and medical professions. In its defence to that paragraph the respondent admits it has from time to time conducted seminars, courses and conferences on topics of accountancy and finance relevant and of assistance to accountants and published manuals and technical assistance guides on topics of accountancy and finance relevant and of assistance to accountants and save as aforesaid does not admit any of the allegations contained in Paragraph 7. Ls ' The applicants have sought further particulars of the defence to paragraph 6, namely, of the places in which and the persons to whom the respondent publishes and distributes the monthly journal called "The Australian Accountant." The respondent has refused to give those particulars on the basis that the applicants are not entitled to them. The applicants are seeking further particulars of the allegations contained in the defence to paragraph 7 seeking the dates and places and topics and names and descriptions of seminars and various publications referred to in paragraph 7 of the defence, whether admitted or not admitted. In response, the respondent has said that it has conducted hundreds of seminars throughout Australia at various locations on diverse subjects which are of interest to accountants and that the applicants are not entitled to the further particulars sought. The purpose of particulars are described in a number of authorities, including this Court; see H. 1976 Nominees Pty. Ltd. v. Galli (1979) 40 F.L.R. 242. The matter has also been raised in cases where particulars have been sought of matters raised by way of defence. The purpose of particulars is summarised neatly by Isaacs J. in The King v. The Associated Northern Collieries (1910) 11 C.L.R. 738 at pp.740-1 as follows:- "T take the fundamental principle to be that the opposite party shall always be fairly apprised of the mature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He 15 to receive sufficient information to ensure a fair trial and to guard against what the law terms 'surprise,' but he 1s not entitled to be told the mode by which the case is to be proved against him." Normally one comes across a claim for better particulars where an allegation has been made and particulars are necessary to identify just what those allegations are so as to enable the other party to avoid being taken by surprise. In the present case, the respondent is not making any allegations at all. The applicants have made a number of allegations in the statement of claim, including those in Paragraphs 6 and 7. The respondent, 1f so advised, could have denied the allegations contained in paragraphs 6 and 7 in which case it is clear that no particulars could have been obtained of that denial. You just need to state that in that form to illustrate the unreality of the need for particulars of a denial where the person making allegations is required in law to prove the facts alleged. But in order to enable the Court to function efficiently and well, a party is required to try to limit the issues which are in dispute between the parties. I referred to this aspect of the matter in the case of Grollo & Co. Pty. Ltd v. Hammond (1977) 16 A.L.R. 123 at p.126. More recently in a case which is unreported, Johns & Lyng Group Fty. Ltd. v. Eldawood Enterprises Pty. Ltd., 6 April 1987, I deprived a party of part of its costs for the failure of its pleading in not admitting matters which should have been admitted and in failing to identify clearly the issues to be raised. This is a matter which can be dealt with on the question of costs. I mention that as an indication of the view which a Court takes of pleadings being in a proper form. In the present case, the respondent has made some admissions and not admitted other facts. Insofar as an admission is made, there 1s no longer any 1s5sue raised between the parties as to those facts. For the purposes of the trial they are admitted and no evidence need be called. Insofar as a non-admission 1s pleaded, the person making the allegation is still required to prove the facts not admitted. There is no need, in those circumstances, for any particulars to be given of a non-admission. The allegation made is by the applicants in the present case. There is no allegation made by the respondent whatsoever. It has merely identified those matters of fact which it says 1t will not dispute and identified other matters of fact which 1t does not admit. In those circumstances, there is just no room for the ordering of particulars of either the admission or the non-admission. I agree with the view expressed by Pincus J. ain 'rade Practice Commission v. Leslievale Pty. Ltd. (1986) A.T.P.R. 40,679. Accordingly, I refuse the motion in this case and, in accordance with normal practice, order that the respondent's costs of the motion be paid by the applicants. I certify that this and the four (4) preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice R.M. Northrop. Shame P wWaen Aanoanfe: 11 May 1987