2a, IN THF FFDFRAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTFY GENERAL DIVISION NOT INTENDED FOP GEMFRAL DISTRIBUTION Mo. WAG 6 of 1987 BETWEEN: TPS GROUP LIMITED Applicant and THE CHARTHILL GROUP PTY LTD First Respondent and JOHN CARLTON YOUNG Second Pespongent and CHARLES FREDEPICK MARFLEET Third Respondent and ASD ASSET MANAGEMENT PTY LTD Fourth Respondent MINUTE OF ORDER JUDGF MAKING ORDER: FRENCH J. "T) DATE OF ORDER: 23 JULY 1987 29 JUL1987 5 . ms U, WHERE MADE: PERTH Ve. PRINCIPAL fs 'REGISTRY wa S THE COURT ORDERS THAT:-~ -_ a 1. The applicant do on or before 20 August 1987 "comply with the respondents' requests for further and hetter particulars dated 17 March 1987 of the following paragraphs of the statement of claim, namely: paragraphs 10(a), (b) and (c); 11; 15; 22(a), (b) and (c); and 23. 2. The applicant pay the respondents' costs of the motion. Note: Settlement and entry of orders Order 36 of the Federal Court Pules. 1s dealt with in IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NOT IP TENDFIE FOR GENERAL DISTPIRCIION eee No. WAG 6 of 1937 BETWEEN: TPS GPOUP LIMITED Applicant and TRE CPAPTHILTL GROUP PTY LTD First Respondent ana JOHN CARLTON YOUNG Second Respondent and CHARLES FREDERICK MARPLEET Third Pespondent and ASD ASSET MANAGEMENT PTY LTD Fourth Respondent CORAM: FRENCH J. 23 July 1987 REASONS FOR JUDGMENT This is the return of the respondents' motion for an order requiring the provision by the applicant of further and better particulars of 1ts statement of claim in an application for damages for alleged contraventions of s.52 of the Trade Practices Act 1974 and for breach of contract, negligence, fraud and infringement of copyright. It 1s sufficient for present %urnposes to say that the litigation arises out of an agency aqreement between the parties involving the marketing of interests in pine plantations. The respondents by a request dated 17 March 1987 sought further and better particulars of a number of paragranhs in the Statement of claim. In large part those requests were met with the blanket objection that they sought evidence rather than particulars. The form of the request 1S one of increasing popularity insofar as 1t opens with a comprehensive and, some might say, turgid, definition of "usual particulars" as follows:- ",.ewhenever in this Request the Applicant 1s asked to give the "usual particulars" of any agreement, arrangement, txansaction, negotiation or the like, say whether the same was in writing, oral or to be implied. Insofar as the same was in writing, identify sufficiently each document constituting the same and say in whose possession each document now 1s and where it may be inspected. If any such document is not available for inspection, say why and where a copy may be inspected, and if neither the original nor a copy be available, give the material substance thereof. Insofar as the same was oral, say when, where and between what actual persons each conversation constituting the same took place and give the material substance thereof and say whether the conversation was bv telephone or otherwise and how. Insofar as the same was to be implied, set forth with all material dates and places, each act, fact, matter, thing and circumstance constituting or giving rise to such implication. Insofar as 1t depends upon the writing, conversation or act of any other person other than a party thereto, give the like particulars as are sought above of the authority of such person to make such writing and engage in such conversation or do such act on behalf of the relevant party." 3. whatever the merits of this format, 1t carries with 1t the danger that the blanket definition may he inapnropriate in part to the portion of the pleading for which particulars are sought. It us certainly not calculated to elicit a co-operative response from the party to whom it 1S directed. Turning to the paragraphs of the statement of claim for which particulars are sought, I will deal with those in sequence. Paragraph 4 alleges:- "The Fourth Respondent 1s a company incorporated in the State of Western Australia and since May 1986 has been the owner of the pine plantation known as " Burnbank"." The request made 1s:- "Specify each and every act, fact, matter, thing, circumstance, document or overt act by reason of which 1t ts alleged that the Fourth Respondent has since May, 1986 been the owner of the pine plantation known as "Burnbank". In my opinion the paragraph 4 adequately pleads the 1ssue and further elaboration by way of the particularisation sought is unnecessary. Paragraph 6 pleads an agency agreement in the following terms:- "By an agreement rade on 8th February 19385 and which has subsisted at all material times the Applicant appointed the First Responuent as 1ts sole agent for the purpose of marketing tEorestry investments." That pleading must he read in conjunction with paragraph 7 of the statement of claim:- "The said agreement was subject to terms inter alia that:- (a) The Applicant would pay the First Respondent a commission of 10% of the gross amount of each forestry investment sold. (b) Initially the forestry investments sold would be in Alberta Downs but the Applicant would acquire additional plantations to enable continuity of sales. (c) The First Respondent would not market pine forest investments on behalf of other forestry growers or contractors." The request made is for the "usual particulars" of the agreement alleged to have been made on 8 February 1985. I have already foreshadowed in the course of argument, that in my opinion the particulars sought of paragraph 6 are unnecessary to a fair hearing of the case or a fair definition of the issues and I decline to make the order sought. Paragraph 9 of the statement of claim pleads:- "Pursuant to the said agreement and in order to enable continuity of sales, the Applicant on Sth May 1986 also commenced negotiations with Peet & Co. as agents for w Winnejup Pines Pty Ltd for the purchase of a plantation known as Burnbank." The respondents seek the "usual particulars" of the alleged negotiations. Having regard to the detail and breadth of the "usual particulars", I decline to order their provision in relation to paragraph 9. Turning to paragraph 10 of the statement of claim 1t 1s there pleaded that:- "At all material times the Applicant consulted with the Respondent as to the proposed purchase of Burnbank and kept 1t ainformed of the progress with the said negotiations." Certain particulars follow, some of which are more apposite to the pleading than others. The request seeks the "usual particulars" of the consultation and information alleged. The applicant has however volunteered particulars and these, so counsel indicated, are the only particulars it relies upon to support the pleading. It cannot be compelled to volunteer additional matters beyond those it relies upon. I decline to order the particulars sought in relation to paragraph 10. 6. In xvelation to sub-paragraphs 10(a), (b) and (c) of the particulars which are included under paragraph 10, I will direct the provision of further and better particulars as requested. These are, I think, by way of an elaboration of the mattecs particularised ana the respondents are entitled to greater particularity in that respect, than has been offered. Paragraph 11]l raises a plea of fraud. It 18 plainly inadequately particularised and the respondents are entitled to the order they seek in respect of 1t. Sub-paragraphs 13(a) and (b) plead a state of awareness of certain matters by the first and fourth respondents. Order 12 xv.3 of the Federal Court Rules provides:- "3(1) A party pleading any condition of mind shall give particulars of the facts on which he relies. (2) In sub-rule (1) "condition of mind" includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge." In my opinion the pleading 1S one of knowledge on the part of the respondents and does not attract the requirements for particulars otherwise applicable to conditions of mind under 0.12 x.3. 7. Paragraph 15 of the statement of claim alleqes that when selling forestry investment in Burnbank plantation the first respondent on behalf of the fourth respondent submitted to prospective investors the draft proposal referred to in paragraph 10 subject to further minor amendments. Particulars are sought of the prospective investors to whom the first respondent 1S alleged to have submitted the draft proposal and in respect of each alleged prospective investor, the usual particulars of the submission. In my opinion this request 1s reasonable and should be answered. The requests in respect of paragraphs 16 and 17 are inappropriate and as I foreshadowed during axqument, I will not make any order in relation to those. Paragraph 22 pleads:- "Further and in the alternative to paragraphs 16 and 21 hereof the First Respondent: (a) By reason of the matters pleaded in paragraphs 7(c) and 14 hereof breached the contract between the Applicant and the First Respondent. (b) Made negligent misrepresentations as a result of the matters pleaded in paragraphs 10, 11 and 19 hereof. (c) Alternatively made fxraudulent misrepresentations pursuant to paragraphs 10, 11, 19 and 20 hereof. 8. (Gd) By ceason of the mattei:s pleases in paragranh 15 hereof, together with the Fouren kespondent breached the copyright held hy the Anrnlicant in the draft proposal." Particulars are sought of 22(b), 22(c) anc 22(d) and in my Opinion the respondents are entitled to thos+. The nleading in 1ts present form 1S, on the tace of 1t, inadequately particularised. The same 1s true for paragraph 23 in respect of the applicant's claim for damages and I will make the order sought in respect of that paragraph. The orders I will make therefore are:- l. The applicant do on or before 20 August 1987 comply with the respondents' requests for further and better particulars dated 17 March 1987 of the following paragraphs of the statement of claim, namely: paragraphs 10(a), (b) and (c); 11; 15; 22(a), (b) and (c); and 23. 2. The applicant pay the respondents' costs of the motion. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice French. Associate: seberolk Uso Date: 2S 1B? Counsel: « for the Applicant: Mr D.R. Clyne instructed by A.R. Rorrison & Co. - for the Respondents: Mr R. McCormack instructed by Messrs. Corser & Corser Date of Hearing: 22 July 1987 Date of Judgment:23 July 1987