JUDGMENT No. G27... IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G192 of 1987 GENERAL DIVISION ) BETWEEN: J. C. HUTTON PROPRIETARY LIMITED Applicant AND: DARLING DOWNS CO-OPERATIVE BACON ASSOCTATION LIMITED Respondent AND: DARLING DOWNS CO-OPERATIVE BACON ASSOCIATION LIMITED Cross-Claimant AND: J. C. HUTTON PROPRIETARY LIMITED First Cross-Respondent AND: TANCRED BROS. PTY. LIMITED Second Cross-—Respondent FRED PAUL (MERRYLANDS) PTY. ETD. Third Cross-Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 17 FEBRUARY 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. the costs of today be reserved. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G192 of 1987 GENERAL DIVISTON ) BETWEEN: J. C. HUTTON PROPRIETARY LIMITED Applicant AND: DARLING DOWNS CO-OPERATIVE BACON ASSOCIATION LIMITED Respondent AND: DARLING DOWNS CO-OPERATIVE BACON ASSOCIATION LIMITED Cross-Claimant AND: J. C. HUTTON PROPRIETARY LIMITED First Cross-Respondent AND: TANCRED BROS. PTY. LIMITED Second Cross-Respondent AND: FRED PAUL (MERRYLANDS) PTY. LTD. Third Cross-Respondent PINCUS J. 17 FEBRUARY 1988 EX TEMPORE REASONS FOR JUDGMENT These are my reasons for judgment with respect to an application heard this morning. The genesis of today's hearing was really an order I made on 18 November 1987 when I gave leave to the respondent to serve a cross-claim subject to the rights of the proposed cross-respondents to apply to set it aside. By an error on the part of the cross-claimant, one of the cross~respondents, Fred Paul (Merrylands) Pty. Ltd., was not served and has not entered an appearance. The absence of that cross-respondent was thought by Mr Muir 9.C., who appeared for Tancred Bros. Pty. Limited, the second cros-respondent, to make it impractical to argue the question of whether or not the cross-claim should be allowed. He also informed me that his client wished to consult with Fred Paul (Merrylands) Pty. Ltd. to determine whether they shared a common attitude towards the cross-claim, that is, towards the question of whether 1t should be struck out. For those reasons the question of the propriety of the cross-claim was not argued and it appears to me that, partly to fill that gap, I have been beguiled with an argument about particulars. The discussion of particulars 1s conveniently begun with a letter from Messrs Clewett Corser and Drummond, Solicitors, dated 28 January 1988, which 15 1n evidence and which was replied to very recently, namely, on 15 February by Messrs M.G. Lyons and Co. The complaints which were made in the former letter were in part not sufficiently harkened to by Messrs M.G. Lyons and Co., and Mr Drummond, who appeared to pursue the request for particulars further contended, putting the matter generally, that the supposed particulars constituted by a document filed on 23 December 1987 were, in fact, not sufficiently particular but too general. Putting the matter broadly, Mr Muir's defence of the particulars was that the document filed on 23 December constituted the best particulars which could be given. Again, putting the matter generally, I am not convinced that there is any point in requiring further and better particulars; nor is it clear to me that further and better particulars could be given. Mr Muir said, an effect, that he was not necessarily familiar with all the details of the information available to the applicant; nor did he concede that it was proper to require him to inform me about the nature of the information available. It 1s alittle puzzling that, in some respects, better particulars are said not to be able to be given for reasons I will elaborate shortly. The other point that counsel argued is what should he done about the costs. As regards the costs of the purely potential attack upon the cross-claim, it seems to me that nothing needs to be said. The attack was not made; nevertheless, the circumstances in which that attack was not made may be thought' to bear slightly upon what should be done about the ccsts of the particulars - that 1s, the respondent-cross-claimant was at fault an net serving the third cross-respondent, but the second cross-respondent (which is the first newly joined party) Tancred Bros. Pty. Limited could have argued the point. As far as the costs otherwise are concerned, I am of the view that the same should be reserved. I think it will appear in due course whether or not further and better particulars could, in fact, have been given; I am not presently satisfied that these are the best particulars available. To deal with some, but not all, of the points made by Mr Drummond about the particulars in a little more detail, an attack was made both by the letter and in argument upon the presence of par.11 on p.4 of the amended statement of claim. It was said that that paragraph, in the light of the particulars, turns out to be superfluous. It does not seem to me to be necessary to strike out par.11, since the particulars make it clear enough what is alleged with respect to the matters there referred to. I agree with what Mr Drummond says, namely, that 1t really adds nothing but it is innocuous. Of more concern, from my point of view, 1s the complaint made by Mr Drummond with respect to the particulars appearing in the document, further and better particulars of the applicant's statement of claim, filed on 23 December from p.6 on, which is exemplified by the first, which reads: "(1) (a) It as alleged that every item of these products produced by the Respondent between the 24th April 1985 and the date hereof has been of inferior quality in that it has not been treated with natural wood smoking as specified in the recipe for this type of product, namely the recipe entitled cooked smoked middle rashers included in the documents referred to in varagraphs 2(a)(i)(3) and 2(a)(11) hereof. (b) The Applicant is unable to provide particulars of any further failure by the Respondent to comply with the said recipe until after discovery and inspection." The assurance which was, in effect, that nothing more could be said 1n answer to the request for particulars - and the same assurance was given with respect to numerous other paragraphs in the further particulars - to my mind, lacks a little conviction. I do find it difficult to accept that nothing further could be done without condescending to disclose evidence by way of informing the respondent of the applicant's case. Nevertheless, in light of the repeated assertion that these were the best particulars available, so far as Mr Muir knew, it seems to me to be rather fruitless to make an order for further particulars. I should add, however, that it may be that if these are in fact the best particulars which can be given, some question might arise as to the propriety of full discovery, in the sense of an attempt by the applicant to rake through a vast quantity of the respondent's business records looking for breaches. That, however, is not a matter which is before me directly today, although counsel from time to time made reference to 1t. In par.6(a) of the letter from Messrs Clewett Corser and Drummond dated 28 January 1988, complaint is made of a failure to explain an allegation in the amended statement of claim alleging a common attitude towards the respondent's products. Paragraph 14(b) of the statement of claim, which 1s the relevant paragraph, says that certain goods have become recognised in the meat industry as products of inferior standard and quality. I think 2t 1s true to say that Mr Drummond did not, in the end, press this assertion. I simply say that I thought his not pressing it was well advised, because it seems to me to be not the sort of allegation which could usefully be particularized. It was also said by Mr Drummond in relation to certain other sub-paragraphs of the particulars in par.14 of the amended statement of claim that surely the applicant could give particulars derived from information obtained from its associated company, Tancred Bros. Pty. Limited, the second cross-respondent. Those allegations in sub-pars.(d), (e) and (g) of the particulars in par.14 of the amended statement of claim relate to instances of interaction between the respondent and those with whom it deals; sub-par.(d) is a sufficient example - "numerous complaints have been made by consumers ... An affidavit was filed, to which Mr Muir objected, saying that Tancred Bros. Pty. Limited had purchased goods manufactured by the respondent under the "Huttons" mark, and the total amount of purchases is said to be large. The objection made by Mr Muir was that that paragraph, and that which followed, 1s in improper form. I agree with the objection as to form, but I propose to overlook it and to overrule the objection to those Paragraphs, which seems to me to be, with respect, a little pedantic. The more substantial point which has somewhat troubled me is Mr Drummond's contention that 1t can nardly be true that the applicant does not know whether the complaints, the subject of the particulars in (d), (e) and (g) of par.14, relate to any of th dealings which the respondent has had with the second cross-respondent. The way in which it is put in the letter from Messrs Clewett Corser and Drummond, p.4, par.(c)(11), is this: "Your parent company, Tancred Bros. Pty. Ltd., has throughout the relevant period right up to now, purchased large quantities of the goods in question which have been manufactured by our Client and marked by it with the Huttons' marks. If Tancreds has made any complaints about any of these goods, either orally or in writing, you must be able to give Particulars of these complaints, notwithstanding the assertions in paragraph 5(c) (iit) and (iv) of your Further Particulars that you are completely unable to particularize any complaints until after discovery. Please therefore confirm that Huttons will not be alleging that Tancreds made any complaints about any of the product it bought from our Client which our Client manufactured and marked with the Huttons' marks or provide details of all such complaints." What Mr Muir said, in effect, as I understood him, was that since there was no specific allegation in the statement of claim that these matters related to goods the subject of any dealings with Tancred Bros. Pty. Limited, there could not be any obligation to particularize with respect to such dealings. While that has theoretical merit, 1t seems to me to affront commen sense a little. The particulars which have been given, in fact, include details of some complaints which were given by customers (on p.40 of the further and better particulars), and I find it hard to see why the applicant could not have taken a course of particularizing comlaints, 1f any, made in respect of goods sold to Tancred Bros. Pty. Gimited, or following the other course suggested by Messrs Clewett Corser and Drummond saying there were no complaints with respect to such goods. Nevertheless, I have decided that the better course, in the sense of the more practical course, 1s to accept for the moment Mr Muir's assurance that these are the best particulars that could be given. The last complaint made on which I propose to make specific mention is that as to par.8 on p.57 of the further and better particulars. It is unnecessary to explain the details of that, suffice to say that the explanation given by Mr Muir convinces me that the terms of par.8 are inapt, in that it does not appear to be any part of the case for the applicant that the applicant has been exposed to legal action in Victoria or South Australia. Mr Muir explained that the only reason for the reference to those cases is that a certain company carries on business in those States. However, I do not really see that it is necessary to do anything about it. Although Mr Drummond's complaint is in essence well justified, it is not a matter which is going to embarrass him at all in the trial, and I do not see any necessity to correct the slight error which has been made. In the result then, the consequence of today's hearing will be that, apart from the deletion which I ordered in the further and better particulars of the statement of claim, namely, the striking out of a word in par.3 on p.5, I do not see that ait 1S appropriate at this stage to order any further change to the particulars. It may appear in due course, as Mr Drummond suggests, that better particulars could have been given, and I invite the parties to draw my attention to the fact that the costs of today have been reserved if either of them thinks at a later stage that an order for costs should be made in its favour. The circumstances in which the costs are reserved will appear from the reasons. Also this morning I ordered that the respondent have leave to amend its defence. 1 certify that this and the '1 preceding pages are a true copy cf the reasons for Judgment herein of His Honour Mr Justice Pincus Angela Prue Associate Dated /7 Fetruwry 988