IN THE FEDERAL COURT OF AUSTRALIA NOT FOR CIRCULATION VICTORIAN DISTRICT REGISTRY No. VG 225 of 1987 GENERAL DIVISTON www vw BETWEEN : ALPHONSE D. CUNNINGHAM & ORS. Applicants AND: NATIONAL AUSTRALIA BANK LIMITED & ORS. Respondents JUDGE MAKING ORDER: LOCKHART J. DATE OF ORDER: 3 MARCH 1988 WHERE ORDER MADE: MELBOURNE. MINUTE OF ORDERS THE COURT ORDERS THAT: 1. io i The applicants furnish further and better particulars of the allegations made in paras. 21, 21(a), 23, 24, 26 and 27 of the Amended Statement of Claim failed in Court on 3 March 1988 by filing and serving an appropriate document giving those particulars on or before 9 March 1988. The fourth respondent file and serve its defence on or before 17 March 1988. The matter be listed for further directions on 25 March 1988. Costs of the motion shall be costs in the proceeding. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. nr Oona IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIAN DISTRICT REGISTRY ) No. VG 225 of 1987 ) GENERAL DIVISION ) BETWEEN : ALPHONSE D. CUNNINGHAM & ORS. Applicants AND: NATIONAL AUSTRALIA BANK LIMITED & ORS. Respondents 3 March 1988 REASONS FOR INTERLOCUTORY JUDGMENT LOCKHART J. This is an unfortunate case. It commenced on 20 August last year by the filing of an Application and Statement of Claim and since then there have been many interlocutory proceedings. However we, alas, are no further advanced than the filing of what is the seventh or on one view of it the eighth Amended Statement of Claim. The costs to the parties and the delay that resulted are disturbing. The sooner this case is brought on for trial so that the true issues may emerge between the parties, the better. I have seen sufficient of the Amended Statements of Claim to know that the case is in essence nota difficult one: indeed, it is a perfectly usual sort of case that is run in the courts of the land every day. The present motion before the Court is a motion by the fourth named respondent, Westpac Banking Corporation ("Westpac"), for orders that the proceeding be stayed or dismissed pursuant to Order 20 rule 2 on the ground that the latest Amended Statement of Claim in effect 2. discloses no reasonable cause of action or alternatively that the Statement of Claim be struck out pursuant to Order 11 rule 16. I have studied carefully the Amended Statement of Claim which, notwithstanding certain initial difficulties in identification, is the one which I have marked "Filed in Court on 3 March 1988". In essence, as I understand it, the applicants say that the applicants sought advice from their own bank, the National Australia Bank ("NAB") - which is the first respondent in these proceedings - as to the creditworthiness of Hebdeen Pty. Limited ("Hebdeen"). It appears that Westpac is the banker of that company. It is alleged by the applicants that an inquiry was made by some officer, whether an accountant or branch manager, of NAB of an officer of Westpac at some branch of Westpac, as to the creditworthiness of Hebdeen. It is alleged that the response of Westpac's officer was that Hebdeen had a satisfactory account and that it met its commitments. That same assurance is said to have been given more than once. There is an allegation that on a third occasion an assurance in not dissimilar terms was given by Westpac to NAB. It is then alleged that, as a result of those assurances coupled with other assurances from NAB and perhaps from others, the applicants entered into financial dealings with Hebdeen and suffered detriment from such dealings. It is said that, in fact, Hebdeen was not a company in relation to which anyone might reasonably say that it had a satisfactory account and met its commitments. What I have said is based solely, of course, on what is alleged in the Amended Statement of Claim. I have no knowledge whatever of the facts beyond those alleged. It is true, and I do not say this critically, that the Amended Statement of Claim has certain problems of felicity of expression and that there are inherent in it certain elements of ambiguity. It does not seem to me that these problems are such as to prevent a party from pleading to the Statement of Claim. There are certain deficiencies which I think should be cured: however those deficiencies can be cured by the giving of further and better particulars. They do not require the filing of an eighth or ninth, as the case may be, Amended Statement of Claim. Discussion with counsel has produced, I think, a sensible result. It is common ground that the problems can be met by the giving of further and better particulars, while the paragraphs in question have been identified clearly by counsel. I do not seek to define in precise terms the particulars to be furnished by the applicants but I will do so in general terms. It is plain from what counsel have said that they will sensibly work out a resolution of the issue. Paragraph 21 of the Amended Statement of Claim is linked with Para. 21(a) and the particulars should be given together. What Westpac is entitled to know is - as best the applicants at this stage can tell it - what were the inquiries made of Westpac to which the paragraphs refer, by whom and to whom the inquiries were made and the substance of such inquiries. There are particulars already given in the Amended Statement of Claim as to para. 23. I have some difficulty with particular (iv), which is probably inserted for what was deemed to be more abundant caution: it does not seem to me to be a particularly significant allegation. Insofar as the applicants are able to do so they should, I think, give further and better particulars of the alleged falsity or Misleading or deceptive conduct referred to in that paragraph. As to para. 24 the applicants should state in which respects they relied upon the statements mentioned therein. If they have not already done so, the applicants should furnish as best they can particulars of the damage which they allege they have suffered. Paragraphs 26 and 27 raise serious allegations against Westpac including allegations of dishonest or reckless conduct. Reckless conduct does not necessarily anvoive elements of noral turpitude. Dishonest conduct is, of course, a quite different matter. The particulars should anform Westpac as best the applicants can at this stage of the circumstances giving rise to Westpac's alleged knowledge or what it ought to have known as to the purpose for which NAB required the information therein mentioned. Although some particulars have been given in para. 27 the applicants should look again to see if further and better particulars can be supplied at this stage. I have put my views in this form because I have a firm impression from what has been said that the applicants to some extent will say that they cannot supply certain information until they have had the benefit of knowing what went on in the mind of Westpac at its relevant branch or state or head office, as the case may be. The applicants should do the best they can at this stage. The process of discovery and interrogatories which have already been the subject of orders by this Court should then flush out the relevant information. However I emphasise that the fact that all the material ais not at this stage in the applicants' hands should not be used by any party as a means of further delaying the proceedings. I do not by this suggest that any party has so far sought to delay the case. Accordingly, I order the applicants to furnish further and better particulars of the allegations made in paras. 21, 21(a), 23, 24, 26 and 27 of the Amended Statement of Claim filed in court today. The applicants should do so by filing and serving an appropriate document giving those particulars on or before 9 March next. I direct the fourth respondent to file and serve its defence on or before 17 March next. I direct that the matter be listed again for further directions generally in the case on 25 March next. Costs of the motion today should be costs in the proceeding. I certify that this and the preceding four (4) pages are a true copy of the yeasons for judgment herein of the Honourable Mr. Justice Lockhart. Associate \TRecL— Date: 3 March 1988 Counsel for the applicant: B.K.C. Thomson Q.C. & M.V. Houlihan Counsel for the respondent: J.D. Loewenstein Date of Hearing: 3 March 1988 Date of Judgment: 3 March 1988