JUDGMENT No. A677 6% _ NOT FOR DISTRIBUTION CATCHWORDS PRACTICE AND PROCEDURE ~- particulars of defence. Trade Practices Act 1974 s.52, s.82 IAN FULLERTON and PRUDENCE MARY FULLERTON v FARMERS TRACTORS AUSTRALIA PTY LTD, ALEX PETER WAHLSTEN and BRIAN JOHN READ No. WAG 75 of 1987 FRENCH Jd. PERTH 12 AUGUST 1988 eee aan ee ase ¥ IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN: JUDGE MAKING ORDER: DATE OF ORDER: WHERE MADE: THE COURT ORDERS THAT: 1. There be leave to the applicants to interrogate in terms of the amended minute filed on 11 August 1988 and filing and service of the minute stand as filing and service of the interrogatories. ane ee ee ee NOT FOR DISTRIBUTION No. WAG 75 of 1987 Tey IAN FULLERTON and : PRUDENCE MARY FULLERTON mo, Applicants and ' FARMERS TRACTORS AUSTRALIA PTY LTD First Respondent and ALEX PETER WAHLSTEN Second Respondent and oe BRIAN JOHN READ i. Third Respondent ee MINUTE OF ORDER tee FRENCH J. 12 AUGUST 1988 PERTH 2. The respondents are to file and deliver answers to the rs applicants' interrogatories on or before 2 September 1988. 3. The Respondents do on or before 2 September 1988 file ae oe en ere and deliver further and better particulars of their defence in answer to the following questions in the applicants' request filed 22 July 1988: Question 5({a) Question 5(b), but only as to the date and manner of any alleged appointment. Question 9, but only as to the proposal alleged in paragraph 32(d) of the defence. Question 10. 4. The costs of today in respect to the particulars be the applicants in any event. 5. The applicants to apply to the Registrar on or before 9 September 1988 for an appointment to obtain a hearing date. 6. Any party intending to adduce expert evidence do file and deliver a statement of the substance thereof and a copy of any report to be relied upon not later than 28 days prior to trial. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. qe tee ween ee er eo a, ? IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NOT FOR DISTRIBUTION No. WAG 75 of 1987 wwe ww BETWEEN: IAN FULLERTON and PRUDENCE MARY FULLERTON Applicants and FARMERS TRACTORS AUSTRALIA PTY LTD First Respondent and ALEX PETER WAHLSTEN Second Respondent and BRIAN JOHN READ Third Respondent CORAM: FRENCH J. 12 AUGUST 1988 EX TEMPORE REASONS FOR JUDGMENT ON FURTHER AND BETTER PARTICULARS These proceedings are instituted between Mr and Mrs Fullerton as applicants anda company called Farmers Tractors Australia Pty Ltd and two directors of that company, Wahlsten and Read. Without going to the pleadings in detail, the substance of the dispute relates to an agreement which the Fullertons say they made with the company that they would pay $200,000 for the purchase of shares in it, that that amount was to be deposited in an account separate from the company's existing trading or other accounts and was to be operated jointly by either or both Mr and Mrs Fullerton anda person authorised to operate the company's _ ee cere ne "3 rep te re aN m 2. accounts. The sum was to be used for the development of a high speed tractor of which the Fullertons claim to have information concerning its development, use and marketing. It is also said to be a term of the agreement that on payment of the $200,000, Mr Fullerton would be made a director of the company. The statement of claim alleges various breaches of that agreement and in particular that the money paid for the shares was used for general purposes including repayment of company debts. It is further alleged that Mr Fullerton was not made a director of the company. The claims bring in allegations of various misrepresentations on the part of the company and those representing it and these are said to constitute misleading or deceptive conduct contrary to s.52 of the Trade Practices Act 1974. The applicants have claimed; damages pursuant to s.82 of the Act, orders under s.87, rescission of the agreement, equitable damages for misrepresentation, damages for negligence and negligent mis-representation, damages for repudiation and breach of contract and also damages pursuant to s.82 against Wahlsten and Read. On 22 July the applicants served a request for further and better particulars of the respondents' defence to a substituted statement of claim, which was filed on 13 May and in respect of which I made certain orders on 10 June 1988. Many of the questions contained in that request were objected to by the respondents, but today the dispute as to the provision of particulars has reduced to questions 5, 9 and 10. = - - eer er 3. Question 5 relates to para.29 of the defence. Paragraph 29 pleads to the allegations in para.29 of the substituted statement of claim, that in breach of the express and implied terms of the agreement, the respondents did various things, one of which was that Fullerton was not made a director of the company. In their defence the respondents say:- "Save to say that the first named Applicant was not formally made a Director, paragraph 29 is denied." The request for particulars asks whether it is alleged by the respondents that the first named applicant was made a director and if the answer to that be yes, seeks full particulars of each fact, matter or circumstance upon which the respondents rely in alleging that he was made a director. I think the point is properly made by the applicants that the plea is really incomplete. To say that the first named applicant was not "formally made a director" leaves open the possibility that the respondents will be contending that in some other way he became a director of the company. Mr Cole tells me from the bar table that it is simply the way it has been pleaded and that in fact the position is that the first named applicant did not become a director. If that is so, it is a simple matter to say it without equivocation so that the other party and the Court know precisely what the issues are. I will therefore require the respondents to answer question 5(a). As to question 5(b) I think that is too widely framed, in so far as it seeks full particulars of each fact, matter or 4, circumstance upon which the respondents rely in alleging that the first named applicant was a director, but I will nevertheless require that the respondents give particulars of the date and mode of the manner of Fullerton's appointment, if it be their allegation that he was in fact and did become a_ director. It appears however that that question will probably be academic having regard to what Mr Cole has said to me. Question 9 goes to para.32(d) of the defence. Paragraph 32 in various sub-paragraphs sets up what I might call the respondents' positive case after a series of mixed denials and admissions preceding it. Paragraph (d), in particular, refers to negotiations said to have taken place between the respondents and Mr Fullerton in May 1986, prior to his migration to Australia. The plea is opened in these terms:- "Further negotiations by telephone, telex and letter between the Respondents and the firstnamed Applicant occurred in May 1986 and it was proposed the firstnamed Applicant would invest $250,000 with the First Respondent on the following terms". The terms which, broadly speaking, reflected the agreement ultimately alleged by the respondents are then set out. It is pleaded not as an agreement, but as a proposal and, as I understand from Mr Cole, it is, and indeed it appears when one refers to sub—para.32(q), that the proposal is pleaded as something short of an agreement. Having regard to that, it is perhaps a little difficult to see precisely what role it plays in the pleadings and there is some risk that it raises a false issue, but the pleadings are not attacked and at this stage the question 5. that really arises is - are the particulars given in the defence as pleaded, adequate or are the applicants entitled to further particulars? The request that is made in question 9 is for the usual particulars of the negotiations and these are defined in a fairly standard form which requires, inter alia, a statement whether the negotiations pleaded were in writing or partly so, oral or partly so, to be implied or partly so. It seems to me that to require those particulars of all the negotiations pleaded in (d) is probably going too far. I do, however, think that insofar as the proposal referred to is concerned, the centrality of that to the pleading in 32(d) does entitle the applicants to the usual particulars of the proposal and to that extent I would require the respondents to provide particulars, but not to the extent of all the further negotiations referred to. Question 10 relates to para.32(f) of the defence and this is a fairly important pleading for the respondents' case. Paragraph 32(f) alleges that:- "In discussions between the firstnamed Applicant and directors of the First Respondent in June 1986 the First Applicant said that if he did invest $250,000 in shares in the First Respondent, the amount invested would be available for the general purposes of the First Respondent, including the development and manufacture of the Phoenix Harrow as well as the development of a prototype of the proposed tractor, and that it would not be necessary for a separate account to be opened, as originally proposed, for the lodgment of funds invested by him, 1f he did invest." What is sought are the usual particulars of the discussions pleaded in sub-para.(f). This is an important allegation for it sets up, in effect, that Mr Fullerton has released the respondents my ae ae eee ep 6. from, or waived an original requirement which he was imposing that the funds invested be set aside into a separate account. I think the applicants are entitled to know whether the case being made against them is that this release was in one discussion, or repeated in a number of discussions, and if so, so far as is possible, the dates on which and the parties between whom and the manner in which those discussions were conducted. I will require the Respondents to give an answer to question 10. I certify that this and the preceding five (5) pages are a true copy of the Ex Tempore Reasons for Judgment of his Honour Justice French. Dts Kewe Associate: 7 Date: (2. v i Counsel for the Applicants: Mr G.M. Townsend Solicitors for the Applicants: Jackson McDonald Counsel for the Respondents: Nr M.D. Cole Solicitors for the Respondents: McCusker & Harmer Date of Hearing: 12 August 1988 Date of Judgment: 12 August 1988 ano emg qe a ,