JUDGMENT NO. sean Sect pal dt. CATCHWORDS PRACTICE AND PROCEDURE - Request for further and better particulars - particulars of English words in ordinary use - particulars of an individual's knowledge or awareness. No NG 394 of 1994 LINDGREN J SYDNEY 16 NOVEMBER 1994 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 394 of 1994 GENERAL DIVISION CORAM: LINDGREN J PLACE: SYDNEY DATE: 16 NOVEMBER 1994 THE _COURT ORDERS: ) . PYROPANEL DEVELOPMENTS PTY LIMITED (ACN 005 211 147) First Applicant AUSCO FIRESTOP PTY LIMITED (ACN 057 078 592) Second Applicant . . ADELAIDE FIRE DOORS PTY LIMITED (ACN 053 179 016) First Respondent ALLIED FIRE PROTECTION SYSTEMS (AUSTRALIA) PTY LIMITED Second Respondent GARY SOMERVILLE Third Respondent JANE ADELE ROBERTSON Fourth Respondent PAUL ROBERTSON Fifth Respondent 1. THAT the applicants provide proper particulars of the facts, matters and circumstances pleaded in the following paragraphs of the amended statement of claim filed on 22 August 1994 in conformity with where relevant, the following paragraphs of the "Request for Particulars of Amended Statement of Claim" dated 1 September 1994. " est Paragraph of Amended Particulars of Amended 6 (a) (b) (d) (f£) (g) 7 (c) (e) (£) 10 (a) (b) 11 (a) (b) (c) (d) THAT the applicants pay one half of the respondents' costs of the motion filed 3 November 1994. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 394 of 1994 GENERAL DIVISION ) PYROPANEL DEVELOPMENTS PTY LIMITED (ACN 005 211 147) First Applicant AUSCO FIRESTOP PTY LIMITED (ACN O57 078 592) Second Applicant . . ADELAIDE FIRE DOORS PTY LIMITED (ACN 053 179 016) First Respondent ALLIED FIRE PROTECTION SYSTEMS (AUSTRALIA) PTY LIMITED Second Respondent GARY SOMERVILLE Third Respondent JANE ADELE ROBERTSON Fourth Respondent PAUL ROBERTSON Fifth Respondent CORAM: LINDGREN J PLACE: SYDNEY DATE: 16 NOVEMBER 1994 REASONS FOR JUDGMENT ANTRODUCTION There is before me a motion brought on notice of motion dated 1 November 1994 by the respondents seeking orders that the applicants "adequately respond to the respondents' request for further and better particulars of the amended statement of claim". The amended statement of claim was filed on 22 August 1994. Shortly, it alleges that the second respondent to which I may refer as "Allied" is a distributor in Australia of products manufactured by the first respondent to which I may refer as "Adelaide." It alleges that the third respondent to whom I may refer as "Somerville" is an employed officer of Allied. It is alleged that the fourth and fifth respondents to whom I may refer as "Mr and Mrs Robertson" are directors of Allied. Rather similarly on the other side of the record, it is alleged that the second applicant to which I may refer as "Ausco" is the distributor of goods manufactured by the first applicant, to which I may refer as "Pyropanel". It is alleged in the amended statement of claim that certain representations have been made ~ by one or other of the respondents, which reflect adversely on a particular product of Pyropanel, distributed by Ausco, namely "Pyrosleave firestop collar manufactured by ([Pyropanel] and supplied by [Ausco]" (called in the amended statement of claim and in these Reasons, "the Product"). The respondents requested particulars of the amended statement of claim by a document entitled "Request for Particulars of Amended Statement of Claim" dated 1 September 1994. That request was by the respondents' solicitors Triscott & Associates ("Triscotts"), and was responded to by a letter dated, 16 September 1994 by Palombi Hazan the solicitors for the applicants. Not being satisfied with the particulars then furnished, Triscotts wrote to Palombi Hazan on 23 September 1994, asserting the inadequacy of the particulars and in some instances requesting particulars which arose out of the particulars supplied in the first instance. This prompted a reply dated 6 October 1994 by Palombi Hazan, which, in general terms, at least so far as is relevant to today, joined issue as to the adequacy of the particulars previously supplied. That is not an entirely adequate account of the letter dated 6 October 1994, since it did supply some further particulars. But in general terms, since 6 October 1994 the parties have been at issue over the question of the particulars to be supplied. By a letter dated, 12 October 1994, Triscotts attempted to summarise the issues between the parties. There followed — correspondence between the respective solicitors which was in a number of instances touched with acerbity and it is unfortunate that the matter has not been able to be resolved without a hearing. It 18 desirable that I deliver a judgment on the motion without further delay, even though this will certainly mean that these reasons will not be as elaborate or as elegantly expressed as they would have been if I had reserved. As I understand it, a solicitor and junior counsel from Queensland are present and have attended for the purpose of the hearing and it is desirable in everyone's interest that this judgment be given so that it can be seen immediately what particulars, if any, should still be supplied. Ms Skennar, junior counsel for the respondents, prepared a summary document which has been of use in noting what particulars are outstanding and the ways in which the requests for the various particulars have been dealt with. I will call this "the Composite Document". It will be convenient if I deal in sequence with the respective paragraphs of the amended statement of claim. REASONS Paragraph 3. In relation to this paragraph as in relation to other paragraphs, I will do no more than refer in a summary way to what is pleaded. It is pleaded that Somerville is an employed officer of Allied "and actively engaged in the conduct of the second respondent's ~ business". The words which I have quoted were added in the amended statement of claim, that is to say, they did not form part of the original statement of claim. Thus, the applicants seem to think that the addition of those words 1s significant in their case. (a) The respondents requested particulars of the capacity in which Somerville was employed by Allied and the reply given was, in effect, that he was employed as ae sales representative of Allied. (b) Particulars were requested of what was meant by the words (c) "actively engaged" to which the reply given was that those words had their ordinary English meaning. At first blush it may appear that that is indeed an adequate reply. Whether that be so or not the reply was later elaborated upon with the statement that Somerville was a salesman who endeavoured to make sales of Adelaide's products through Allied as a distributor. I think that this was an adequate particularisation of the allegation. Unfortunately there were added certain references which appeared to be irrelevant to the particularisation. I refer to the reference made to paragraphs 2, 3 and 6 of an affidavit of Scott Teleskivi of 23 June 1994. The particularisation given that in effect by "actively engaged" what was meant was that Somerville was a salesman who endeavoured to sell Adelaide's products through Allied was, in my view, | sufficient. There 18 a request for particulars of "the basis" upon which Somerville actively engaged in the conduct of Allied's business. I do not understand any further or separate complaint to be now pressed about the response which was made to that request which was "By express or ostensible authority and by reason of the representations made by the third respondent on behalf of the second respondent." The request itself was ambiguous and seems to have been construed as calling for a statement of the "legal basis" on which Somerville was "actively engaged" in Allied''s business. In any event the request was met by the answer given to the request as to the meaning of the expression "actively engaged". If something more was requested by the reference to "basis" it seems to me to be probably a request for evidence and not to be a proper request for particulars. Paragraph 4. This paragraph alleges that Mr and Mrs Robertson are directors of Allied and are "actively engaged in the conduct of the business of the second respondent". (a) Again there is a request as to the meaning of the words "actively engaged" and again a reply that those words have their ordinary English meaning. Eventually the applicants gave as particulars of the active engagement that this was to be inferred from the position of Mr and Mrs Robertson "as directors of the company", although it is added that ,"Further particulars will be provided following discovery and interrogatories". This is a statement that the only particulars which at present, are to be relied upon of "active engagement" are constituted by the fact of the status of directors. It may well be that that will not get the applicants where they intend to go but they are committed to the particularisation which they have given. That is, they want to argue the case on the footing that in (db) the case of Mr and Mrs Robertson the only active engagement to be relied upon is the status of those two individuals as directors. So be it. I do not think that further particulars should be ordered. Unless further particulars are provided in the future, they will be held to that particularisation on the hearing. It may be that they will be able to persuade the Court that the status of directorship is indeed a sufficient particularisation of the "active engagement". The next particulars which were requested of paragraph 4 were, perhaps predictably, particulars of how it was alleged that Mr and Mrs Robertson were "actually [sic] engaged" in the conduct of the business of Allied. Clearly the reference was intended to be to "actively". For the reasons which I gave earlier, I treat this as nothing more than a repetition of the request for particulars of the meaning of "actively engaged". If it was intended to mean more I would regard it as a request for particulars of ,evidence and therefore as not being a proper request for particulars. Paragraph 5. There was a request as to the locus standi of Ausco. This did not appear to be pressed in argument before me. There was no argument about it. I understand that particulars are either not now sought or it is accepted that those supplied are adequate. The particulars supplied are that Ausco is licensed by Pyropanel to supply the Product. Paragraph 6. This paragraph pleaded that by a document headed "QUICKSERT" "published" by Adelaide and "distributed" by "each" of the five respondents, the respondents and "each of them" has in trade and commerce in Australia made the representations which are particularised in paragraph 6. Clearly paragraph 6 is an important paragraph in the amended statement of claim. (a) The first particular requested is as to the "location" of the alleged publication and "the method of distribution" by each of the respondents. Palombi Hazan answered that the document "is the Respondents [sic] document and the answer to this question is within the knowledge of the Respondents". Triscotts replied that there had been a positive assertion as to the conduct of the respondents and that the respondents were entitled to full particulars. Palombi Hazan responded that they relied on their answers to date. In my opinion, the respondents are entitled to particulars of the publication and distribution. There are subsequent requests for particulars which, in one way or another, seek (b) elucidation of the "publication" and "distribution". Although the formulation of the requests may, in some cases, leave something to be desired, the respondents are entitled to be told in what way it is alleged that Adelaide published the "QUICKSERT" document and in what way it is alleged that each and every respondent "distributed" that document. It may well be that in the case of some respondents, the distribution alleged is through the agency of one or other of the other respondents. But this is a matter of which particulars must be given. Accordingly, I think that the respondents are entitled to the particulars referred to in paragraph (a). Generally, for the same reason though perhaps surprisingly, I think that the respondents are entitled to be told what the applicants "mean" by the use of the word "publish". I say "surprisingly" because normally one would not be jentitled to particulars of the meaning of an English word in ordinary use. Indeed Palombi Hazan's reply was "The word 'publish' has its ordinary English meaning". But the fact is that there are various meanings that the word "publish" can have. I think that the request for particulars in this respect is properly interpreted as simply a request as to details of the manner, nature and spread of publication. As so construed, the request should be answered. (c) - 10 - Paragraph (c) begins with the words "On what basis" and seems to raise the same question as paragraph (b) did. If it is not intended to raise the same question, it seems to be intended to ask for particulars of evidence, and for that reason not to be a proper request for particulars. (a)-(h) Paragraphs (d) to (h) relate to the allegation made in (a) paragraph 6 that the "QUICKSERT" document was "distributed" by each of the respondents. It is important to note that the allegation is indeed that each and every respondent has distributed the document. Paragraph (d) asks "on what basis" it is alleged that the documents were "distributed" by each and all of the respondents. There is not here an initial request as to the meaning of "distributed". That being the case, I treat the request as to the "basis" of the allegation, not as a request for details of evidence to be relied upon, but for particulars of the nature of the allegation, that is, for particulars of distribution. Certain limited particulars have been supplied in the most recent letter from Palombi Hazan relating to distribution. What is said for the respondents is that there is a positive allegation that each of the respondents did indeed distribute the document. Although the particulars supplied in the most recent letter from the applicants' solicitors -ll1- go some way to providing particulars, they do not and could not constitute particulars of "distribution" at least in relation to Mr and Mrs Robertson. I think that the position is probably similar in relation to the other respondents. To take the case of Mr and Mrs Robertson, what is said is that they "distributed" by reason of nothing more than the fact that they are directors of Allied coupled with the fact of the "public availability" of the document. These do not seem to me to be particulars of distribution. If they were, it would seem to follow that each non-executive director of a large public company "distributes" each document made publicly available by the company. It may be that the applicants will wish to argue on the hearing that the holding of the position of director, albeit non-executive and no matter how large the board may be, coupled with the public availability of the document, constitute a "distribution". If they do indeed wish to make that contention and are willing to be held to it, so be it. All that I am concerned with on the hearing of this motion is whether they should be required to supply further particulars of distribution. But even accepting that limitation, I think that the "particulars" given are not sufficient particulars of "distribution" and the same comment applies in relation to Somerville who is said to have distributed the document by reason of nothing more (e) (£) (g) -12- than the fact of his being a salesman employed by Allied. In my view, although the matter may be arguable, the applicants should be ordered to provide in relation to each respondent particulars of distribution in answer to paragraph (d). Paragraph (e) asks "To whom is it alleged that the document was distributed?" The answer given is "persons within the plumbing trade". I do not think that it is necessary that there be particulars of all the individuals to whom distribution will be sought to be proved on the hearing and indeed the argument before me today did not deal with this matter in any detail. I do not think that further particulars are required of that particular allegation. Paragraph (f) seeks particulars of "when, where and by whom it is alleged that the document was distributed". In my view no particulars or no adequate particulars of this allegation have been supplied and it 1s a critical ,allegation and one which should be properly particularised. Therefore I would order that particulars be supplied as sought in paragraph (f). Similarly in relation to paragraph (g) what is sought is particulars of "the alleged method of distribution" of the document. Either no particulars or no adequate particulars of this have been supplied. It is true that the applicants (h) -13- have, in their second letter, said what they "assume" to be the case but the respondents are entitled to have a better particularisation than that. I think that the applicants should be ordered to provide the particulars requested. Paragraph (h) seeks particulars of the "quantities of the document" alleged to have been distributed. To some extent this will be answered by the particulars of distribution. In providing the particulars of distribution referred to earlier, the applicants will have referred to the breadth of distribution. I do not think that the request as framed is a proper request for particulars. It goes to a detail of evidence, albeit an important detail. I do not think that the applicants should be ordered to answer this particular request. Paragraph 7. This paragraph alleges that the second to fifth respondents, on or about 23 May 1994, made the 15 representations which are listed in paragraph 7. (a) The first request is as to the "basis" on which it is alleged that the representations were made. Essentially the particularisation given is that the representations were made by Somerville on behalf of all respondents and the basis on which it is said that he made them on behalf (b) - 14- of all respondents is that he was a salesman employed by Allied and, in the case of Mr and Mrs Robertson, the fact that they were directors of Allied. No doubt it is said that in the case of Adelaide he made them on its behalf by reason of the additional fact that Allied was Adelaide's distributor. That is the case which the applicants seek to run, and whether they will succeed or not is another Matter, but in my view they have given a proper statement of the particulars of the agency which they propound. Paragraph (b) seeks particulars of the persons to whom it is alleged that each of the representations was made. Clearly where the case pleaded is one of distribution to the public, it is required of an applicant to particularise every individual. However what is referred to in this part | of the pleading 1s a series of representations made by an individual orally. I think that it is required that the individuals to whom the applicants allege that the oral representations were made be identified. The applicants have in fact identified these persons as follows: Robert Cecil Burns, Ron McCewan, Bob of Eagles Plumbing Supplies and Finlay of Trade Link Plumbing Services. In my view that is a proper and adequate particularisation. It may be that at some future stage in these proceedings the applicants will seek to amend and to provide further particulars. That can be dealt with at the time. The fact (c) (a) (e) is that the applicants have adequately particularised representations to four people at present and no further particulars should be ordered against them. Paragraph (c) seeks particulars as to when and by whom it is alleged that each of the representations was made. The reply given was that "further particulars will be provided after discovery and interrogatories". In my view that is a totally inadequate response. It may have been argued that the request was superfluous because it does appear that the allegation is that all representations were made by one person and one person only, namely Somerville, but that has not been argued and in any event it would have been a simple matter to make that statement in answer to the request. I would order that the applicants supply the particulars requested in paragraph (c). Paragraph (da) makes it clear that Somerville's representations were verbal and nothing further is sought ,or would be granted in the way of particularisation. Paragraph (e) seeks identification of "the form" in which each of the representations was made. The response initially given was simply "Please see the affidavit of Robert Cecil Burns". I do not think that this is an adequate response having regard to the fact that the representations alleged are representations made not merely (£) - 16 - to Robert Cecil Burns but to him and to three other individuals. The applicants should supply particulars of the form in which each representation was made to the four individuals. Again, I would have thought that the answer was that the form was "verbal" in each case but that has not been said by the applicants. Why I do not know. There should be an order that the form in relation to the representations made to the four individuals namely Robert Cecil Burns, Ron McCewan, Bob of Eagles Plumbing Supplies and Finlay of Trade Link Plumbing Supplies' he particularised. Paragraph (f) seeks details of "each of the representations allegedly made by each Respondent". The answer given was "The precise representations are the subject of the affidavits in these proceedings and further particulars will be provided after discovery and interrogatories." I do not think that that is an adequate particularisation. It is not appropriate to send the respondents and the Court ,on a search of the affidavits in order to locate the representations. They should be particularised. I say nothing as to the form of the particularisation, there being no argument on that aspect of the matter. The applicants should be ordered to particularise each representation allegedly made by each respondent. -17 - Paragraph 8. Paragraph 8 pleads that each of the representations pleaded in paragraphs 6 and 7 "are and have at all material times been false". (a) (b) Apparently there is no ongoing complaint in relation to Paragraph (a). Paragraph (b) seeks several particulars, the formulation of the request being somewhat jumbled. The response is the unhelpful "Please see the affidavits filed in the proceedings". The request seeks particulars of when, where, how, to and by whom and in what form it is alleged that each of the second, third, fourth and fifth respondents made the representations. That request is- followed by a number of more particular requests in paragraphs (c) to (0). However, it is pleaded or at least particularised that the representations referred to in paragraph 6 were in writing and the representations referred to in paragraph 7 were verbal. That is enough to answer, at least in part, the request in paragraph (b). So far as I can see, and no argument was made to the contrary, the matters covered in paragraph (b) are in fact covered by the requests made in relation to paragraphs 6 and 7. Accordingly I would not order the applicants to provide the particulars requested in paragraph (b) in relation to paragraph 8 of the amended statement of claim. - 18 - Paragraph 8 raises no issue other than an issue as to the falsity of the representations. Accordingly, the particulars requested in paragraph (b) as to the representations themselves are irrelevant to paragraph 8 in any event. (¢c)-(0) This takes me to paragraphs (c) to (0) of the composite document which of course again relate to paragraph 8 of the amended statement of claim. Apparently no complaint is now made in relation to the particulars referred to in these subparagraphs. There was no address related to them in the hearing today and I pass over them. Paragraph 9. Paragraph 9 pleads that by reason of the matters set out in paragraph 6, 7 and 8 the respondents engaged in misleading and deceptive conduct within the meaning of section 52 of the Trade Practices Act 1974 (Cth). There are several requests made for particulars of that allegation and this was not the subject of any argument before me today. Again many of the particulars requested seem to have been covered by earlier requests and particulars supplied. I think I need say nothing more about paragraph 9 since the respects in which it is alleged that the conduct is misleading and deceptive would seem to be the same as the respects in which it is alleged that the representations were false. - 19 - Paragraph 10. This paragraph seeks to plead the "involvement" of the individual respondents, that is Somerville and Mr and Mrs Robertson, in the making of the "QUICKSERT" representations pleaded in paragraph 6, and in the making of Somerville's oral representations pleaded in paragraph 7. The relief sought in the amended application includes "Damages pursuant to s 82 of the Trade Practices Act 1974". Paragraph 10 is directed to the question whether the three individual respondents were "involved in" the contravention of s 52 by the corporate respondents. Paragraph 10.1 pleads that Somerville and Mr and Mrs Robertson were "aware of" and "aided, abetted, counselled and procured" the making of the representations. Paragraph 10.2 pleads that by reason of the awareness and acts of Somerville and of Mr and Mrs Robertson referred to in paragraphs 6, 7 and 10.1, they (i) "aided, abetted, counselled and procured" the pleaded contraventions of s 52, and (i1) induced Adelaide and Allied to contravene s 52 as pleaded in paragraph 9, and were knowingly concerned in or a party to such contravention. There was argument about the particulars requested in respect of paragraph 10. The stance of the respondents was: "We have provided the best particulars that we can provide prior to discovery". There was no general submission that particulars of "knowledge" should not be ordered. I note that the respondents have filed their defence which relevantly denies the allegations in paragraph 10 of the amended statement of claim. (a) (b) It is requested in paragraph (a) that there be particularised the manner in which it 1s alleged that the three individuals "aided, abetted, counselled and procured" the making of the false representations. Paragraph (a) also requests particulars of each occasion when the conduct of aiding, abetting, counselling and procuring took place, and of the particular individual respondent who is alleged to have engaged in the conduct. There was no attempt to meet this last part of the request. I think that the applicants must provide the best particulars that they can provide. Paragraph (b) seeks five groups of particulars, although the request is confused. (i) Particulars of the three individuals' "awareness" and "acts" referred to in paragraph 10.2. In my view the respondents are entitled to particulars directed to the issue of the three individuals' knowledge of falsity of the representations since the contravention alleged here is the making of false representations: see Yorke v Lucas (1985) 158 CLR 661 and, for example, Crocodile (ii) (iii) (iv) - 21 - Marketing Limited v Griffith Vintners Pty Ltd (1989) 91 ALR 273 at 281. In my opinion, the respondents are entitled to the particulars requested. How the "awareness" referred to "resulted in" the "aiding, abetting, counselling and procuring" pleaded. Again, unless the respondents are wrong in their understanding that the applicants intended to indicate by the opening words "by reason of" in paragraph 10.2, that the "awareness" "resulted in" the "aiding, abetting, counselling and procuring", the particulars sought should be provided. How the "awareness" referred to "resulted in" the inducement pleaded. The position is, mutatis mutandis, as for paragraph (ii) above. How the "awareness" referred to "resulted in" the individual respondents' "being directly or indirectly knowingly concerned in or a party to" the - 22 - contraventions. The position is, mutatis mutandis, as for paragraph (ii) above. (v) When, where and how it is alleged that the individual respondents were directly or indirectly knowingly concerned in or a party to the contraventions. According to the Composite Document no particulars have been supplied in response to this request. In my Opinion particulars should be supplied. Generally in relation to paragraph 10, all that have been given as particulars are, in effect, the status of Mr and Mrs Robertson - as directors and their acquiescence. No particulars have been given in relation to Somerville. It is true that the particulars to be given may of necessity be somewhat general but the difficulty with the particulars supplied to date is that they do not seem to address the question of the actual states of mind of Mr and Mrs Robertson and Somerville. I refer also, for example, to the request in sub-paragraph (ii) of paragraph (b) for particulars of how the awareness of Somerville and Mr and Mrs Robertson resulted in their "aiding, abetting, counselling and procuring the contraventions of the Trade Practices Act", to which there is a response that this is not a proper request for particulars but a matter for evidence. - 23 - I think that in one way or another the request is directed to elucidating the precise nature of the allegation that Somerville and Mr and Mrs Robertson were. aware, not only of the making of the representations, but also of their falsity. If the applicants wish to commit themselves to the proposition that in the case of Mr and Mrs Robertson, for example, they rely upon nothing more than the status of those individuals as directors, then that should be made clear and the respondents will take whatever course they think fit. If the applicants wish to rely upon more than that, they should make it clear on what further matters they will seek to rely on the hearing. Although there seems to be no suggestion that Somerville was a director, again the applicants should make it clear on what basis they will seek to allege that he knew of the falsity of the representations. When I use the words "on what basis" I am not referring to evidentiary matters but for example to such questions as his knowledge by reason of his having uttered the words of representation when he actually knew that all or some of them were false or by reason of, in the case for example of the Robertsons, their having participated in production of the offending document knowing that particular aspects of its content must have been inaccurate. Accordingly, in my view and although some repetition is involved in the request and therefore will probably be involved in the answers, the applicants should be ordered to provide the particulars requested in respect of paragraph 10 of the amended statement of claim. As noted below, - 24 - the applicants may, following discovery, seek to enlarge the particulars provided. Paragraph 11. This paragraph pleads that the applicants have suffered loss and damage. I do not think that the respondents are entitled to be supplied at this stage with full detail of the loss and damage alleged. However, the applicants' stance that no particulars of damages need be provided until liability has been determined is a misconception. The respondents are entitled to be told of the general nature of the loss alleged to have been suffered by the applicants. By requesting particulars of "the method of calculation" the respondents have, I think, sought to make it clear that that is what they seek. Accordingly, and without indicating that the applicants are obliged to provide at this stage detailed calculations, they are required to supply particulars of the basis on which it is alleged that the respective applicants have suffered loss, that is, the approach to damages and the best quantification that they can give at this stage. Perhaps the best way of expressing that is to refer, as the respondents have done, to "the method of calculation". Nothing that I have said precludes the possibility that the applicants may wish to supply further and better particulars following discovery. Inspection of documents may convince them that the scope of the particulars needs to be widened. That matter can be looked at on its merits if further particulars should be provided by the applicants and the respondents raise an objection. CONCLUSION There will be orders requiring the applicants to provide proper particulars of the facts, matters and circumstances pleaded in the following paragraphs of the amended statement of claim filed on 22 August 1994 in conformity with, where relevant, the following paragraphs of the document dated 1 September 1994 entitled "Request for Particulars of Amended Statement of Claim" and further in conformity with these Reasons. Paragraph of "Request for Paragraph of Amended Particulars of Amended 6 (a) (b) (d) (£) (g) 7 (c) (e) (f) 10 (a) - 26 - 11 (a) (b) (c) (d) costs Each party has had a measure of success. This cannot be adequately assessed by the "counting" of paragraphs on which there was a "loss" or a "win". The respondents gave ample notice of their intention to file their notice of motion. In some instances, the applicants treated the respondents' request less than seriously. In some cases the respondents' requests were less than clear in their meaning. In my view the appropriate exercise of discretion is that the applicants pay one half of the respondents' costs of the motion. ~ There will be an order accordingly. I certify that this and the preceding 25 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren. Dated: 24 November 1994 16 November 1994 Sydney 16 November 1994 Mr M J Ellicott of counsel instructed by Yves Hazan appeared for the applicants. Mr A J Sullivan QC with Ms D Skennar of counsel instructed by Triscott & Associates appeared for the respondents.