Feltafield Pty Ltd & Ors v Heildelberg Graphic Equipment [1995] FCA 262

CATCHWORDS PARTICULARS: Allegation that evidence given outside case particularised - evidence elicited in cross examination. Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Katsilis v Broken Hill Pty Co. Ltd (1978) 52 ALJR 189 FELTAFIELD PTY LIMITED and OTHERS v HEIDELBERG GRAPHIC EQUIPMENT (FORMERLY A.K.A. ALDUS LIMITED) No. NG 263 of 1992 Beazley J 24 March 1995 Sydney

IN THE FEDERAL COURT OF AUSTRALIA ) ) No. NG 263 of 1992 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: FELTAFIELD PTY LIMITED and OTHERS Applicants AND: HEIDELBERG GRAPHIC EQUIPMENT (FORMERLY A.K.A. ALDUS LIMITED) Respondent CORAM: BEAZLEY J PLACE: SYDNEY DATE: 24 March 1995 REASONS FOR JUDGMENT BEAZLEY J: Senior counsel for the respondent has asked that I rule: "That it is not open upon the case that the 2nd and 3rd applicants have pleaded or particularised or are claimed to be pursued as to the loss in respect of customers listed about whom there have been lost sales that the losses in respect of those customers related to up-market quality work as distinct from other sorts of work." The application arose during the course of cross examination of Warren Jack, one of the applicants' witnesses, in relation to paragraph 81 of his affidavit sworn 3 May 1994. In paragraph 81 he stated: "I have tried in the following ways to gain back the lost work from the unsatisfied customers: i) Phone calls; ii) Putting them on our mailing list; iii) Designing and putting into production "Cheap Four Colour Process Printing Special Offer Leaflets" iv) Writing letters; v) Offering forms management at no additional cost to the clients, (where applicable)." He then set out a list of 16 customers. During cross examination, he was asked in relation to paragraph 81: "Are you intending the court to believe that from the time of jobs as to which these customers expressed dissatisfaction they were lost to the Jack group?‑‑‑Not in every case. ... You mean, do you not, by paragraph 81 that you tried to cause these 16 customers to resume placing orders with the Jack group?‑‑‑No, that's not correct. ... THE WITNESS: I was trying to gain back work that had been lost from those customers, some of those customers we lost completely, other customers we didn't lose completely, we lost work from divisions of them. I tried to gain back that lost work from the various divisions that we lost." and in answer to a question I put, he stated: "Yes. We'd lost one part of the work. They still gave us cheap simple work but we lost the up-market high quality work." Mr Shand QC submitted in relation to this evidence that Warren Jack: "...has been allowed to depart...from the terms of [paragraph 81] and what he has given as a meaning or purports from his mouth to be a meaning of what he said there, is so much wider and cannot possibly be a meaning of those words, so he has been able to open up a new case if this evidence is regarded as being admitted and it is not a case we have heard of before." I do not propose to examine in detail the history of this matter in so far as it relates to the particularisation of the applicants' case for damages, that history having been fully canvassed during the course of this application. It suffices to say that the applicants did not provide detailed particulars of damage. The respondent, whether by design or oversight, stopped asking for those particulars, although it continued to press for particulars of other matters. The applicants thereafter filed witness statements which were intended to establish the basis of its claim for damages. The uniform thrust of the witness statements was that the respective client had ceased placing printing work with the applicants. It appears from the submissions made on the present application, that the respondent will dispute the accuracy of this evidence. Senior counsel for the respondent submits that, given the confined basis of the applicants' damages claim, as evidenced by the witness statements, the respondent is seriously prejudiced by the evidence of Warren Jack as: "...we have never approached this case and tried to prepare it upon the basis of a breakdown of the work that involved a portion of the customers being retained and the proportion which it might now be alleged to have been lost. We just would not know where to start on that, and what this sort of approach would mean would be that the witnesses who have put on statements in order to support what we submit is a different claim, would have to be asked to consider this new issue, and they have not covered it, and they ought not to be allowed to cover it now, particularly in the light of the very firm decree of his Honour, Sheppard J - I think it was his Honour - who said "no more statements", and said it quite sometime ago, and your Honour has made it clear, we would submit, that apart from a little bit of correction as to what might be [thought] to be in error in affidavits when witnesses go the box, there is not to be any further oral evidence added." Senior counsel further submitted that: (i) the applicants have never previously sought to make a case that clients, although still placing some work with the applicants and/or the Jack group, no longer placed high quality or "4-colour work"; (ii) it was not known what type of printing press could be used for such work, whatever that work might be; (iii) the value of that work was not known; and (iv) it was not known whether that type of work had been received from other customers, so that there was replacement work for the work not placed by existing customers. It was also submitted that the respondent would lose the advantage it currently had of being able to prove the damages claim was dishonestly made. Counsel for the applicants identified his clients' case on damages as: "The way we put our case and the way the statements of the customers read is that they have got X dollars in the kitty to spend on printing, they would have spent with us but for these unfortunate experiences." He denied that the respondent was "ambushed", a term used by senior counsel for the respondent. He submitted not only was the respondent prepared to meet this case on damages, it had come ready to "attack it". In particular, it had issued subpoenas to each of the former clients who had provided witness statements and the respondent's expert accountant had made specific reference in his report to the issue of "replacement customers". Counsel for the applicants stated that, save to the extent that witness statements and affidavits have not yet been read in the proceedings, the applicants have filed and tendered all its evidence in chief. In reply, senior counsel for the respondent said: "I am only ambushed in the sense that I have referred to regarding the answer given by Mr Warren Jack. I have not claimed to have been ambushed in respect of our knowledge of the case being put, namely, that is was alleged by these applicants and stated through their witnesses in their statements that business had ceased between the Jack group and these customers. Of course we knew that was the case being made, that is what I am complaining about. We knew that was the case, now they are trying to make a different case. HER HONOUR: In respect of? MR SHAND: In respect of the special area of business." He submitted that that "ambush" had occurred because, in his response to the question I had asked Mr Warren Jack, which I have set out earlier, Mr Warren Jack's evidence had taken the applicants' case outside the applicants' claim. In my opinion, there are two difficulties with this application. First, it was senior counsel's question in cross examination which first drew the answer of which the respondent now makes complaint. Secondly, I do not accept that paragraph 81 of Mr Warren Jack's affidavit of 3 May 1993 must be interpreted as senior counsel for the respondent submitted. But in any event, it should be remembered that in this case, the respondent did not pursue the question of particulars of damage. It is useful in any event to keep in mind the function of particulars which is to: "...to limit the issues of fact to be investigated and in doing this they do not modify or alter the cause of action sued upon": Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 110. See also Katsilis v Broken Hill Pty Co. Ltd (1978) 52 ALJR 189. However, as the High Court also stated in Mummery v Irvings Pty Ltd, if facts are proved during the course of a case, including by a respondent, a plaintiff may succeed on those facts. In my opinion, if the respondent elicits answers in cross examination which, either through those answers, or through permissible re-examination or evidence in reply, supports a case other than that precisely particularised, a respondent cannot seek to proceed in the case as if the answer was never given. In the present case, the applicants have relevantly closed their case in chief. If their evidence is not sufficient to make the case they claim on damages, assuming liability is proved, their case has failed to that extent. That does not prevent them from relying on the evidence in the case as a whole to establish their claim for damages, whether in the amount claimed or in a lesser amount. Nor do I consider that there is any substance in the claim made that the respondent would lose the advantage it currently had of being able to prove that the damages claim was dishonestly made. As I have said, the issue arose because of an answer elicited in cross examination. A party faced with that evidence cannot have it expunged or cannot have the court ignore it because it does not suit its overall forensic purposes. There is a further matter which I should mention although it was not a primary factor affecting my determination in the matter. This matter is adjourned for a period of about 6 months. Accordingly, even if there was a question of prejudice to the respondent arising from the giving of the evidence in dispute, that prejudice could always be cured during the lengthy adjournment. Accordingly, I reject the application. I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment of the Honourable Justice Beazley. Associate: Dated: 24 March 1995 APPEARANCES Counsel for the Applicants: G. McVay Solicitors for the Applicants: Messrs Bowles & Co Counsel for the Respondent: A. Shand QC and C. Hodgekiss Solicitors for the Respondent: Messrs Graham Goldberg Partners