DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 1092

FEDERAL COURT OF AUSTRALIA

DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 1092 DSE (HOLDINGS) PTY LTD (ACN NO 001 456 720) v INTERTAN INC N 3011 of 2002 ALLSOP J 26 SEPTEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 3011 of 2002

BETWEEN: DSE (HOLDINGS) PTY LIMITED (ACN 001 456 720)

APPLICANT/CROSS RESPONDENT

AND: INTERTAN INC

FIRST RESPONDENT/FIRST CROSS-CLAIMANT

INTERTAN CANADA LIMITED

SECOND RESPONDENT/SECOND CROSS-CLAIMANT

JUDGE: ALLSOP J

DATE OF ORDER: 26 SEPTEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The respondents provide to the applicant and to the Court, by 7 November 2003, full particulars as can be provided in relation to pars 35(e) and 46(b) of the defence. 2. Direct the parties to provide to the Court agreed short minutes of order regarding the disposition of the matter by Monday 29 September 2003. Note: 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 N 3011 of 2002

BETWEEN: DSE (HOLDINGS) PTY LIMITED (ACN 001 456 720)

APPLICANT/CROSS RESPONDENT

AND: INTERTAN INC

FIRST RESPONDENT/FIRST CROSS-CLAIMANT

INTERTAN CANADA LIMITED

SECOND RESPONDENT/SECOND CROSS-CLAIMANT

JUDGE: ALLSOP J

DATE: 26 SEPTEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this matter, I am reserved on a notice of motion concerning privileged documents, that is, documents over which privilege is claimed by the respondents. I had the matter relisted to discuss a timetable for bringing the matter forward for hearing. Subject to one matter, the only difference between the parties is the length of time needed for the preparation of the case for hearing. The one matter of importance separating the parties is the program for or time of the delivery of particulars by the respondents for pars 35(e) and 46(b) of their defence. 2 It is alleged in those paragraphs that in substance the applicant was provided with access to sufficient information to enable it to discern the matters which, in its statement of claim it said that it was not aware of; and that the real essential substantial direct or effective cause of any loss or damage is a failure of the applicant to properly examine or cause to be properly examined the material that was made available to it in connection with the proposal and the amended proposal. 3 Mr Parker on behalf of the respondents accepts readily that full particulars of that matter should be given. Some particulars have been given. However, Mr Parker submits that complete particulars as far as the respondents wish to rely upon them should only need to be ultimately provided at the time when the respondents file their evidence. The respondents have witnesses in Canada. There were a large number of documents in the transaction and the essence I think of Mr Parker's submissions is that to be utterly and finally exhaustive about this requires the preparation of significant parts of the respondents' evidence. Thus, for the efficient conduct of the case, these particulars should only be given after the applicant has filed its evidence. I do not agree. These matters go to causation and they go to how and whether the applicant is entitled to claim that it has suffered any loss and whether the applicant has or should be taken to have had a different state of mind. I do not think that these matters should be left to the time which Mr Parker identifies. The pleading has been put forward. It may be that with the finalisation of all the evidence, the particulars can be amended in due course. 4 The paragraphs of the pleadings are important ones and, in my view, if it means the respondents beginning the preparation of important parts of their evidence at this stage, then so be it. The pleading has been put on and should be, as far as it can reasonably be, properly particularised. It may require consultations with those overseas. In those circumstances, that needs to be attended to. 5 I will require those particulars to be delivered by 7 November 2003. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .