Lewis Securities Limited v Tate [2008] FCA 892

FEDERAL COURT OF AUSTRALIA

Lewis Securities Limited v Tate [2008] FCA 892

LEWIS SECURITIES LIMITED (ACN 002 928 985) v FRANKLIN JOEL TATE

NSD 1963 of 2007

RARES J

18 APRIL 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1963 of 2007

BETWEEN: LEWIS SECURITIES LIMITED (ACN 002 928 985)

Applicant

AND: FRANKLIN JOEL TATE

Respondent

JUDGE: RARES J DATE OF ORDER: 18 APRIL 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The applicant pay the respondent's costs of the notice of motion which was filed on 11 April 1008. 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 NSD 1963 of 2007

BETWEEN: LEWIS SECURITIES LIMITED (ACN 002 928 985)

Applicant

AND: FRANKLIN JOEL TATE

Respondent

JUDGE: RARES J

DATE: 18 APRIL 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is a dispute about costs. In these proceedings the applicant, Lewis Securities Limited, has indicated that at the proposed trial of its case it will seek to rely upon certain matters not the subject of its own case, but a case that arises in respect of reliance by other group members. Those are matters with which Lewis Securities itself, on the particularised case, had no involvement. 2 The parties have been involved in a dispute through correspondence, as to the way in which the matter should be pleaded or particularised. By late February 2008, the respondent, Mr Tate, was complaining of Lewis Securities' refusal to provide particulars as to which representations any group member was alleged to have relied upon in respect of pars 70(b) and (c), 71 and 72(b) of the statement of claim. Lewis Securities' particulars had indicated that those paragraphs were not relied upon by it. 3 Mr Tate sought to ascertain the nature of the case to be made against him from the particulars he sought. He argued in the correspondence that he was entitled to those particulars. He also asserted that there was a need for specific pleading which may necessitate an amendment to the statement of claim with respect to the matters on which Lewis Securities itself had not relied (although other group members did). Lewis Securities declined to provide an amended statement of claim, but asserted that evidence of such reliance by one or more group numbers would be provided in due course. 4 I am of opinion that Lewis Securities, at an early stage, ought to have articulated the nature of the case it was proposing to make against Mr Tate in respect of those paragraphs of its statement of claim on which it would not lead evidence for the purpose of proving its own case, if the purpose of that evidence was intended to quell another controversy. The functions of particulars were clearly stated by the High Court in Dare v Pulham (1982) 148 CLR 658 at 664, and in Water Board v Moustakas (1988) 180 CLR 491 at 497. One function is to let the parties and the court know the case which has to be met, and to define the issues for trial. 5 Lewis Securities has said through its counsel, that it proposes to call one member of the group to give evidence with respect to the paragraphs of the statement of claim upon which it, itself, did not rely and was not involved. If that had been done at an early stage, this dispute would not have arisen. 6 I am of opinion that Lewis Securities should pay the costs occasioned by the need to seek particulars of the way in which its case is to be put. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.