FEDERAL COURT OF AUSTRALIA Mainfreight International Pty Ltd v Trailer Corporation of Australia Pty Ltd [2012] FCA 922 Citation: Mainfreight International Pty Ltd v Trailer Corporation of Australia Pty Ltd [2012] FCA 922 Parties: MAINFREIGHT INTERNATIONAL PTY LTD (ABN 65 007 252 333) v TRAILER CORPORATION OF AUSTRALIA PTY LTD (ABN 35 097 449 057) File number: VID 433 of 2012 Judge: KENNY J Date of judgment: 28 August 2012 Catchwords: CONTRACT – Agreement to provide transport services – Alleged failure to pay freight – Pleadings – Defendant alleged deficiencies in pleadings – Pleadings gave clear and sufficient information about claims – Held: no deficiency in pleadings Legislation: Federal Court Rules 2011 (Cth) rr 16.02, 16.03, 16.08, 16.41 Cases cited: Dare v Pulham (1982) 148 CLR 658 Turquand v Fearon (1879) 40 LT 543 Australian and New Zealand Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695 Date of hearing: Determined on the papers Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 Solicitor for the Applicant: Lord Commercial Lawyers Solicitor for the Respondent: Foster Nicholson Jones Lawyers IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 433 of 2012 BETWEEN: MAINFREIGHT INTERNATIONAL PTY LTD (ABN 65 007 252 333) Applicant AND: TRAILER CORPORATION OF AUSTRALIA PTY LTD (ABN 35 097 449 057) Respondent JUDGE: KENNY J DATE OF ORDER: 28 AUGUST 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. On or before 14 September 2012, the defendant file and serve its defence. 2. On or before 21 September 2012, the plaintiff file and serve any reply. 3. There be a directions hearing fixed for 9:30am on 21 September 2012. 4. The defendant pay the plaintiff's costs of and incidental to the defendant's challenge to the plaintiff's statement of claim. 5. The parties have liberty to apply on three days' written notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 433 of 2012 BETWEEN: MAINFREIGHT INTERNATIONAL PTY LTD (ABN 65 007 252 333) Plaintiff AND: TRAILER CORPORATION OF AUSTRALIA PTY LTD (ABN 35 097 449 057) Defendant JUDGE: KENNY J DATE: 28 AUGUST 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The plaintiff claims that it has procured transport services for the defendant under three contracts and that the defendant has not paid the freight and associated fees in respect of those services. The plaintiff claims payment of $365,559.68, alternatively damages, as well as interest and costs. 2 The parties were unable to progress the matter at the first directions hearing in this matter listed on 27 July 2012 and were in dispute over the plaintiff's statement of claim. The defendant maintained that it ought not be required to file its defence until the plaintiff remedied the deficiencies in its pleading. The parties each filed short written submissions in support of their respective positions. 3 In addition to an originating application, the plaintiff filed a statement of claim and, subsequently, an amended statement of claim. I have considered the parties' submissions by reference to the amended statement of claim. 4 The defendant has alleged that the plaintiff's pleading is deficient in two respects. It complains of: (a) a failure to identify how the written documents said to comprise the First Contract and the Second Contract were communicated; and (b) a failure to plead the agreed price. 5 The plaintiff argues that there is no deficiency in the pleading because the pleading provides a sufficient statement of its case to afford the defendant a fair opportunity to meet it; defines the issues for resolution; and gives the defendant an adequate appreciation of the plaintiff's case to enable the defendant to make a payment into court should it wish to do so: see Dare v Pulham (1982) 148 CLR 658 at 664. 6 For the reasons set out below, I accept the plaintiff's submissions and reject the defendant's contention that the amended statement of claim is relevantly deficient. 7 The question of pleadings is dealt with in the Rules of Court. Rules 16.02 and 16.03 of the Federal Court Rules 2011 (Cth), relied on by the defendant, concern the content of pleadings and the pleading of facts. The defendant also referred to r 16.08, relating to matters that must expressly be pleaded, and r 16.41, dealing generally with particulars. Of particular relevance in the present context is r 16.02(1)(d), which provides that a pleading must "state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved". 8 The First Contract, the Second Contract and the Third Contract are pleaded in paragraphs 3, 8 and 13 respectively of the plaintiff's amended statement of claim. The pleading is clear in each case and is the subject of particulars. The particulars disclose that the plaintiff's case is that the First Contract, the Second Contract and the Third Contract were partly written and partly oral. Insofar as these three contracts are alleged to be in writing, the plaintiff's particulars adequately identify the relevant documents said to be constituent parts of the agreement: see Turquand v Fearon (1879) 40 LT 543. The fact of communication is not usually required to be pleaded. The relevant assertion is implicit in the pleading that the parties made an agreement to the effect alleged or, as here, the parties "agreed". 9 There was no requirement to plead the fact of communication in this case. The plaintiff has given the defendant clear and sufficient information as to its claims. The defendant's first complaint about the plaintiff's amended statement of claim is therefore rejected. 10 The terms of the alleged contracts are also pleaded in paragraphs 3, 8 and 13 of the amended statement of claim. For example, paragraph 3 reads: In the week preceding 21 August 2011, Mainfreight and Trailer Corp agreed that Mainfreight would procure the transport of six freezer van bodies (First Cargo) by road from Lafayette, Indiana, to Long Beach, California, then by sea to the port of Adelaide, and then by road to Kilburn, South Australia, in consideration for which Trailer Corp would pay Mainfreight freight and other associated fees (First Contract). 11 In this way, the plaintiff sets out succinctly all the relevant and essential terms of the contract as alleged and relied on by it. The consideration for the provision of services is clearly alleged as the payment of freight and associated fees. This is sufficient in this case, where the plaintiff's particulars clearly identify the relevant invoices (setting out the relevant dates, invoice numbers and amounts in question). In this circumstance too, the plaintiff has pleaded the material fact and also given the defendant sufficient information about its claims. The defendant's second complaint about the plaintiff's amended statement of claim is also rejected. It is, of course, open to the defendant to dispute the existence of the contracts as alleged, as illustrated by Australian and New Zealand Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695, to which the defendant referred in its submissions. 12 I would therefore reject the defendant's challenge to the plaintiff's pleading and order that the defendant file its defence by 14 September 2012. The defendant should pay the costs of its challenge to the plaintiff's pleading. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 28 August 2012