Smack on Time -v- Chubb Security [2001] NSWSC 505

New South Wales Supreme Court

CITATION : Smack on Time -v- Chubb Security [2001] NSWSC 505 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50064/01 HEARING DATE(S) : 8 June 2001 JUDGMENT DATE : 20 June 2001

PARTIES : Smack on Time Pty Ltd -v- Chubb Security Australia Pty Limited & Peripheral Computer Industries Pty Limited JUDGMENT OF : Hunter J

COUNSEL : Applicant/First Defendant: W G Muddle Respondent/ Plaintiff: P Graham QC SOLICITORS : Applicant/ First Defendant: Hunt & Hunt Respondent/Plaintiff: Edward T Davis & Co CATCHWORDS : Practice & Procedure - application to strike out - embarrassing pleadings - want of particularity - statements of evidence in lieu of particulars. LEGISLATION CITED : Trade Practices Act DECISION : Plaintiff to supply further particulars in form of statements of evidence. Otherwise application is dismissed. Costs of the application are costs in the proceedings.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST HUNTER J WEDNESDAY 20 JUNE 2001

50064/01 SMACK ON TIME PTY LTD -v- CHUBB SECURITY AUSTRALIA PTY LIMITED & ANOR REASONS FOR JUDGMENT 1 These proceedings were instituted by summons filed 7 May 2001. There was an inconsequential amendment to the relief sought in the form of the amended summons filed 18 May 2001. No defence has been filed. Instead, when the matter came before me for directions on 18 May 2001, the defendants foreshadowed an application to strike out the amended summons. To avoid that course I invited the plaintiff to reconsider its position, at the same time giving directions for the bringing and hearing of any application to strike out. 2 As a consequence, on 24 May 2001, the plaintiff filed a Further Amended Summons and on 1 June 2001 the defendants moved by notice of motion for the following relief: "1. That the Further Amended Summons be dismissed. 2. In the alternative, that Section C of the Further Amended Summons be struck out. 3. In the alternative, that each of paragraphs 25, 24, 23, 22, 18 and 14 of Section C of the Further Amended Summons be struck out. 4. In the alternative that within seven (7) days the Plaintiff serve on the First Defendant a schedule of particulars of the Further Amended Summons including: (a) precise particulars of the states of mind of Chubb alleged in paragraphs 14 and 25(g) including identification of the persons said to have comprised Chubb's state of mind for this purpose; (b) a precise identification of the information alleged in paragraph 18 to have been provided and of the facts matters and circumstances rendering it of a confidential nature as alleged in paragraphs 18 and 22; (c) a precise statement of the use or exploitation alleged in paragraphs 21 and 24; and (d) particulars of the facts, matters and circumstances alleged in paragraph 23 to give rise to an obligation of confidence." 3 The principal change effected by the Further Amended Summons related to par 25 of the contentions. In its original form par 25 read as follows: "25. The first defendant, in trade or commerce, engaged in conduct that was misleading or deceptive or was likely to mislead or deceived within the meaning of section 52 of the Trade Practices Act 1974 (Cth). PARTICULARS Without revealing its true purpose in soliciting information about the plaintiff and its business from the plaintiff prior to late June 1999 the first defendant induced the plaintiff to believe that the first defendant wished to retain the plaintiff as a provider of technical courier services to the first defendant in respect of the first defendant's business in consequence whereof the plaintiff revealed information to the first defendant concerning the development of the plaintiff's business as a provider of technical courier services, of the plaintiff's association with the Bank, of the plaintiff's association with Commonwealth Bank of Australia, of the manner in which the plaintiff provided technical courier services to banks in respect of their EFTPOS machines, of the development throughout Australia of the plaintiff's agency network and of the training by the plaintiff of technical couriers within that network which otherwise it would not have revealed to the first defendant." 4 The "Bank" referred to is the Australia and New Zealand Banking Group Limited. In the Further Amended Summons par 25 is in the following terms: " 25 (a) In or about early June 1999 the first defendant represented to the plaintiff that it wished to establish a business relationship with the plaintiff . Particulars The representation was express and oral. It was made in a conversation on or about 3 June 1999 between Mr Deegan on behalf of the first defendant and Mr Hawes on behalf of the plaintiff. The substance of the representation was as alleged. (b) At no time prior to late June 1999 did the first defendant inform the plaintiff either that the first defendant was exploring the possibility of purchasing the plaintiff or its business or that the possibility of purchasing the plaintiff or the plaintiff's business was within the first defendant's contemplation . (c) The conduct of the first defendant referred to in the two preceding sub-paragraphs induced in the plaintiff an assumption that the first defendant's interest in the plaintiff did not extend beyond exploring the possibility of the first defendant engaging the plaintiff as provider of technical courier services . (d) The plaintiff's assumption was a reasonable one in the circumstances . (e) Acting upon the assumption referred to in sub-paragraph (c) above, the plaintiff provided to the first defendant information concerning its business which it would not have provided had it been informed either that the first defendant was exploring the possibility of purchasing the plaintiff or its business or that the possibility of purchasing the plaintiff or the plaintiff's business was within the first defendant's contemplation . Particulars