Alessandro Zollo v Biagio Marona and Teresa Marona No. 4181 Judgment No. SCGRG 93/986 Number of Pages 6 Practice and Procedure

[1993] SASC 4181

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Practice and procedure - application for further and better particulars of claim - Appeal from order made in the Magistrates Court that the plaintiff, suing on an 'Acknowledgment of Debt' relating to building work performed by the plaintiff, give further and better particulars - held that in the circumstances, the order was properly made - observations as to the difference between "material facts" necessary to disclose a cause of action, and 'reasonable particulars' necessary to put the defendant upon notice as to the nature of the claim - further observations as to the nature of a claim based upon indebitatus assumpsit. Magistrates Court (Civil) Rules 1992 R24 and Supreme Court Rules R46.04. Youna v Oueensland Trustees Ltd (1956) 99 CLR
460; Hepburn v McDonnell (1918) 25 CLR 199 and Bucknell v Commercial Banking Company of Sydney Ltd (1937) 58 CLR 155, considered.
Appeals - appeals from interlocutory orders - Observations to the effect that appeals from interlocutory orders of the Magistrates Court or of the District Court to the Supreme Court should only be entertained where there is a question of substance or importance affecting the rights of the parties - in this case the money spent on the appeal could better have been applied in bringing the case on for trial.
Courts - bias - Observations as to inappropriate and derogatory remarks concerning the plaintiff by Magistrate hearing interlocutory application - order quashed but restated in the same terms on appeal to the Supreme Court.

HRNG ADELAIDE, 14 September 1993 #DATE 14:9:1993
Counsel for appellant:        Mr J. Cudmore
Solicitors for appellant:     Ward and Partners
Counsel for respondents:     Mr S. Milazzo
Solicitors for respondents: N. Minicozzi

ORDER
Appeal allowed in part.

JUDGE1 PERRY J The appellant in this matter is the plaintiff in an action in the Magistrates Court at Holden Hill. He sues the respondents for an amount of $11,000 plus interest alleged to be the balance due on a so called "Acknowledgment of Debt" by which the defendants are alleged to have acknowledged in writing an indebtedness of $14,000 to the plaintiff, as to which it is asserted that $3,000 has been paid. 2. The first two paragraphs of the particulars attached to the claim filed in the Magistrates Court read:
     "1. The plaintiff is a builder and carried out certain
    building works for the defendants.
     2. The defendants have acknowledged in writing entitled
    'Acknowledgment of Debt' that they owe the plaintiff the sum of
    $14,000 to be paid to the plaintiff by November 1991 pursuant to
    the written Acknowledgment of Debt, ('the debt'), plus interest
    accruing at the rate of 18% from 1 November 1991." The particulars of claim further assert that the plaintiff demanded payment of the balance of the debt by letter in November 1992, but the defendants have neglected to make any payment. 3. No defence has yet been filed in the proceedings. The respondents applied by notice of application dated 29 March 1993 for an order that the plaintiff provide further and better particulars of its claim. That application came on for hearing on 14 May 1993. The learned Magistrate who heard the application pronounced the following order:
     "1. Plaintiff to provide further and better particulars
    of basis of claim to include date from which cause of action
    arises and details of the basis upon which the plaintiff says
    that the acknowledgment of debt is enforceable against the
    defendant within 14 days.
     2. Defendant to file defence within 14 days of particulars
    being filed and delivered.
     3. Defendants to have costs of this application in any
event." 4. It is against that order that the plaintiff brings the present appeal to this court by leave granted by Millhouse J on 18 June 1993. 5. On the hearing of the appeal Mr Cudmore advanced the argument that the particulars furnished with the claim, and in particular the particulars contained in paragraph 2, are sufficient, and that there is no occasion to order further particulars to be supplied. 6. In advancing that argument he took the Court to a number of authorities dealing with the juristic nature of a plea of indebitatus assumpsit, including the decisions of the High Court in Young v Queensland Trustees Ltd (1956) 99 CLR 460, Hepburn v McDonnell (1918) 25 CLR 199, and Bucknell v Commercial Banking Company of Sydney Ltd (1937) 58 CLR 155. 7. He was at pains to draw the distinction, having regard to those and other authorities, between what he asserts to be the action in indebitatus assumpsit, and an action in contract. With respect to the argument which he presented, I am not persuaded that such a distinction can be drawn. In my opinion, indebitatus assumpsit is a species of claim in contract. 8. Be that as it may, and with respect to the submissions he advanced, they appeared to embody a degree of confusion between the need to plead material facts and the need to plead reasonable particulars of a claim. He asserted on a number of occasions during the course of his argument that sufficient was disclosed in paragraph 2 of the particulars to identify a cause of action, and that it could not be suggested that the pleading failed by reason of the fact that it did not disclose a cause of action. But there is no attack on the pleading on that score. If a pleading fails to disclose a cause of action, it may be struck out. There is no application to strike out this pleading. 9. Furthermore, a pleading which fails to disclose a cause of action cannot be resuscitated by the delivery of particulars. It should be struck out and another pleading substituted if the court allows that. It will fail to disclose a cause of action if it fails to set out the material facts necessary to support a cause of action. 10. It appears to me that paragraph 2 does set out material facts sufficient to support a cause of action based on the effect of the alleged acknowledgment of debt. But even if a pleading sets out material facts sufficiently, so that it cannot be attacked on the ground that it fails to disclose a cause of action, it may nonetheless be made the subject of an order for the delivery of further and better particulars. 11. That is what happened here. It is a matter of judgment for the court as to whether or not the particulars given operate sufficiently to put the opposing party on reasonable notice as to the nature of the claim which he or she faces, and to define the issues with sufficient precision for the trial to proceed in a satisfactory fashion. 12. The rules as to pleading in the Supreme Court apply in the Magistrates Court by reason of the operation of rule 24 of the Magistrates Court (Civil) Rules 1992. Rule 46.04 of the Supreme Court Rules obliges a party to insert in the pleadings a statement in summary form "of the material facts on which the party relies", (46.04(1)(b)). Separately the rule provides that the plea "contains sufficient particulars of the claim, defence or other matter pleaded" (rule 46.04(1)(f)). So that there is a distinction between pleading material facts and pleading sufficient particulars. As I have said, the absence of material facts gives rise to a pleading which is liable to be struck out as not disclosing a cause of action. The absence of sufficient particulars, on the other hand, may give rise only to an application for further and better particulars to be supplied. 13. In my opinion, the pleading in paragraph 2 of the particulars in this case was defective in various respects. The plea that "the defendants have acknowledged in writing ... that they owe the plaintiff the sum of $14,000" is a plea as to the legal conclusion, or at least a conclusion, to be drawn from the writing relied upon, rather than a plea which accurately states the terms of that writing. 14. There is no indication in the plea whether the defendants both signed the writing, or whether they signed it at all, or whether somebody signed it on their behalf. I would have thought that a preferable plea might have been to the effect that on or about a certain date the defendants signed a paper writing in certain terms, which could then either be set out or in compliance with rule 46.05(1), the effect could be briefly stated. I do not understand the words "effect ... be briefly stated" in rule 46.05(1) to legitimise a plea in the terms in which this plea has been advanced, as I would have thought that 5 in order to put the defendants properly on notice of the nature of the claim, there should have been an indication as to whether or not it was a piece of paper signed by the defendants, and if so, about when and in what terms, whether those terms are summarised or not. 15. Be that as it may, it appears that the defence which the defendants eventually want to raise in this matter will be that, amongst other things, no building work was carried out by the plaintiff, but rather, by a company with which he was associated, which has since gone into liquidation. It seems likely that the defendants will wish to raise by way of defence that even if they signed an acknowledgment of debt having the effect asserted in the particulars, they are not bound by it for reasons which will include a lack of consideration flowing from the plaintiff. 16. I put to Mr Cudmore during the course of his argument that a plea based upon indebitatus assumpsit arising from an acknowledgment of debt should, as a matter of reasonable particularity, if not as a matter of pleading of material facts, identify the consideration for the acknowledgment. Such an acknowledgment does not give rise to an enforceable claim unless there is consideration which may, of course, take the form of a past debt. 17. Here no nexus has been pleaded between paragraphs 1 and 2 of the particulars. There is an assertion that the plaintiff carried out certain building works for the defendants, but there is nothing pleaded to indicate what that has to do with the acknowledgment the subject of the plea in paragraph 2. 18. In my opinion, paragraph 2 ought to be particularised to a sufficient extent to indicate what the consideration was for the acknowledgment, and if it relates to the building works, the particulars should say so. 19. Mr Cudmore argued that the plaintiff did not want to present a case based on the performance of the building work, but rather, he wished to limit the presentation of his claim to a claim based on the acknowledgment only. So be it. The plaintiff does not have to identify a cause of action in the pleading, but only to set out the material facts. It does no harm, however, for the plaintiff to indicate, if necessary at an early stage, that it wants to limit its claim to a claim on a particular cause of action rather than another. The furnishing of particulars identifying the consideration for the acknowledgment asserted in paragraph 2 of the particulars would not oblige the plaintiff to roam any further than a claim based on the acknowledgment and that alone. 20. In my opinion, it was open to the learned Magistrate, given the comments which I have made so far, to yield to the application to furnish particulars, and to make an order along the lines which he did. Of course, it would not be a proper exercise of the power to order particulars to be given of matters of law. The words "basis of claim" in the Magistrate's order might be interpreted to refer to matters of law, but I think the order could be read simply to mean, to give further and better particulars of facts demonstrating the basis of the claim. If read in that way, I would have thought that the order was unexceptional, although perhaps it might have been expressed with better precision. 21. There is a separate attack upon the order which was made. This is based upon some remarks which fell from the learned Magistrate in the course of the hearing which led to the making of the order appealed from. It has been asserted in an affidavit of a Mr Dart, filed in this court, and it has not been disputed by the respondents, that the learned magistrate said before counsel had commenced their submissions before him on the hearing of the interlocutory application "I know all about this rogue Zollo. I see he has changed solicitors again". Mr Dart then deposes to the following:
    "Then he (the Magistrate) said words to the effect that
    the debt claimed in this action was probably owing to Princess
    Homes, which was a company which had gone into liquidation. He
    further suggested that it was likely that Mr Zollo was trying to
    claim the debt for himself to avoid having to give it to the
    liquidator of Princess Homes." 22. It is further asserted by Mr Dart that the learned Magistrate suggested to counsel appearing on behalf of the respondents that he should
    "...check the date of the appointment of the liquidator
    of Princess Homes as it was probably a debt of Princess Homes
    being claimed by the plaintiff. He further stated that Mr
    Minicozzi should check the address on the letters, as Mr Zollo
    had, to his knowledge, in the past sent letters from companies
    using incorrect registered addresses." 23. Clearly those remarks which have been summarised in Mr Dart's affidavit should not have been made. I think it is likely that the remarks would be regarded by an independent fair minded observer as at least having a tendency to indicate that the learned Magistrate had formed a committed and unfavourable view about the plaintiff and about the plaintiff's claim. 24. While robust comments may some times be made from the bench, in my opinion these comments were apt to destroy confidence in the Magistrate's impartiality. It seems to me, therefore, that the order should be quashed on that ground but, for the reasons which I have given, I see no reason why a further order should not be made in the terms of the order as pronounced by the learned Magistrate. 25. Before parting with the appeal I should say, as I have on several other occasions during the course of the present session of hearing of Magistrates appeals, that this Court discourages appeals to it from the Magistrates Court and, for that matter, from the District Court with respect to interlocutory orders and proceedings. 26. Appeals as to such matters have a tendency to disturb the orderly disposal of proceedings and to delay their progress towards trial. They should normally only be entertained where there is a serious question rising which effects the rights of the parties in a substantial way as, for example, as to the entry of a default judgment without a hearing on the merits. 27. Here, although the plaintiff may not have seen the necessity for further particulars to be supplied, particulars could easily have been given in response to the order, identifying the fact that the acknowledgment was given with respect to an indebtedness arising out of certain building works at whatever address they were performed, setting out the manner of execution of the acknowledgment, and that the date upon which the cause of action 9 arose was the date of the alleged acknowledgment. Having given those particulars, the matter could then have proceeded after a defence was in. 28. I cannot help but observe that the money spent on bringing the appeal to this court might have been better applied to taking the matter further down the track towards trial. 29. Be that as it may, for the reasons which I have given, the appeal will be allowed simply for the purpose of quashing the order made and restating it by this court. 30. The appeal is otherwise dismissed.