Amodin Pty Ltd v The Australia Society of Accountants

[1987] FCA 360

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	)	V. No. G 357 of 1386
I
GENERAL DIVISION	)

AMODIN PTY. LTD. and

INFORMATION MARKETING SERVICES PTY. LTD. Applicants

and

THE AUSTRALIAN SOCIETY OF ACCOUNTANTS Respondent

m: NORTHROP J.

U: 11 MAP 1987

PLACE: MELBOURNE

M TEMPORE REASONS FOR JUDGMENT

In this matter the appllcants are moving the Court

for an order that the respondent provide further and better

particulars of paragraphs 6 and 7 of its defence. In summary form the clalm 1s brought by the appllcants against the

respondent pursuant to 5 . 4 6 of the Trade Practices,

relatlon to a market	whlch	is defined in paragr
statement of clalm.

Faragraph 6 of the statement of claim !afPegespnltCIRBt , 1

\ . RELISTPI

the respondent publishes and has published a monthly '~aurnal'

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called "The Australlan Accountant" which contalns or includes

lnformatlon and advertlsements of professlonal relevance and

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asslstance to accountants which It sells and dlstrlbutes t o

Its members and others and has monthly sales of apprvxlmately

0'3,000 coples. In Its defence to that paragraph, tt,,e

respondent admits that ~t publishes and dlstributes and has

at all materlal tlmes published and distributed a monthly

journal called "The Australian Accountant" which includes

informatlon and advertisements of professlonal relevance and

asslstance to accountants and save as aforesaid it does not

admit any of the allegations In paragraph 6 .

Paragraph 7 of the statement of claim in substance

alleges that the respondent has prior to and since 1 June

1986 conducted and has contlnued to conduct for reward

professlonal seminars, courses and conferences on toplcs of

accountancy and finance relevant and of assistance to

practltioners in the accountlng, legal and medical

professlons and has published and continues to publish for

reward, books, manuals and technlcal asslstance guldes on

topics of accountancy and finance relevant and of assistance

to practltioners In the accounting, legal and medical

professions. In its defence to that paragraph the respondent

admits it has from time to time conducted seminars, courses

and conferences on topics of accountancy and finance relevant

and of assistance to accountants and published manuals and

technical assistance guides on toplcs of accountancy and

finance relevant and of assistance to accountants and save as

aforesaid does not admlt any	of the allegations contalned In
paragraph 7 .

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The applicants have souqht further partlculars of

the defence to paragraph 6 , namely, of the places In whlch

and the persons to whom the respondent publishes and

dlstributes the monthly ~ournal called "The Australlan

Accountant." The respondent has refused to glve those

partlculars on the basis that the applicants are not entitled

to them. The applicants are seeklng further partlculars of

the allegatlons contalned In the defence to paragraph 7

seeking the dates and places and toplcs and names and

descrlptions of semlnars and varlous publlcatlons referred to

in paragraph 7 of the defence, whether admltted or not

admitted. In response, the respondent has sald that It has

conducted hundreds of seminars throughout Australla at

various locations on diverse sublects which are of Interest

to accountants and that the applicants are not entitled to

the further particulars sought.

The purpose of particulars are descrlbed in a

number of authorities, including this Court; see H. 1976

Nominees Ptv. Ltd. v. (1979) 40 F.L.R. 242 . The matter

has also been ralsed In cases where particulars have been

sought of matters ralsed by way of defence. The purpose of

particulars is summarised neatly by Isaacs J. in The Kinq v.

The Assoclated Northern	Collieries (19101 11 C.L.R. 738 at
pp.740-1 as follows:-

"I take the fundamental prlnclple to be that

the opposlte party shall always be falrly apprlsed

of the nature of the case he 1s called upon to

meet, shall be placed In possession of its broad

outlines and the constltutlve facts whlch are sald

to raise hls legal liablllty. He 15 to receive

sufficlent lnformatlon to ensure a falr trial and

to guard against what the law terms 'surprlse,' but

he 1s not entltled to be told the mode by	which the
case is to be proved agalnst hlm."

Normally one comes across a claim for better

particulars where an allegation has been made and particulars

are necessary to identify just what those allegations are so

as to enable the other party to avoid being taken by

surprise. In the present case, the respondent is not making

any allegations at all. The applicants have made a number of

allegatlons in the statement of claim, lncluding those in

paragraphs 6 and 7. The respondent, If so advised, could

have denied the allegations contained in paragraphs 6 and 7

in which case it is clear that no particulars could have been

obtained of that denial. You lust need to state that in that

form to illustrate the unreality of the need for partlculars

of a denial where the person making allegations is requlred

in law to prove the facts alleged. But in order to enable

the Court to function efficiently and well, a party is

required to try to limit the issues which are in dlspute

between the partles. I referred to thls aspect of the matter

in the case of Crollo & Co. Pty. Ltd v. Hammond (1977) 16

A.L.R. 123 at p.126. More recently in a case which is

unreported, Johns & Lvns Group Ftv. Ltd. v. Eldawood

Enterprises Fty. Ltd., 6 Aprll 1987, I deprived a party of

part of its costs for the failure of Its pleadlng in not

admlttlng matters whlch should have been admitted and In

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failmg to Identify clearly the issues to be ralsed. Thls is a matter whlch can be dealt wlth on the questlon of costs. I

mention that as an lndlcatlon of the vlew which a Court takes

of pleadings belng In a proper form.

In the present case, the respondent has made some

admissions and not admitted other facts. Insofar as an

admission is mad*, there 1s no longer any Issue ralsed

between the parties as to those facts. For the purposes of

the trial they are admltted and no evldence need be called.

Insofar as a non-admlsslon 1s pleaded, the person making the

allegation is stlll required to prove the facts not admltted.

There is no need, in those clrcumstances, for any particulars

to be given of a non-admission. The allegation made is by

the applicants In the present case. There 1 s no allegation

made by the respondent whatsoever. It has merely ldentlfied

those matters of fact which it says It will not dispute and

identified other matters of fact which It does not admlt. In

those clrcumstances, there is lust no room for the ordering

of particulars of either the admission or the non-admission.

I agree wlth the vlew expressed by Plncus J. In ‘U

Practice Commission v.	Leslievale Pty. Ltd. (1986) B.T.P.R.
40,679.

Accordingly, I refuse the motlon in this case and,

in accordance wlth normal practlce, order that the

respondent’s costs of the motion be paid by the appllcants.

1 certlfy that this and the four (4 ) preceding

pages are a true copy of the Reasons for Judqrent

herem of the Honourable Mr. Justlce R.M. Northrop.

.ghtlnlo 2 - L J L h x bNUb

11 May 1987