ANSAC Pty Ltd v RESOURCIA Ltd
[2013] WASC 47
ANSAC PTY LTD -v- RESOURCIA LTD [2013] WASC 47
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 47 | |
| Case No: | CIV:2200/2012 | 14 FEBRUARY 2013 | |
| Coram: | MASTER SANDERSON | 26/02/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application adjourned until after discovery | ||
| B | |||
| PDF Version |
| Parties: | ANSAC PTY LTD (ACN 009 301 731) RESOURCIA LTD (ACN 144 963 486) SEAN KENNETH McCOY EDWIN DANIEL O'CALLAGHAN GAVIN PATRICK DE BRES NEIL KENNETH GAIR RONALD HENRY DE BRES |
Catchwords: | Practice and procedure Application for further and better answers to request for particulars Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
RESOURCIA LTD (ACN 144 963 486)
First Defendant
SEAN KENNETH McCOY
Second Defendant
EDWIN DANIEL O'CALLAGHAN
Third Defendant
GAVIN PATRICK DE BRES
Fourth Defendant
NEIL KENNETH GAIR
Fifth Defendant
RONALD HENRY DE BRES
Sixth Defendant
(Page 2)
Catchwords:
Practice and procedure - Application for further and better answers to request for particulars - Turns on own facts
Legislation:
Nil
Result:
Application adjourned until after discovery
Category: B
Representation:
Counsel:
Plaintiff : Mr P C Doherty
First Defendant : Mr I F Tait
Second Defendant : Mr I F Tait
Third Defendant : Mr I F Tait
Fourth Defendant : Mr I F Tait
Fifth Defendant : Mr I F Tait
Sixth Defendant : Mr I F Tait
Solicitors:
Plaintiff : Slee Anderson & Pidgeon
First Defendant : Tait & Co
Second Defendant : Tait & Co
Third Defendant : Tait & Co
Fourth Defendant : Tait & Co
Fifth Defendant : Tait & Co
Sixth Defendant : Tait & Co
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MASTER SANDERSON: This is the defendants application seeking to have the plaintiff provide further and better answers to the defendants' request for particulars. The request was delivered on 15 August 2012. It runs to 23 pages and there are 69 separate requests many of which have subparagraphs. Answers were provided on 20 September 2012. The plaintiff has answered many of the requests but has raised two principle objections to others. First, the request seeks evidence; second, further particulars will be provided after discovery. The defendants say the answers are inadequate.
2 Before dealing with the application in detail I should make two general comments. First, it is not the defendants' position the failure to provide particulars has prevented the defendants pleading to the statement of claim. A defence and an amended defence have been filed. A reading of the amended defence makes it plain the defendants have been in a position to answer in some detail the pleas put in the statement of claim. This is not a case where the defendants are, in the interests of effective case management, seeking to overcome obvious defects in the statement of claim by requesting particulars.
3 Second, the need for particulars has been reduced by the practice of requiring the parties to exchange witness statements prior to trial. That is not to say the defendants in this case are not entitled to a properly particularised statement of claim. But in circumstances where the defendants will know well in advance of trial what evidence will be put against them, it is difficult to see how they could be taken by surprise by a lack of particulars. While none of that affects the defendants' rights it does perhaps make the need for full particulars less urgent.
4 Turning to the statement of claim what the plaintiff alleges against the defendants is effectively a conspiracy. The plaintiff is a company engaged in developing, manufacturing and selling gasification equipment to convert waste material to fuel. It both installs and maintains such equipment and it operates worldwide. Since July 2010 the first defendant has been a competitor of the plaintiff. The second to sixth defendants were employees of the first defendant. By way of example the second defendant commenced employment with the plaintiff in July 2008 until his employment was terminated in April 2011. Since 1 July 2010 he has been a shareholder of the first defendant. The third, fourth and fifth defendants were both shareholders and directors of the first defendant. There is no direct connection pleaded between the first defendant and the sixth defendant other than to point out the sixth defendant is the brother of the fourth defendant.
(Page 4)
5 The plaintiff pleads against the defendants a number of what is referred to as 'incidents'. The first of these pleas found in pars 30 - 38 is described as the 'Thermeco Incident'. The plaintiff alleges during February 2011 it was conducting trials of a Test Kiln at its premises in Bunbury. It alleges the third defendant was responsible for bringing the Test Kiln up to operating temperature. The purpose of the test was to demonstrate to Thermeco Ltd the capacity of the kiln with a view to selling the process in the United Kingdom. The plaintiff alleges the third defendant was aware unless sufficient air supply was supplied to the Test Kiln it would emit black smoke. That could be prevented by introducing additional air to the Test Kiln. The plaintiff alleges the third defendant deliberately limited the air flow to the Test Kiln so black smoke was emitted and the Environmental Protection Authority closed down the test. Moreover it is alleged the second defendant knew what was afoot and notified the Environmental Protection Authority the Test Kiln was emitting black smoke. In effect the plaintiff is alleging a conspiracy, at least on the part of the second and third defendants, to ensure its product was not purchased by Thermeco Ltd.
6 After pleading various 'Incidents' there is a general plea the first defendant was set up with a view to competing against the plaintiff. The plaintiff alleges the formation of the first defendant took place by agreement between at least the second to fifth defendants and was effectively a conspiracy to damage the plaintiff's commercial interests. There are pleas of fiduciary duty owed by each of the second to sixth defendants to the plaintiff and allegations the first defendant, through the agency of the other defendants, has used the plaintiff's intellectual property.
7 (Lest there be any misunderstanding I should make it clear the defendants do not admit these serious allegations. There are certain admissions in the amended defence relating to the second to sixth defendants' employment with the plaintiff and the attendant duties that flow therefrom. But the defendants make no admission they have engaged in any of the activities alleged by the plaintiff or that they have conspired to damage the plaintiff's interests.)
8 One of the paragraphs to which the 'evidence objection' is taken is request number 1 which relates to par 31(i) of the statement of claim. The request is as follows:
State all acts, facts, matters or things by virtue of which it is alleged that O'Callaghan was responsible for bringing the Test Kiln to operating temperature.
(Page 5)
9 The plaintiff objected to answering that request on the basis it sought evidence 'in that it is an enquiry into the manner in which a material fact will be proved at trial'.
10 In my view the objection to answering the request is properly made. There must inevitably be an overlap between material facts, particulars and evidence. It is not always easy to draw the line between one and the next. But in my view this is an example where evidence is being sought. Perhaps it is the case the third defendant was instructed by his immediate superior to bring the Test Kiln up to operating temperature. The evidence of that witness would be used to establish the material fact. It is not a matter of particulars.
11 It is unnecessary to go through each and every paragraph where the objection is put. There are instances where the position is less clear than the example I have quoted above. But overall I am satisfied the objections are properly taken and the requests need not be answered.
12 In relation to providing further particulars after discovery and inspection I am satisfied the plaintiff's position is reasonable. Again an example will illustrate the position. In par 48 of the statement of claim it is alleged a customer, or potential customer of the plaintiff, established contact with the first defendant such contact being facilitated and promoted by the second to sixth defendants. The plaintiff is asked to provide particulars of the contact. Clearly it is not in a position to do so. Any documents which might evidence the contact are in the possession of the defendants. The plaintiff may be able to infer from events as they unfolded there was some contact but they should not have to provide particulars prior to discovery.
13 During the course of his submissions counsel for the defendants maintained the plaintiff had in effect got things back to front. He submitted pre-action discovery should have been obtained because what had now happened was a plea had been put without an adequate evidentiary basis and the plaintiff was doing no more than fishing in the discovery process.
14 In my view that submission elevates the right of a party to obtain pre-action discovery to something approaching an obligation. There is nothing improper in a party who is satisfied it has a cause of action taking action and allowing the normal litigation process to proceed. In fact in the example I have quoted it may be possible for the plaintiff to refer to particular facts which by inference might lead it to the view there was
(Page 6)
- contact between its client and the defendants. The plaintiff is not saying it will not answer the particulars. What it is saying is it wants the opportunity to see what documents are thrown up by discovery and perhaps to interrogate before it provides a further answer. In my view that is a reasonable position to adopt.
15 Once again the position varies somewhat between the different requests. But to my mind the most cost effective and expeditious way to deal with this matter is to hold over the ordering of further particulars until discovery, inspection and perhaps the administration of interrogatories has taken place. That is what counsel for the plaintiff submitted should be done and that is the course I propose to adopt.
16 In the end I think the proper approach at this stage of the proceedings is to adjourn the summons sine die. When further interlocutory processes have been completed the defendants should be at liberty to bring the summons on again with a view to obtaining the further particulars they seek.
17 The costs of the application will be reserved.
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