Arcadia Holdings Pty Ltd v Brown

[2000] WASC 67

ARCADIA HOLDINGS PTY LTD & ANOR -v- BROWN & ORS [2000] WASC 67

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 67
Case No:	CIV:2110/1994	Heard:	10 MARCH 2000
Coram:	MASTER SANDERSON	Delivered:	17/03/00
No of pages:	6	Judgment Part:	1 of 1
Result:	Leave to amend refused
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Parties:	ARCADIA HOLDINGS PTY LTD ALL STATES AUTO IMPORTS PTY LTD ROBERT BROWN JOHN BUTTON DENNIS McCLENNAN MAXWELL HUNTINGTON STEVEN ALLEN COMMONWEALTH OF AUSTRALIA
Catchwords:	Practice and procedure Application for leave to amend statement of claim Turns on its own facts
Legislation:	Motor Vehicle Standards Act 1989
Case References:	Arcadia Holdings Pty Ltd & Anor v Brown & Ors [1999] WASC 267 Commonwealth of Australia v Arcadia Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 970241; 16 May 1997 McKechnie v Campbell (1996) 17 WAR 62

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ARCADIA HOLDINGS PTY LTD & ANOR -v- BROWN & ORS [2000] WASC 67 CORAM : MASTER SANDERSON HEARD : 10 MARCH 2000 DELIVERED : 17 MARCH 2000 FILE NO/S : CIV 2110 of 1994 BETWEEN : ARCADIA HOLDINGS PTY LTD

First Plaintiff

ALL STATES AUTO IMPORTS PTY LTD
Second Plaintiff

AND

ROBERT BROWN
First Defendant

JOHN BUTTON
Second Defendant

DENNIS McCLENNAN
MAXWELL HUNTINGTON
STEVEN ALLEN
Third Defendants

COMMONWEALTH OF AUSTRALIA
Fourth Defendant

(Page 2)

Catchwords:

Practice and procedure - Application for leave to amend statement of claim - Turns on its own facts

Legislation:

Motor Vehicle Standards Act 1989

Result:

Leave to amend refused

Representation:

Counsel:

First Plaintiff : Mr P A Kyle
Second Plaintiff : Mr P A Kyle
First Defendant : Mr P R Macliver
Second Defendant : Mr P R Macliver
Third Defendants : Mr P R Macliver
Fourth Defendant : Mr P R Macliver

Solicitors:

First Plaintiff : Kyle & Company
Second Plaintiff : Kyle & Company
First Defendant : Australian Government Solicitor
Second Defendant : Australian Government Solicitor
Third Defendants : Australian Government Solicitor
Fourth Defendant : Australian Government Solicitor

Case(s) referred to in judgment(s):

Arcadia Holdings Pty Ltd & Anor v Brown & Ors [1999] WASC 267


Case(s) also cited:

Commonwealth of Australia v Arcadia Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 970241; 16 May 1997
McKechnie v Campbell (1996) 17 WAR 62

(Page 3)

1 MASTER SANDERSON: This is the plaintiffs' application for leave to amend in terms of a minute of further amended statement of claim filed 25 January 2000. This is the fourth time the form of the plaintiffs' pleading has been considered by this Court. In the last of these hearings (Arcadia Holdings Pty Ltd & Anor v Brown & Ors [1999] WASC 267) I set out the history of these applications and a brief resume of the facts. I will not repeat what I said in that decision. This case concerns proposed amendments to par 21 and par 22 of the statement of claim. They are central to the plaintiffs' action against the second defendant and the fourth defendant. They merit careful consideration.

2 Paragraphs 21 and 22 in their amended form, read as follows:

"21. The Second Defendant, on behalf of the Federal Government, having announced:

(a) on 29 May 1984 the Button Car Plan;

(b) on 13 April 1988 an amendment to the Button Car Plan which involved the accelerated reduction of tariffs on all imported passenger motor vehicles from 45 per cent to 35 per cent in 1992.

in March 1991, in an Industry Statement, 'Building a Competitive Australia', publicly stated that under the Federal Government's motor vehicle industry policy, which would replace the Button Car Plan, there would be a further reduction in tariffs on all imported passenger motor vehicles from 35 per cent to 15 per cent in the year 2000.


22. By the statement pleaded in paragraph 21, and in the context of the matters pleaded in paragraphs 12 - 20, the Second Defendant represented to the Plaintiffs that:

(a) The Federal Government did not intend to prevent the importation of high volumes of second hand motor vehicles; and

(b) No legislation of the Federal Parliament was intended to operate as a barrier to the importation of high volumes of second hand motor vehicles; and

(Page 4)

(c) The Federal Government's policy was to reduce tariffs on all imported motor vehicles until the year 2001."

3 No objection is taken by the defendants to par 21 of the minute. The defendants say that the representations pleaded by the plaintiffs in par 22 could not arise from the announcements made by the defendants and pleaded in par 21 of the minute. During the course of his submissions, counsel for the defendants conceded that the representation pleaded in par 22(c) could be drawn from the announcements pleaded in par 21. However, as counsel submitted, what is pleaded in par 22(c) is really of no consequence and is not picked up elsewhere in the minute to found a cause of action by the plaintiffs against the defendants. What is important for the plaintiffs' case is the pleading in par 22(a) and (b).

4 Before considering whether or not the representations as pleaded in par 22 are open it is necessary to say something of par 12 through to par 20, given these paragraphs are referred to in par 22.

5 Paragraph 12 pleads that in May 1989 the first defendant announced the Federal Government's intention to introduce legislation requiring all vehicles offered for sale for the first time in Australia to comply with all Australian Design Rules ("ADR"). Paragraph 13 pleads that this intention resulted in the passing of the Motor Vehicle Standards Act 1989 ("the MVSA"). Paragraph 14 pleads the effect of the MVSA, including a requirement in the legislation that there was a particular regime in place for ensuring compliance with the legislation of vehicles imported in large volumes. Paragraph 15 pleads that the plaintiffs, faced with the MVSA, enquired of the first defendant whether the certification procedures would inhibit the development of a commercial business importing high volumes of used vehicles. It is pleaded that the plaintiffs were assured that the sole purpose of the MVSA was to ensure compliance with ADR. This effect of the representations is pleaded by par 16.

6 Paragraph 17 pleads that the representations were false. It is said that the purpose of the MVSA was to erect a non-tariff barrier to the importation of high volumes of second hand motor vehicles consequently rendering such an undertaking uneconomic.

7 Paragraph 18 pleads that the representations made by the first defendant to the plaintiffs were made knowing the plaintiffs would rely upon them in making decisions about the commercial importation of vehicles.

(Page 5)

8 Paragraph 19 pleads that the representations made by the first defendant were false and the first defendant knew as much. Paragraph 20 pleads to the same effect with respect to the second defendant.

9 During the course of his submissions, counsel for the defendants tendered a copy of the document referred to in par 21 "Building a Competitive Australia" dated 12 March 1991 and is described as a statement by the first defendant. The statement might be described as an outline of the Government's economic policy. The thrust of the statement can be summarised by quoting from the introduction:

"Since 1983 we have had an unchanging commitment to the concept of a growing and internationally competitive industry. Our strategies have been aimed at building a more productive culture within industry and the community generally, revitalising our mature industries and fostering the growth of new industries.

...

This statement will continue to build the base for continued growth in the 1990s. It involves the Government setting the environment for an internationally orientated, forward looking industry able to compete vigorously with foreign companies and to share in the growing prosperity of this region."

10 There then follows the sub-heading "Reducing Protection". A further sub-section deals with Passenger Motor Vehicles. The sections deal with the tariff regime in relation to motor vehicles from 1984 up to the date of the statement and then continues:

"The new arrangements announced today reinforce the stability of the previous Plan and provide firms with certainty in the assistance framework they will face until the year 2000. Without such certainty firms would be reluctant to undertake the investments needed.

They also maintain the policy direction already established by continuing the existing rate of tariff reductions, while making the Export Facilitation Scheme more flexible and rewarding to those firms prepared to make the investments needed to considerably expand their exports".

(Page 6)

11 The statement then goes on to detail the reduction in tariffs referred to in par 21. The only mention of the import of motor vehicles has to do with imports of luxury motor vehicles by certain mentioned corporations. There is nothing in the statement whatever to do with high volume importation of used motor vehicles.

12 Even taking into account what is pleaded in par 12 through to par 20, in my view the representations pleaded in par 22(a) and (b) cannot arise out of the statement. The statement is addressed not at the importation of second hand vehicles but at industry policy as it concerned the manufacture and export of motor vehicles. In reality, what is being argued by the plaintiffs is that the silence in the statement on the question of the importation of second hand motor vehicles leads to the representations as pleaded. I am not satisfied that such a plea is reasonably open and I would not allow the amendments contained in par 21 and par 22 of the minute.

13 The defendants also complained about par 23 of the minute. That paragraph reads as follows:

"23. Each of the representations pleaded in paragraph 22 was false in that, when they were made:

(a) the Federal Government was opposed to the importation in high volumes of second hand motor vehicles and intended to take such measures as were necessary to prevent the same.

(b) the MVSA was intended to operate as a non-tariff barrier to the importation in high volumes of second hand motor vehicles."

14 It was submitted by counsel for the defendants, that as the plaintiffs could not obtain access to minutes of Cabinet meetings and other briefing papers associated with Cabinet decisions, the matters alleged in par 23 could not be proved. In my view there is no substance in that objection. How the plaintiffs go about proving what is alleged in par 23 is a matter for trial. There is nothing objectionable about the plea being raised, nor indeed is there anything objectionable as to its form.

15 I will hear the parties as to the precise form of orders.