Auspine Ltd v H S Lawrence and Son Pty Ltd

[1998] FCA 301

FEDERAL COURT OF AUSTRALIA

PLEADINGS - statement of claim - application to strike out sections thereof - need to identify the cause of action as pleaded - laxity in pleading - exercise of discretionary power

Trade Practices Act 1974 Cth)

Warner v. Elders Rural Finance Ltd (1993) ATPR 41-238 distinguished
H1976 Nominees Pty Ltd v Galli (1979-1980) 30 ALR 181 cited
Bruce v Odhams Press Ltd (1936) 1 KB 697 cited
Zeiss Stiftung & Rayner & Keller Limited No 3 (1970) Ch 506 cited
Hampshire County Council v Shonleigh Nominees (1971) 1 WLR 865 cited

The Law Relating to Actionable Non-Disclosure (Butterworths 1990)

AUSPINE LIMITED v H S LAWRENCE & SON PTY LTD & EMAIL LIMITED
NO SG 28 OF 1997

O’LOUGHLIN J
ADELAIDE
31 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 28 of 1997

BETWEEN:

AUSPINE LIMITED
APPLICANT

AND:

H S LAWRENCE & SON PTY LTD
FIRST RESPONDENT

EMAIL LIMITED
SECOND RESPONDENT

JUDGE:

O'LOUGHLIN J

DATE OF ORDER:

31 MARCH 1998

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1. Leave be granted to the applicant to file and serve a further amended statement of claim within twenty one days of this date in terms substantially consistent with the reasons of the Court this day published.

1. The notice of motion filed herein on behalf of the respondent H S Lawrence & Son Pty Ltd be dismissed.

1. The said respondent pay 90 per cent of the applicant’s costs of and incidental to the said notice of motion and the order of the Court this day made which costs are to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 28 of 1997

BETWEEN:

AUSPINE LIMITED
APPLICANT

AND:

H S LAWRENCE & SON PTY LTD
FIRST RESPONDENT

EMAIL LIMITED
SECOND RESPONDENT

JUDGE:	O'LOUGHLIN J
DATE:	31 MARCH 1998
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

H S Lawrence & Son Pty Ltd (“the respondent”) has moved the Court on notice dated 28 January 1998 (as amended by notice dated 6 February) for orders that several paragraphs in the applicant’s amended statement of claim (“the ASC”) be struck out.  The applicant, Auspine Ltd (“Auspine”) has claimed damages, including exemplary damages, as a result of its purchase from the respondent of the whole of the issued shares in the capital of three companies, Cowells Pty Ltd, Cowells Investments Ltd and Cowells Group Ltd (collectively referred to hereafter as “Cowells” or “the Cowell Group”).

As at 29 June 1995, (“the settlement date”) and at all times beforehand that are material to these proceedings, the companies in the Cowell Group were wholly owned subsidiaries of the respondent which was, in turn, a wholly owned subsidiary of the second named respondent Email Ltd.  Early in 1995 the business of the Cowell group was advertised for sale; Auspine responded to that advertisement.  Auspine, at that stage, carried on business as a timber processor and manufacturer and Cowells’ business was also orientated to the timber trade and general building products.  These and other routine introductory matters are set out in pars 1 to 4 of the ASC.

The paragraphs in the ASC that are the subject of the strike out application are numerous but they can conveniently be divided into six groups.  There is also a seventh group of paragraphs to which reference must also be made.  I turn now to each of those groups:

1. PARAGRAPHS 5, 6, 8, 12, 13, 15, 17, 18, 19, 24, 25, 26, 37, 38, 40, 42, 45, 48, 49 AND 51

Paragraphs 5 to 50 inclusive of the ASC set out a summary of the relevant events that occurred from the date on which Auspine first showed interest as an intending purchaser of Cowells until the submission of a facsimile transmission dated 8 May 1995 from Mr Lamond of the respondents, H S Lawrence/Email to Mr De Bruin of Auspine.  Then, in par 51 Auspine pleads as follows:

“The documents and representations referred to in paragraphs 5, 6, 8, 12, 13, 15, 17, 18, 19, 24, 25, 26, 37, 38, 40, 42, 45, 48, and 49 hereof are hereinafter collectively referred to as “the Representations”.”

The use of the word “Representations” in par 51 was an unfortunate choice:  it has been the cause of misunderstandings as will become apparent in due course.  Most of the paragraphs that are referred to in par 51 of the ASC do not contain any allegation of a “representation”, or of a “misrepresentation”, using those words in their conventional sense.  There are some allegations - for example in pars 24 and 25 - where one might tease out a representation; there are also some incidental references to “reliance” in pars 27 and 35.  But in the main, these early paragraphs in the ASC list the documents that were given or shown to Auspine and specify details of oral statements that were made to Auspine.  Nowhere in pars 5 to 50 (inclusive) is there a specific plea that the contents of any document or the contents of any oral statement were false, inaccurate, misleading or deceptive.  It is because of this that I have said that the use of the word “Representations” in par 51 was an unfortunate choice.  The documents and the oral statements would have been better identified if the pleader had used a neutral word such as “the information” or “the statements”.  But the submissions by the respondent that the word “Representations” should be read as being used in its natural and ordinary meaning must be rejected because the pleader has given the word a defined meaning in par 51 of the ASC.

As it is, the presence of the word “Representations” signals an expectation that in due course there will be an allegation in the ASC that the “Representations”, or some of them at least, were false in a material particular.  However this is not Auspine’s case.  Auspine does not allege that any of “the information” or “the statements” in the selected paragraphs within the range of pars 5 to 50 (inclusive) were false or incorrect at the time when they were given or made to Auspine.  On the contrary, as presently advised, Auspine accepts that, at the time of their giving or making, the information and statements were true and correct:  see subpar 84A.1 of the ASC.

Auspine’s complaint is to be found in subpars 84A.2 and following of the ASC.  That subparagraph reads as follows:

“In resolving to enter into the Share Sale Agreement Auspine relied on the Representations believing the Representations to be materially correct and truthful at the time of the Share Sale Agreement.”

That subparagraph would have been less confusing if it had read:

“In resolving to enter into the Share Sale Agreement Auspine relied on the information believing that information to be materially correct and truthful at the time of the Share Sale Agreement”.

Subpars 84A.3 and 84A.4 then list the first step in crystallising Auspine’s cause of action.  They plead:

“84A.3There were changes in the circumstances of Cowell’s Business material to the sale of the Shares in the period between the due diligence and the Share Sale Agreement (“the Material Changes”).

84A.4The Material Changes are contained in the documents described in paragraphs 68, 69, 70, 71 and 72 hereof and are as described in paragraphs 74 and 75 hereof.”

Thereafter the second step emerges with a plea that H S Lawrence/Email were under an obligation, but failed to disclose to Auspine the material changes.  There then follows, immediately after a series of paragraphs dealing with Auspine’s alleged losses, a heading “Causes of Action” and a sub-heading “Fraudulent Misrepresentation/Deceit”.  Paragraphs 89 and 90, the first two paragraphs appearing after the sub-heading, identify Auspine’s cause of action in these terms:

“89The Representations comprised representations of fact made to Auspine

90The Representations, due to the supervening events particularised in paragraphs 74 and 75 hereof, became false.  HS Lawrence and Email were charged, upon acquiring knowledge of the supervening events, to reveal the same to Auspine by way of correction or modification of the Representations prior to Settlement.”

Mr Ross-Smith, counsel for Auspine, relied on passages in Spencer Bower’s “The Law Relating to Actionable Non-Disclosure”: (Butterworths 1990) to support Auspine’s cause of action as so pleaded.  The first of those passages appear at pp 211-212 and the presence of the word “representation” in it suggests that this may be the origin of that word in par 51 of the ASC.  The passage reads as follows:

“12.07A very important type of case in which a duty of disclosure springs into being in the course of the negotiations is where, the party charged having made a representation in the first instance, facts supervene before the conclusion of the contract which have an effect on either the veracity, or the verity, of the original statement.  During the above-mentioned intervening period the situation may be altered in two ways: and, in both cases, a duty of disclosure is created by the change.  That rule, as to both, is well stated by Fry J. in a memorable judgment where, after dealing with the initial and absolute duty of disclosure in contracts and relations uberrimae fidei, he proceeds:  “again, in ordinary contracts, the duty may arise from circumstances which occur during the negotiations.  Thus, for instance, if one of the negotiating parties had made a statement which is false in fact, but which he believes to be true, and which is material to the contract, and during the course of the negotiations he discovers the falsity of that statement, he is under an obligation to correct his erroneous statement; although, if he had said nothing, he very likely might have been entitled to hold his tongue throughout.  So, again, if a statement has been made which was true at the time, but which in the course of the negotiations becomes untrue, then the person who knows that it has become untrue is under an obligation to disclose to the other the change of circumstances.”

There then follows a footnote:

“An interesting (and more recent) case is With v O’Flanagan, [1936] Ch. 975.  Here in the course of negotiations for the sale of a medical practice a representation (then true) was made as to the takings.  Subsequently the practitioner became ill, and the practice fell away.  In these circumstances the Court of Appeal had no hesitation in holding that a duty of disclosure was laid by events upon the vendor.”

The second passage, which appears at p 213, uses the word “statement” in place of “representation”:

“Where the statement made in the first instance was in fact true when made, that is to say, in substantial accord with the material facts then existing, but, by reason of supervening events becomes false before the contract is concluded, that is to say, becomes in substantial disaccord with the complete facts existing at the later date, it is no less clear and well established that the party charged, if and when he acquires knowledge of the supervening facts, comes at once under an obligation to reveal them to the other partly, by way of correction or modification of his original statement, and, if he fails to discharge this obligation, is liable at least to the extent to which a non-disclosing party is ordinarily liable; that is, to have the contract avoided, or, if he sues upon it, treated as void.”

The passages that I have quoted from Spencer Bower’s work have satisfied me that an applicant is entitled, as a matter of principle, to plead a cause of action in the terms set out in the ASC.  But Mr Martin, counsel for the respondent, in his written submissions put forward the following proposition:

“The content of a representation as to a past or historical fact (which is not alleged to be untrue, false or incomplete at the time it was made) cannot be converted into a false or untrue representation by reason of subsequent events:  see generally - Warner v. Elders Rural Finance Ltd (1993) ATPR 41-238 at 41,234-5.”

In my opinion, Warner’s case is not authority for that proposition.  Warner’s case dealt principally with the question of “silence” and the Full Court addressed that question for the purpose of considering whether the applicants had established a cause of action upon the premise that the respondents had failed to explain to the applicants certain aspects of the prevailing financial system.  In the course of their joint judgment, Foster and Drummond JJ quoted with approval an extract from Professor Fleming’s The Law of Torts, 8th Ed pp 630-631.  That extract, which dealt with the issue of “silence” and the primary submission that mere silence is not actionable, did, however, also address the issue of statements that are subsequently found to be inaccurate.  As to that the learned author said:

“Secondly, one who makes a false statement honestly believing it to be true but later discovers it was false, or one who makes a true statement later events falsify, must correct it any time before the deal is actually closed.”

I therefore approach the complaints that the respondent has voiced in the light of my finding that an applicant is entitled to plead that a respondent, having made a statement that is subsequently found to be false, has a duty to disclose the falsity.  This, in turn, then leads me to the conclusion that much of what has been the subject of complaint by the respondent is misconceived.  That misconception has arisen because the respondent has taken the use of the word “Representations” as being in its traditional mode. Where, in a conventional claim under s 52 of the Trade Practices Act 1974 (Cth) (“the TPA”), there is a claim of a representation, one is accustomed to finding a succession of pleas (with appropriate particularity) to the effect that the representation was false in a material particular, that the representee was induced to and did rely on the misrepresentation and that damage was suffered as a result.  In such a conventional case, the many authorities to which counsel for the respondent referred become highly relevant.  But as I have attempted to explain, the case presently under consideration is materially different.  In pars 74 and 75 of the ASC there are allegations that “material information was withheld” from Auspine and that specific documents were not conveyed to it.  In subpar 84A.6 there is then the final link in Auspine’s chain.  It pleads:

“By the time of Settlement the Representations had because of the Material Changes, become incomplete and in part untrue and misrepresentations, namely to the extent described in paragraphs 74 and 75 hereof.”

It would seem, with respect, that counsel for the respondent has not addressed this point adequately.  Relying upon the use of the word “Representations” in the ASC, and building upon it as if there were to be subsequent allegations that, statements, when made, were false in a material particular, the real thrust of the applicant’s complaint has been overlooked.  For example, in par 5 of his written submissions, counsel for the respondent submitted:

“The causes of action Auspine seek to plead against H S Lawrence and Email are:

(a)H S Lawrence and Email made fraudulent misrepresentations and ...

But that is not correct.  The cause of action is that the respondents engaged in fraudulent misrepresentations as a result of their failure to inform Auspine that statements that were correct at the time when they were made had, because of “material changes”, become inaccurate.

In my opinion the respondent fails in its  application to have pars 5, 6, 8, 12, 13, 15, 17, 18, 19, 24, 25, 26, 37, 38, 40, 42, 45, 48, 49 and 51 of the ASC struck out.

1. PARAGRAPHS 76 AND SUBPAR 84A.6

The respondent complains that par 76 of the ASC in its reference to “the Representations” is defective.  The paragraphs reads as follows:

“As at the date of the Share Sale Agreement and the Settlement the Representations were false and untrue as herein described.”

Counsel for the respondent submitted that the suggestion that the Representations were false and untrue “as herein defined” makes it impossible to plead this paragraph.  He further complained that the preceding paragraphs do not enable a reader of the ASC to determine which “Representations” became false or untrue nor do they enable a reader to determine the precise extent to which they became false or untrue and when they became false or untrue.

There is, in my opinion, a short answer to the complaint.  The phrase “as herein described” is to be read, in my opinion, in conjunction with subpar 84A.6 and its references to the contents of pars 74 and 75.  Subparagraph 84A.6 introduces the allegation that the “Representations” had become misrepresentations to the extent described in pars 74 and 75.  The respondents complaint has not been made out.

1. PARAGRAPHS 65, 79, 80 AND 81

Auspine concedes that these paragraphs need to be amended.  Leave is granted accordingly.

1. PARAGRAPHS 89, 90, 91, 92, 93, 94, 95, 96, 99 AND 100

The respondent claims that each of these paragraphs should be struck out because, by the inclusion in them of the words “the Representations”, the pleadings are defective.  I set out hereunder the contents of the challenged paragraphs:

“89.The Representations comprised representations of fact made to Auspine.

90.The Representations, due to the supervening events particularised in paragraphs 74 and 75 hereof, became false.  HS Lawrence and Email were charged, upon acquiring knowledge of the supervening events, to reveal the same to Auspine by way of correction or modification of the Representations prior to Settlement.

PARTICULARS

The Representations became false in the respects pleaded in paragraphs 74, 75 and 76 hereof.

91.The persons making the Representations (“the Representors”):

91.1Did so on behalf of HS Lawrence and Email;

91.2Knew that what they stated was false;

91.3In the alternative, had no belief in the truth of the same; or

91.4In the further alternative, were indifferent to whether the same was true or false.

92.The Representations were made by HS Lawrence/Email with a view to inducing Auspine to enter into the Share Sale Agreement at a future date.

93.As a matter of law HS Lawrence and Email are taken to intend that the effect of the Representations should continue.

94.The Representations as known to HS Lawrence/Email having become untrue during the course of the Negotiations, HS Lawrence and Email was under an obligation to disclose to Auspine the change of circumstances.

95.In the foregoing premises the Representations are, as a matter of law, to be treated as continuing representations and during the negotiations became misrepresentations.

96.HS Lawrence and Email knew that the misrepresentations were false and untrue and the misrepresentations were made by them intentionally fraudulently and deceitfully.  Auspine repeats paragraphs 74 to 84 (inclusive) hereof.

97....

98....

99.The Representations were acted upon by Auspine in the manner pleaded in paragraphs 28-63 hereof.

100.The conduct of HS Lawrence and Email by the Representors comprised fraudulent misrepresentation(s) and deceit.”

In view of the conclusions that I have reached when considering the first group of paragraphs, I am generally of the opinion that these pleadings are entitled to stand.  Paragraph 51 has defined “the Representations” as meaning the “documents and representations” that are referred to in the first group of paragraphs and paragraph 90 then pleads that some of them (being those particularised in pars 74 and 75) became false.  Paragraph 91 must be incorrect; if the applicant successfully proves its case as pleaded, the representors did not know that the representations were false at the time when they were made.  The correct position as I understand the case that was put on behalf of Auspine is found in par 94:  that is, the representations subsequently became false.  Paragraph 91 should be struck out with leave to the applicant to replead if it be so advised.  Subject to this anomaly I am of the opinion that the respondent’s complaint with respect to this group of paragraphs is without substance.

1. 5.1      PARS             102, 103, 104, 105
              5.2      PARS             107A
              5.3      SUBPARS     119.1, 119.2, 119.3, 119.4, 119.5, 119.6, 119.7,
     119.8, 119.11, 119.12, 120.1  120.2, 120.3, 120.4

Although the respondent presented argument globally with respect to these paragraphs and subparagraphs of the ASC, and although the applicant likewise approached the matter globally, I have found it necessary to break the challenged provisions into three sections.  Before turning to those sections, I should mention that Mr Martin, counsel for the respondent, noted that it was the inclusion of the words “the Representations” in these provisions that went to the heart of his complaint.  As I understood his submissions, his attack on these provisions in the ASC would stand or fall with the fourth group.  In the sense that the complaint is limited to the use of the expression “the Representations” I would, but for some incidental matters, therefore conclude that the respondent’s complaint about this fifth group should be dismissed.  I turn, however, to those incidental matters.

The first section of paragraphs in this group (pars 102-105) deal with the subject of “Misrepresentation” and they proceed upon a plea in the alternative to the matters pleaded in pars 89 to 101 (which as I have noted, dealt with “Fraudulent Misrepresentation/Deceit”).  I find nothing objectionable in these paragraphs, save for a mistake in par 103 which is a repetition of the mistake in par 91.  Paragraph 103 reads:

“The Representors on behalf of HS Lawrence and Email had reasonable grounds to believe and should have believed that the Representations were false.”

As I have already explained, falsity of the representations, at the time when they were made, is not part of Auspine’s case; its claim of falsity arises out of the subsequent alleged acquisition of knowledge that the earlier representations had become false.  Paragraph 103 should therefore be struck out but with leave to replead if so advised.

The second section of this fifth group is limited to par 107A; probably, however, it was intended to include an attack on par 107 as well, for that is the paragraph that pleads in the further alternative (to the allegations of “Fraudulent Misrepresentation/Deceit” and “Misrepresentation”) that the matters earlier alleged amounted to misleading or deceptive conduct in breach of s 52 of the TPA. Paragraph 107A merely particularises the main allegation that appears in par 107. There is, however, a similar mistake in par 107A in that the pleader has alleged that the “Representations ... comprised misleading or deceptive conduct ... given the deliberate concealment and withholding of information pleaded in pars 71, 72, 74, 75 and 76 hereof”.  It was not the making of the Representations, it was the alleged failure to make the necessary corrections that would, if proved, ground Auspine’s cause of action.  For that reason par 107A should be struck out with liberty to replead if so advised.

I turn to the third and final section of this fifth group.  Paragraph 119 is a substantial reproduction of the allegations of “Fraudulent Misrepresentation/Deceit” that are contained in pars 89 to 106 and par 120 is a substantial reproduction of the allegations of “Misrepresentation” that are contained in pars 107 to 110.  Subparagraph 119.3 and par 91 each contained allegations that the persons who made the Representations “knew that what they stated was false”.  That allegation is inconsistent with Auspine’s case and hence subpar 119.3 should be struck out with liberty to replead if so advised.

Subparagraph 120.2 pleads that the representors had “reasonable grounds to believe and should have believed that the representations were false”.  This wording differs from that in par 107A but it addresses the same erroneous assertion; the representors did not know that the representations were false at the time when they were made.  Therefore subpar 120.2 should be struck out with liberty to replead if so advised.

1. SUBPARAGRAPHS 121.1 AND 121.2

These two subparagraphs materially reproduce the contents of pars 107 and 108.

However there is, in respect of these paragraphs, a further complaint.  It is argued that the subparagraphs fail to plead the material facts to support the cause of action that the respondents conduct was misleading or deceptive or likely to be misleading or deceptive:  H1976 Nominees Pty Ltd v Galli (1979-1980) 30 ALR 181. In that case Northrop J said at pp 186-187:

“The respondents made their main attack upon para 17 of the statement of claim.  Neither that paragraph nor any other paragraph of the statement of claim contains any statement of material facts which constitute, or would constitute, a contravention of s 52(1) of the Act by the respondents or one or the other of them.  Paragraph 17 contains a conclusion drawn from facts which are not contained in the statement of claim.  In order to disclose a reasonable cause of action, a statement of claim must contain statements of material facts which support the claims made.  Particulars are not statements of material facts; particulars perform a different purpose.”

After quoting from the well-known passage from the judgment of Scott LJ in Bruce v Odhams Press Ltd (1936) 1 KB 697 at 712-3, Northrop J continued:

“I reject the argument that the particulars given to para 17 of the statement of claim should be treated as statements of material facts for the purpose of the Federal Court Rules.  In themselves they are prolix and cannot be said to comply with O 11, r 3. They are confusing. It cannot be said that in themselves they contain statements of material facts which show the nature of the applicant’s claim based on s 52 of the Act If the particulars were allowed to perform that function, they would have a tendency to cause prejudice, embarrassment or delay in the proceeding and would constitute an abuse of the process of the court.”

The terms of subpars 121.1 and 121.2 are as follows:

“121.1Further or in the alternative to the matters set out in paragraphs 89-101 and 102-106 hereof, the conduct the Representors (“the Misleading or Deceptive Conduct”) comprised:-

121.1.1Misleading or deceptive conduct;

121.1.2Conduct that was likely to mislead or deceive:

121.2The Misleading and Deceptive Conduct induced Auspine in the manner set out in paragraphs 28-63 hereof.  Particulars of the same are set out in paragraph 107 hereof.”

Insofar as the pleader in subpar 121.2 identifies particulars of the alleged inducement by referring back to par 107, that reference may as well have been a reference to subpar 121.1 for that last mentioned provision is the same as par 107 save only that par 107 refers to “the conduct by HS Lawrence and Email by the Representors” whereas subpar 121.2 refers to “the conduct [of] the Representors”.  The effect of all this is only to say that subpar 121.1 and 121.2 amount to allegations respectively of misleading or deceptive conduct and inducement.  I consider that the language of subpar 121.1 is lacking in detail.  On the other hand it seems clear to me that the pleader was intending to say something to this effect:

“Further or in the alternative to the matters set out in pars 89-101 and 102-106 hereof, those matters constituted conduct by the Representors which conduct was:

121.1.1    Misleading or deceptive conduct or

121.1.2    Conduct that was likely to mislead or deceive.”

So expressed, the incorporation of the material in pars 89-101 and 102-106 would, in my opinion, amount to a sufficient statement of the material facts upon which Auspine would seek to rely.  The power to strike out any pleading is not mandatory; it is permissive and there is a discretionary jurisdiction conferred on the court which must have regard to all the circumstances relating to the pleading.  (Zeiss Stiftung & Rayner & Keller Limited No 3 (1970) Ch 506; Hampshire County Council v Shonleigh Nominees (1971) 1 WLR 865).

I do not consider that the respondent would be embarrassed by the laxity of this pleading.  Despite its deficiencies I would, in the exercise of my discretion allow this pleading to stand.

1. PARAGRAPHS 89-118 AND 119-124

The contents of these paragraphs in the ASC were not the subject of complaint by the respondent.  However, the provisions of pars 119 to 124 are no more than a substantial repetition of the contents of pars 89 to 118 and should be struck out as serving no useful purpose.

The applicant has been substantially successful in defending its pleading.  As the main attack by the respondent has failed, there should be an order of costs in favour of Auspine.  To accommodate the fact that there were some errors in the pleading that must be corrected by the applicant, it would be appropriate that it have only 90 per cent of its costs.  Those costs are to be taxed in default of agreement.  If the applicant proposes to file and serve a further amended statement of claim pursuant to the leave given, it shall do so within twenty one days of this date.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin

Associate:

Dated:            31 March 1998

Counsel for the Applicant (the respondent to the Notice of Motion):	Mr R D Ross-Smith
Solicitor for the Applicant (the respondent to the Notice of Motion):	Messrs Phillips Fox
Counsel for the Respondent (the applicant on the Notice of Motion):	Mr A S Martin
Solicitor for the Respondent (the applicant on the Notice of Motion):	Messrs Clayton Utz
Date of Hearing:	3 March 1998
Date of Judgment:	31 March 1998