Ball and Doggett Pty Ltd v Picton Pty Ltd
[2020] WADC 30
•18 MARCH 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BALL & DOGGETT PTY LTD -v- PICTON PTY LTD [2020] WADC 30
CORAM: REGISTRAR KUBACZ
HEARD: 26 FEBRUARY 2020
DELIVERED : 18 MARCH 2020
PUBLISHED : 18 MARCH 2020
FILE NO/S: CIV 1040 of 2019
BETWEEN: BALL & DOGGETT PTY LTD
Plaintiff
AND
PICTON PTY LTD
Defendant
Catchwords:
Application to strike out - No reasonable cause of action - Prejudice embarrass or delay the fair trial of the action - Turns on its own facts.
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application partially successful
Representation:
Counsel:
| Plaintiff | : | Ms R R Joseph |
| Defendant | : | Mr J P Cook |
Solicitors:
| Plaintiff | : | Turks Legal (NSW) |
| Defendant | : | Mendelawitz Morton Commercial Lawyers |
Case(s) referred to in decision(s):
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd [2005] WASCA 157
Dalgety Australia Ltd v Rubin (Unreported, FCt SCt of WA, Library No 5485, 24 August 1984)
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 112
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Kimberley Downs Pty Ltd v The State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628
Niven v Grant (1903) 29 VLR 102
Norsilsk Nickel Cawse Pty Ltd & Anor v Wingstar Investments Pty Ltd [2019] WADC 39
Packard v Transport Trading and Agency Co Ltd (1912) 14 WALR 191
REGISTRAR KUBACZ:
This is the defendant's application to strike out certain paragraphs of the plaintiff's amended statement of claim and for the entire claim to be struck out pursuant to O 20 r 19 of the Rules of the Supreme Court 1971 (WA).
The terms of the chamber summons are a little odd in that the defendant is not only seeking to strike out certain paragraphs of the amended statement of claim, but also consequent upon those orders being made, that the entire claim be stuck out. The difficulty here is that the defendant has already filed and served a defence to the original statement of claim and therefore I cannot see how, I am able to strike out the entire claim or the parts of the claim that have already been pleaded to.
The defendant seeks that pars 3, 3A, 3B, 4, 4A, 4B, 5, 6 and 7 of the amended statement of claim be struck out on the grounds that they disclose no reasonable cause of action or alternatively on the ground that they may prejudice, embarrass or delay the fair trial of the action.
No cause of action
The principles to be applied when considering whether a pleading should be stuck out on the grounds that they disclose no reasonable cause of action are enunciated in Kimberley Downs Pty Ltd v The State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) [6] - [7] as follows:
(1)The rule is intended to apply only to cases which are really not arguable and not to cases where under the previous practice demurrer would have been the proper course: Packard v Transport Trading and Agency Co Ltd (1912) 14 WALR 191, 195.
(2)On the application, not only must all the fact alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other pointed the pleading in unassailable: Niven v Grant (1903) 29 VLR 102, 106.
(3)Great care must be exercised to ensure that a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 112, 130.
(4)But the rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument may be necessary to demonstrate that the plaintiff's case is so untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (130).
(5)As a general rule a plaintiff is entitled as of right to have his case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleadings should be stuck out: Dalgety Australia Ltd v Rubin (Unreported, FCt SCt of WA, Library No 5485, 24 August 1984).
(6)A court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops it will be found that a cause of action will lie: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, 373.
If the facts pleaded conceivably give rise to relief, then the cause of action should be held as reasonable: Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd [2005] WASCA 157 [154].
The question is whether it would be open to the plaintiffs, on the pleadings to prove facts at the trial which would constitute a cause of action: Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628, 631.
I pause here to note the comments of Principle Registrar Melville in the matter of Norsilsk Nickel Cawse Pty Ltd v Wingstar Investments Pty Ltd [2019] WADC 39 [5] - [6] where he states that:
In seeking to strike out pleadings on the basis that they fail to disclose a cause of action the pleadings in their totality have to be considered. More particularly the several allegations of material facts have to be considered to see whether a sufficiently pleaded cause of action is established …
A fact pleaded in a statement of claim will either be one material fact or several material facts that point to a cause of action, in which case it cannot be stuck out, or it will be immaterial in which case it may well prejudice embarrass or delay the fair trial of the case …
I concur with the principal registrar on this point and I am of the opinion that the plaintiff has pleaded several material facts that point to a cause of action for which it is open to prove at trial. The defendant's application to strike out various paragraphs of the statement of claim on the basis that they fail to disclose a cause of action therefore cannot succeed.
The plaintiff's statement of claim as a whole has disclosed a valid cause of action to which it is entitled to have heard and determined by the court.
Prejudice, embarrass or delay the fair trial of the action
I now turn to consider whether the amended paragraphs objected to may be struck out on the grounds that they may prejudice, embarrass or delay the fair trial of the action.
Pleadings may be struck out on these grounds:
… because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general: see Hart‑Roach v Public Trustee (Unreported, WASC 264, Library No 980044, 11 February 1998) and the cases which follow it.
The claim
The claim before the court in its simplest terms is an agreement between the plaintiff and defendant for the plaintiff to supply goods to the defendant on credit (the Agreement).
The Agreement was comprised of a number of instruments and documents which the plaintiff claim formed the terms of the Agreement.
Pursuant to the Agreement goods were supplied to the defendant and the defendant failed to pay some (not all) of the invoices issued to it for the supply of the goods in breach of the terms of the Agreement.
Paragraph 3 pleads the Agreement particularises the various documents which, taken together, form the Agreement.
Paragraphs 3A, 3B and 4 then set out the express terms of the Agreement by reference to each of the various documents particularised in par 3.
The defendant submits that the amendment to par 3 is embarrassing and should be struck out as the particulars pleaded are material facts and not particulars, that the invoices particularised post‑date the Agreement and therefore cannot form part of the Agreement, that it is not explained how the 'online terms and conditions as amended from time to time' are incorporated into the Agreement and generally that the Agreement needs to be pleaded properly.
The objections to the insertion of pars 3A, 3B and 4 refer back to the objections to par 3 and complains that it is not pleaded how each of the documents referred to in pars 3A, 3B and 4 form part of the Agreement.
In my opinion, the objections to these paragraphs focus on a perceived misunderstanding by the defendant of the various documents which the plaintiff purports to rely on to form the Agreement.
These are not grounds for strike out and are more properly addressed through either the defence or by a request for further and better particulars of claim. Accordingly pars 3, 3A, 3B and 4 will not be struck out.
Paragraph 4A is pleaded as a claim in the alternative to par 4 and seeks to make a claim against an entity who is not a party to the proceedings. The claim introduces the issuing of purchase orders by Picton Press Pty Ltd acting as agent for the defendant.
The difficulty with this is that the plaintiff has not pleaded the terms of the agency, how the agency arose or the nature of the agency. It is evasive and ambiguous and I am of the opinion that it is embarrassing and has the potential to delay the fair trial of this action.
If the plaintiff is seeking to rely on an agency agreement between the defendant and another entity it must plead out that agency agreement in full so that the defendant knows the case it is answering in this regard.
For these reasons par 4A should be struck out.
The objections to pars 4B, 4C, 5, 6 are not entirely clear from either written or oral submissions. However, the objections seem to be based on a misunderstanding of the pleading. Similarly to the objections to pars 3, 3A, 3B and 4 the objections to these pleading are best dealt with by way of defence and/or a request for further and better particulars of claim. There are no valid grounds for striking out these paragraphs.
Conclusion
Paragraphs 3, 3B, 4, 4B, 4C, 5 and 6 of the statement of claim are properly pleaded and will not be stuck out.
Paragraph 4A should be struck out for the reasons given above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ET
Court Officer19 MARCH 2020
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