Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd

[1987] FCA 206

I N THE FEDERAL COURT )

A U S T R A L I A O F )

WESTERN AUSTRALIA 1

D I S T R I C T R E G I S T R Y )

G E N E R A L D I V I S I O N ) NO. WAG 1 1 4 Of 1 9 8 6

B E T W E E N : BOND CORPORATION PTY LTD

A p p l i c a n t

and

THIESS CONTRACTORS PTY L T D

F i r s t Respondent

and

OVE ARUP PTY LTD, ARUP PARTNERS PTY

LTD and OVE ARUP CONSULTANTS PTY LTD

Second Respondents

MINUTE OF ORDER

JUDGE MAK I NG ORDER: FRENCH J.

DATE OF ORDER: 29 A P R I L 1987

WHERE MADE : P e r t h

THE COURT ORDERS THAT:

1. T h e a p p l i c a n t do o n o r b e f o r e 7 May 1 9 8 7 f i l e a n d

d e l i v e r a s t a t e m e n t of c la im f u r t h e r a m e n d e d i n t h e

f o l l o w i n g r e s p e c t s : -

a s t o p a r a g r a p h 22 t o make e x p l i c i t t h e a l l e g a t i o n

r e p r e s e n t a t i o n s t h a t t h e as t o f i r s t t h e

r e s p o n d e n t ' s c a p a c i t y set o u t i n p a r a g r a p h 1 9 were

f a l s e : c

FEDERAL COURT OF - 5 CldY S987

AUSTRALIA

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(ii) as to paraqraph 27 to make explicit the allegatlon that the representatlon as to the first respondent's capaclty set out In paragraph 26 was false :

( iii)as to paragraph 26 to specify the approximate time

at which the alleged representations were made.

2. The applicant will otherwise have leave to amend generally.

3 . The first respondent is to pay the applicant's costs of the motion.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT FOR LIMITED DISTRIBUTION

OF AUSTRALIA	)
WESTERN AUSTRALIA	1

DISTRICT REGISTRY )

GENERAL DIVISION	1	NO. WAG 114 Of 1986
B E T W E E N :	BOND CORPORATION PTY LTD

Applicant

and

THIESS CONTRACTORS PTY LTD

Flrst Respondent

and

OVE ARUP PTY LTD, ARUP PARTNERS PTY LTD and OVE ARUP CONSULTANTS PTY LTD

Second Respondents

CORAM :

FRENCH J.

29 April 1987

REASONS FOR JUDGMENT

The first respondent moves the Court for orders striking

out various paragraphs of the applicant's amended statement of claim and in the alternative in relation to certain of those

paragraphs seeks orders for the provision of particulars.

I It also seeks to extend the time for delivery of its

defence.

This litigation has already been productive of two

reserved decisions on interlocutory matters and it is unnecessary to repeat here the description of the background to the

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proceedings which appear in the reasons for those earlier

decisions.

2.

I 17 On March 1987 on the motlon of the second

i	respondents, paragraphs 45 to 55 of the statement of claim were
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struck out for reasons then publlshed.

An amended statement of claim was filed on 16 April

1987.

The flrst respondent‘s attack is on certain paragraphs of that amended statement of claim.

i Insofar as it seeks strike out orders the motion does so

In each case on the ground that the paragraph complained of tends “to cause preludice or alternatively embarrassment or alternatively delay“ in the action.

It invokes O.llr.l6(b) which provides:-

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“Where a pleading -

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings;

the Court may at any stage of the proceeding order that

the whole or any part of the pleading be struck out.“

The power conferred by the rule is designed:-

“...to prevent pleadings from being evasive or from concealing or obscuring the real questions in

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c o n t r o v e r s y b e t w e e n t h e p a r t i e s , and t o e n s u r e a s f a r a s

t h e p l e a d i n g s a r e c o n c e r n e d , a t r i a l o n f a i r terms

I n order t o o b t a l n a d e c l s i o n w h i c h

b e t w e e n t h e p a r t i e s

is t h e l e g i t i m a t e object o f t h e a c t i o n " . - B u l l e n a n d

L e a k e P r e c e d e n t s of P l e a d i n g s 1 2 t h E d i t i o n p . 1 4 6

Berdan v Greenwood	(1878)	3 Ex.D.251	a t 256 p e r	T h e s i g e r
LJ .

A f r e q u e n t l y q u o t e d p a s s a g e f r o m t h e ~ u d g m e n t o f Bowen

L J i n Knowles v Roberts ( 1 8 8 8 ) 38 Ch.D.263 a t 270 sets o u t t h e

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g e n e r a l f r a m e w o r k w i t h i n w h l c h s u c h a p p l i c a t i o n s may be

i c o n s i d e r e d : -

"I t seems t o me t h a t t h e r u l e t h a t t h e C o u r t is n o t t o

d i c t a t e t o p a r t i e s how t h e y s h o u l d f r a m e t h e i r case, 1s

o n e t h a t o u g h t a l w a y s t o be p r e s e r v e d sacred. B u t t h a t

r u l e is, of c o u r s e , s u b j e c t t o t h l s m o d i f i c a t i o n a n d

l i m i t a t i o n , t h a t t h e p a r t i e s m u s t n o t o f f e n d a g a i n s t t h e

r u l e s of p l ead lng wh ich have been l a i d down b y t h e law;

and i f a p a r t y i n t r o d u c e s a p l e a d i n g w h i c h is

u n n e c e s s a r y , a n d 1t t e n d s t o p r e j u d i c e , embarrass and

d e l a y t h e t r i a l o f t h e a c t i o n , i t t h e n becomes a

b e y o n d h i s r i g h t . "

! p l e a d i n g w h i c h is

The motion first a t t a c k s para. 17 of the amended

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s t a t e m e n t o f c l a i m . I n t h e c o n t e x t o f a l lega t ions t h a t t h e f i r s t

I r e s p o n d e n t lacked r e p r e s e n t e d c a p a c i t i e s r e l e v a n t t o its a b i l i t y

t o c a r r y o u t t h e d i s p u t e d w o r k s , p a r a . 1 7 a l l e g e s t h a t t h e f irst

r e s p o n d e n t " f a i l e d to complete t h e w o r k s a s v a r i e d b y 10 December

1 9 8 5 , t h e p e r i o d allowed by Ove Arup".

Of t h i s p a r a . t h e f i r s t r e s p o n d e n t s a y s i n its

submiss ions : -

4 .

"1. T h e plea i s e n t i r e l y irrelevant tn t h e cause of

a c t i o n I n r e s p e c t o f w h i c h i t i s p l e a d e d . T h e

e v i d e n c e a n d lega l argument a t t r i a l i n r e s p e c t of

t h e same would be considerable.

2 . The re 1 s n o p l e a : -

( a ) d e f i n i n g how a n d i n w h a t r e s p e c t s " t h e Works"

a r e a l l e g e d t o h a v e b e e n " v a r i e d " ,

(b) a s to how t h e da t e 10 th Oc tobe r 1985 is

c a l c u l a t e d , or

( c ) s t a t i n g t h e m a n n e r i n which I t is a l l e g e d t h a t

Ove A r u p " a l l o w e d " f o r t h e c o m p l e t i o n o f " t h e

I Works a s v a r i e d " ."

T h e o n l y p o i n t of s u b s t a n c e made i n r e l a t l o n t o pa ra .17

is t h a t i t i n t r o d u c e s t h e c o n c e p t of " t h e w o r k s a s v a r i e d " .

By r e f e r e n c e t o s u b - p a r a . l O ( a ) a n d p a r a s . 5 and 9 I t is

e v i d e n t t h a t " t h e Works" is to be u n d e r s t o o d as t h e e a r t h w o r k s

a n d r o a d a n d d r a i n a g e c o n s t r u c t i o n for stage 1 o f t h e d e v e l o p m e n t

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o f l a n d a t Mi l l endon known a s B r i g a d o o n i n t o a r e s i d e n t i a l

s u b d i v i s i o n .

T h e r e f e r e n c e t o " t h e Works a s v a r i e d " i n p a r a . 1 7 is

r e f l e c t e d i n para. 2 4 which alleges f a i l u r e o n t h e par t o f t h e

first r e s p o n d e n t to "complete t h e Works a s v a r i e d b y Ove Arup..."

T h e r e 1 s a lso a r e f e r e n c e t o t h e term i n p a r a . (2) o f

I p a r t i c u l a r s t h e t o para .18 .

A s I read t h e s t a t e m e n t c l a i m o f t h e Works are

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i n i t i a l l y d e f i n e d i n g e n e r a l terms as "ea r thworks and road and

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drainage construction for stage 1 " and not by reference to the

i	tender and speclflcations proposed for the applicant	or any
particular quantitles.

Even "as varied" it appears the works were still within

the descrlption of "the Works" as deflned earlier in the amended

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statement of clam.

The words "as varled" therefore appear unnecessary and

Subject to that difficulty the paragraph plays a

legitimate role in asserting a casual llnk between the mlsleading

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somewhat confusing.

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and deceptive conduct alleged against the first respondent and the

damage suffered by the appllcant.

It has been said that the mere fact that a pleading

contains unnecessary matter, is not sufficient ground to strike it

out or that part of It whlch contains the offending matter if it

is otherwise harmless - Tompkinson v S.E.Ry. (1857) 57 LT 358,

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360, Hocking & Co. v Hocking (1886) 3 RPC 291.

While in my opinion It is desirable in the interests of clarity and fellcitous expression that the paragraph be amended, I

wlll not strlke it out. That is not to say that the first

respondent is not entitled to further and better particulars if

the paragraph remains In its present form.

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6.

T h e motlon n e x t d e a l s w ~ t h p a r a s . 1 9 and 26 of t h e

a m e n d e d s t a t e m e n t o f c l a m .

P a r a g r a p h 1 9 is a p l e a made I n t h e a l t e r n a t l v e i n t h e

f o l l o w l n g terms:-

" F u r t h e r , and i n t h e alternative:-

( a ) a t t h e time o f s u b m i t t i n g t h e T h i e s s T e n d e r T h l e s s

r e p r e s e n t e d t o Ove Arup t h a t i t was a b l e t o a n d

w o u l d c a r r y o u t t h e w o r k s f o r a p r i c e o f

$2 ,169 ,256;

(b) p r i o r t o 1 2 March 1 9 8 5 T h i e s s r e p r e s e n t e d t o Ove

A r u p t h a t i t was a b l e t o and w o u l d c a r r y o u t t h e

Works f o r a p r i c e o f $ 1 , 7 2 2 , 4 5 3 . "

P a r a g r a p h 22 p l e a d s , i n r e l a t i o n t o t h o s e

r e p r e s e n t a t i o n s : -

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" T h e r e p r e s e n t a t i o n s referred to i n p a r a g r a p h 1 9 were,

a t t h e time	t h e y were	made ,	un t rue	t o	the	knowledge	of
T h i e s s .

--.-	PARTICULARS
.--

(1) T h i e s s knew, a t t h e time of s u b m i t t i n g t h e T h i e s s

T e n d e r , t h a t i t w o u l d n o t c a r r y o u t t h e Works f o r

$ 2 , 1 6 9 , 2 5 6 a n d h a d n o t i n t e n t i o n of d o i n g so;

( 2 ) T h i e s s knew, a t t h e time i t made t h e r e p r e s e n t a t i o n

r e f e r r e d to i n p a r a g r a p h 1 9 ( b ) h e r e o f t h a t i t would

_--- - . n o t c a r r y o u t t h e Works f o r $1,722,453 and had no

i n t e n t i o n o f d o i n g SO."

-.-.

.	>	,.-	- .	~ - . -	_	_
.	.....	- - The f i r s t r e s p o n d e n t s u b m i t s t h a t t h e w o r d s " w a s a b l e t o

a n d " i n e a c h of s u b - p a r a s . ( a ) a n d ( b ) of p a r a . 1 9 a l l e g e a

r e p r e s e n t a t l o n w h l c h is n o w h e r e s a l d t o b e f a l s e .

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7.

It 1s evleent that para. 19 alleges representatlons both as to capacity and intentlon to carry out the works for the prlces specif led.

Paragraph 22 as particularised falsifies only the

representatlon as to intent. It does not In its substantive part

or in the particulars make clear that	it alleges the falsity of
the representation as to capaclty.

Counsel for the applicant contends that it is intended

1 by the pleadlng to falsify both representations.

In my opinion this is a comparatively minor drafting

point. It can and should be cured by amendment. The first

respondent is entitled to know with precision what is alleged in

respect of the representatlons pleaded in para.19.

Given the statement by counsel for the applicant as to the intended meaning of para.22,	I will give leave to amend that
paragraph accordingly.

Paragraph 22 is independently attacked as amounting to a plea of fraud for which no partlculars are given.

The appllcant however contends that the paragraph is not

intended to raise fraud which is raised separately and distinctly

I in para.28. It is suggested that the issue of knowledge of the

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falsity of the alleged representations is somehow relevant to the cause of actlon arislng under ss.52 and 02 of the Trade Practices

- Act.

Just how it is relevant to that cause of action in this

case is not at all clear.

However in the absence of full argument in light of the facts it would not be appropriate to strike the paragraph out on that basis.

Paragraph 4 of the motion seeks in the alternative an order that for each of the representatlons referred to in para.19 the appl lcant file and serve on the first respondent proper

particulars of the allegation that:-

(a) The same were "untrue"; and

(b)	The same were untrue "to the knowledge of Thiess".
To the extent that further and better particulars are

sought, I am not satisfied that, subject to the necessary

amendment of para.22,	they will be needed prior to	the delivery of
the defence.

I will therefore make no order for particulars as sought

in para.4 of the motion. If a request for further and better particulars is made and not answered to the satisfaction of the

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flrst respondent in t h i s regard, ~t will be open to it to seek an

approprlate order at a later stage.

Paragraph 5 asks for an order striking out para.24 of

the amended statement of claim.

Paragraph 24 alleges:-

“Thless failed to complete the Works as varled by Ove

Arup for $2,774,573 the price as varied but clalms that

it is entitled to be paid a sum greatly in excess of

such price for carrying out the Works as varied.“

The submlssions in respect of para.24 are the same in substance as those made for para.17.

For the same reasons as apply in relation to para.17 I

decline to make an order striking out this paragraph.

Paragraph 6 of the motion attacks para.27 of the

statement of claim which must be read in conjunction with para.26.

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Taken together they read as follows:-

“26. Further, and in the alternative, in order to induce

Bond to engage Thiess to carry out the Works Thiess

represented to Ove Arup acting on behalf of Bond that it was able to and would carry out the Works

for a price of $1,722,453.

27. The representation referred to in paragraph 26 was false and untrue.”

10.

The point here made by the flrst respondent in its

submission is in substance that made in relation to paras. 19 and

22.

As I proposed in respect of para.22 so also in respect

of para.27, I will give leave to the applicant to amend para.27 to make it clear that the paragraph relates to each of the representatlons alleged in para.26.

That amendment being made, further particularisation 1s

not requlred in the body of the pleading.

The order to that effect sought in para.7 of the motion

will therefore be declined.

Paragraph 8 seeks to strike out para.28 of the statement

of claim.

Referring to the representations alleged in para.26,

para. 28 is in the following terms:-

"Thiess, at the time It was made such representation, knew it to be false and untrue or made it recklessly not caring whether it was true or false (sic)."

The complaint here is that no particulars are given of

the alleged fraud.

11.

The pleadlng of fraud is not conflned to what appears in para.28. It comprlses the fact of the representation (para.26). the falsity of it (para.271, the relevant state of knowledge on the part of the first respondent (para.28) and the fraudulent Intention (duplicated in paras. 26 and 29).

These paragraphs do not specify the tlme at which the

allegedly fraudulent representation was made but it appears by

reference back to para.19 to be "prior to 12 March 1985". The

I	approxlmate tlme of the alleged fraud is a particular which would
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ordlnarily be required to comply with 0.11 r.2.

! In my opinion this is a matter which should be pleaded

as a necessary partlcular of the alleged fraud. I wlll give leave

!	to amend for that purpose.
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i	para.9	By	of its motlon	the	first	respondent	seeks	an
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i	order that the	applicant	give	"proper partlculars" of the
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allegations in its amended statement of claim that:-

"(a) the First Respondent "knew" the alleged representation to be false and untrue: and

(b) the First Respondent made the alleged

representation "recklessly not caring whether it

was true or false."

I was not assisted by any clear indication of what the

I "proper particulars" would be.

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12.

No doubt In due course the first respondent would seek further and better partlculars of the allegations perhaps going to such issues as the identity of the person or persons said to be the repositories of the corporate knowledge alleged In para.28.

Again however, it is not necessary In my opinion to make

a blanket order for "proper particulars" at this stage.

Paragraph 37(a) was also attacked in the motion but that attack was not pressed before me.

Paragraph 4 0 alleges that:-

" 4 0 . In or about February 1985 Thiess and Leighton made an arrangement or arrived at an understanding that

each of them would submit to Ove Arup acting on

behalf of Bond a tender for the carrying out of

the

Works which tender would be:-

(a) for a simllar amount:

(b) for an amount substantially less than either

Thiess or Leighton intended in fact to charge for carrying out the Works; and

(c) for an amount substantially less than the price at which any other suppliers of such services In Western Australia would offer to carry out the Works."

Of this the first respondent says that:-

1. This is a plea of fraud and collusion of which no particulars are given as to the alleged "arrangement" or "understanding".

2 . No proper particulars are given as to the alleged

falsity of the allegation (sic).

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13.

In my opinlon the paragraph, read together with

paragraphs 4 2 to 4 4 is sufficiently clear to enable the first

respondent to plead to it in its defence.

Again it may well be entitled at a later stage to

further and better partlculars including possibly particulars of

the overt acts relied upon by the applicant to establish the

arrangement.

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i	As to that however I make no ruling now.
Paragraph 4 4 of the amended statement of claim

particularises the falsity of representations as to the

independence, realism and competitiveness of the first

respondent’s tender, representations said to have been made by the

act of submitting the tender.

The motlon also seeks to strike out this paragraph and in the alternative, an order for particulars.

I am of the view that the first respondent is in a

position to plead to para. 4 4 and that particulars at this stage are not necessary. I therefore decline to make the order sought in respect of that paragraph.

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1 4 .

I h e r e b y c e r t i f y t h a t t h e p r e c e d i n g

t h i r t e e n (13) pages are a t r u e c o p y of t h e

Reasons for J u d g m e n t h e r e i n of h i s Honour Mr

J u s t i c e F r e n c h .

Associate: #lQN@m

Counse l :

l	. f o r	t h e	A p p l i c a n t :	M r S.	Archer	and	M	r	B.	Luscombe
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!	i n s t r u c t e d	R o b i n s o n	b y	Cox
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. for t h e F i r s t R e s p o n d e n t : Mr P. C l i f f o r d a n d M r S. P e n g l i s

i n s t r u c t e d b y F r e e h i l l H o l l i n g d a l e h Page

Date o f Hea r ing : 24 Apri l 1987

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Date of Judgment: 29 Apr i l 1987