Bourke, C.W. v The Shell Company of Australia Ltd

[1989] FCA 713

IN THE FEDERAL COURT OF AUSTRALIA	1	1
QUEENSLAND DISTRICT REGISTRY	1	QLD G96 of 1989
GENERAL DIVISION	)

BETWEEN: COLIN WAYNE BOURKE

First Applicant

AND: RAYMOND GEORGE BURGE

Second Applicant

AND:  THE SHELL COMPANY OF AUSTRALIA LIMITED

First Respondent

AND: CHRISTOPHER N. WORRALL

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	9 NOVEMBER 1989
WHERE WDE:	BRISBANE
THE COURT ORDERS THAT:

1.   the defence and cross claim be filed and served forthwith;

1. the particulars in answer to the request delivered by the respondents be filed and served on or before 30 November 1989;

REQISTRY

3.    the reply and answer be filed and served on or before 7 December 1989;

4.    the matter be mentioned again on Thursday, 14 December 1989 at 9.30 a.m.;

5.    the costs of and incidental to today's hearing be taxed and paid by the respondents to the applicants;

6.    such taxation take place when a general order is made in the proceedings, or on further earlier

NOTE :  Settlement and entry of orders is dealt
Order 36 of the Federal Court Rules.

2 " ROV Z989

FEDERAL COURT ,OF.
AUSTRALIA
PRINCIPAL

',

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1 QLD G96 of 1989
GENERAL DIVISION	1

BETWEEN: COLIN WAYNE BOURKE

First Applicant

AND: RAYMOND GEORGE BURGE

Second Applicant

AND:  THE SHELL COMPANY OF AUSTRALIA LIMITED

First Respondent

AND: CHRISTOPHER N. WORRALL

Second Respondent

PINCUS J . 9 NOVEMBER 1989

EX TEMPORE REASONS FOR JUDGMENT

In this matter the statement of claim, which alleges
misrepresentation among other matters was delivered about the

middle of September. The assumption which one could safely make

before the Court first on 18 October. At least, the contrary is	is that work was begun on it some weeks before the matter came
not suggested. On that date, an order was made that the defence be filed by 1 November. It was plaip enough then Chat there might be a question whether particulars of the statement of claim should be delivered before a defence is ordered, but that was not what the Court ordered, and what the Court orders is important.
On 8 November, one week after the tihe for the defence had expired, the solicitors for the respondent wrote to the solicitors for the applicants saying:

"We are holding our client's defence and cross-claim in draft form but are advised by Counsel that it would be best to await receipt of particulars before delivering that document in a final form."

In my opinion, that was not a proper letter for a solicitor to write. The order of the Court was clear, and it required delivery of the defence. The solicitors deliberately did not deliver it, although they had it. They decided that it would be better that the Court's order not be followed. There are circumstances in which Court orders are not followed, with reasonable excuse because events turn out differently from expectations. Here that was not the case. The order was simply and plainly disobeyed. I note that and I do not approve of it. I order that the defence be delivered forthwith.

As to the request for particulars which Mr OIShea has

given me, I do not propose, as I have mentioned to Mr OfShea, to

go through the request in detail. I do not agree with him that

all the requests are simply for allegations which are necessary and should have been' in the original pleading. Some of them are in that category and some not. That is, some of them are reasonable requests, I think, and some are not. It is undesirable to make very wide requests for matters which are not necessary, because it wastes the Court's time and everybody's money, and such requests are not treated sympathetically here. I do not say that this request is a vexatious one. Some of the \aspects of it, no doubt, are proper, but hold the view that the policy of not encouraging long arguments about particulars which we follow is justified by a change in the mode of litigation which seems to be coming upon us partly in imitation of the Supreme Court's commercial practice. ~t seems to have become a practice here that

commercial matters are ordinarily tried with a full disclosure of the evidence before the case starts, subject sometimes to the exception that conversations, if in issue, are not fully disclosed, or perhaps not disclosed at all. I appreciate that this does not remove the need for particulars, but it makes them seem less significant.

Generally speaking, the statement of claim is clear enough but in some respects it obviously should have been more detailed from the outset. I mention one matter which 1-lr OIShea referred to, and I think correctly, and that is that para.7 might have given more information. It does not actually say that the representations were oral, although I assume that they probably were. Generally speaking the statement of claim seems to contain a reasonable amount of particularity.

Now, I reiterate that I do not approve of the practice (I do not think it truly is a practide, but it does occasionally happen) of solicitors taking it upon themselves unilaterally to change the Court's order. It is not respectful to the Court and it is a breach of the order of the Court. It is technically a contempt and I hope to discourage it firmly. If, of course, the order simply cannot be complied with, having proved to be

i m p r a c t i c a l , t h a t i s ano the r m a t t e r , b u t t h i s i's p l a i n l y n o t such

a ca se .

The o r d e r s w i l l be t h a t t h e defence and cross-c la im be

f i l e d f o r t h w i t h ; t h a t t h e p a r t i c u l a r s i n answer t o t h e r e q u e s t

d e l i v e r e d by t h e respondents be f i l e d and se rved on o r b e f o r e 30

November 1989; t h a t t h e r e p l y and answer be f i l e d and se rved on o r

be fo re 7 December.

The n e x t mention d a t e w i l l be a t 9.30 a.m. on Thursday,

1 4 December 1989.

I w i l l o r d e r t h a t t h e c o s t s of and i n c i d e n t a l t o today ' s

h e a r i n g be t axed and p a i d by t h e respondents t o t h e a p p l i c a n t s . I

o rde r t h a t such t a x a t i o n t a k e p l a c e when a g e n e r a l o r d e r f o r c o s t s

i s made i n t h e proceedings , o r on f u r t h e r e a r l i e r o r d e r . The

e f f e c t of t h a t w i l l be t h a t when t h e c a s e i s t r i e d , i f i t eve r is ,

t h e s e c o s t s w i l l be t axed a t t h e same t ime a s t h e g e n e r a l c o s t s of

t h e proceeding .

I cert ify that this and the three

preceding pages are a true copy of the

reasons for judgment herein of H i s Honour
Mr. Justice Pincus.

Associate

Dated 7 Ah/tJ%<C .