C. Spagnolo Pty Ltd v Wesfarmers Insurance Ltd

[1987] FCA 285

I N THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY )

GENERAL DIVISION ) No. WAG 122 o f 1986

B E T W E E N : C . SPAGNOLO PTY L'TD

A p p l l c a n t

a n d

WESFARMERS IRSURANCE LTD

F i r s t R e s p o n d e n t

,

a n d

LESLIE EDWARDS

S e c o n d R e s p o n d e n t

MINUTE OF ORDER

JUDGE MAKING ORDER: FRENCH J .

DATE MADE: 9 J U N E 1987

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The a p p l i c a n t h a s l eave o n OK b e f o r e 23 June 1987 t o

f l l e a n d d e l i v e r a f u r t h e r a m e n d e d s ta tement o f clalm.

2 . The respondents are t o f i l e a n d d e l i v e r a n y d e f e n c e

t o t h e f u r t h e r a m e n d e d s t a t e m e n t o f clalm o n or b e f o r e

7 J u l y 1987.

3. Any r e p l y t o t h e a m e n d e d d e f e n c e t o be f i l e d on OK

b e f o r e 14 J u l y 1987.

4. The a p p l i c a n t is to pay t h e r e s p o n d e n t s ' costs o f t h e

motlon a n d a n y costs t h r o w n a w a y b y r e a s o n o f t h e

f u r t h e r a m e n d m e n t i n a n y e v e n t .

S	.	I
-
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Note: Set t lement a n d e n t r y o f o r d e r s is d e a l t w i th

i n O r d e r 36 o f t h e F e d e r a l C o u r t R u l e s .

NOT INTENDED FOR GENERAL

DISTRIBUTION

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA 1

DISTRICT REGISTRY )

GENERAL DIVISION	1	NO. WAG 1 2 2 Of 1986
B E T W E E N :	C. SPAGNOLO PTY LTD

Applicant

and

WESFARMERS INSURANCE LIMITED

Flrst Respondent

and

LESLIE EDWARDS

Second Respondent

CORAM: FRENCH J .

9 JUNE 1987

REASONS FOR JUDGMENT

In thls case the applicant is clalming damages for a

contravention of s . 5 2 of the Trade Practices Act 1974. The clalm arises out of the alleged fallure of the first respondent to issue a workers' compensation insurance policy to cover the applicant in respect of clarms by its employees and the erroneous issue of such a policy to a related partnership wlth no employees.

The respondents move to strlke out the amended statement of claim under 0.11 r.16 as disclosing no reasonable cause of action.

2 .

Alternatively they seek to strike out paragraphs 7 and 9

as embarrassing and irrelevant, paragraphs 6, 8, 11, 12 and 14 as

vague and embarrassing and sub-paragraph 14 4 ) as vexatious.

Further o r in the alternative they seek an order that

the applicant provide proper particulars of its amended statement

of claim pursuant to a request	by the respondents dated 2 3 April
1987.

The applicant is a company incorporated in Western

Australia and carrying	on the business of fruit growers and
wholesalers.

At some time which is not disclosed in the amended

statement of claim it alleges that one Con0 Spagnolo on behalf of

the applicant conducted negotiations with the second respondent

who was said to be acting on behalf of the first respondent. The negotiations were conducted with a view to securing the issue by the first respondent of a policy of insurance for workers' compensatlon (para.6).

Paragraph 7 of the amended statement of claim alleges

quite unnecessarily to the cause of action relied upon that:-

of the Applicant."

"It was at all material times the intention of the employees

Applicant that the First Respondent do provide a

3 .

Paragraph 8 then alleges, agaln wlthout specifying any

dates, that various representations were made in the course of the

negotiations. The plea 1s expressed as follows:-

"At all material times during negotiatrons leadlng up to

the policy of the lnsurance, the Second Respondent

represented to the Applicant as follows:

(a) That the pollcy of the lnsurance was to be taken

out in the name of the company	C.	Spagnolo Pty.
Ltd.

(b) That Con0 Spagnolo as an employee of C. Spagnolo

Pty. Ltd. was covered by the policy of insurance.

(b) That a l l employees of the Applicant were to be

covered by the Policy of Insurance."

Paragraph 9, again unnecessarily to the cause of actlon relied upon, pleads that the representatlons were made by the

second respondent with the intention of inducing the applicant to

enter into a policy of insurance and to pay premlums thereon to

the first respondent.

Paragraphs 10 and 11 then allege:-

"10. B y reason of the representations referred to in

paragraph 8 herein and relying upon the truth the

Applicant was induced to sign an application for a

policy of insurance and accordlngly paid the

premiums thereof to the First Respondent.

11.    In the premises, the representations referred to in paragraph 8 were false in that the insurance policy

was made out by the First Respondent in the name of

C. 6 F. Spagnolo (being a partnership which has no

employees) . "

4 .

. .

The statement of claim goes on to allege that on 6

January 1986 Con0 Spagnolo, an employee of the applicant suffered

injuries to his right thumb whlch was subsequently amputated.

It is not alleged that the in~uries were suffered In

circumstances which would render the applicant liable	to pay him
workers' compensation.

It is further alleged that the applicant applied to the

first respondent for payment pursuant to the provlsions of the

policy of insurance but the application was refused. The basis of

the refusal is not disclosed.

Paragraph 13 then goes on:-

"13. In the premises the First and Second Respondents

have engaged in conduct that is misleading or

deceptive or likely to mislead or deceive and a result of which the Applicant has suffered damage.

(sic) Alternatively, the First and Second

Respondents have engaged in conduct that is likely

to mislead the public as the nature, the

characteristics, the suitabillty for their purpose

of the quantity of any services and as a result of

which the Appliant has suffered damage. (sic)"

Paragraph 14 then sets out the claim for damages

against both respondents, the measure of which i s "the cost of the

claims arising out of injuries to employees of the Applicant."

There is a claim f o r exemplary damages but this was

abandoned before me on the hearing of the motion.

5.

..

The representations pleaded in paragraph 8 appear on the face of it to be promissory in character.

The use of the past tense in paragraph 8(b) 1s a little confusing but in context appears to have been a slip and intended to refer to a promise.

Nothing is pleaded to indicate any implied

misrepresentation as to fact. It is not suggested that at the

time these promises were made the first respondent had no

intention of honouring them. Nor is it suggested that there was

then in existence a state of facts that would render it impossible

for the promises to be honoured.

In the circumstances what is pleaded is the making of

promises and a failure to meet them.

That does not of itself constitute a contravention of

s . 5 2 .

In the course of his submissions on behalf of the

applicant, counsel seemed to suggest that the applicant had been

led to believe that it had a policy covering claims by the

employees and had in that respect been led into error.

That may well indicate the true basis of the cause of

action upon which the applicant relies.

. 6.

I t is n o t a m a t t e r fo r t h e C o u r t , on a m o t i o n s u c h a s

t h e p r e s e n t t o s u g g e s t w a y s i n w h l c h t h e s t a t e m e n t of c l a l m c o u l d

be r e c a s t . T h a t 1s a m a t t e r f o r t h e a p p l i c a n t .

I n I ts p r e s e n t form t h e s t a t e m e n t of c l a i m d o e s n o t , i n

my o p l n i o n , d l s c l o s e a c a u s e o f a c t i o n a n d I am p r e p a r e d t o make

a n order s t r l k l n g i t o u t .

I t seems t o me, h o w e v e r , t h a t t h e d e f e c t s may b e c u r a b l e

b y f u r t h e r amendment a n d f o r t h a t r e a s o n I w i l l a l l o w t h e

a p p l i c a n t 14 d a y s i n w h i c h t o f i l e a n d d e l i v e r a f u r t h e r a m e n d e d

statement o f c l a i m .

T h e a p p l l c a n t , h o w e v e r , w i l l h a v e t o p a y t h e costs o f

t h e mo t ion	a n d	a n y	c o s t s	t h r o w n	a w a y	b y	r e a s o n	of	t h e	f u r t h e r
amendment .

I will h e a r f r o m t h e p a r t i e s a s t o t h e p r e c i s e f o r m of

t h e o r d e r s t o be made .

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

f i v e ( 5 ) p a g e s are a t rue c o p y h e r e i n

o f t h e R e a s o n s f o r J u d g m e n t o f h i s

Honour M r Jus t i ce F r e n c h .

A s s o c i a t e : W-