Cartwright v Steve Little Plumbing & Drainage - [2019] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
CARTWRIGHT & ANOR v STEVE LITTLE PLUMBING & DRAINAGE & ANOR
[2019] SASC 76
Judgment of The Honourable Justice Parker
20 May 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
This is an appeal against a decision of a Magistrate to strike out the appellants’ further amended claim against the respondents, and to refuse the appellants’ application for leave to file a proposed second further amended claim.
The appellants’ pleadings in the Magistrates Court went through multiple iterations, each of which was alleged by the respondents to fail to provide necessary particulars and otherwise offend against the rules and practice as to pleadings. Given the appellants had been legally represented from the outset of the proceedings, the numerous opportunities already afforded to comply with the rules of pleading and the prejudice caused to the respondents by their ongoing failure to do so, the Magistrate held that it would not be appropriate to grant the appellants a further opportunity to replead their case.
In substance, the appellants’ six grounds of appeal raise two key issues for consideration. First, whether the Magistrate erred in not considering or otherwise acting upon discovered documents when finding that the further amended claim should be struck out and refusing leave to file a proposed second further amended claim. Second, whether the Magistrate erred in failing to apply r 98(3) of the Supreme Court (Civil) Rules 2006 (SA).
Held, per Parker J, dismissing the appeal:
1. The fresh evidence which the appellants seek to admit does not meet the second requirement expressed by Denning LJ in Ladd v Marshall, in that it is irrelevant to the issues which fell for determination by the Magistrate (at [25]-[27]).
2. A failure to plead sufficient particulars to give fair notice of a plaintiff’s case is not excused by an assertion that the particulars can be found in discovered documents, nor by asserting that the defendant already has knowledge of applicable particulars (at [39]-[40]).
3. The extent to which a defence is inconsistent with discovered documents does not affect the assessment of whether a claim has offended the rules and practice as to pleadings (at [39], [41]).
4. Error is not demonstrative of apprehended bias. Likewise, the making of findings which are ultimately adverse to a party is, in itself, insufficient to demonstrate apprehended bias (at [43]-[44]).
5. The Magistrate did not err in relation to the application of r 98(3) (at [52]-[53]).
Magistrates Court (Civil) Rules 2013 (SA) rr 3, 24; Supreme Court (Civil) Rules 2006 (SA) r 98; Listening and Surveillance Devices Act 1972 (SA), referred to.
Ladd v Marshall [1954] 3 All ER 745; Orchard v Orchard (1972) 3 SASR 89; Boys v Geneva Finance Ltd (rec and mgr apptd) [2001] WASCA 376; Wunda Joinery Pty Ltd (in liq) v Wunda Projects Australia Pty Ltd [2007] SASC 301; Palmos v Georgeson [1961] Qd R 186; Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228; Livesey v NSW Bar Association (1983) 151 CLR 288; House v The King (1936) 55 CLR 499, applied.
Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1994) 217 ALR 226; Ventura v Sustek (1976) 14 SASR 395; Bailey v Commissioner of Taxation (Cth) (1977) 136 CLR 214, considered.

CARTWRIGHT & ANOR v STEVE LITTLE PLUMBING & DRAINAGE & ANOR
[2019] SASC 76
Magistrates Appeal: Civil

PARKER J: This is an appeal against a decision of a Magistrate to strike out the appellants’ further amended claim against the respondents, and to refuse the appellants’ application for leave to file a proposed second further amended claim.
For the following reasons, I dismiss the appeal.
Background
On 9 August 2017, the appellants lodged a claim in the Magistrates Court against the respondents for damages in the amount of $100,000. The claim was in respect of plumbing services provided by the respondents to the appellants — specifically, the installation of a subsurface wastewater system on the appellants’ residential property in Crafers. The respondents’ provision of these plumbing services was alleged to have been both negligent and in breach of contract. This original claim was brief with only very limited particulars.
All parties to these proceedings were legally represented from the outset.
On 10 August 2017, the appellants filed an amended claim. Leave to file this amended claim was not required under r 24(1)(c) of the Magistrates Court (Civil) Rules 2013 (SA). Subsequently, on 29 August 2017, the respondents filed a defence to the claim.
Following a conciliation conference held at the Magistrates Court on 9 March 2018, the parties consented to an order granting the appellants leave to file a further amended claim within 21 days. A further amended claim was subsequently filed by the appellants on 9 April 2018.
On 28 May 2018, the respondents filed an interlocutory application for the further amended claim to be struck out, and for the appellants to file a second further amended claim providing further and better particulars of paragraphs [7] to [9]. The respondents contended, in a supporting affidavit, that the consent orders for leave to file a further amended claim were made following an agreement between the parties that the further amended claim would only add further and better particulars of paragraphs [7] to [9] of the claim. It was alleged that the further amended claim both failed to provide the necessary particulars, and also contained additional material of an embarrassing nature including conclusions of law, and offended against the rules and practice of pleading.
The interlocutory application was heard on 5 June 2018. At the hearing of the application, the appellants acknowledged that there were deficiencies in their pleadings and were granted leave to file an affidavit exhibiting a proposed second further amended claim. An affidavit exhibiting what would be the first of three iterations of the proposed second further amended claim was filed on 30 July 2018.
At a hearing on 31 July 2018, the respondents submitted that this first iteration of the proposed second further amended claim remained an embarrassment and still failed to comply with the rules. The respondents’ interlocutory application was listed for argument on 9 August 2018. In advance of arguing the interlocutory application, on 7 August 2018, the appellants filed a further affidavit exhibiting a second iteration of the proposed second further amended claim. This second iteration of the proposed second further amended claim added, among other additions, allegations in respect of a misrepresentation said to be made by the respondents during negotiations in February 2014 to resolve the dispute.
Following submissions on 9 August 2018, a further adjournment was granted to allow the appellants time to seek counsel’s advice and provide a third iteration of the proposed second further amended claim. An affidavit exhibiting the third (and now final) iteration of the proposed second further amended claim was filed on 20 September 2018. Further submissions were then made to the Magistrate on 27 September 2018.
The Magistrate’s decision
On 26 November 2018, the Magistrate made the orders against which the appellants now appeal.
Her Honour noted that, in the course of submissions on 5 June 2018, the appellants had effectively conceded that the original further amended claim was, in many respects, not a compliant pleading. Her Honour therefore considered this position to be uncontroversial and, consistently with the principles in Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd, struck out the further amended claim.[1] Thereafter, her Honour considered only whether the third iteration of the proposed further amended claim was compliant with the rules and whether the appellants should be granted leave to file it.
[1] (1994) 217 ALR 226.
The Magistrate held that the third iteration of the proposed further amended claim failed to comply with the rules of pleading in a number of respects, which can be summarised as follows:
·Sufficient material facts and particulars were not pleaded to support each element of the three causes of action pursued — negligence, misrepresentation and breach of contract;
·The purported particulars were prolix, unnecessary and repetitious; and
·Loss and damage were pleaded, but without particularisation as to how each loss was caused or whether it is common to all causes of action or relevant to a particular cause of action.
Her Honour therefore accepted the respondents’ submission that the proposed further amended claim left the respondents without fair notice of the appellants’ claim. Her Honour held that the pleadings left the respondents in a position where they were forced to disentangle the narrative of facts and irrelevant material pleaded to guess which facts were material to each of the three causes of action, an issue which was compounded by the appellants failure to plead all elements of the causes of action relied upon.
The Magistrate went on to find that the appellants’ continued reliance on defective pleadings had resulted in protracted proceedings contrary to r 3(1) of the Magistrates Court (Civil) Rules.
Given the appellants had been legally represented from the outset of the proceedings, the numerous opportunities already afforded to comply with the rules of pleading and the prejudice caused to the respondents by their ongoing failure to do so, the Magistrate held that it would not be appropriate to grant the appellants a further opportunity to replead their case. Her Honour therefore refused the appellants’ oral application to file the third iteration of the proposed further amended claim.
It is against this decision which the appellants appeal to this Court.
Fresh Evidence on Appeal
The appellants seek to introduce fresh evidence on appeal. Specifically, a transcript of a conversation between the first appellant Mr Cartwright and the second respondent Mr Little on or about 4 April 2016. The appellants contend that matters relevant to the issues on appeal were discussed in the course of this conversation.
This conversation was transcribed using an audio recording which was taken using a computer program called “Naturally Speaking”. Due to a hearing impairment suffered by Mr Cartwright, he uses this program to assist when taking a telephone call while at his computer. The program listens to, and takes an audio recording of, the telephone conversation while simultaneously displaying the text of the conversation on the computer screen for the benefit of the hearing-impaired user.
In the course of the conversation in question, Mr Cartwright and Mr Little discussed various matters including an application made to the Adelaide Hills Council regarding the plumbing work for which the respondents were contracted, prior communications regarding the space required by law for a subsurface wastewater system and prior communications regarding settlement.
The appellants’ application to introduce this fresh evidence of this conversation was the source of some delay of the hearing of this appeal. The matter was first raised less than 48 hours before the date on which the appeal was listed for hearing. Upon the initial hearing of this appeal, the appellants sought a three week adjournment.[2] The adjournment was said to be necessary due to the audio recording of the conversation being discovered very late. The respondents at that time opposed this adjournment on the basis that this new evidence lacks relevance to the issues before this Court on the appeal. Although I held a real doubt as to whether this further evidence was in any way relevant to this appeal, I granted the adjournment in the interest of procedural fairness to the appellants. Subsequently, a transcript of the recorded conversation was provided to both the appellants and the Court.
[2] This adjournment was sought following an earlier one week adjournment, granted due to the health issues of counsel for the appellants.
Appellants’ submissions — fresh evidence
The appellants submit that this fresh evidence is relevant in that it supports their contentions that the Magistrate was misled by the respondents and that her Honour’s decisions were in error.
Respondents’ submissions — fresh evidence
The respondents oppose the admission of this fresh evidence on the basis that there is no real possibility that an opposite result would have been reached if the evidence had been led at the hearing. The evidence is irrelevant and it would be an error to take it into account.
For the limited purpose of this appeal, the respondents indicated that they did not oppose the admission of the fresh evidence on the basis of its authenticity or by reason of a possible breach of the Listening and Surveillance Devices Act 1972 (SA).
Consideration — fresh evidence
The principles to be applied on appeal in a civil case on an application for admission of fresh evidence were expressed by Denning LJ in Ladd v Marshall as follows:[3]
In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.
These principles were approved by this Court in Orchard v Orchard and subsequent decisions.[4]
[3] [1954] 3 All ER 745 at 748 (Denning LJ).
[4] (1972) 3 SASR 89. However, in respect of the third condition, this Court held that all that is meant by “apparently credible” is “that the evidence proffered is not so patently incredible that it can be said that on the face of it it is not worthy of any credence”: Ventura v Sustek (1976) 14 SASR 395 at 400 (Bray CJ).
The respondents indicate that for the limited purposes of this appeal they do not take issue with the first and third requirements, but do object on the basis of the second requirement. In order to admit this fresh evidence I would nevertheless need to be satisfied of all three requirements. However, for the reasons that follow it is unnecessary to consider the first or third requirements in any further detail.
I do not consider that this fresh evidence satisfies the second requirement for the admission of fresh evidence, as it is irrelevant to the issues which fell for determination by the Magistrate. Importantly, the issue before the Magistrate was that of the adequacy of pleadings. Her Honour clearly identified a large number of aspects in which the appellants’ pleadings were deficient. The introduction of evidence of a conversation in April 2016 could not have influenced the assessment of the inadequacies of the appellants’ pleadings in November 2018.
I therefore decline to admit this fresh evidence.
Grounds of appeal
The appellants advance the following six grounds of appeal:
a.   the learned Magistrate erred in finding that the proposed Second Further Amended Claim (“SFAC”) failed to adequately plead the Plaintiffs’ case and failed to afford the Defendants fair notice
b.   the learned Magistrate erred in failing to apply Supreme Court Civil Rules 2006, Rule 98(3) in relation to the pleaded representation of the Respondent in February 2014 that gave rise to the Plaintiffs’ claims
c.   the learned Magistrate erred in failing to investigate conflicting material between the Defendants’ Defence as filed 29 August 2017 in that it directly contradicted discovered affidavit material of the Second Respondent.
d.   the learned Magistrate erred in failing to consider and act upon the Plaintiffs’ contention that the Respondents’ pleadings were in direct conflict with discovered affidavits of the Second Respondent and that this resulted in the court being misled in its view of the proceedings
e.   the learned Magistrate erred in dismissing the Plaintiffs’ claim on the grounds that the SFAC failed to afford the Defendants fair notice of the Plaintiffs’ case when the Defendants have, as pleaded and demonstrated by discovered materials, been privy to the basis and grounds of the Plaintiffs’ claims well before the institution of the proceedings
f.    the learned Magistrate erred in determining that it would be prejudicial to the Defendants to grant the Plaintiffs’ application to file the SFAC particularly given the particulars sought by the Defendants over time were exhaustively disclosed in discovered documents and were already known to the Defendants
In substance, the appellants’ six grounds of appeal (labelled as (a) to (f)) raise two key issues for consideration. First, whether the Magistrate erred in not considering or otherwise acting upon discovered documents when finding that the further amended claim should be struck out and refusing leave to file a proposed second further amended claim (grounds (a) and (c) to (f)). Second, whether the Magistrate erred in failing to apply r 98(3) of the Supreme Court (Civil) Rules 2006 (SA) (ground (b)).
Failure to consider or act on discovered documents — grounds (a) and (c)-(f)
Appellants’ submissions — grounds (a) and (c)-(f)
The appellants submit that the further amended claim, which was struck out by the Magistrate, does in fact adequately plead the appellants’ case and complies with the Supreme Court (Civil) Rules, when it is read in conjunction with various discovered documents. The appellants further contend that the respondents have been privy to the factual basis and grounds of the claim since 2008, well before the institution of the proceedings. In this respect, the appellants contend that the respondents had previously made admissions of liability in 2012, 2014 and 2016.
The appellants further submit that the Magistrate erred in failing to “investigate” in light of the respondents’ defence directly contradicting discovered affidavit and other documentary material. It is submitted that, by failing to do so, her Honour’s view of the appellants became biased and prejudiced the appellants’ ability to prosecute their claim.
In the course of oral submissions, the appellants further raised for the first time an allegation that the Magistrate demonstrated apprehended bias by failing to conduct the investigation suggested by the appellants in the previous paragraph. The appellants submit that this allegation of apprehended bias falls within the scope of grounds (c) and (d).
Respondents’ submissions — grounds (a) and (c)-(f)
The respondents submit that the Magistrate was plainly correct to find that the respondents did not have fair notice of the appellants’ case. The basis of each of grounds (a) and (c) to (f) — that the Magistrate failed to take into account or otherwise act upon discovered documents — is submitted to be fundamentally flawed in two respects.
First, the discovered documents were not before the Magistrate, as the appellants did not lead any evidence in respect of the discovered documents. There can therefore be no valid criticism of the Magistrate for a failure to take the discovered documents into account.

Second, even if the discovered documents had been before the Magistrate, her Honour would have been in error to take them into account in considering whether the proposed claim complied with the rules and practice as to pleadings and gave fair notice of the appellants’ case. The discovered documents are irrelevant to the pleadings issue before the Magistrate. They do not address the respondents’ fundamental underlying criticisms of the appellants’ failure to plead all the essential elements of each cause of action, or the respondents being placed in a position “where they are forced to disentangle the narrative of facts and irrelevant material pleaded to guess which facts are material to each cause of action”.
The respondents submit that it is not sufficient for the appellants to assert, in response to a request for further particulars, that the respondents can “work it out themselves” from discovered documents, nor that the information ought to already be in the respondents’ knowledge.[5] A plaintiff must plead its case with sufficient clarity and particularity to preclude conjecture about what their case will be, and to identify the case the defendant must meet. Those issues are all the more pertinent in these particular proceedings where the appellants’ claim has substantially altered with each new iteration.
[5] See, eg, Wunda Joinery Pty Ltd (in liq) v Wunda Projects Australia Pty Ltd [2007] SASC 301 at [8] (Judge Lunn); Boys v Geneva Finance Ltd (rec and mgr apptd) [2001] WASCA 376 at [15] (Anderson J); Bailey v Commissioner of Taxation (Cth) (1977) 136 CLR 214 at 219 (Gibbs J).
In respect of the apprehended bias allegation raised for the first time during oral submissions, the respondents submit that this is beyond the scope of the current grounds of appeal and opposed any attempt to expand the grounds to what appeared to be a new ground.[6]
[6] The appellants have not sought to amend their notice of appeal to add an additional ground in respect of apprehended bias. Rather, they assert that their allegation of apprehended bias is encompassed in grounds (c) and (d).
Consideration — grounds (a) and (c)-(f)
The appellants’ submissions in respect of grounds (a) and (c) to (f) raise two key propositions for consideration. First, the third iteration of the proposed second further amended claim adequately pleaded the appellants’ case in spite of the deficiencies identifies by the Magistrate, in that the respondents were already privy to the background of their case from discovered documents and their own pre-existing firsthand knowledge. Second, the Magistrate failed to act on the contention that the respondents’ defence contradicted discovered documents. I consider both propositions to be plainly incorrect for the following reasons.
As to the first proposition, a failure to plead sufficient particulars to give fair notice of a plaintiff’s case is not excused by an assertion that the particulars can be found in discovered documents,[7] nor by asserting that the defendant already has knowledge of the applicable particulars.[8] A defendant is entitled to rely upon the pleadings as to the case that will be advanced against them at trial, and to which the plaintiff will be confined.
[7] See, eg, Boys v Geneva Finance Ltd (rec and mgr apptd) [2001] WASCA 376 at [15] (Anderson J), [1] (Wallwork J agreeing).
[8] See, eg, Wunda Joinery Pty Ltd (in liq) v Wunda Projects Australia Pty Ltd [2007] SASC 301 at [8] (Judge Lunn); Palmos v Georgeson [1961] Qd R 186 at 193 (Stable J); Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 at 229 (Taylor J).
As to the second proposition, whether or not discovered documents contradict the facts asserted in the respondents’ defence has no bearing on the discretion to strike out the further amended claim or the discretion to refuse permission to file the proposed second further amended claim. Where two parties are in substantial dispute as to the fundamental facts underlying litigation, there will very often be discovered documents which contradict a set of pleadings. The determination of facts in this context is a matter to be resolved at trial, not in the course of a pleadings argument. Whether the respondents’ defence was consistent with discovered documents was wholly irrelevant to the matters which fell for determination by the Magistrate at that time. Her Honour was under no further obligation to unilaterally “investigate” this issue. The extent to which a defence is inconsistent with discovered documents does not affect the assessment of whether a claim has offended the rules and practice as to pleadings. In any event, as the respondents observe, the discovered documents were not in evidence before the Magistrate.
The appellants further contended, for the first time in oral submissions, that the Magistrate demonstrated apprehended bias by failing to investigate the inconsistency between the respondents’ defence and discovered documents. Although I do not consider that this contention, as the appellants suggest, falls within the scope of grounds (c) and (d), I will nevertheless address it for completeness.
The appellants submit, in effect, that by declining to embark on the inquiry that they proposed and making a decision against their interests, the Magistrate demonstrated apprehended bias. I consider that this submission is plainly incorrect and misconceives the nature of apprehended bias. The principle to be applied in respect of apprehended bias was expressed by the High Court in Livesey v NSW Bar Association as follows:[9]
a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.
[9] (1983) 151 CLR 288 at 293-294 (Mason, Murphy, Brennan, Deane and Dawson JJ).
The appellants have offered no explanation as to why the course adopted by the Magistrate might lead to a reasonable apprehension that her Honour might not bring an impartial mind to determining the adequacy of the proposed second further amended claim, save for asserting that her Honour erred in various ways. Even if her Honour’s approach was in error, that is not demonstrative of apprehended bias. Likewise, the fact that the Magistrate’s findings were ultimately adverse to the appellants is, in itself, insufficient to demonstrate apprehended bias. It is by no means reasonable to apprehend that a judge is biased against a party solely because they made a finding against that party.
As such, nothing in grounds (a) and (c) to (f), nor in the appellants corresponding submissions, points to an error in the exercise of the Magistrate’s discretion of the type identified by the High Court in House v The King,[10] or indeed any error whatsoever.
[10] (1936) 55 CLR 499.
I dismiss the appeal on grounds (a) and (c) to (f).
Failure to apply r 98(3) — ground (b)
Appellants’ submissions — ground (b)
The appellants submit that, in accordance with r 98(3) of the Supreme Court (Civil) Rules, the further amended claim properly pleaded the nature of and effect of the words and representations made by the respondents in February 2014 that gave rise to the appellants’ claim.
Respondents’ submissions — ground (b)
The respondents observe that the appellants did not seek to rely on r 98(3) in the course of their submissions to the Magistrate.
The respondents submit that the Magistrate made no criticism of the appellants on the basis that they pleaded the effect of a conversation or document as opposed to the actual words. The Magistrate did criticise the appellants’ failure to plead who, and in what capacity, made the alleged representations to the appellants which form the basis of the claim. However, r 98(3) does not address this deficiency.
Consideration — ground (b)
The part of the third iteration of the proposed second further amended claim which purports to plead the particulars of the misrepresentation in February 2014 is as follows:
Particulars of Misrepresentation of the Defendants
38.     In addition to and/or in the alternative the Plaintiffs claim the following.
39.The Plaintiffs and Defendants entered into a contractual relationship in early 2008 for the Defendants to provide plumbing services as a Master Plumber.
40.The Defendants owed a duty of care to the Plaintiffs in relation to their work and advice/information provided to the Plaintiffs regarding their work.
41.On and from early February 2014 the Defendants engaged in discussions with the Plaintiffs to resolve disputation between them arising from the Defendants’ prior plumbing works.
42.At all relevant times the Defendants were undertaking a plumbing business and engaging in trade, commerce or business.
43.In early February 2014 the Plaintiffs claim that the Defendants made representations to them that:
a.     The previous plumbing works undertaken by the Defendants were compliant (with legislative, regulatory and SA Health requirements)
b.     The rectification solution being discussed between the parties would be compliant (with legislative, regulatory and SA Health requirements)
44.In a signed statement dated 15 April 2014, and provided to the Plaintiffs, the Defendants maintained that 200m² was sufficient area for sub-surface irrigation for the Plaintiff’s system to be compliant when originally installed.
45.The Plaintiffs claim that the Defendants’ representation to the Plaintiffs regarding compliance of previous plumbing works undertaken by them were made in context of and/or consequential of the admitted fraudulent application lodged with Adelaide Hills Council by the Defendants.
46.The Plaintiffs relied on the Defendants’ representations made on and from February 2014.
47.The Plaintiffs relied on the Defendants’ written and signed statement of 15 April 2014 regarding required square metres for sub-surface irrigation for the Plaintiff’s residence.
48.The Plaintiffs became aware that in February 2008 336m² of sub-surface irrigation was required, and with legislative changes, from July 2013 426m² of sub-surface irrigation was required for the Plaintiffs’ residence.
49.The Plaintiffs claim that the Defendants’ conduct and statements breached the Misrepresentation Act 1972 (SA) s4 and/or their common law rights.
50.The Plaintiffs claim that they have suffered loss and damages as a consequence of the abovementioned representations.
The Magistrate held that this part of the third iteration of the proposed second further amended claim failed to comply with the rules as to pleadings in the following respects and for the following reasons:
At paras.38-50 the plaintiffs plead ‘Particulars of Misrepresentation’ yet fail to plead sufficient material facts and particulars in support of such an action. Instead, paras.26-31 are repeated, apart from para.49 which pleads a breach of the Misrepresentation Act 1972 (SA). In addition;
·    Separate representations are alleged at paras.43 and 44, however the plaintiffs have failed to particularise the detriment suffered as a result of each representation relied on or how they ‘relied on the Defendants’ representations’ and suffered that detriment. It is not pleaded who made the representations or in what capacity the representations were made.
·    The facts pleaded at paras.30-41, 44-46, 48-49 are not material facts or matters relevant to an action for misrepresentation.
·    Paras.42, 44 and 47 offend against SCCR r 98(2)(b) in that they plead the evidence and/or arguments by which the alleged facts are to be proved.
The appellants contend that, in undertaking this consideration of the proposed second further amended claim insofar as it regarded misrepresentation, the Magistrate erred in failing to apply r 98(3) of the Supreme Court (Civil) Rules. Rule 98(3) provides that:
If a claim or defence is based wholly or in part on a document or conversation, the effect rather than the actual words of the document or conversation should be pleaded unless there is good reason to state the actual words.
Plainly, there were numerous deficiencies in the proposed second further amended claim in respect of the allegations of misrepresentation. However, the Magistrate made no criticism of the appellants for pleading the effect, as opposed to the actual words, of any documents or conversations. This was not a basis upon which her Honour found that the pleading offended the rules as to pleadings. Rather, this part of the pleading gave rise to various other inadequacies, including failing to particularise the detriment suffered as a result of each representation, pleading matters not relevant to an action for misrepresentation and pleading the evidence and arguments by which the alleged facts are to be proved. The application of r 98(3) does not render acceptable these deficiencies in the pleadings. The Magistrate did not err in relation to the application of r 98(3).
I dismiss the appeal on ground (b).
Conclusion
I dismiss the appeal on all grounds.