Commissioner of Fair Trading v Kent Publishing Pty Ltd

[2007] NSWSC 591

CITATION:	Commissioner of Fair Trading v Kent Publishing Pty Ltd [2007] NSWSC 591
HEARING DATE(S):	25 May 2007
JUDGMENT DATE :	8 June 2007
JUDGMENT OF:	Price J at 1
DECISION:	1. The plaintiff is to provide answers to the defendants' request for further and better particulars dated 14 February 2007 within 21 days. 2. The plaintiff is to pay the defendants' costs of this motion.
CATCHWORDS:	Civil procedure - request for further particulars
LEGISLATION CITED:	Trade Practices Act 1974 (Cth)
CASES CITED:	Sims v Wran [1984] 1 NSWLR 317
PARTIES:	Commissioner of Fair Trading Kent Publishing Pty Ltd Dean James King
FILE NUMBER(S):	SC 2007/20008
COUNSEL:	Mr G Sarginson - applicant Ms M Hindman - respondent

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

8 June 2007

2007/20008 Commissioner of Fair Trading v
Kent Publishing Pty Ltd &
Dean James King

JUDGMENT

1 HIS HONOUR: The second notice of motion is that filed on 1 May 2007 by which the defendants seek orders that the plaintiff provides answers to the defendants’ request for further and better particulars of the statement of claim dated 14 February 2007 within 14 days.

2 Broadly stated, at issue are the plaintiff’s responses that the further particulars sought are not a matter for particulars as they are matters for evidence. The request for further particulars appears at pages 4 to 8 of the annexure marked ‘BFP1A’to the affidavit of Bernard Francis Ponting sworn on 27 April 2007. The plaintiff’s response appears at pages 15 to 17 of the same annexure. The defendants contend that the further particulars are necessary to enable them to clearly know the case they have to meet. Criticism is made of the laxity of the plaintiff’s pleading and of the particulars which have been supplied making no sense. What the plaintiff has done, the defendants argue, is to plead some generic summary of its case.

3 The plaintiff contends that the particulars provided in the statement of claim are clear and extensive affidavit evidence has been served. In response, the defendants submit that they should not be required to “trawl through” the affidavit material. The defendants express the concern that given the width of the allegations and the plaintiff’s refusal to supply the particulars they may miss at trial allegations that might fall under more than one section of the Trade Practices Act1974 (Cth) (TPA).

4 As was observed by Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 321 the fundamental principle in relation to particulars is that a party must be made aware of the nature of the case he is called upon to meet. One of the objects of particulars is to make the party’s case plain so that each side may know what are the issues of fact to be investigated at the hearing.

5 Although extensive affidavit material has been served, it is not a sufficient answer to the defendants’ request for further particulars to make a general reference to the affidavits. The defendants are entitled to be adequately apprised of what the plaintiff alleges are the facts relevant to each of the allegations. In Sims Hunt J said (at 321):

“It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet.”

6 The difficulties presently faced by the defendants are illustrated by the plaintiff’s response to the request for particulars so far as concerns paragraph 25(b). The defendants sought particulars of “each assertion of a present right to payment”. The plaintiff responded by asserting that was a matter for evidence and made a general reference to the affidavits filed. As the defendants submit each assertion is fundamental to establishing a contravention of the TPA and they should not be left to guess at what will be submitted are the relevant assertions.

7 It seems to me without the further provision of particulars the defendants do not have an adequate knowledge of what the plaintiff alleges are the facts relevant to the case as pleaded which they are required to meet.

8 Orders

1. The plaintiff is to provide answers to the defendants’ request for further and better particulars dated 14 February 2007 within 21 days.

2. The plaintiff is to pay the defendants’ costs of this motion.

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