Cortis Exhaust Systems Pty Ltd v Kitten Software Pty Ltd

[1998] FCA 1758

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 639 of 1998

BETWEEN:	CORTIS EXHAUST SYSTEMS PTY LTD APPLICANT
AND:	KITTEN SOFTWARE PTY LTD & OTHERS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	21 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
Ex-tempore Judgment

This is a notice of motion that was filed on 27 November 1998, seeking to strike out the applicant's statement of claim and seeking an order for costs on an indemnity basis.  Alternatively, the applicant seeks that further particulars be furnished and that the proceedings be stood over for further directions.  I have considered the response to the request for particulars which has been furnished.  In the light of the request for those further and better particulars, I do not think that there has been any meaningful attempt to meet the requests which have been made in the letter requesting the further and better particulars.  I consider that this warrants the making of an order that there be full compliance with the request for further and better particulars, as set out in the letter of 30 November 1998.

There have been numerous breaches in this matter on behalf of the applicant in a number of significant respects. However, at the moment the live issue before me is the question of particulars.  It is not sufficient in supplying particulars to simply refer to a mass of material or to indicate that the respondent ought to know what is being alleged and leaving the respondent to determine what the details are.  In the present circumstances, the statement of claim is cast in the widest terms.  There are no detailed particulars furnished in the statement of claim. It is essential that the issues be defined as much as possible prior to the hearing.

I fully appreciate that having regard to the nature of the case, this involves a difficult task in furnishing complete particulars because of the number of parties involved.  Nevertheless, I think that there is a need in this matter for much greater specificity in relation to those matters within the power of the respondent.  The generalised letter of 16 December 1998 does not meet this requirement.  There are unexplained gaps in the material and it is not sufficient to simply refer to a large volume of statements or correspondence in a general way.  The object of the exercise is to pinpoint the ways in which the allegations are made in specific terms.  Accordingly, I order that there be further and better particulars supplied on or before 29 January 1999 and that the matter should be re-listed for further consideration before me on 12 February 1999.

On the issue of costs, I think, having regard to the history of this matter and having regard to the broad and unhelpful terms of the letter of 16 December 1998 that there ought be an order for costs.

The important consideration is that the orders sought were put in the alternative and I do think that in the circumstances the applicant on the motion should get its costs.  I further think that having regard to the nature of the matter and the history of non-compliance that it is appropriate that those costs be on an indemnity basis and that leave be given to pursue those costs forthwith.

I certify that this and the preceding one page is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             21 December 1998

Solicitor for the Applicant on the motion:	Tzovaras Yandell
Solicitor for the Respondent on the motion:	Westside Lawyers
Date of Hearing:	21 December 1998
Date of Judgment:	21 December 1998