CTC Resources Nl v Australian Stock Exchange Ltd - [2004] WASCA 281

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: CTC RESOURCES NL -v- AUSTRALIAN STOCK EXCHANGE LTD [2004] WASCA 281

CORAM: MCKECHNIE J
SIMMONDS J

HEARD: 9 NOVEMBER 2004

DELIVERED : 9 NOVEMBER 2004

FILE NO/S: FUL 79 of 2004

BETWEEN: CTC RESOURCES NL (ACN 009 061 036)
Appellant
AND
AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691)
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :CTC RESOURCES NL v AUSTRALIAN STOCK EXCHANGE LTD
File No  :CIV 2379 of 1996
Result  :Appeal dismissed

Catchwords:

Practice and procedure - Request for particulars - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M J McPhee
Respondent: Dr J T Schoombee

Solicitors:

Appellant: Michell Sillar McPhee
Respondent: Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

CTC Resources v ASX (2000) 22 WAR 48

Case(s) also cited:

Astrovlanis Compania Naviera SA v Linard [1972] 2 All ER 647
Chapmans Ltd v Australian Stock Exchange Ltd (1994) 123 ALR 215
Phillips v Phillips (1878) 4 QBD 127
Tesco Supermarkets Ltd v Nattrass [1971] 2 All ER 127

MCKECHNIE J: This is an appeal from the decision of Master Sanderson refusing the order of particulars in an action which has been ongoing since 1996 and which has encountered more than a few potholes on the litigation road.
The background is set out in CTC Resources v ASX (2000) 22 WAR 48 and I do not need to repeat it. I will refer to the parties as plaintiff and defendant. The origin of this particular appeal arises first of all from a pleading in the defence which pleads at par 24.1:
"… ASX was entitled to and did remove CTC from the Official List pursuant to the terms of the Listing Contract pleaded earlier in that the ASX, in the proper exercise of its discretion:
(a)formed the view that the SIB scheme would damage the integrity of the market operated by ASX and bring that market into disrepute,"
Other particulars were given in relation to that pleading, notably that the view was made known on 12 September 1990. There were further communications. It is alleged that the ASX gave proper consideration to the submissions and by par 24.1(e), after consideration of those submissions, affirmed the view referred to in par 24.1(a).
After a considerable delay in the proceedings, a matter to which I will shortly refer, further and better particulars were requested of par 24.1(a) of the defence and, in particular, when the view was formed, where the view was formed, by whom within the defendant the view was formed, and the facts, matters and things relied on by the defendant to form the said view.
That request for particulars was not answered formally. In a letter of 9 February 2004 the defendant's solicitors wrote to the plaintiff's solicitors objecting on two grounds to answering the request for further and better particulars - first, "timing"; and, second, on the basis that it was said that it was "not a proper request for particulars", being a matter of evidence.
The letter then went on to say at par 2.5 that the client was prepared to provide an overview, in general terms, of what its evidence would be on those issues raised in the request for particulars. Those matters were then set out. That was not satisfactory to the plaintiff who took the action before the Master. The Master dealt with the matter on 26 May 2004 and, following argument, indicated in very brief reasons why he was not prepared to make the order.
The Master indicated that he had the written submissions of both parties which dealt the matter comprehensively. He said that in large measure he accepted the submissions put by the defendant. He noted there was a real question as to whether or not the particulars requested were proper particulars. He thought it was arguable that they were a quest for evidence.
In summary, the plaintiff's argument before the Master, and before us, is that the request for further and better particulars is a request of a "condition of mind" under O 20 r 13(b) and therefore particulars must be required. The defendant's argument, in summary, is that the request is a quest for evidence and therefore particulars should be refused. There is said to be, by the plaintiff, a tension between those matters.
However, the Master put that to one side because he contended that there were two factors of practical importance which led to his conclusion. The first was that the correspondence, to which I have just referred, goes a long way to providing the particulars requested and, it seemed to him, all that was required from the defendant.
The second matter was, in the Master's opinion, that there would inevitably be orders for the exchange of witness statements, and while he noted the difficulties that the plaintiff faced, he considered that orders for the conduct of the trial could be crafted to allow the plaintiff to respond to any positive case put by the defendant in its witness statements. This was a reference to an interchange between the Master and counsel for the plaintiff earlier on in the proceedings when it was acknowledged by counsel that the defendant put forward a positive case in its defence at par 24, to which I have referred.
The Master then continued, saying that he thought there was a risk that if particulars were ordered, particularly subpar (d) of the request, there was a real prospect that further difficulties would arise for the defendant in providing adequate answers without raising again the public interest immunity question. It is that question which seems to me to have dogged this litigation so far, there having been discovery, which was disputed, and the public interest immunity claim was the subject of CTC Resources v ASX.
There have been interrogatories and this is, in the words of the appellant's counsel, "another way to skin the cat" by way of particulars. The Master did go on to make a final comment (which I do not really regard as part of the reasons which led to his conclusion) that the plaintiff faces serious problems and that some care must be exercised not to in some way undermine that immunity by orders he might make in accordance with the interlocutory process. I think those comments really probably went beyond that which the Master had to decide at the time.
The defendant raises the issue of delay and it is undoubted that there was a considerable delay. The Master felt it unnecessary to deal with the question of delay in view of the view he took on other matters, as really do I, although I would note that, although the respondent's counsel is critical of the plaintiff's actions it does seem to me that this litigation and the matters which have befallen the company are quite unusual and I would incline to the view that the delay has been satisfactorily explained. It is not necessary to decide that matter.
The plaintiff in essence complains about the Master's wrong exercise of discretion in failing to order particulars. This Court will only interfere if it is satisfied that there was a wrong principle, that the discretion was not properly exercised, or that substantial injustice will result from the order.
In the course of argument we pressed Mr McPhee, who has characteristically and forthrightly put the plaintiff's case, as to what the real injustice was. Plainly he would like formal particulars as part of the book of pleadings. However, having regard to the way that this litigation has been conducted, and the informal nature of the overview of the evidence which was supplied, it seems to me that the Master's discretion did not miscarry in the circumstances. This is litigation which has required careful management by the Master from time to time and in the circumstances the Master's decision was sensible.
I say that because, in the particular circumstances of this case, I do not regard the formality of the pleading as adding anything substantial. If the defendant were to depart in any real way from its outline and its letter of 9 February then that would be a substantial matter against it in the course of the trial, so I do not see in this case that the Master's discretion miscarried. It should not be taken that I would in every case agree that formal requests should be answered in this way. In this case I consider the discretion was properly exercised.
Even if the discretion were improperly exercised, I am certainly not persuaded that there is any substantial injustice if the decision is left unreversed for the reasons I have just expressed. It seems to me that the plaintiff is not prejudiced by the way in which this matter has unfolded in

relation to the particulars. It knows the case it has to meet. The defendant has to mount a positive case to support its pleadings in this respect. Finally, there is of course the caution in intervening too readily in matters which involve case management and case flow. The Court will intervene if there is a substantial departure or substantial injustice. I am not satisfied that either of those have been established and for those reasons I would dismiss this appeal.

SIMMONDS J: For the reasons just given by McKechnie J I too would dismiss the appeal, laying particular emphasis on what his Honour last said about the interplay between the detail and the rules and the interests of orderly case management on the facts we have before us today.