DeLaval Pty Ltd v Paltridge (as trustee for the Nellybrook Trust (No 2)
[2020] VCC 101
•18 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-05343
BETWEEN
| DELAVAL PTY LTD (ACN 004 210 459) | Plaintiff |
| and | |
| THOMAS RICHARD PALTRIDGE AS TRUSTEE FOR THE NELLYBROOK TRUST (trading as R & TR Paltridge) (ABN 95 023 958 113) | First Defendant |
| And | |
| THOMAS RICHARD PALTRIDGE | Second Defendant |
| and | |
| THOMAS RICHARD PALTRIDGE AS TRUSTEE FOR THE NELLYBROOK TRUST (trading as R & TR Paltridge) (ABN 95 023 958 113) | Plaintiff by Counterclaim |
| and | |
| DELAVAL PTY LTD (ACN 004 210 459) | Defendant by Counterclaim |
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JUDGE: | His Honour Judge Woodward | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2019, final written submission 17 December 2019 | |
DATE OF RULING: | 18 February 2020 | |
CASE MAY BE CITED AS: | DeLaval Pty Ltd v Paltridge (as trustee for the Nellybrook Trust & Anor (No 2) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 101 | |
REASONS FOR RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application for leave to file fifth amended defence and third amended counterclaim – applicable pleading principles – application opposed – application granted
Legislation Cited: Civil Procedure Act 2010 (Vic)
Cases Cited:Mandie v Memart Nominees Pty Ltd [2016] VSCA 4; Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd (2011) 35 VR 1; Bishopsgate Insurance Australia Limited (in liq) v Deloitte Haskings and Sells (1999) 3 VR 863; Demagogue v Ramensky (1992) 39 FCR 31; Baum v Barport [2018] VSC 291; Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2015] NSWCA 94; Bloomingdale Holdings Pty Ltd v 63 Buckley Street Pty Ltd [2008] VSC 168
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Kaskani | Frenkel Partners |
| For the Defendant | Mr R Ross-Smith | Degaris Lawyers |
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HIS HONOUR:
Summary of application and outcome
1 This proceeding came before me on 30 September 2019 (“30 September hearing”) on the hearing of an application by the first defendant and plaintiff by counterclaim (“Mr Paltridge”) for leave to file a fifth amended defence and third amended counterclaim dated 9 August 2019. The plaintiff and defendant by counterclaim (“DeLaval”) opposed the application. The parties had filed written submissions and the application took the best part of a day. I made it clear early in the application that I was troubled about the tortuous history of the proceeding and was concerned to do what I could to assist the parties to get it back on track. At the conclusion of the hearing, I made orders in substance as follows:
· adjourning the application for leave;
· allowing Mr Paltridge an opportunity to file and serve a further version of the pleading to take into account the matters discussed during the hearing; and
· making provisions for what was to happen, contingent on whether DeLaval consented to leave being granted to Mr Paltridge to file the latest version of the pleading.
2 Mr Paltridge duly prepared further versions of his pleading, the latest of which bears the date 8 October 2019, but appears to have been finalised on 25 October 2019 (“Latest Pleading”). DeLaval did not consent to leave being granted to file the Latest Pleading. The parties have since filed and served further written submissions in relation to the Latest Pleading, pursuant to orders made by consent on 11 November 2019. Mr Paltridge has sought an opportunity to make further oral submissions in relation to the application for leave. DeLaval was content to have the matter determined on the papers. Given my findings below, it is not necessary to hear further from Mr Paltridge at this time. In summary, those findings are that, although the Latest Pleading has ongoing deficiencies, I am satisfied that it now discloses a reasonable cause of action and otherwise defines with sufficient clarity the case that DeLaval has to meet.
3 I will therefore order that Mr Paltridge has leave to file and serve the Latest Pleading, except for a few paragraphs, while providing him with an opportunity to make further minor refinements based on my reasons below, should he be so advised. That opportunity does not presently extend to the few paragraphs in respect of which leave is refused. On costs, Mr Paltridge has been substantially successful on his application. On the other hand, I have upheld some of DeLaval’s complaints and, in making the application (given its history), Mr Paltridge is in substance seeking an indulgence. My tentative view therefore is that there should be no order for costs on the application beyond those already made. But I will provide the parties with the opportunity to make further brief written submissions solely on the question of costs should they disagree with my tentative view, before finalising my orders.
The history of the pleadings dispute
4 DeLaval made three successful strike out applications before this application. The first was heard on 11 May 2018 by me and the second by his Honour Judge Macnamara on 19 July 2018. On both these occasions Mr Paltridge was given leave to file and serve a further pleading and ordered to pay DeLaval’s costs thrown away by reason of the re-pleading. The third application came before her Honour Judge Ryan. Because of some logistical difficulties with the hearing, this application was ultimately determined by her Honour on the papers.
5 Her Honour published reasons for her ruling on 31 May 2019 ([2019] VCC 443) (“Ryan J Ruling”). Her Honour found that some of the pleadings criticised by DeLaval were sound and others could be remedied by the provision of particulars. However, she accepted most of DeLaval’s submissions and considered that the extent of the defects was such that the preferable course was to direct Mr Paltridge to file and serve a further proposed pleading, and for DeLaval to thereafter confirm its consent or otherwise to the granting of leave to file and serve that further pleading. It is that pleading that came before me for consideration at the 30 September hearing.
6 In the course of the Ryan J Ruling, her Honour summarised the claims in the proceeding. I gratefully adopt that summary:
· This proceeding was commenced by writ on 14 November 2017. An amended statement of claim was filed on 13 February 2018 (“ASC”). Mr Paltridge is sued as first defendant in his capacity as trustee for a trust known as the Nellybrook Trust and alternatively, as second defendant in his own name.
· DeLaval is engaged in the business of developing, manufacturing and marketing equipment and systems for milk production and husbandry. Mr Paltridge is the owner of and/or the representative of the owner of dairies situated in South Australia.
· DeLaval pleads in paragraph 4 of the ASC that it entered into a contract with the Trustee or alternatively, Paltridge in 2012 (“the 2012 agreement”) whereby DeLaval agreed to supply and install various milking and plant equipment. DeLaval subsequently supplied the equipment and completed installation on or about 1 March 2013. DeLaval issued a tax invoice for the contract price of $217,800, which sum remains unpaid.
· As a result of Mr Paltridge’s failure to pay the tax invoice, DeLaval sues for the outstanding debt, together with interest calculated under the 2012 agreement.
· By his defence, Mr Paltridge admits entry into the 2012 agreement with DeLaval, but says that the agreement was between DeLaval and Mr Paltridge as trustee (paragraph 5). Mr Paltridge also admits the equipment was supplied and installed and a tax invoice was issued for the sum of $217,800.
· Mr Paltridge denies he is obliged to pay the debt claimed because of a breach of warranty by DeLaval that the equipment would be of merchantable quality and the equipment did not meet specified performance criteria. Mr Paltridge claims a set off of any amount payable against the amounts claimed in the counterclaim.
· Mr Paltridge counterclaims for various forms of relief arising from several causes of action, namely, misleading and deceptive conduct, breach of contract, negligence and unconscionable conduct. The amounts sought in the counterclaim vastly exceed the quantum of the claim.
7 When the application came before me at the 30 September hearing, I had read the Ryan J Ruling and the detailed written submissions of both parties and the version of the pleading Mr Paltridge was then seeking to file. Having done so, I formed the tentative view that this was not a case where the failure on numerous occasions to produce a coherent counterclaim was because there was essentially no substance to the claim. I expressed this view at the commencement of the hearing and counsel for DeLaval Mr Kaskani essentially agreed, stating “We’ve always thought of course there is a claim here, and of course Mr Paltridge is entitled to bring it. There’s been no question about that”.
8 Rather, it seemed to me that the problems with the claim have arisen (and to some extent continue) because of a combination of changes in those retained to prepare the pleading and, in relation to more recent versions, perhaps some over-engineering of aspects of the claim, leading to a loss of the wood for the trees. It is also possible that jurisdictional differences have played a part, given that Mr Paltridge’s solicitors and counsel are both based in South Australia. Regardless, and importantly, there is no suggestion that the difficulties have been created or aggravated by any lack of attention or effort by Mr Paltridge himself.
9 Against that background, in my judgment, the overarching purpose under Part 2.1 of the Civil Procedure Act 2010 (Vic) (“CPA”) is best served in the difficult circumstances of this case by the court taking whatever steps are reasonably available to bring finality to this protracted dispute over pleadings, so the proceeding can progress swiftly to mediation and trial. Those steps have included taking the somewhat unusual course (both at the 30 September hearing and in these reasons) of descending to suggestions as to how particular pleadings may be framed to respond to the concerns raised by DeLaval. I hasten to emphasise that the suggestions are merely that – it is ultimately a matter for Mr Paltridge and those advising him to draft and sign the pleadings, and be responsible for their form and content (including, in that regard, by ensuring adherence to their overarching obligations imposed by Parts 2.2 and 2.3 of the CPA).
The alleged deficiencies - general complaints
10 After an introduction and a brief history of the application, DeLaval commences its primary submissions by setting out the principles governing leave to amend. These are similar to the submissions made in the application before Ryan J and summarised in the Ryan J ruling. As I read the submissions of both parties, the principles are not relevantly in dispute—although I emphasise “relevantly”, because DeLaval does seek to challenge aspects of Mr Paltridge’s summary of principles. But in my view, nothing turns on those challenges.
11 DeLaval’s primary submissions place particular emphasis on the findings in McGuirk v University of New South Wales[1] and also refer to the summary of pleading principles by Derham AsJ in Hoh & Ors v Frosthollow Pty Ltd & Ors.[2] DeLaval next refers to the intersection between principles governing leave to amend and summary judgment principles, referred to in Mandie v Memart Nominees Pty Ltd (“Mandie”).[3] In Mandie, the Court of Appeal confirmed that refusing leave to amend a pleading that would be susceptible to summary judgment, avoids cost and inconvenience and thus facilitates the administration of justice.[4] As DeLaval notes, the Court of Appeal also considered the litigation landscape for applications for leave to amend since the introduction of the CPA, as follows (citations omitted):[5]
“The CP Act has changed the litigation landscape. One of the main purposes of that legislation is to reform practice and procedure in civil proceedings, including by reforming the law relating to summary judgment. More than ever, the focus is now pointedly on efficiency and cost-effectiveness, albeit that they are not the only, nor the predominant, considerations. One consequence is that amendments that might have been permitted previously may no longer be allowed. As such, the older authorities that preceded the CP Act which set out when a pleading amendment will be allowed must be approached with caution.”
[1][2009] NSWSC 1424 at [18]-[35]
[2][2014] VSC 77 at [13]-[20]
[3][2016] VSCA 4
[4][2016] VSCA 4 at [43] per Kyrou JA, Ferguson JA and McLeish JA
[5][2016] VSCA 4 at [42] per Kyrou JA, Ferguson JA and McLeish JA
12 Mr Paltridge’s discussion of these principles largely accords with DeLaval’s, except that (unsurprisingly) Mr Paltridge adds reference to authorities for the proposition that: “Pleadings are not an end in themselves. Instead, they are a means to the ultimate attainment of justice between the parties to litigation”.[6] As Mr Paltridge submits, it is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow any relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds.[7] However, courts do not take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded.[8]
[6]Citing Banque Commerciale SA (in liq) v Akhil Holdings (1990) 92 ALR 53 (at 63) per Dawson J citing Isaacs and Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 (at 517)
[7]Dare v Pulham (1982) 148 CLR 658 at p664-5, see also Lopes v Taranto (as executor of the Will and Estate of Taranto (dec’d)) [2018] VSCA 288 at [48]-[49] per Kyrou, McLeish and Hargrave JJA
[8]Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
13 In its submissions in reply, DeLaval is critical of Mr Paltridge for citing Dixon J in Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd[9] (“Ottedin”) over the decision of the Court of Appeal in Mandie, on the application of summary judgment principles. In my view, any distinction between the authorities is more apparent than real. In particular, I see no conflict between the decision in Mandie and the following passage from Ottedin relied on by Mr Paltridge:[10]
“The power to order summary dismissal is to be exercised with great care, as a trial upon evidence of issues raised is the well-settled approach to the determination of litigation. When proceeding on a summary application to assess the prospect of success, a judge ought to feel confident that an assessment can properly be made of whether the overarching purpose is facilitated on dismissal of the impugned claims.”
[9](2011) 35 VR 1
[10](2011) 35 VR 1 at [18]
14 In considering the issues in this application, I have sought to apply the principles in Mandie. However, I have also had regard to whether, as noted by Dixon J, dismissing the impugned claims facilitates the overarching purpose under the CPA—as the Court of Appeal in Mandie emphasised, the CPA has changed the litigation landscape. For the reasons explained above, I am satisfied in the circumstances of this case, that facilitating the overarching purpose under the CPA leads to the opposite result.
15 DeLaval also criticises Mr Paltrige for seeking “to rely on a passage in Arab Monetary Fund v Hashim (No 2) [1990] 1 All ER 673 at 679 (per Hoffman J), which is cited by Croft J in Taverners J Pty Ltd v Saxo Bank A/S [2011] VSC 27 (at [27]), to support a position that Paltridge ought to be entitled to plead his case in general terms and defer particularisation until after discovery”. In my view this criticism goes nowhere, because I am not persuaded that Mr Paltridge has pleaded his case in general terms. For the most part, I am satisfied that the allegations are pleaded and particularised in sufficient detail to illuminate the case that DeLaval has to meet. Where further particulars might assist a more comprehensive understanding of the allegation, I am satisfied that it is reasonable for Mr Paltridge to defer provision of those particulars until after discovery.
16 DeLaval also repeats submissions advanced before Ryan J on prejudice. It argues that over the last 3 to 4 months, the Defendants have “abandoned some allegations (which had appeared in his proposed pleadings for more than a year) and sought to introduce wholly new allegations, including in relation to events that occurred more than 11 years ago, and in relation to causes of action which had accrued by 2013”. It is convenient for me to repeat what her Honour said about this issue, given that her remarks traverse essentially the same arguments as those made to me. Her Honour began by summarising that argument and then expressed her findings in response, as follows:
“One of the matters relied upon by DeLaval is the significant prejudice it claims will be caused if the amendments are allowed because of the delay by Paltridge in pursuing the counterclaim. As a consequence of that delay, the prejudice to DeLaval is the inevitable diminution of memory and the consequent unfairness in having to meet allegations long after the events in question. The events complained of arose in 2008 and 2009, some nine or 10 years ago.
In support of the proposition that prejudice can be drawn by reason of significant delay, DeLaval relied upon Bishopsgate Insurance Australia Limited (in liq) v Deloitte Haskings & Sells,[11] and also to Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (a firm),[12] where Gleeson J stated at 183:
“I also accept that the amendments, if allowed, would cause significant non-compensable prejudice to the defendants by increasing the unavoidable strain of the litigation on them. That prejudice would be particularly acute because of the length of time since the events the subject of the proceedings, which exacerbates the strain of preparing a defence due to loss of recollection, and because of the large expansion of the matters in issue, including the issue of states of mind in 2007 and 2008.”
In addition, DeLaval relied upon Brisbane South Regional Health Authority v Taylor[13] in support of the effect of delay and the quality of justice and, in particular, the effect upon a defendant if an action is allowed to be brought long after the circumstances which gave rise to it have passed. In addition, the public interest requires that disputes be settled as quickly as possible.[14]
The defendants submitted the suggestion of prejudice by reason of delay was speculative and unsupported. They argued that the plaintiff had not suggested, and there was certainly no evidence for it, that any witness had told DeLaval that they cannot remember sufficient details now.
Whilst the issue of delay is a relevant factor relating to presumptive prejudice, I am not ultimately persuaded that any of the causes of action relied upon in the counterclaim should not be permitted for that reason alone. Other than the usual lapse of memory that might occur relating to events dating back to 2008, I am not satisfied that DeLaval has established any real prejudice over and above this such that it could be said it could not obtain a fair trial.” [15]
[11](1999) 3 VR 863 at [40]-[43] and [60]
[12][2015] FCA 1098
[13](1996) 186 CLR 541
[14]See McHugh J at 552-553
[15]See Kennedy J in Euromark Ltd v Smash Enterprises Pty Ltd [2019] VSC 299 at [88] – [92]
17 At the hearing before me on 30 September 2019, I confirmed that I had considered carefully her Honour’s remarks on this issue. I noted that it was only a matter of months since her Honour’s findings, and that “I’m not persuaded at the moment that the additional delay should cause me to reach a different view”. I also noted during the hearing that, unlike the authorities relied on by DeLaval, this case in substance concerned an application to amend a counterclaim. That counterclaim had in turn been advanced in response to DeLaval’s claim, which was commenced as recently as 14 November 2017. That seemed to me to be another factor militating against a finding that the leave for further amendment should be refused on grounds of potential prejudice.
18 I adhere to those views. I also note that a number of the allegations in the Latest Pleading (and particularly those supporting claims for misrepresentation) now rely primarily on statements in documents, not on oral statements. Thus the Latest Pleading relies significantly less on the accurate recall of conversations from 10 years ago than earlier versions of the pleadings.
Specific complaints
Representations by silence - general
19 One of DeLaval’s primary complaints in this and in previous applications concerns Mr Paltridge’s allegations of misleading and deceptive conduct in relation to the promotion and marketing of DeLaval’s equipment for an automated “voluntary milking system” (“VMS”). Part of the problem has been that some of the representations on which Mr Paltridge wishes to rely were apparently made at information sessions attended by Mr Paltridge by a Dr Kendra Kerrisk. Mr Paltridge has been so far unable to establish a relevant connection between Dr Kerrisk and DeLaval that would support an allegation that her statements were made by or on behalf of DeLaval.
20 In the Latest Pleading, the Defendants have sought to overcome this problem by alleging (in substance) that DeLaval adopted the representations by failing to correct them. That is, it could reasonably be expected in all the circumstances alleged, that DeLaval would correct any inaccuracies in Dr Kerrisk’s representations insofar as they related to DeLaval’s VMS. By instead remaining silent, DeLaval itself represented that Dr Kerrisk’s statements were accurate and could be relied on by Mr Paltridge in deciding whether or not to purchase DeLaval’s VMS. Before discussing whether the Latest Pleading has overcome this problem, it is necessary to discuss briefly the principles applicable to representation by silence.
21 The starting point for any consideration of those principles is usually the decision of the Full Court of the Federal Court in Demagogue v Ramensky,[16] (“Demagogue”) and in particular the following passage from the decision of Black CJ:[17]
“Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of “mere silence” or of a duty of disclosure can divert attention from that primary question. Although “mere silence” is a convenient way of describing some fact situations, there is in truth no such thing as “mere silence” because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed.”
[16](1992) 39 FCR 31
[17](1992) 39 FCR 31, at p32, see also per Gummow J at pp38-41
22 In the recent decision of Baum v Barport,[18] Cameron J includes a useful analysis of the leading authorities including Demagogue. I respectfully adopt (without repeating) that analysis. For present purposes, I note in particular his Honour’s reference to passages from the decision of the High Court in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd,[19] and Traderight (NSW) Pty Ltd v Bank of Queensland Ltd[20] (“Traderight”) where, as Cameron J noted, Barrett JA (with whom Bathurst CJ and Beazley P agreed) held that:[21]
“In assessing the quality and implications of silence and the conduct of a person that consists of remaining silent, all aspects of the objectively ascertained context will arise for consideration. Shared knowledge and assumptions—engendered, for example, by a course of dealing or a particular commercial setting or practice—of the person who remains silent and the person by whom the silence is experienced will be relevant, as will the separate knowledge of the latter.”
[18][2018] VSC 291 at [113]-[129]
[19](2010) 241 CLR 357
[20][2015] NSWCA 94
[21][2015] NSWCA 94 at [190]
23 The reference in the passage above to a “particular commercial setting” is notable in the circumstances of this case, as is a passage in a decision of Hargrave J (as his Honour then was) in Bloomingdale Holdings Pty Ltd v 63 Buckley Street Pty Ltd[22] (“Bloomingdale”). In that case, his Honour found that one party, by hearing another party make a representation and saying nothing to correct it (emphasis added), “adopted the representation by his silence and thereby engaged in misleading and deceptive conduct” (citing Demagogue and Commonwealth Bank of Australia v Mehta[23]).
[22][2008] VSC 168
[23](1991) 23 NSWLR 84 at p88
Paragraph 19
24 Against that background, I turn to DeLaval’s particular criticisms of Mr Paltridge’s allegations of misleading and deceptive conduct, commencing with paragraph 19. DeLaval concedes that “paragraph 19 appears to be an introduction to the paragraphs that follow”, but then asserts that it “goes much further and ought not to be allowed”. In what appears to be a further criticism, DeLaval next asserts that it is inconsistent with paragraphs 24 to 32 and 47 to 57. The gravamen of the asserted inconsistency is that Mr Paltridge alleges that DeLaval made representations by silence by failing to correct representations made at various presentations, and “does not plead that DeLaval in fact made the alleged representations” (emphasis in original). DeLaval then argues that:
“It would be quite improper for Paltridge (and it is not open to him) to plead that the alleged representations made by a third party, Dr Kendra Kerrisk, who is not alleged to be a servant or agent of DeLaval, are representations made by DeLaval. While paragraphs 24 to 32 and paragraphs 47 to 57 of the Proposed Pleading are limited to a pleading that DeLaval ought to have spoken up or corrected the alleged representations by Dr Kerrisk, paragraph 19 alleges that DeLaval in fact made the representations to Paltridge.
As noted above and at all four preceding strike out applications, Paltridge does not ever plead any basis (or the material facts in support of such a basis) for the alleged representations by Dr Kerrisk being representations in fact made by DeLaval. Undoubtedly it is for this reason that paragraphs 24 to 32 and paragraphs 47 to 57 are limited to claims for misrepresentation by silence.
In the absence of a proper basis and the material facts in support of an allegation that the actual representations referred to in paragraph 19 were made by DeLaval, paragraph 19 is embarrassing, fails to plead the necessary elements of the cause of action and ought to be struck out.”
25 I confess that I have struggled to make sense of these submissions. They appear to commence by criticising (with emphasis) Mr Paltridge for not pleading that DeLaval made the representations, and then complain about Mr Paltridge doing just that. Further, they assert that Mr Paltridge does not plead a basis for the alleged representations by Dr Kerrisk being representations in fact made by DeLaval, then note that this is “undoubtedly” why certain paragraphs are limited to claims for misrepresentation by silence.
26 In any event, the assertion that it would be “improper” for Mr Paltridge to plead that representations by a third party are representations by DeLaval, is misconceived. As the authorities referred to above make clear, in appropriate circumstances, a failure by a party to correct a false statement by a third party can amount (in substance) to the adoption by that first mentioned party of that statement. The observation by Hargrave J in Bloomingdale puts this beyond doubt. Turning to whether the circumstances in this case are “appropriate” and sufficiently pleaded, to borrow the language from the passage from Traderight above, the “particular commercial setting” in the case of the alleged “Shepparton Representations” (paragraphs 24 to 32) is pleaded (in substance) as one where:
· DeLaval’s “District Manager and Large Herd Specialist for Victoria” Mr Widdicombe invited Mr Paltridge by email to a “VMS information session” at Shepparton;
· DeLaval was promoted as a major sponsor of the information session;
· DeLaval employees (including Widdicombe) were present at the information session;
· two of the three presentations relied on were given by people wearing shirts with a DeLaval logo and were entitled (respectively) “DeLaval VMS presentation Australia June 2008” and “DeLaval We drive progress in milk production”; and
· the third presentation by Dr Kerrisk was given as part of the same information session and concerned the same subject matter as the other presentations.
27 Similarly, in the case of the alleged representations made at the later Camden event (paragraphs 47 to 57 of the Latest Pleading) the particular commercial setting is alleged to have comprised:
· the same invitation from Mr Widdicombe of DeLaval;
· the presence at the Camden event of Mr Lalich, whom the Defendants allege was (through his company) the agent of DeLaval in relation to the promotion and installation of DeLaval’s VMS (noting that DeLaval no longer complains about the sufficiency of the agency pleading);
· the handing of documents by Dr Kerrisk to Mr Paltridge concerning automatic milking systems in the presence of Mr Lalich; and
· the presence at the Camden event of two operating DeLaval VMS machines, observed by Mr Paltridge in the presence of Mr Lalich.
28 In my view, the circumstances pleaded in the Latest Pleading and summarised above provide ample justification for a pleading to the effect that DeLaval made (either directly or by adopting by silence) the representations alleged at paragraphs 24 to 32 and 47 to 57. Those paragraphs are thus not inconsistent with paragraph 19. I discuss the further complaints about those paragraphs below. In the meantime, I agree with DeLaval that paragraph 19 is otherwise primarily an introduction to the paragraphs that follow, and understood that way is unobjectionable. I note in passing that the reference to “the Plaintiff” in the second last line is clearly an error and should be corrected to read “Paltridge”.
Paragraph 24
29 DeLaval next complains about paragraph 24. I accept that the Latest Pleading makes frequent use of definitions, and this is sometimes confusing. In the case of paragraph 24, the pleader begins by asserting there was “a Presentation” (singular) at the Shepparton Meeting on the VMS and its suitability, which was constituted by three discrete sets of documents, being the slides used in three separate presentations. These are then defined collectively as the “Shepparton Presentations”. As noted above, the “Shepparton Presentations” in fact comprised two presentations apparently made by each of two DeLaval representatives, and a third by Dr Kerrisk. The impugned representations from each of those presentations are then pleaded by reference to particular slides shown during the presentations.
30 I am satisfied that, despite the potential confusion from the initial reference to “the Presentation”, it is clear there were in fact three discrete presentations and one of those was given by Dr Kerrisk. Each of the three presentations is separately pleaded and can be responded to by DeLaval in its defence to counterclaim accordingly. The potential difficulty from the collective definition of the “Shepparton Representations” arises not from paragraph 24, but from paragraphs 29 to 32 as explained below. Having said that, any confusion from paragraph 24 would be avoided if the opening words of paragraph 24 read simply: “At the Shepparton Meeting there were presentations relevant to VMS and its suitability for pasture-based systems in Australia, which presentations relevantly comprised the following documents:”.
Paragraphs 29 to 32
31 These paragraphs are not the subject of specific complaint by DeLaval, but it is in these paragraphs where DeLaval’s complaints about paragraph 24 emerge. Having said that, these paragraphs are in my view adequate to identify the case that DeLaval has to meet on the Shepparton Representations. However there is scope for some confusion because, on the facts pleaded, the term “Shepparton Representations” refers collectively to both representations apparently made directly by DeLaval as well as representations made by Dr Kerrisk. The former representations were those by people who were apparently representatives of DeLaval, using slides making direct reference to DeLaval and DeLaval’s VMS (being “DeLaval Presentation 1” and “DeLaval Presentation 2”). The latter is the so-called “Presentation 3”.
32 In relation to Presentation 3, as previously noted, the nature of Dr Kerrisk’s relationship to DeLaval is presently unclear. What is clear is that Mr Paltridge presently has no basis for pleading that she spoke for DeLaval. It therefore makes sense in relation to Presentation 3 that Mr Paltridge would be relying exclusively on the silence of the DeLaval representatives identified as giving rise to the impugned representation by DeLaval. But it seems to me that the representations comprised in DeLaval Presentation 1 and DeLaval Presentation 2 can be pleaded as both made by DeLaval and, in the alternative, by relying on silence (that is, the failure of the DeLaval representatives conversing with Mr Paltridge to correct or qualify any of the statements in these two presentations).
33 While it is ultimately a matter for Mr Paltridge, it may reduce the potential for confusion if he pleaded that the Shepparton Representations in so far as they comprised DeLaval Presentation 1 and DeLaval Presentation 2 were made directly by DeLaval to Mr Paltridge in the manner described in paragraphs 26.1 and 26.2. He might then plead, further and in the alternative, that the Shepparton Representations comprising all three presentations were made by silence, to the effect as currently pleaded.
Paragraphs 28, 36, 40 and 53
34 DeLaval argues that these paragraphs refer to conversations and Mr Paltridge has failed to plead the purport and effect of those conversations. This argument misconstrues the purpose of these paragraphs. It is tolerably clear from their context that the relevant material fact is merely that the conversations occurred, and gave the DeLaval representatives the opportunity to correct or qualify the impugned representations (which, it is alleged, they failed to do). Put another way, it was what was not said in the conversations that is the building block for the claim of representations by silence, and the purport and effect of the conversations is thus irrelevant to the pleaded claim.
35 As to identifying who was present during the conversations and where they occurred, in my view, this is sufficiently clear from the pleadings as a whole. That is, the conversations were with the representatives of DeLaval identified as being present at the meetings (see, for example, paragraph 25) and they occurred in the course of the meetings described (the Shepparton Meeting and the Camden event). I would also observe that because the claim relies on what was not said during the conversations as explained above, the level of detail of location and participants is to my mind less important in responding to the claim, than might otherwise be the case.
Paragraphs 44 and 45
36 I reject DeLaval’s submissions that these paragraphs are embarrassing and unsustainable. First, the submissions misstate the allegation. Mr Paltridge does not allege that “DeLaval sponsored an alleged meeting which took place at Camden between Paltridge, Dr Kerrisk and Mr Lalich”. Rather he alleges that DeLaval “sponsored the Camden event”. Further, the allegations of the relationship of DeLaval to the Camden event (and, incidentally, the connection to Future Dairies) is sufficiently stated in paragraphs 38, 39, 40, 43, 45 and 54. Indeed I am not sure that the allegation of sponsorship adds much to those paragraphs. However, to the extent that it does, the basis for the allegation is clear from the context, which in my judgment more than adequately identifies the case DeLaval must meet in relation to its alleged role in the Camden event.
Paragraphs 48 (and paragraphs 49 to 57)
37 In my view, some of the allegations made in these paragraphs may be difficult for Mr Paltridge to prove, but it does not follow that they are deficient as a matter of pleading. DeLaval first seeks to make something of the fact that Mr Paltridge does not plead that any employee of DeLaval was directly involved in the exchanges between Mr Paltridge and Dr Kerrisk (see submissions 40(a) to (d)). But it is clear that Mr Paltridge is relying not on the presence of any employees of DeLaval at the event, but instead on the presence of Mr Lalich. As noted above, Mr Paltridge earlier alleges that Mr Lalich was at all material times in his dealings with Mr Paltridge acting as DeLaval’s agent and the pleading of the agency is no longer the subject of complaint by DeLaval.
38 Turning to Mr Lalich’s role in relation to the Camden event, this is first referred to in paragraph 40, where it is alleged that Mr Lalich “recommended that Paltridge attend at Future Dairies at Camden and that Future Dairies would advise Paltridge about the benefits of a VMS of the type offered by DeLaval”. Mr Paltridge then alleges that Mr Lalich attended the Camden event (paragraph 46) and was present when Dr Kerrisk at the Future Dairies office made a statement and handed documents to Mr Paltridge. It is alleged that the oral statement and certain identified statements in the documents were misleading and deceptive.
39 I am satisfied that it is clear from these allegations taken together that Mr Paltridge is pleading in substance that Mr Lalich had an understanding of what information would be offered to Mr Paltridge at the Camden event and was actively participating in the provision of that information to Mr Paltridge. When regard is then had to the pleading of representations by silence (particularly paragraphs 54 to 58) the case that Mr Paltridge is seeking to make in relation to the Camden event also becomes clear. Put simply, it is indeed that DeLaval (by its agent Mr Lalich) knew of and was in a position to correct or qualify the impugned representations and failed to do so.
40 I accept that Mr Paltridge does not expressly plead as a positive fact that Mr Lalich had read and understood what was in the documents passed to Mr Paltridge by Dr Kerrisk. It is perhaps unsurprising that Mr Paltridge is not yet armed with sufficient information concerning the dealings between Mr Lalich and Dr Kerrisk to do so. But in my judgment, this omission is no impediment to DeLaval understanding the case it has to meet on this issue. If in fact Mr Lalich was unaware of the content of the documents and thus the representations, DeLaval can so plead in its defence.
Paragraph 63
41 DeLaval’s complaints about this paragraph of the Latest Pleading are exaggerated. It is true that this paragraph seeks to bring together and summarise the effect of the various sets of representations pleaded up to that point and then link them to Mr Paltridge’s initial decision to purchase DeLaval’s VMS. It is difficult to see the vice in this. Indeed, it is a common and helpful pleading technique in factually dense claims.
42 DeLaval next gives examples of particular alleged representations pleaded in paragraph 26, that it asserts are not conveyed by the documents relied on. It will ultimately be a matter of evidence and argument as to what was conveyed by the documents concerned. In the meantime, I reject DeLaval’s characterisation of the pleaded representations as “illusory” and “absurd”. I am satisfied that the formulation of the representations arising from the documents relied on are at least arguable and, in some cases, self-evident. DeLaval will presumably plead to each of the alleged representations in the earlier paragraphs, admitting, not admitting or denying what Mr Paltridge says the documents mean. It will be relatively straightforward for it to then cross-reference those earlier pleadings in responding to the “wrap up” in paragraph 63.
43 In relation to the balance of DeLaval’s submissions on this paragraph (submissions paragraphs 48 to 54), I also reject DeLaval’s characterisation of paragraph 63 as “seeking to re-cast or re-convey the already illusory representations” or as “twisting” the representations to be specific to Mr Paltridge. Further, far from being “impermissible” as DeLaval asserts, it is highly desirable (if not essential) for Mr Paltridge to link the various representations to “Paltridge’s specific circumstances” and, in particular, his decision to purchase the VMS. I make the following further observations in relation to DeLaval’s submissions on this issue:
· I do not read paragraph 63 as in anyway recasting the earlier alleged representations;
· those earlier representations are not “general in nature” – in fact they are quite specific and precise;
· given that, I see no difficulty with Mr Paltridge distilling the effect of the earlier pleaded specific representations into the three broad concepts listed in paragraph 63;
· in that sense, to my reading, the pleading in paragraph 63 is a distilling of the earlier pleaded representations, not a “twisting”;
· in so far as paragraph 63 links the distilled representations to the Mariner’s Rise dairy, it would probably be “impermissible” for Mr Paltridge not to plead that link – otherwise the earlier pleaded representations would sit in a vacuum;
· I do not read paragraph 63 as asserting that the representations preceding the “Quotation” related to a specific dairy, nor do they need to – at that stage it was enough that DeLaval was promoting the VMS for adoption by Mr Paltridge generally as part of his dairy business;
· the link specifically to the Mariner’s Rise dairy is readily explained by paragraphs 58 to 61 which clearly identify that the final step in the process of promotion of the VMS by DeLaval to Mr Paltridge was the “Quotation” (and the associated “Quotation Representations”);
· that “Quotation” was for the installation of a 3 Unit DeLaval VMS “at the Mariner’s Rise Dairy”, and thus the representations coalesce in the purchase of the DeLaval VMS for that particular dairy;
· similarly, it is clear (particularly when read with paragraphs 58 to 61) that the “existing dairy” in paragraph 63.3 is a reference to the existing dairy at Mariner’s Rise;
· that said, having created the defined term “Existing Milking System” in paragraph 58, it would avoid confusion if paragraph 63.3 used this defined term in lieu of “existing dairy”.
Paragraph 64
44 DeLaval’s first substantive objection to this paragraph is that it “impermissibly rolls up all of the alleged representations contained in the earlier paragraphs and makes the bold and unfounded sweeping allegation that the representations are ‘representations as to future conduct or predictions’”. This is a surprising submission because, at least in my experience, this is almost invariably the form this pleading takes. That is, in pleadings alleging misleading and deceptive conduct, the pleader sets out the impugned representations and, where some or all of those representations relate to future matters, then follows the representation pleadings with a single catch-all paragraph along the lines of paragraph 64. Indeed, where the representations alleged comprise a mixture of representations about current and future matters, it is common to see the pleading begin along the lines of: “To the extent that the representations pleaded above relate to future matters…”.
45 That said, I accept that in many cases expressly identifying which representations are said to relate to future matters is likely to be helpful, and is therefore to be encouraged. In particular, given that a representation about future matters effectively puts the onus on the defendant to establish a reasonable basis for making the representation, it is preferable for a plaintiff to make clear where it asserts that onus arises. But I am not aware of any authorities that have insisted this be done and I note that DeLaval has not referred to any such authorities in its submissions.
46 In this case, it seems clear from DeLaval’s submissions that it has had no difficulty in identifying examples of what it says are not representations as to future matters, and can plead its defence to paragraph 64 accordingly. There is some force in the examples given, so by pleading in substance that all the DeLaval Representations relate to future conduct or predictions, Mr Paltridge is inviting a bland denial. Mr Paltridge might therefore consider expressly identifying in paragraph 64 which of the DeLaval Representations he says are representations as to future matters. This is likely at least to prompt a more meaningful responsive pleading, including positive pleading of any reasonable basis on which DeLaval seeks to rely.
47 In addition to objecting to the “rolled-up” plea, DeLaval argues that Mr Paltridge’s errors fall into two categories. The first is discussed in DeLaval’s objections to paragraph 63, namely that the documents relied on do not convey representations to the effect alleged. I have already rejected that argument. The second category of error is said to be that “many of the representations as pleaded by Paltridge are not representations as to future matters”. As noted above, the short answer to this complaint is that, where this is so, it is open to DeLaval to defend the allegation accordingly, and thus avoid the need which would otherwise arise to positively plead a reasonable basis for making the impugned representation.
Paragraph 78
48 DeLaval complains about the failure to give particulars of loss and damage. In my view, the complaint is misplaced. First, it is clear that the paragraph is not purporting to claim the loss and damage. This is dealt with in paragraph 111. Rather, it is providing context for the complaints by Mr Paltridge and the response to those complaints pleaded in paragraph 79, and following. To that extent, it might be argued that the paragraph is otiose. However, it seems to me that this context is helpful in the overall pleading narrative.
49 Second, the paragraph identifies the general nature of the loss and damage by reference to paragraph 111. I note also that the particulars to paragraph 79 refer to paragraph 90.1 and following, which describes the alleged adverse financial effect being experienced by Mr Paltridge following the commencement of the operation of the DeLaval VMS. Third, and in any event, Mr Paltridge has pleaded that further particulars of the loss and damage will be given in due course in the form of an expert report. Given the other detail provided, I am satisfied that this paragraph is not “vague, ambiguous and embarrassing” as asserted by DeLaval, or otherwise deficient.
Paragraph 90.6
50 I discuss above in reference to paragraph 64 my views about pleadings of representations as to future matters and absence of reasonable grounds. Although this paragraph may be intended to repeat that style of pleading, I note that it is not accompanied by the usual introductory words referring to future matters or the applicable provisions of the legislation. If that is what was intended by the paragraph, then I am not sure what it adds to paragraph 64. If instead it is intending to make an equivalent allegation in relation to the various additional representations in paragraph 90, then it needs to be in the usual form and ideally should also identify which of the representations in paragraph 90 it alleges relate to future matters. In the meantime, I agree with DeLaval that the paragraph in its current form is defective and, unless amended in the manner suggested, leave to include it in the Latest Pleading is refused.
Paragraph 91
51 In my view, DeLaval’s submissions again overstate the extent and significance of the deficiencies in this paragraph. On a reading of the pleading as a whole, it seems likely that this paragraph is intended to engage the same alleged failures as are spelt out in paragraph 90. If so, DeLaval’s complaint could largely be answered by Mr Paltridge appropriately cross-referencing that paragraph. In my view, if this minor change is made, the paragraph should be permitted to stand, with one exception discussed below. However, it would be better still if Mr Paltridge broke up the paragraph into the components along the lines identified by DeLaval (submissions paragraph 74), with each of the components particularised by cross-reference to the applicable sub-paragraph of paragraph 90 or paragraph 111 (as applicable). For example:
“…the two further VMS units and the associated equipment:
·did not result in the ongoing defects being remedied;
·did not prevent Paltridge from thereafter suffering loss and damage in the operation of the Mariner’s Rise dairy:
·did not render the VMS system thereafter financially viable; and
·the modified DeLaval VMS system still did not satisfy the Performance Criteria.”
52 I note that I have deliberately not included the “reasonable grounds” allegation in this suggested break-up of the allegations. This is the one exception. In my view, this allegation suffers from the same problem as paragraph 90.6. If Mr Paltridge is concerned to persist with this allegation (and he may not need to, in light of paragraph 81), he will first need to consider and address the matters raised above in reference to paragraph 90.6. Otherwise, leave to include the words after “Performance Criteria” in paragraph 91 as part of the Latest Pleading is refused.
Paragraph 101 (and associated paragraphs 100 and 102)
53 DeLaval’s complaints about this paragraph distil to Mr Paltridge’s failure to have regard to the matters discussed during the 30 September hearing and that the allegations are “vague, conclusory and fail to allege the relevant facts necessary to support the allegations in it”. The first of these complaints has some force and it is not clear to me why Mr Paltridge has apparently not acted on the matters discussed at the hearing. The issue is minor and can be easily remedied, so I do not propose to refuse leave to include the paragraph at this time, subject to the following. It seems to me that Mr Paltridge has two options to address the criticism. Either he must:
· give proper particulars of how DeLaval “proposed” the settlement as sought by DeLaval; or
· take up the suggestion I made during the 30 September hearing to the effect that he could delete the reference to DeLaval “proposing the settlement” and substitute “entering the settlement”.
54 If adopting the second course, it may also clarify the overall meaning of paragraph 101 if Mr Paltridge adds at the end of the first sentence, “in the circumstances described below”, although I would accept that this probably goes without saying. I am satisfied that either of these changes will sufficiently address the concerns raised by DeLaval.
Paragraphs 103 – 105
55 I agree with DeLaval’s submission that Mr Paltridge should be refused leave to include these paragraphs in the Latest Pleading, for the reasons it gives (submissions paragraphs 87 to 92). I note that Mr Paltridge’s submissions in reply do not make any substantive argument in response. Further, the assertion in Mr Paltridge’s reply submissions that the repleading is “not the same” is disingenuous; the only change is to refer to “DeLaval VMS system” instead of simply “VMS”. Nor does Mr Paltridge offer any explanation as to why he has failed to respond either in the Latest Pleadings or in submissions to the concerns about these paragraphs raised by me in the course of the 30 September hearing. I refer in particular to the passage from the transcript of that hearing extracted in DeLaval’s submissions. I still hold those concerns.
56 In relation to whether Mr Paltridge should be permitted to attempt to replead these allegations, I propose the following. If Mr Paltridge is able to produce evidence (perhaps as a result of discovery in the proceeding) that is capable of supporting a claim of the kind made in these paragraphs (including by the provision of proper particulars), he may then apply for leave on appropriate affidavit material, to add such a claim. Such affidavit material should include an explanation as to why the evidence relied on was not available to Mr Paltridge at the time he prepared the Latest Pleading. In the meantime, however, I refuse leave to Mr Paltdridge to include these paragraphs in the Latest Pleading.
Paragraphs 106 – 110
57 Unlike the position in respect of paragraphs 103-105, I disagree with DeLaval’s submission that Mr Paltridge’s pleading of the negligence claim is in “materially the same form as an earlier pleading which was struck out by her Honour Judge Ryan”. DeLaval also complains that the defects were not cured by the 9 August 2019 version considered during the 30 September hearing and are not cured by the Latest Pleading. I am satisfied that both in their structure and content, the pleadings are materially improved and sufficient to withstand DeLaval’s application to strike them out.
58 First, although the pleading before Judge Ryan did include (at paragraphs 23 to 26) pleadings of duty of care and vulnerability (I note that her Honour also struck out the vulnerability pleading), these have been extensively re-pleaded and now sit with the plea of negligence. I observe that DeLaval makes no specific objections to these paragraphs (106 to 109). In both their location in the overall pleading and content, these paragraphs provide helpful context for the pleading of negligence in paragraph 110, which is the focus of DeLaval’s attack.
59 Turning to that paragraph, in addition to the context provided by paragraphs 106 to 109, Mr Paltridge has made two material additions to the claim for negligence in that paragraph. First, like earlier versions, the opening words are conclusory. However, they are now followed by a paragraph (110.1) which, in my view, goes far enough to provide a foundation for the conclusion. The drafting is unorthodox (normally, the conclusion would follow the explanation of its foundation), but the overall effect is just sufficient to save the pleading from being pure conclusion.
60 Second, the pleader has added to these paragraphs more detailed particulars, by cross-referencing earlier paragraphs in the pleading. Those particulars would benefit from more detail explaining how the alleged failures to achieve the Performance Criteria are said to arise from the negligence. However, the provision of some particulars is a step forward and, in combination with the other changes discussed, is enough for DeLaval to know the case it has to meet. For example, one option available to it in pleading to the allegations will be to itself cross-reference its earlier responses to the paragraphs which Mr Paltridge has called in aid.
61 Notwithstanding this finding, the negligence claim as currently structured and comprised is far from perfect. I do not agree with DeLaval’s criticism that it is not sufficiently clear what Mr Paltridge means by the “equipment as originally constituted” and “as modified pursuant to the 2012” – its assumptions about these descriptions seem to me to be correct. However, it is not clear to me why Mr Paltridge has chosen such an oblique description of these two events. Further, I agree with DeLaval that it will be difficult (although not impossible) for it to unravel the prevailing facts and circumstances at the time of each event and relate these back to the elements of the negligence claim. It will therefore be justified pleading its defence to these claim at a more general level than might otherwise be the case.
62 In the circumstances I would encourage Mr Paltridge to critically assess what value these claims add to his overall case against DeLaval, particularly given that he is presently precluded from seeking exemplary damages. If they are to be pursued, Mr Paltridge can expect to be pressed in due course for more precise and detailed particulars of the elements of the claim.
Conclusions
63 The views I have expressed affecting the drafting of the Latest Pleadings are as follows:
· in paragraph 19, the reference to “the Plaintiff” in the second-last line should be corrected to read “Paltridge”;
· any confusion from paragraph 24 would be avoided if the opening words of paragraph 24 read simply: “At the Shepparton Meeting there were presentations relevant to VMS and its suitability for pasture-based systems in Australia, which presentations relevantly comprised the following documents:”;
· in paragraphs 29 to 32, it may reduce the potential for confusion if Mr Paltridge pleaded that the Shepparton Representations in so far as they comprised DeLaval Presentation 1 and DeLaval Presentation 2 were made directly by DeLaval to Mr Paltridge in the manner described in paragraphs 26.1 and 26.2;
· Mr Paltridge might then plead, further and in the alternative, that the Shepparton Representations comprising all three presentations were made by silence, to the effect as currently pleaded;
· in paragraph 63.3, it would avoid confusion if Mr Paltridge used the defined term “Existing Milking System” in lieu of “existing dairy”;
· in paragraph 64, Mr Paltridge should consider expressly identifying which of the DeLaval Representations he says are representations as to future matters;
· paragraph 90.6 in its current form is defective and, unless it is amended in the manner suggested, leave to plead this paragraph is refused;
· paragraph 91 should cross-reference the alleged failure set out in paragraph 90 and would be further improved if the paragraph were broken-down in the manner suggested, with particulars cross-referencing paragraph 90 under each sub-paragraph;
· unless amended in the manner suggested, leave to plead the words after “Performance Criteria” in paragraph 91 is refused;
· in paragraph 101 (and associated paragraphs 100 and 102), Mr Paltridge must either give proper particulars of how DeLaval “proposed” the settlement as sought by DeLaval or take up the suggestion I made during the 30 September hearing to the effect that he could delete the reference to DeLaval “proposing the settlement” and substitute “entering the settlement”;
· unless amended in the manner suggested, leave to plead paragraphs 100 to 102 is refused; and
· leave to plead paragraphs 103 to 105 is refused, while reserving to Mr Paltridge the right in due course to again apply to make a claim for aggravated or exemplary damages on evidence by affidavit that is capable of supporting such a claim (including by the provision of proper particulars), which affidavit must also explain why the evidence relied on was not available to Mr Paltridge at the time he prepared the Latest Pleading.
64 I will order that Mr Paltridge has leave to file and serve the Latest Pleading, subject to the matters listed above. Subject to any further submissions by the parties seeking a different order, I will also order on costs that my order numbered 6 made 1 October 2019 is confirmed, but there is otherwise no order as to the costs of the application.
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Certificate
I certify that these 31 pages are a true copy of the reasons for decision of his Honour Judge Woodward delivered on 18 February 2020.
Dated: 18 February 2020
Shakti Nambiar
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