Dennis v Hagemeyer Brands Australia Pty Ltd
[2008] FMCA 728
•5 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DENNIS v HAGEMEYER BRANDS AUSTRALIA PTY LTD | [2008] FMCA 728 |
| TRADE PRACTICES – Application under s.74B and s.74D of the Trade Practices Act 1974 (Cth). PRACTICE & PROCEDURE – Particulars – interlocutory application – seeking further and better particulars. |
| Federal Court Rules (Cth), O.11.16, 12.1, 12.5 Federal Magistrates Court Rules 2001 (Cth), rr.1.05(2), 4.05(1) Trade Practices Act 1974 (Cth), ss.74B, 74D |
| Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611 British Medical Association v Brittanica Fire Association (1888) 59 LT 889 BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No 2) [2002] FCA 87 Davis v Commonwealth of Australia [1986] HCA 66 General Steel Industries Inc v Commission of Railways (NSW) (1964) 11 CLR 125 Grollo & Co Pty Ltd v Hammond (1977) 161 ALR 123 King v AG Australia Holdings (formerly GIO Holdings Ltd) [2003] FCA 543 Sims v Wran [1984] 1 NSWLR 317 Spedding v Fitzpatrick [1888] 38 ChD 410 Trade Practices Commission v Pioneer Concrete (QLD) Pty Ltd (1994) 52 FCR 164 Visionmax Pty Ltd v Budget Specs (Franchising) Pty Ltd [2006] FCA 222 |
| Applicant: | RYAN MATTHEW DENNIS |
| Respondent: | HAGEMEYER BRANDS AUSTRALIA PTY LTD (TRADING AS SMEG APPLIANCES) |
| File number: | SYG 3474 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 2 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr K Oliver |
| Solicitors for the Applicant: | Mason Black Lawyers |
| Counsel for the Respondent: | Mr S M Kettle |
| Solicitors for the Respondent: | Goldrick Farrell Mullan |
ORDERS
Pursuant to r.1.05(2) of the Federal Magistrates Court Rules 2001 (Cth) and O.12.5(1)(a) of the Federal Court Rules (Cth), the respondent within 28 days is to serve on the applicant further and better particulars requested in the applicant’s letters served on 15 February 2008 and 26 March 2008, excluding the material requested in paragraphs 2(b)(iii), 3(b)(ii), 4(b)(iii) and 5b(ii) of the 15 February 2008 letter.
Costs of this application are costs in the cause.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3474 of 2007
| RYAN MATTHEW DENNIS |
Applicant
And
| HAGEMEYER BRANDS AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
An Application in a Case was filed by Ryan Matthew Dennis, the applicant in the main proceedings, seeking interlocutory orders in respect of particulars filed in the defence on 11 February 2008 by Hagemeyer Brands Australia Pty Ltd (trading as Smeg Appliances).
Background
By an amended statement of claim filed on 22 February 2008, the applicant claims damages and compensation for loss and damage arising from a fire at the applicant’s domestic residence on 10 March 2005. The cause of the fire is alleged to be from a Smeg brand dishwasher which was purchased from a retail supplier in Wagga Wagga on or about 19 April 2001.
It is alleged that the dishwasher was not reasonably fit for the purposes of washing dishes and that the respondent, Hagemeyer Brands Australia Pty Ltd (“Hagemeyer”), is liable to compensate Mr Dennis for loss and damages pursuant to ss.74B and 74D of the Trade Practices Act 1974 (Cth) (“the Act”). It is further alleged that the dishwasher was not of merchantable quality and that the respondent is liable to compensate Mr Dennis for loss and damage pursuant to s.74D of the Act.
The applicant relies upon the fact that the dishwasher, after being purchased, caused ignition of a fire while it was in domestic premises and used in an ordinary way. Counsel for the applicant, Mr Oliver, submits that dishwashers are customarily used in places where the spontaneous ignition of a fire is undesirable. On that basis, a household dishwasher that has a propensity to ignite is prima facie unfit for household use and is unmerchantable.
The respondent denies that the dishwasher caused the fire, was not reasonably fit for the purpose of household use, or that it was not of merchantable quality. The respondent also denies liability pursuant to s.74B or s.74D of the Act. It alleges that any unsuitability or unmerchantable quality of the product can be attributed to improper use after it had left the respondent’s control.
Sections 74B(2) and 74D(2) of the Act recognise that where there has been misuse or neglect or just impersonal decay beyond anyone’s control, raises the question of whether “beyond human control” means beyond foreseeability. The manufacturer is therefore protected.The onus is on the supplier of the goods to prove that there was an intervening cause which rendered the goods unmerchantable or unfit for their purpose.
An amended application was filed on the first Court date on
22 February 2008. The following consent orders were made:
1. The respondent reply to the applicant’s particulars by 14 March 2008.
2. The applicant to serve expert reports by 29 February 2008.
3. Parties to exchange categories of documents by 14 March 2008.
4. Any objections to categories to be served by 28 March 2008.
5. Verified lists of documents to be served by 9 May 2008.
6. Parties to inspect documents prior to 23 May 2008.
7. The matter be listed for directions at 9.30am on 23 May 2008.
Application in a case
The applicant sought the following orders in the application filed on
16 April 2008:
1. Pursuant to rule 1.05(2) of the Federal Magistrates Court Rules 2001 and Order 11 rule 16(b) of the Federal Court Rules, an order that paragraphs 24 and 25 of the respondent’s defence to the statement of claim be struck out.
2. Alternatively, pursuant to rule 1.05(2) of the Federal Magistrates Court Rules 2001 and Order 12 rule 5(1)(a) of the Federal Court Rules, an order that the respondent within 28 days serve on the applicant the further and better particulars of requested in the applicant’s letters served on 15 February 2008 and 26 March 2006.
3. Alternatively, pursuant to rule 1.05(2) of the Federal Magistrates Court Rules 2001 and Order 12 rule 5(1)(b) of the Federal Court Rules, an order that the respondent within 28 days serve on the applicant a statement of the nature of the case upon which the respondent relies insofar as the respondent’s case is pleaded in paragraphs 24 and 25 of the defence.
4. Costs of this application.
5. Such further or alternative and consequential orders and directions as the Court may think fit and convenient to the expeditious disposition of the proceedings.
Evidence
In support of the application, an affidavit of Wendy Bure, solicitor of for the applicant, was sworn on 11 April 2008 (“Affidavit of Ms Bure”) and filed with the application in accordance with r.4.05(1) of the Federal Magistrates Court Rules 2001 (Cth). As there was no objection, this affidavit was read into evidence.
Mr Kettle, counsel for the respondent, sought to admit into evidence the affidavit of David James Farrell, solicitor for the respondent, sworn on 28 April 2008 (“Affidavit of Mr Farrell”). As there was no objection Mr Farrell’s affidavit was read.
Principles in relation to particulars
In Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611,
Lord Denning MR, Edmund Davies & Stephenson LJJ stated:
The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to save costs.
Particulars are permissible and required where they are necessary to inform the opposing party of the nature of the case it has to meet, as distinct from the mode in which the case is to be proved. Ultimately, the distinction between what is a proper matter for particulars and what is not, depends upon an assessment of what is reasonably necessary to protect the other party against surprise. The principle is addressed in Sims v Wran [1984] 1 NSWLR 317 at 321 where Hunt J stated:
Particulars generally:
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: Saunders v Jones (1877) LR 7 Ch D 435 at 451; R v Associated Northern Collieries (1910) 11 CLR 738 at 740; Dare v Pulham (1982) 148 CLR 658 at 664. The object of particulars is to save expense in preparing to meet a case which may never be put: McSpedden v Harnett (1942) 42 SR (NSW) 116 at 119; 59 WN 98; Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 at 229; and 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: Kelly v Kelly (1950) 50 SR (NSW) 261 at 265; 67 WN 193 at 196; Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 219. See, generally, Phillopini v Leithead [1959] SR (NSW) 352 at 358, 359; 76 WN 150 at 152; Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (Pt 1) (N.S.W.) 553 at 557, 558; Ellis v Grant (1970) 91 WN (NSW) 920 at 924, 925. 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: Turner v Dalgety & Co Ltd (at 229); Phillopini v Leithead (at 359;152); Emmerton v University of Sydney [1970] 2 NSWR 633 at 635; Bailey v Federal Commission of Taxation (at 219, 220, 221).
More recently in King v AG Australia Holdings (formerly GIO Holdings Ltd) [2003] FCA 543, Moore J said at [18]:
[18] More generally, the place of particulars in the conduct of litigation was recently described by Gleeson CJ in Goldsmith v Sandilands (2002) 190 ALR 370 at 371 where his Honour adopted the observations of Scott LJ in Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712 that particulars fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. However a party is not entitled to be told, by way of particulars, the mode by which the case is to be proved against him: R v Associated Northern Collieries (1910) 11 CLR 738 at 741 per Isaacs J. Where the line should be drawn is not a question of recent origin: see Duke & Sons v Wisden & Co (1897) 77 LT 67.
The rules of some jurisdictions expressly assume a distinction between material facts and particulars. In other jurisdictions, the distinction is implied and in yet other jurisdictions the distinction has been abolished. In the jurisdictions in which the distinction is recognised, there has been a trend to blur or even ignore it, see BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No 2) [2002] FCA 87 at [20] per Mansfield J:
[20] The tendency in pleadings in recent years has been to address matters of substance rather than matters of form. Thus, as von Doussa J pointed out in Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466, the strict distinction between material facts and particulars has not been rigidly adhered to, and technical objections raised to pleadings on the ground of alleged want of form are not so enthusiastically received. The Court's focus has been upon ensuring the case is identified with clarity, so that the opposing party knows the case to be met and the issues for trial are identified. The focus upon case management, to ensure the efficient and fair conduct of proceedings, has also led to the emphasis on technical pleadings rules being diverted to an emphasis upon ensuring that, in substance, the objectives of pleadings, as discussed for example by the High Court in Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J, are fulfilled.
Particulars cannot be sought merely in the hope that they will provide a plaintiff with material upon which it can seek to widen the scope of its claim, or establish facts which may assist it in attacking the validity and legal effect of what a defendant may have done, see Grollo & Co Pty Ltd v Hammond (1977) 161 ALR 123 per Northrop J at [128]:
The plaintiff knows the claim being made by the institute and will not be taken by surprise at the trial. It cannot seek by way of particulars of the material fact pleaded what may be relevant for discovery by interrogatory. In seeking the particulars, the plaintiff is in reality seeking to establish facts which may assist it in attacking the validity and legal effect of the interim authority. This is not a matter appropriate for particulars and the plaintiff is not entitled to the particulars sought.
Court Rules
Rule 1.05 of the Federal Magistrates Court Rules 2001 (Cth) states:
1.05 Application
(1) It is intended that the practice and procedure of the Federal Magistrates Court be governed principally by these Rules.
(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules…in whole or in part and modified or dispensed with, as necessary.
Federal Court Rules
Orders 12.1 and 12.5 of the Federal Court Rules (Cth) state:
Rule 1 General
1(1) A party pleading shall state in the pleading or in a document filed and served with it the necessary particulars of any claim, defence or other matter pleaded by him.
Rule 5 Order for Particulars
5(1) The Court may order a party to file and serve on any other party –
(a) particulars of any claim, defence or other matter stated in his pleading, or in any affidavit ordered to stand as his pleading;
(b) a statement of the nature of the case on which he relies;
(c) where he claims damages, particulars relating to general or other damages.
5(2) Without limiting the generality of sub-rule (1), where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, the Court may order that party to file and serve on any other party –
5(3) The Court shall not make an order under this rule before the filing of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the respondent plead or for some other special reason.
Applicant’s claims
The statement of claim was filed on 8 November 2007 (an amended statement of claim was filed in Court on 22 February 2008 but does not materially affect the issues that follow). On 5 December 2007, the respondent’s solicitors wrote to the applicant’s solicitors requesting particulars in respect of the statement of claim (Affidavit of Mr Farrell, Annexure “A”). A dispute arose in respect of paragraphs 3, 5 and 6 of that request:
3. With respect to paragraph 8 of the statement of claim
(a) Please advise the basis on which it is alleged that the dishwasher was the cause of the ignition of the fire.
(b) If the plaintiff is relying on expert opinion with respect to the cause of the ignition of the fire please serve in your reports on which the plaintiff relies.
Mr Oliver submits that reports prepared for Mr Dennis and an inspection by Hagemeyer of the damaged item were provided in 2005. Part V, Division 2A of the Act deals with defective goods and provides limited liability on manufacturers for goods of unmerchantable quality. As in this case the goods were imported and the manufacturer does not have a place of business in Australia. Therefore the importer, Hagemeyer, is treated as the manufacturer. Any person who suffers loss or damage as a result of non-compliance with the Division may recover compensation from the manufacturer. The goods must be of a kind ordinarily acquired for personal, domestic or household use. Sections 74B and 74D have strict liabilities.
The applicant’s solicitors responded to the request for particulars on 18 January 2008 as follows:
Figure (3) with respect to paragraph 8
(a) This is not a proper request for particulars
(b) This is a matter of evidence. (Affidavit of Mr Farrell, Annexure “B”)
Mr Oliver states that the answer given in 3(a) above was justified because there was no proper request. The unfitness or unmerchantable quality relied upon was the spontaneous ignition of a fire by a household dishwasher in the course of ordinary household use.
In respect of 3(b), Mr Oliver submits that in plain terms that the respondent requested particulars of evidence and it is justified to refuse to answer that request.
Paragraph 5 of the respondent’s solicitors’ letter of 5 December 2007 states:
5. With respect to paragraph [15] please advise the basis on which it is alleged that the dishwasher was not fit for the purposes of washing dishes.
The applicant’s solicitors replied:
Please refer to the Statement of Claim at paragraphs [7] and [8].
Paragraphs 7 and 8 of the amended statement of claim plead only that on 10 March 2005, a fire broke out in the kitchen of the applicant’s domestic residence and that the dishwasher was the cause of its ignition.
Mr Oliver submits that the applicant’s claimed response to this request was not to the effect that it was a matter of evidence, but rather that the dishwasher was unfit and/or unmerchantable by the very fact that it ignited a fire in the course of household use. Mr Oliver submits that at least some cases which plead unmerchantable quality or unfitness are res ipsa loquitur. Almost by definition, a household appliance has the propensity to ignite spontaneously when it is being used in a kitchen and for the purpose for which it is ordinarily used.
The respondent’s solicitors further stated:
6. With respect to paragraph 16 please provide:
(a) The details of the building repairs which were undertaken;
(b) The details of the house contents which were replaced;
(c) The details of the temporary accommodation for the period for which the applicant used temporary accommodation;
(d) The details of the storage;
(e) The details of the report for assessing the damage and please provide copies of all such reports.
The applicant’s solicitors replied:
(6) This is a matter of evidence, however, we will shortly provide you with our quantum documents.
Mr Oliver submits that the request by the respondent is, on the face of it, a request for particulars of evidence. As for the remainder of paragraph 6, Mr Oliver concedes that the respondent was entitled to better and fuller particulars in due course. He also concedes that the early service of evidence of quantum is not strictly speaking a substitute for the applicant being willing to bind himself to a statement. The respondent would be entitled to know in advance what the evidence allegedly proves. However, Mr Oliver submits that the respondent’s complaint that the applicant’s response to a request for particulars are inadequate is hollow as the respondent subsequently filed a denial in its defence of the applicant’s claimed quantum.
Mr Oliver contends that it is not accurate to say that a refusal to provide adequate particulars of quantum was a response to a question which the respondent has already declined to answer. He submits that the question the respondent declined to answer was on liability.
On 11 February 2008, the respondent filed a defence which introduced new pleadings:
24. Further and in the alternative in answer to the whole of the claim if the goods were not reasonably fit for the purpose (which is denied) they were reasonably fit for the purpose by reason of:
a) An act of default by a person; or
b) A cause independent of human control
After the control of the goods had left the Defendant.
25.Further and in the alternative if the goods were not of merchantable quality (which is denied) they were made so by:
i) An act or default of a person; or
ii) A Cause independent of human control
Which occurred after the goods left the Respondent.
In response to the defence, the applicant requested “further and better” particulars of Hagemeyer’s defence in the following terms on
15 February 2008:
1. In respect of paragraphs 24 and 25 of the defence, when is it alleged that the Dishwasher left the control of the defendant?
2. In respect of paragraph 24(a) of the defence:
(a) Please specify each and every act or default that is relied upon.
(b) In respect of each and every act or default that is relied upon please specify:
(i) The person or persons by whom the relevant act (or default) was done (or omitted to be done).
(ii) When and where the relevant act or default was done (or omitted to be done).
(iii) The respect or respects in which as a consequence of the relevant act or default, the Dishwasher was not reasonably fit for the purpose of washing dishes.
3. In respect of paragraph 24(b) of the defence:
(a) Please specify each and every independent cause that is relied upon.
(b) In respect of each and every independent cause that is relied upon, please specify:
(i) When and where the relevant independent cause occurred.
(ii) The respect or respects in which as a consequence of the relevant independent cause, the Dishwasher was not reasonably fit for the purpose of washing dishes.
4. In respect of paragraph 25(a) of the defence:
(a) Are the acts and defaults relied upon the same acts and defaults that are relied upon for the purpose of paragraph 24(a) of the defence?
(b) If the answer to (a) above is in the negative, please specify, in respect of each and every act or default that is relied upon:
(i) The person or persons by whom the relevant act (or default) was done (or omitted to be done).
(ii) When and where the relevant act or default was done (or omitted to be done).
(iii) The respect or respects in which, as a consequence of the relevant act or default, the Dishwasher was not of merchantable quality.
5. In respect of paragraph 25(b) of the defence:
(a) Are the independent causes relied upon the same independent causes that are relied upon for the purposes of paragraph 24(b) of the defence?
(b) If the answer to (a) above is in the negative, please specify, in respect of each and every independent cause that is relied upon:
(i) When and where the relevant independent cause occurred.
(ii) The respect or respects in which, as a consequence of the relevant independent cause, the Dishwasher was not of merchantable quality. (Affidavit of Ms Bure, Annexures “A” and “B”)
On 10 March 2008, the respondent responded to the request for particulars in respect of their defence:
1. At the time it was obtained by the reseller.
2. This is a matter for evidence.
3. This is a matter for evidence.
4. This is a matter for evidence.
5. This is a matter for evidence. (Affidavit of Ms Bure, Annexure “D”)
Mr Oliver submits that it is open to the respondent to answer that the particulars are not presently known but will be provided if and when they are. However, having specified what exactly he alleges caused the goods to become unmerchantable or unsuitable, the applicant is entitled to be informed the extent to which the respondent knows by whose alleged agency or default caused the defect and what effect it had on the dishwasher.
Mr Oliver contends that the respondent has not yet claimed that those issues are unknown to them and it is hard to imagine so given that it was in receipt of the reports prepared for Mr Dennis and had the benefit of its own inspection and expert evidence. If the respondent had none of the information sought by the applicant, it has not said so. If this were its position, paragraphs [24] and [25] of the defence cannot properly be pleaded. Mr Oliver submits that assuming an improper course is not being pursued, the applicant is entitled to particulars to avoid surprise and to limit the scope of discovery categories. In support he relies on Spedding v Fitzpatrick [1888] 38 ChD 410 at 413 which states the objective of particulars:
To know what case he has to meet at the trial and so to save unnecessary expense and avoid allowing parties to be taken by surprise.
Mr Oliver submits that the respondent has refused to answer precise requests for specification of what act or impersonal event is alleged to have occurred and (to the extent that this may be known) by whose alleged agency or default. Mr Oliver submits that the respondent does not claim that any of the particulars sought are unknown to it.
Mr Oliver submits that a request for disclosure on the basis on which it is alleged that the dishwasher caused the ignition of the fire is not a legitimate request. Construed objectively, a request for such terms appears to seek particulars of observations and/or theoretical assumptions of witnesses, on the basis which those witnesses and/or Mr Dennis infers that the fire was caused by the dishwasher and not some other part of the damaged building. These are particulars of evidence from which the probable origin of the fire will be proved, and not in any fact constituted in the applicant’s pleadings. In order to make out a prima facie entitlement to relief, it is enough for the applicant to satisfy the Court that the fire originated in or from the dishwasher in the course of ordinary use. Though the applicant may be expected to adduce evidence of the manner in which the fire spread and to give discovery to that evidence in due course, he cannot prove that the fire in the dishwasher spread in any particular way.
On 26 March 2008 the applicant’s solicitors responded to the letter of 10 March 2008:
With regard to your response to our request numbered 1, we request the following further and better particulars:
a) Please identify the reseller that is referred to therein?
b) Please specify the date at which the reseller obtained the dishwasher.
We note that your response to our requests numbered 2, 3, 4 and 5 is that these are matters for evidence.
With respect, our requests numbered 2, 3, 4 and 5 are proper requests for particulars and we press them. (Affidavit of Ms Bure, Annexure “E”)
Respondent’s submissions
Mr Kettle submits that the correspondence set out at [20] to [28] above sets out the grounds upon which it is alleged that the dishwasher was the cause of the ignition of the fire. The grounds remain unparticularised and the basis of the dishwasher being unfit for the purpose or of unmerchantable quality is the subject of evidence. The dishwasher was purchased from a party not joined to these proceedings and some four years prior to the fire on 10 March 2005.
It is submitted that the applicant’s request for further and better particulars of the defence are in the context of him having the legal and evidentiary onus of proving that the dishwasher was unmerchantable and not reasonably fit for its purpose, and that he suffered loss or damage for that reason. The respondent has been asked to provide particulars of the mechanism of the fire. Those particulars have been denied on the basis that they are matters of evidence. Mr Kettle contends that the applicant is aware and has evidence of the following matters:
a)the purchase and ownership of the dishwasher;
b)the use and service history of the dishwasher; and
c)the mechanism by which the fire started.
Mr Kettle submits that the applicant has been adequately placed on notice of the case he is required to meet, that is:
a)The goods were reasonably fit for purpose and of merchantable quality; and
b)If not, that the “act or default” giving rise to the loss was after the goods left Hagemeyer’s control.
Mr Kettle submits that the respondent is entitled to assert and place these matters in issue without further particularisation as they are matters of evidence, just as the allegation that the dishwasher was the cause of the fire is a matter of evidence or expert opinion. Particulars would unduly limit such opinion and, by limiting the scope of the defence, would widen the scope of the applicant’s claim.
Mr Kettle argues that the applicant is not caught by surprise. The respondent relies upon the statutory defences contained within the very section of the Act that the applicant relies on for his statutory claim. The reasons for the goods not being fit for the purpose are inextricably linked to those reasons being independent of any default by Hagemeyer. The defence has a foundation in evidence including the admitted purchase of the dishwasher from a third party, Mr Dennis’ ownership and control of the dishwasher from the date of purchase, and the allegation that the dishwasher was the cause of the ignition of the fire. The acts or defaults by the person or persons who did the relevant acts (and related matters) and, as a consequence, the dishwasher was not reasonably fit for the purpose remains a matter for evidence.
Consideration
The application filed on 8 November 2007 is a consumer action under s.74B of the Act in respect of manufacturing or importing of unsuitable goods; and under s.74D of the Act in respect of manufacturing or importing of goods of unmerchantable quality.
The matter does not deal with a normal consumer issue because what is alleged is that not only that there was a defect in the dishwasher but the defect caused damage to the premises resulting in a very high claim.
This allegation of unmerchantable quality relates to the dishwasher’s propensity to ignite in the course of household use. The defect that
Mr Dennis is alleging as the proximate cause of damage is a defect that was present in the product when it was supplied for re-sale, and is not attributed to an intermediate cause subsequent to that supply.
I note the detailed submissions of Mr Oliver set out at [18] to [30] above and of Mr Kettle’s set out at [36] to [39] above.
As set out at [18] above, after the statement of claim was filed and served the respondent’s solicitors requested further and better particulars. I am satisfied that this was the correct approach and I am guided by the judgment of Collier J in Visionmax Pty Ltd v Budget Specs (Franchising) Pty Ltd [2006] FCA 222 at [7]:
RELEVANT LEGAL PRINCIPLES
Further and Better Particulars, compared with Interrogatories
[7] The essential function of particulars is to ‘carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to save costs’. (Atkin’s Encyclopaedia of Court Forms and Precedents in Civil Proceedings, Butterworths, vol 8, p 31). Particulars complete the picture of the applicant’s cause of action with information sufficiently detailed to put the respondent on guard as to the case it has to meet and to enable it to prepare for trial (Spedding v Fitzpatrick (1888) 38 Ch D 410; R v Associated Northern Collieries (1910) 11 CLR 738 at 741; Goldsmith v Sandilands (2002) 190 ALR 370 at 371; King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Ltd) [2003] FCA 543 at paras 16–18). A request for further and better particulars should be made initially by letter, however the Court may order further and better particulars to be provided pursuant to O 12 Federal Court Rules.
The response by the applicant’s solicitors (set out at [20] above) was appropriate as the statement of claim clearly informed the respondent of the nature of the case it had to meet as distinct from the mode in which the case is to be proved. A request to disclose witness reports or expert reports relates to particulars for evidence. This is noted in the context that certain reports were provided in 2005. An application for these particulars where the intention is to obtain the evidence of the other side should be refused: British Medical Association v Brittanica Fire Association (1888) 59 LT 889.
Similarly, I also addressed paragraph 5 of the same letter at [24] to [27] above. This explanation for the refusal to provide further material is appropriate. The Statement of Claim informs the respondent as to the nature of the case that they have to meet. Sections 74B and 74D create a statutory cause of action.
The issue addressed at [28] to [29] above focuses on quantum which the applicant indicated would be provided shortly. However, this is a request for evidence which is not required by the respondent to determine what it has to meet or to prepare the defence.
In these circumstances, the onus is on the respondent, as supplier, to prove that there was a supervening cause which rendered the dishwasher unfit for its purpose or unmerchantable. The respondent alleges that any uncertain or unmerchantable quality is attributed to an act or default of a person or an impersonal event which occurred after it left its control, that is after it has been supplied with a view to re-supply.
The initial order sought is that paragraphs [24] and [25] of the respondent’s defence be struck out in accordance with O.11.16 of the Federal Court Rules. At this stage the Court should be circumspect in exercising this discretion, see Davis v Commonwealth of Australia [1986] HCA 66 at [7] per Gibbs CJ:
7. By O.20 r.29 the Court or a Justice is given power, at any stage of the proceedings, to order to be struck out or amended any matter in an endorsement or pleading which is unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the action. Allegations of fact which are truly relevant to an arguable case which the party pleading wishes to put will not answer the description contained in the rule. Further, it is well settled that under a rule of that kind an order striking out a pleading or part of a pleading will only be made in a plain and obvious case: see, for example, Hubbuck & Sons v. Wilkinson, Heywood & Clark (1899) 1 QB 86, at p 91; Nagle v. Feilden (1966) 2 QB 633, at pp 648, 651. The Court will not ordinarily decide a debatable question of law on an application made under the rule.
I also note that the authorities have stressed that a Court must exercise care to ensure that a party is not improperly deprived of the opportunity to have his or her case properly tried: General Steel Industries Inc v Commission of Railways (NSW) (1964) 11 CLR 125 at [130]; Trade Practices Commission v Pioneer Concrete (QLD) Pty Ltd (1994) 52 FCR 164 at [175]. The applicant’s solicitors wrote to the respondent’s solicitors on 15 February 2008 in response to the defence filed on 11 February 2008 requesting further and better particulars in respect of paragraphs [24] and [25]. In the response of 10 March 2008, the respondent’s solicitors confirmed that the dishwasher left the control of Hagemeyer at the time of the sale by the reseller but declined to provide any further particulars on the basis that the remainder of the questions were a matter for evidence.
The applicant’s solicitors pressed this issue on 26 March 2008, stating that this was a proper request for particulars. I am acutely aware that it is not a proper use or the proper mode for a pleading to make an allegation without particulars. This may give rise to a suspicion that the allegations cannot be supported by evidence. However, the power of this Court must be exercised sparingly when making an order to strike out a pleading.
A this stage in the proceedings I am not prepared to strike out paragraphs [24] and [25] of the defence. Consequently, Order 1 of the application should be dismissed.
I now move to the request of an order that the respondent serve on the applicant within 28 days further and better particulars as set out in paragraphs [30] to [35] above.
Mr Oliver acknowledges that the request for particulars in the letter of 15 February 2008 seeks specification of the default in the dishwasher that made it not reasonably fit for the purpose of washing dishes. He concedes that this request serves no practical purpose because the applicant’s pleadings already define the terms in which the dishwasher was unfit for washing dishes. The defence pre-supposes that the applicant’s solicitors have established that. In light of this, Mr Oliver concedes that the requests in 2(b)(iii), 3(b)(ii), 4(b)(iii) and 5(b)(ii) of the letter are not really requests for particulars. However, he pressed the remainder of the letter’s requests.
Mr Oliver sought to support the claim for the balance of the particulars by identifying the relevant issue in dispute. That is, what caused the defect rather than the fire. The respondent states it did not cause the defect. In taking this position the respondent carries the additional burden of identifying who caused the defect. Mr Oliver’s response is that:
a)if the defect was caused by the applicant, he may wish to settle these proceedings; or
b)if the defect was caused by someone else that can be identified, it may be the basis for issuing a statement of claim on that person.
By not indicating who caused the defect may result in a lengthy catalogue of interrogatories addressing a wide range of issues associated with the applicant’s premises.
That the fire may be related to how long the dishwasher was left idle or switched on. Mr Oliver submits that this raises questions of whether the leaving of a dishwasher idle or switched on for long periods of time are ordinary household uses. If that is the case, then a propensity for the dishwasher to catch fire if used in that way is prima facie a defect.
If the respondent’s defence is that Mr Dennis ought to have foreseen or known the existence of the defect, this raises the question of whether a failure to act on what was known or ought reasonably to have been known should be evident from the pleadings. That is not the case with the current status of the pleadings. In an attempt to clarify the situation I will make the order that the respondent within 28 days serve the applicant with further and better particulars as requested in the letters served on 15 February 2008 and 26 March 2008, except for the material requested in 2(b)(iii), 3(b)(ii), 4(b)(iii) and 5(b)(ii) of the
15 February 2008 letter.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 5 June 2008
0
14
3