Desnoe P/L v Royal Automobile Club of Queensland

[1994] FCA 352

JUDGMENT No.

JN THE FEDERAL COURT OF AUSTRALIA )	NO. QG 102 of 1992
QUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISIW	1

BETWEEN: DESNOE PTY. LTD. and NOEL RODNEY SMITH of

14 Mill Street. Goodna in the State of

Queensland

Applicants

AND :  ROYAL AUTOMOBILE CLUB OF OUEENSLANQ
having its registered office at 300 St.
Paul's Terrace, Brisbane in the State of
Queensland

First Respondent

AND :  R.A.C.O. INSURANCE PTY. LIMITEQ
having its registered office at 300 St.
Paul's Terrace, Brisbane in the State of
Queensland

Second Respondent

-

RECEIVED

- - - .- - - - - - - Drummond .T . - .. - - - - -

2mmuauNc

DATE OF ORI:	m:	20 May, 1994	Ili	- 7 JUN1994
WHERE:	Brisbane

mEi:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.         The application stands dismissed.

2.         The applicants pay to the respondents the respondents' costs of the action, including reserved costs, and including the costs of and incidental to this notice of motion, to be taxed.

JN THE FEDERAL COURT OF AUSTRALU )	NO. QG 102 of 1992
QYEENSLAND DISTRICT REGISTRY	1
1

BETWEEN:	DESNOE PTY. LTD. and NOEL RODNEY SMITH of
14 Mill Street, Goodna in the State of
Queensland

Applicants

AND :  ROYAL AUTOMOBILE CLUB OF OUEENSLANQ
having its registered office at 300 St.
Paul's Terrace, Brisbane in the State of
Queensland

First Respondent

AND:  P.A.C.O. INSURANCE PTY. LIMITED
havina its reaistered office at 300 St.
paul'; ~errac;, Brisbane in the State of
Queensland

Second Respondent

c!Xm:	Drummond J
20 May, 1994

Eb!a: Brisbane

REASONS FOR JUWXBNT

On 12 May, 1993 I made an order that if the claim, properly particularised, by 18 June, 1993, the	applicants did not file and serve an amended statement of
application would stand dismissed as of 4.00 p.m. on 18 June,
1993. The reason for a guillotine order being made in those
terms was that there had been a long period in which the applicants had been guilty of continued failure to comply with directions and guilty of delay in failing to progress the action as they should have. Moreover, insofar as the order was conditioned on the delivery of a properly particularised

statement of claim, the background was that there had been a long history of complaint by the respondents, which had produced a wholly unsatisfactory response by the applicants, that the applicants' case was inadequately pleaded in significant respects.

The applicants delivered a further amended statement of claim on 18 June, 1993, but that provoked a challenge on the part of the respondents on the ground that it was not properly particularised and that the guillotine order thus operated. It was necessary for the respondents to make an application to obtain an order of the Court making it clear that that was the nature of the pleading that had been delivered, so that there could be no doubt that the guillotine had fallen. That motion came before me on 30 August, 1993 and the applicants, as respondents to the motion, were represented by senior and junior counsel. I did not deal with the motion because senior counsel for the applicants, who then produced a document (which has also been put in evidence before me today

described as the further amended statement of claim of 30

August, 1993), said that while that document contained certain amendments additional to the further amended statement of claim that was filed on 18 June, it was not the pleading upon which counsel really wished to run the applicants' case. Senior counsel for the applicants then undertook to file a notice of motion for leave to amend within four days when a further amended pleading would be produced. It was on that undertaking that the matter was adjourned back in August last.

No such document has ever surfaced. Proceedings were brought back before me today by the respondents on their notice of motion. The applicants appeared by junior counsel, different from junior counsel who had previously appeared, who informed me that he had only been briefed a day or so ago; in the very limited time available, he had not been able to come to grips with the matter and he sought an adjournment. I refused the adjournment for reasons which I gave. Argument then proceeded, designed to show that the document of 18 June, 1993 did not comply with the order of 12 May, 1993 insofar as it was deficient in particulars.

In a number of respects, I agree with the submissions made on behalf of the respondents in this regard. It seems to me that if one looks, by way of example, at matters such as paragraph 11 of the document of 18 June and paragraphs ii, iii and iv of part A of the particulars to paragraph 17, the allegations there made, which are quite significant in the context of the action sought to be run,

give the case here the look of a fishing one. If this were

the first attempt by the applicants to formulate their case,

they would no doubt be given an opportunity to refine it and to demonstrate that the case was not a fishing one, at least in these respects. But that time has long gone, for the reasons that I have already canvassed. No attempt was made, as might have been thought to be the case against this background of the way the applicants have conducted the litigation, to put in evidence which might show that there was

a foundation for this sort of allegation and that it was not really a fishing exercise that the applicants were here embarked upon.

There are other examples in the document of 18 June that show, to my mind, against the background of the way the applicants have conducted the litigation to date, their general attitude to it. If one looks at paragraph 26 of the June 1993 pleading by way of example, allegations are there made about the expenditure of money at the direction of the respondents or their servants over a period from 1987 through to 1991. It is true that some details of these directions are given, but it is apparent that the applicants should be able to give further information to tie down the approximate date on which each direction was given by reference to the date on which the money in question was expended. That is a not unimportant matter, insofar as it would be likely to enable the respondents to direct their attention to relevant areas of evidence gathering with more facility than the pleading in its	present form enables them to do. This deficiency would not	perhaps matter a great deal if it were the only deficiency,
but I refer to it as indicating what seems to me to be a lack of any serious attempt on the part of the applicants to attempt to define their action with the sort of precision that is to be expected, and is indeed required, when complex
litigation of the kind they have chosen to bring is brought before the Court.

Counsel has called in aid the document of 30 August, 1993, the one which senior counsel who previously appeared for the applicants did not want to stand on. But it does not, save perhaps in a few respects, cure the deficiencies that have been the subject of submission by counsel for the respondents, so far as the deficiencies in particularisation of the document of 18 June, 1993 are concerned. I note by way of example that paragraphs 17 ii, iii and iv of part A and paragraph 26 of the draft further amended statement of claim of August 1993 are in identical terms to the document of l8 June.

It seems to me that the picture presented is this: there is legitimate complaint by the respondents about the lack of proper particulars in a number of respects in the document of 18 June. If one adds to those complaints the history of the litigation and the way the applicants have conducted themselves in it, there is no reason to give the applicants the indulgence that their counsel now seeks of yet

more time, particularly since what counsel asked for was an	opportunity to review the applicants' case to see if it had
any substance.
I propose to make an order that reflects my opinion that the guillotine order effectively operated on 18 June, 1993 and I will direct that the application of the applicants stands dismissed.

I will order that the applicants pay to the respondents the respondents' costs of the action, including reserved costs, and including the costs of and incidental to this notice of motion, to be taxed.

'I certify that this and the preceding
five pages are a true copy of the
reasons for judgment herein of the

Honourable Mr. Justice Drummond.

Associate: "2"-

Date:	20 May, 1994
Counsel for the applicants:	L. Boccabella
Solicitors for the applicants:	Anderson Brady
Counsel for the first and	C. Hampson Q.C. and

second respondents:  P. O'Shea

Solicitors for the first and

second respondents:  Hunt 6 Hunt

Date of Hearing:  20 May, 1994