Foster v Russell-Smith - [2000] WADC 195

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FOSTER & ORS -v- RUSSELL-SMITH [2000] WADC 195

CORAM: GROVES DCJ

HEARD: 21 JULY 2000

DELIVERED : Delivered Extemporaneously on 21 JULY 2000 typed from tape and edited by Trial Judge.

FILE NO/S: CIV 3301 of 1998

BETWEEN: JOHN GODFREY FOSTER
AUSTCONSULT PROFESSIONAL SERVICES PTY LTD (ACN 009104689)
J G FOSTER INVESTMENTS PTY LTD (ACN 009049085)
Plaintiffs
AND
CHARLES RUSSELL-SMITH
Defendant

Catchwords:

Practice - Rules of the Supreme Court 1971 (WA) - Appeal from Deputy Registrar's refusal to strike out statement of claim - Order 20, r 19(1)(a) and (c)

Legislation:

Rules of the Supreme Court of WA (1971), O 20, r 19(1)(a) and (c)

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiffs: Mr G A Rabe
Defendant: Mr R W Richardson

Solicitors:

Plaintiffs: Williams Ellison
Defendant: A C Thorpe

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

Nil

Case(s) also cited:

Nil

GROVES DCJ: This is an appeal made by the defendant from a decision of Deputy Registrar Harman of this Court given on 17 June 1999 when the defendant's application by way of Chamber summons to strike out the further substituted statement of claim was dismissed. The Chamber summons sought an order that the statement of claim be struck out either in its entirety or, in the alternative, a number of paragraphs were sought to be struck out pursuant to order 20 rule 19 (1)(a) and (c) of the Supreme Court Rules. In so far as that rule is concerned it reads:
"The Court may at any stage of a proceedings subject to par (3) order to be struck out or amended any pleading or the endorsement of any writ in the action or anything in any pleading or in the endorsement on the ground that (a) it discloses no reasonable cause of action or defence as the case may be or (c) it may prejudice embarrass or delay the fair trial of the action ‑
the rule goes on:
and may order the action to be stayed or dismissed or judgment to be entered accordingly as the case may be."
Seaman in the Supreme Court Civil Procedure at par 20.19.6 and par 20.19.10 in his commentary deals with the principles to be applied in respect to an application of this nature and without repeating them I simply adopt and apply those principles as are there stated.
I have had the assistance in hearing this appeal of written submissions which were lodged on behalf of the defendant in support of the original application and also the plaintiff's short submissions in response as well as having the assistance of counsel for each of the parties enunciate the difficulties on the part of the defendant in meeting the pleading and in response on behalf of the plaintiff.
It is the case, and it is perhaps trite to say, that a plaintiff in a statement of claim must plead with clarity and without ambiguity and in such a way that the defendant knows and is made aware of the case which it has to meet by way of defence to an action.
I shall make some general observations first of all, and in a sense I am dealing with each of the objections which have been made to the statement of claim inglobo rather than going to each of them although I will come back to each of the matters complained of in a moment.
Clearly also it is not appropriate for the plaintiff to plead evidence in the statement of claim. The District Court is a court of pleading. It is not like the Local Court where pleadings are less formal. However, having regard to the demands which are placed on this Court so far as the disposition of business before it is concerned, the fact that pleadings may in a technical sense be deficient should not prejudice an action proceeding unnecessarily.
What I am saying is that there has to be a greater degree of flexibility than there may have been in the past to allow pleadings to stand which hitherto may have been struck down as inadequate provided however that the other criteria, including the fact that the defendant knows the case which it has to meet, are satisfied. In that sense I think it fair to say that the taking of an overly technical or pedantic approach to pleadings has given way to the requirement that the Court facilitate the more expeditious disposition of matters before it. However that should be done without diminishing at all the interests of justice or causing prejudice to the parties.
Notwithstanding the defendant's concerns as to the alleged shortcomings of the statement of claim, I am satisfied that the defendant can be in no doubt as to the case which it has to meet.
The issues which are raised by the further substituted statement of claim clearly set forth the nature of the action, ie the basis of the action and the legal cause of action which the plaintiff contends arises. To the extent that there may be some deficiencies, they may be met or answered by a request for further and better particulars.
In saying that, I accept that an inadequate statement of claim can never be perfected by putting the onus on the defendant to request further and better particulars. In this case I do not consider that the statement of claim is inadequate to that extent but there are perhaps some matters on which the defendant, upon request being made, would be entitled to further and better particulars. I do not consider that such particulars are necessary before the defendant is able to plead a defence to the statement of claim.
I go now to those matters within the further substituted statement of claim to which the defendant objects. As to par 4 and par 5, I indicated to defence counsel in argument that what is pleaded there are the matters which the plaintiff contends were said by the defendant. What was said has not been pleaded in inverted commas to indicate the direct speech but clearly, in a case such as this, where it is said reliance is had on the statements which were made and of course it is necessary for those matters to be pleaded in a case such as this, which arises pursuant to the Fair Trading Act of Western Australia, it is and will be a matter of evidence at trial as to whether or not that which is alleged was in fact said or told to the person Foster by the defendant.
To the extent that the defendant has any difficulty with what is said there, then the response to that is the defendant either denies that which is pleaded or if the defendant does not join issue, then, given the fact that it was the defendant himself whom it is said stated those matters, it must be within the knowledge of the defendant to know what was meant by the words which he used.
In any event, I do not consider that it is necessary or a necessary requirement for the plaintiffs to plead more than they have done in par 4 and par 5. At the end of the day, whether or not those matters were said and what the effect of those representations was will be a matter for the trial judge to determine and that will be a matter of evidence no doubt by those persons who were parties to those conversations. I do not accept that the complaints so far as various of the words are concerned are necessarily ambiguous or that they are capable of prejudicing or delaying the fair trial of this action.
As to par 6 complaint is made that certain companies are not identified. The answer to that is that on the one hand it may ultimately be a matter which can be clarified by a simple request for further and better particulars. On the other hand, it is just as likely to be within the knowledge of the defendant in any event as to what, if any, businesses or business ventures he has been involved with the person Foster since approximately 1981. Again, I do not consider that the complaint which the defendant makes in respect to par 6 is made out or would in any way prejudice or delay the fair trial of the action.
The same might be said also in respect to the complaint addressed to par 8 of the statement of claim. The underlying thrust of much of the complaint which the defendant makes is that which is referred to as "the business" is not certain. It was argued that it is vague and also ambiguous in the context of what is being talked about in reference to "the business".
I go back and note that in par 4(d) of the statement of claim "the business" is described as being, and the paragraph is reciting what the defendant allegedly told Foster, and it was this:
"The defendant and Wood were jointly proceeding with the expansion of the Equus Caballus business to include the horse show."
It is that which is defined as the business. Given it is pleaded that it was the defendant who was telling Foster about the business, again I consider it must be within the knowledge of the defendant as to what the business is that was being talked about so far as the opportunity being presented to Foster to invest in the business is concerned.
Again so far as complaint is made as to the use of the word "investment" in par 8 is concerned, it is a word in common usage, commonly understood in the English language and I do not consider there can be any misunderstanding or ambiguity which can be complained of or which would likely prejudice the fair trial of this matter.
Again complaint is made insofar as par 8 is concerned of "massive ambiguity" as to what the plaintiff asserts and what the plaintiff was to get and it is said that the plaintiff must plead with certainty. I am not satisfied that what is pleaded is at all uncertain or that it is ambiguous in any way.
As to par 11, complaint was made to the words, "Particulars of these payments have been provided to the defendant." As I noted earlier, whilst this is a Court of pleading, it is nevertheless an expression which is seen often where particulars are concerned. If the defendant is in any doubt as to whether or not particulars of the payments have previously been provided, then it may be a matter for further and better particulars otherwise it may be a matter which will be resolved on discovery of documents or alternatively it may, in any event, be within the knowledge of the defendant as to the fact that those payments were made.
In those circumstances I do not consider that the defendant is in any way prejudiced or that complaint can be made about the use of that expression in this Court, albeit a Court of pleading. I say again that whilst one might abhor informality creeping into pleadings, necessarily an approach which is in the interests of the administration of justice must be adopted.
As to par 15(d), that requires me to go back to par 5(d) where it is pleaded that the defendant made the following statement to Foster:
"There was an informal agreement in place with the Mandarin group in terms of which the Mandarin group would underpin the cost of the horse show by bringing in from late October 1995 300 tourists per day at $17 per head."
Paragraph 15(d) then pleads:
"There was no agreement in place with the Mandarin group in the terms as pleaded."
Complaint is made by the defendant that either there was an agreement or there was not an agreement and that the expression "informal agreement" does not have any meaning. I do not accept that argument, having regard to the context in which it is pleaded in par 5 as being what was stated or a statement made by the defendant to Foster.
Whilst it may be capable of having different meanings to different people, if it was the case the statement was made that there was an "informal agreement", again it must be particularly within the knowledge of the defendant as to what the situation was so far as any such agreement was concerned. It was he who was putting the proposal to the plaintiff to invest money in this venture and, as I said, what might constitute an informal agreement may mean different things to different people and there may be any reason why what was an informal agreement does not come to fruition.
In the way that it has been pleaded in par 15, the plaintiffs are saying that despite being told there was an informal agreement, there was in fact no agreement at all. Again, I do not consider that that is in any way ambiguous or in any way not clear so far as the defendant being able to plead to those parts of the statement of claim are concerned and I do not consider that the defendant can be prejudiced or embarrassed in any way by the manner in which that has been pleaded.
As to par 16 it is said that the manner in which the alleged loss and damage has been presented is a nonsense in that a person cannot hold a share in a business. A person, of course, can hold shares in a company, a person can have an interest in a partnership business or may be the sole proprietor of a business. Nevertheless, it does not seem to me that the way in which it has been pleaded, having regard to the remainder of the statement of claim, that there can be any confusion in the mind of the defendant as to what is intended so far as that plea is concerned.
Whilst it might not have been certain at the time when the discussions were taking place as to the structure of the business relationship, whether it was to be a partnership or a company, it never got to that stage as, so it would appear from the statement of claim, things turned sour and the business failed. Even so, I do not think that the way it is pleaded is in any way confusing or indeterminate which does not enable the defendant to know the case which he has to meet insofar as that allegation is concerned.
As to par 21B, the same complaint is made to the use of the expression "particulars whereof have already been provided to the defendant". I have dealt earlier with reference to the pleading of particulars already provided so far as creditors of the business are concerned. Again that may be a matter for which particulars might be sought, but I do not consider that as being a matter which prevents the defendant from being able to plead to the case as it has been put to him.
As to par 22 I, like counsel for the plaintiff, have some difficulty in comprehending the argument that is raised in respect to this paragraph. On my reading of it the pleading is clear, it is precise, it is not ambiguous. It may be as the defendant contends short on some detail, but I do not consider that that of itself contaminates the pleading so as to make it inadequate or to leave the defendant in any way uncertain as to the purport at least of that pleading.
Complaint is made to par 23 consequent upon the complaint made to par 22, but I do not accept that that in any way either will prejudice or embarrass the defendant so as to be able to plead to it. That sort of a plea is generally met with a denial. If there is any concern that the defendant does not know when demand was made then again that may be a matter for particulars.
So far as the prayer for relief is concerned it is not a pleading, and so far as the complaint that in par 2 under claim (B) there is a claim for interest "from 20 October 1995" that is not a matter which renders the prayer deficient or embarrassing in any way. In practice, the claim for interest from a certain date inevitably is a matter to be determined according to the evidence at trial (a) as to whether or not the court should exercise its discretion to award interest and (b) if so from what date. Again that is a matter which will be determined at trial.
So for those reasons I will not accede to the defendant's appeal against the Deputy Registrar's order and will make appropriate orders to dismiss the appeal.