Friends Provident Life Office v Hambros Securities Limited

[1992] FCA 1024

\qqa :

JUDGMENT No. ........ ........ .. 'OX+ I ......,.. LL.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)	NO NG 426-7 of 1992
GENERAL DIVISION	1

450 & TIEE PRUDENTIAL

ASSURANCE COMPANY LIMITED

Applicants ..:

AND: HAMBROS SECURITIES

LIMITEQ

First Respondent

DOMINGWZ	BARRY	SAMUEL
MONTAGU LIMITED	8	.
Second Respondent	i
MGICA LIMITED Third Respondent
8 .

[Details of	cross claims
omitted]

PRINCIPAL I

'b. RGOletRY

! i

t :

REASONS FOR JUDGMENT

EINFELD J SYDNEY 16 DECEMBER 1992 I .

Motions have been brought by the third respondent, MGICA	, -
Limited, and to a limited degree by the second respondent, Dominguez Barry Samuel Montagu Limited, in respect of these two amended statements of claim. In the case of MGICA, the primary relief sought is that the amended statements of claim should be struck out. For the reasons given in argument, which having been fully recorded there is no point in
repeating, there is no merit to these applications at all.	There are some contextual and other defects in the amended
statements of claim which do need attention, but none of them is such as to demonstrate that the applicants' claims have no merit and no arguability as is required by the authorities.
The second part of the motions by MGICA seek particulars of the amended statements of claim. A number of matters were outlined of which, as it seems to me, there are only three that have any substance at all. The first is the apparent reliance by the applicants in the statements of claim on section 51A of the Trade Practices Act. I acknowledge that French J has held in two cases that where reliance is sought to be placed upon this section, it should be pleaded.. There is no doubt that the principle lying behind what Frencli J said is unarguable, namely, that a respondent is certainly entitled to know whether it will bear the onus of proof which comprises subsection (2) of section 51A. A respondent certainly cannot be left to guess at the matter or be at a hearing not knowing that it does carry the onus of proving the matters which are covered by section 51A.
view which, as I understand it, is not universally held in the	I have previously addressed in other cases French J's point of
Court. In the vast majority of cases in my experience, the matter is clearly to be implied from the pleadings and certainly from the presentation of the evidence and the conduct of the case. That French J's view might require some reconsideration arises in particular because of its possible consequence that the success of an applicant might be denied in a proceeding where section 51A has not been pleaded but future representations under section 51A have obviously been relied upon and if section 51A was applied, the applicant could succeed. It is not necessary to confront that proposition in this case in any event because the applicants have, through counsel, agreed to amend the pleadings to allege section 51A. In my opinion, these statements of claim are clear in that regard, but as the applicants are willing to amend, the matter does not need to be dealt with any further by me.
The third respondent also seeks some type of prospective or projected order of particulars of the proposed amendment. It is impossible to order undefined or unlimited particulars of an amendment which has not been seen. There is no right to particulars. Particulars are only required or will only be ordered where a pleading fails to make out a sufficiently clear case to enable the other party to prepare its answer. I cannot make the assumption that the amendment will be defective in that way. In fact, as I read the amended statements of claim, it is clear already what the amendment
will allege and it is certainly possible for the respondents	to plead to it.
Two other matters are raised by way of requests for further particularisation. One relates to the allegation in the amended statements of claim that the third respondent attracts not only liability as a principal, but as an accomplice under section 75B of the Trade Practices Act. I acknowledge that the present state of the law is that active involvement or participation is required before a party can be accused of aiding and abetting a contravention of section 52 or other sections of a similar kind.
Statements of claim must be read in their entirety to understand what the allegation is. At the same time I agree that notwithstanding particularisation, this claim is not as clearly made as it might be. It is clear, I think, to any reasonable reader of the statements of claim and the particulars, what is being alleged but in view of the seriousness of the allegation, further particularisation appears to me to be appropriate. I note in this regard that today the applicants have agreed by letter to provide such additional particularisation and therefore once again there is no need for the Court's intervention.
The final matter for which relief is sought relates to particulars given by the applicants on 17 November 1992 which imply, or might be read as implying, that the applicants assert that the third respondent was guilty of some fraud.
deceptive conduct, especially with allegations of being a	There is often a difficulty in cases of misleading and
knowing accessory to such conduct, in distinguishing statutory contravention from fraud. I agree with counsel for the third respondent that as presently supplied in paragraphs 5 and 6 of the letter of 17 November, especially the two subparagraphs (e), the assertion appears to be being made that the third respondent has been guilty of fraudulent conduct.
The applicants by counsel deny an allegation of fraud. Were that not the case, particularisation would be required not only by reason of ordinary fairness but by reason of the rules. If on reflection the applicants wish to make such an allegation, the matter should be pleaded and fully particularised. I would be attracted by a proposition that particulars should be ordered if they are not supplied.
On the other hand, if fraud is not alleged, there needs to be some recasting of paragraphs 5 and 6 of the letter of
17 November, or some other clarification, which makes clear
that no allegation of fraud is being pursued. The applicants have agreed to supply further particulars under this heading and they should, I think, take the opportunity of reparticularising the matters which have previously been supplied in paragraphs 5 and 6.
Those are the only matters, as it seems to me, which need to be given attention prior to the filing of the defences. At present the defences are ordered to be filed by 15 January.
arisen in the course of the hearing today, I will give a short	In view of the holiday period and the difficulties which have
extension of that period, but so far as I can see, there is no reason at all why the respondents cannot file their defences quite promptly in the new year.
I should add only this: if the litigants coming to this Court wish to continue to receive the service from the Court which they have hitherto enjoyed, the intense co-operation of the profession will be needed to ensure that in the absence of
major issues of principle, questions of pleadings and particulars are settled between the parties by commonsense and some sophistication.
I grant leave to the applicants to file amended statements of claim, in particular to deal with the issues of section 51A, the allegations made under section 75B, and any question of or denial of fraud on the part of the respondents. The amended statements of claim will be filed and served by not later than 4 pm on Friday 18 December. The respondents will have until 4 pm on Friday 29 January 1993 to file and serve their defences. The matter will be listed for further directions at 9.30 am on Thursday 4 February 1993.
I should have dealt with the motion of the second respondent
which was for a specific and limited order of particulars respectively referable to paragraph 12(a) of the statement of claim brought by Friends Provident Life and paragraph 10(a) of the statement of claim brought by Prudential Assurance. I	note in this regard that the applicants agreed just prior to	the hearing of this matter today to supply the particulars
sought and therefore there is no need for the Court to rule on the matter. Once again, it is a pity that this agreement could not have been done before and without this hearing.
[After discussion]

to 4 February 1993. I

The motlons are stood over part heard	I.
Costs are reserved.	i , , -'
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I c ~ r : ~ f y	t t x t thlrj s ~ d	the six	i
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pFcced!n~ p2qes ars a true copy of the

Fleasons for Judgment hero~n of h ~ s Honour -