George Weston Foods Ltd v Tip Top Ice Cream Company Ltd

[1991] FCA 221

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 739 of 1990

GENERAL DIVISION )

Between: GEORGE WESTON FOODS LIMITED

And: TIP TOP ICE CREAM COMPANY

LIMITED & ORS

Respondent

Einfeld J

27 May 1991

Sydney

CORRIGENDUM

The written copy of the ex tempore judgment delivered by his

Honour dated 26 February 1991 should be dated 26 April 1991.

Anja Hilkemeijer

Associate to Justlce Einfeld

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 739 of 1990

GENERAL DIVISION 1

Between: GEORGE WESTON FOODS LIMITED

Applicant

And: TIP M P ICE CREAM COMPANY

RECEIVED	LIMITED h ORS
FEDERAL COURT OF	Respondent

AUSTRALIA PRINCIPAL REGISTRY

----..

/' EX TEMPORE JUDGMENT

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Einfeld J Svdney 26 Februarv 1991

This notice of motion is brought at short notice by the respondents in this action seeking further particulars of the statement of claim and ordering that paragraph 18 of the statement of claim be struck out.

With regard to particulars, what is sought in the notice of motion is further particulars of paragraph 17 of the statement of claim. This paragraph says:

By reason of the foregoing the applicant has

suffered and continues to suffer loss and damage.

The affidavit filed in support of the notice of motion asks for replies to two requests for particulars, and I quote from a letter from the respondents' solicitors to the solicitors for the applicant of 12 April 1991:

1.    Please specify the nature and amount of damages alleged to have been suffered by the applicant by reason of the matters pleaded in this paragraph.

2.   Please specify the basis upon which the amount of damage is quantified.

In argument it emerged that what the respondents are actually seeking is not a quantification of the damages at this stage but particularisation of the way in which the applicant attributes whatever loss has been suffered to the contraventions of the statute and the common law which the statement of claim alleges.

When this much emerged in the course of argument, counsel for the applicant quite rightly conceded that such particulars would be appropriate. I would add that this case was given an expedited hearing earlier in the year, despite its length and apparent complexity, by reason of the particular needs of the applicant. One of the conditions under which that order for expedition should be maintained is that the applicant states clearly and puts on the table in unambiguous terms the case which it is wishing to make. At an inconvenient time for the Court because of Full Court commitments, the case has been	allocated 3 weeks commencing on May 27 next. That leaves	little time for forensic play-acting or attempts to ambush.
For that reason I will order in a moment that particulars be given of the so-called "nature of the damages" in the context to which I have just referred.
So far as concerns paragraph 18, the argument here by the respondents is that the argument is really based on two - assertions. The first is that this is an application for punitive or exemplary damages, and that the applicant has not in fact pleaded the material facts as required by the rules, but the conclusions of law necessary for such a finding to be made in its favour. The second argument is that punitive damages are not available for breaches of the Trade Practices Act and ought to be held to be unavailable for passing off.
As to the first matter, I think that the contention in principle is misconceived. It is conceded that this paragraph of the statement of claim does in fact raise a claim for punitive damages. I should observe in passing that it would have been preferable for the applicant to have made that clear. Had this been done it would have been easier to address the question of whether paragraph 18 was validly included in the statement of claim in its present form or some similar form.
However, as we now know that it is intended to form the basis
for a claim for exemplary damages, I should address it as such. The clause is not particularly felicitously phrased but
at its heart it is an assertion by the applicant that not only will it prove the tort and breaches of statutory duty previously set out in the statement of claim but that it will prove that these were committed wilfully or recklessly by the respondents and that they did so with contumelious disregard for the applicant's legal and commercial rights.
I think at its heart paragraph 18 does contain such an allegation but it at least requires particularisation. It may require, and probably ought, to be amended so as to make completely clear that what I have just said is in fact the allegation being made. I will not order an amendment but I will order particulars of the clause. The applicant may care to consider the question of amendment because in due course it will stand or fall on the clause as it appears together with any particulars. The applicant ought to consider whether the clause adequately alleges what it is seeking to assert in the case in this regard.
I must also deal with the question of whether exemplary damages lie in an action such as this. Reference has been made to an express finding on the matter by Mr Justice von Doussa in Snvman v Cooper [l9891 24 FCR 433. In the course of that case his Honour relied upon or called in aid a decision by h Justice French in Musca v Astle Cor~oration [l9881 80 ALR 251 in support of a finding that exemplary damages cannot be given
in an action for breach of the Trade Practices Act.
I am advised by counsel that there is no authority at an
appellate level to support this decision. Snvman v Cooper itself went on appeal (see [l9901 19 IPR 471) but that Full Court apparently did not need to consider this question.
It is of note that in Musca v Astle Cor~oration Mr Justice French not only found helpful some fairly early English cases on an allied matter but found it useful to refer to the Code of Hammurabi and Exodus chapter 22, verses 1 and 9 taken from the King James version. In the short time available to me this afternoon I have not had an opportunity to consider the context of these references in either the Code or the Bible but I shall be intrigued to do so as the case proceeds should counsel feel it necessary to support his Honour's decision by reference to such eminent and hallowed sources.
At this stage of the matter I am not satisfied that this is appropriate to be dealt with on a strike-out application for summary relief. So far as concerns the Trade Practices Act, I agree with counsel for the respondents that I might be hesitant to find differently to two of my brethren who appear to have expressed themselves relatively clearly on the matter. Nevertheless were I now to make a finding of this kind peremptorily without having time to consider and research the matter, a11 it would do would be to delay the hearing while that decision was appealed elsewhere. I am not deciding the
question, merely postponing it to the hearing.
Particularly would a finding that exemplary damages were not available in passing-off actions be inappropriate at the moment. Again there is no time to consider the matter carefully. I am aware of a degree of authority in Australia supporting the availability of punitive damages in other cases of tort, albeit that the High Court appears to have suggested that the cases appropriate for punitive damages will be rare.
Counsel could refer me to no authority which exempts passing off from this position in principle.
This matter has, as I have said earlier, been given expedition and three weeks convenient to the parties have been set down for the hearing regardless of the Court's interests. If I were to reserve my decision on this submission and research the matter thoroughly, it is unlikely that I could deliver a decision before the commencement of the hearing. The respondents agree that whatever be the decision in relation to paragraph 18 of the statement of claim, the case will be proceeding and the time needed for the establishment of liability and, if appropriate, compensatory damages, will still have to be spent. It does not seem to me to be appropriate to determine the availability of positive damages in a motion for summary relief unless it is the basis for striking out the whole of the case. As the respondents concede that it is not, and as it may well be that the applicant will not be able to make out a case for punitive
the respondents and no advantage to the interests of justice damages in any event, I can see no possible disadvantage to
by attempting late on a Friday afternoon to make an on-the-run decision about a matter of such significance. Indeed, for the reasons I have given, such a course would be likely to cause more rather than less litigation if I did.
Thus it seems to me that I should not uphold the submission that paragraph 18 should now be struck out on either ground. I do not foreclose or decide the matter. I will merely deal with it at the hearing.
There are two other matters requiring decision that have arisen in the course of this motion. One is that the applicant seeks leave to amend its application before the court. The respondents have not objected to the amendment which really gives expression to the matters raised in the course of argument here. I will therefore allow the amendment.
The other matter relates to the question of separate trials. It appears always to have been assumed between the parties, or at any rate presaged for some time, that this case may be dealt with on the basis of separating the issues of liability and damages. Certainly in the course of argument in directions hearings from early on, that matter was raised. It appears also to have been the subject of some presumptive correspondence between the parties although not actually
consummated in any agreement.
Whatever might be the position in this regard, I do not think it would take away at all from respondents' request for particulars of the nature of the applicant's damages in the sense to which I have earlier referred. With this firmly clarified, the parties are effectively in agreement. I also agree that it appears to be an appropriate case for the separation of the trial of liability, including the last mentioned issue, from the assessment and actual quantification of damages.
The applicant says that it has actually not made up its mind whether it is going to seek damages immediately or an account of profits first. Counsel says that the decision will turn on the result on the issue of liability. I understand that submission. It is not unusual to arise in these cases and I think that it is not inappropriate for this case on what I know of it. In a moment I shall hear the respondents in relation to that because I don't think I have actually given them the opportunity of expressly indicating a view about separate trials.
The orders which I will make are that the applicant will supply particulars identifying the nature of the damages alleged in the sense of the way in which they attribute whatever losses have been sustained to the matters alleged in the statement of claim.
The applicant will also supply particulars of the basis of its claim for exemplary damages, including particulars of all the
matters alleged in paragraph 18. In this regard the respondents may wish to formulate their own request for particulars, rather than just allow the applicant to set the terms of reference for the particulars to be supplied. If so, and I shall ask counsel in a moment, I shall set a short timetable which will permit those steps to be fitted in between now and the time of the hearing.
I grant leave to the applicant to amend its application in accordance with the document that has been filed today in court which I have initialled and placed with the papers.
I will hear counsel on the question of separate trials.
[ DISCUSSION ]
I make the following orders and give the following directions:
1. The applicant will by not later than 12 noon on Tuesday 30 April next supply particulars of and identify the nature of the damages alleged in the sense of the way in which it attributes whatever loss has been sustained to the matters alleged in the statement of claim.

In this regard I again draw attention, as I did earlier, to the fact that the applicant has been given the concession of an expedited hearing in the matter. I

directions. If the respondents apply on such a ground, I	intend to reserve liberty to apply at the end of these
will be unsympathetic to the applicant if what is being alleged in this regard is not made clear.

1. 1 note that the respondents allege that the applicant has thus far filed no evidence to support the attribution of whatever loss has been sustamed to the matters alleged in the statement of claim and that the applicant's solicitor has said today that it is not intended to file additional evidence. Should this decision wish to be

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reviewed, I direct that any further evidence in this regard is to be filed and served by not later than 12 noon on Tuesday 30 April.

3.    I direct that the respondents serve upon the applicant a

request for particulars of paragraph 18 of the statement of claim by not later than 5 pm on Monday 29 April and that the applicant supply such particulars by not later than 12 noon on Wednesday 1 May.

4.   I direct that the respondents file and serve their defences by not later than 4 pm on Thursday 2 May.

5.    I extend the time for the notification of objections to affidavits and the grounds thereof to the same time, 4 pm on Thursday 2 May.

6.   The respondents will file and serve all the affidavits upon which they propose to rely at the hearing by not

later than 4 pm on Thursday 9 May.

1. The applicant will file and serve its affidavits in reply by not later than 4 pm on Thursday 18 May.

2. Pursuant to order 29 rule 2 and by consent, I order that all questions of liability, including the attribution of such damage and loss as the applicant alleges to the various suggested bases of liability, be tried separately from and before the quantification of damages and that -

   the hearing fixed to commence on 27 May be confined to such matters. Accordingly the directions concerning affidavits apply to affidavits covering such matters alone.

9.  I grant leave to the applicant to file the amended application in the form in which it was submitted to and filed in court today which I have initialled and placed with the papers.

10.  I grant liberty to apply to any party on 48 hours notice to my Associate.

11.  The matter will be listed for further directions at 9.30

am on Monday 13 May to check progress.

p~ -~

'@

I cert~fy that this and the

preceding pages are a true copy of the

Reasons for Jud~rnoM kW& of his Honour

Justice Elnfeld tiyk~lk&;u+~~g p

Asscc~ate

oat.d. 26 % bfi'jC49 \C(? 1