Giblett v Timber Treaters Bridgetown Pty Ltd - [2005] WADC 235

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GIBLETT & ANOR -v- TIMBER TREATERS BRIDGETOWN PTY LTD [2005] WADC 235

CORAM: MARTINO DCJ

HEARD: 28 NOVEMBER 2005

DELIVERED : 6 DECEMBER 2005

FILE NO/S: CIV 2550 of 2004

BETWEEN: RICK GIBLETT
TERESA GIBLETT
Plaintiffs
AND
TIMBER TREATERS BRIDGETOWN PTY LTD
Defendant

Catchwords:

Pleadings - Application to strike out on grounds that statement of claim may prejudice, embarrass or delay fair trial

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiffs: Mr P J Hannan
Defendant: Mr P Mendelow

Solicitors:

Plaintiffs: Lloyd & Associates
Defendant: Granich Partners

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

Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472

Case(s) also cited:

Asia Television Ltd v Yau's Entertainment Pty Ltd [2003] FCA 720
Australia China Business Bureau Pty Ltd v MCP Australia Pty Ltd [2003] FCA 934
Ballantyne v Phillott (1961) 105 CLR 379
BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASC 73
Biscayne Partners Pty Ltd v Valance Corp Pty Ltd [2003] NSWSC 874
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
CGM Investments Pty Ltd v Chelliah (2003) 196 ALR 548
Crestland Investments Pty Ltd v Parisi Holdings Pty Ltd [2004] WASC 57
D'Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92
Farmers' Mercantile Union and Chaff Mills v Coade & Anor (1921) 30 CLR 113
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1
Martin v Tasmania Development and Resources (1999) 163 ALR 79
McKellar v Container Management Services Ltd (1999) 165 ALR 409
McCluskey v Karagiozis [2002] FCA 1137
Multinail Australia Pty Ltd v Pryda (Aust) Pty Ltd [2002] QSC 105
Pegrum v Fatharly (1996) 14 WAR 92
Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46176
State of Western Australia & Anor v Bond Corporation Holdings Ltd & Ors (1991) 5 WAR 40
Steele v Stacey (1994) 12 SR (WA) 28
Tasmania Development and Resources v Martin (2000) 97 IR 66
Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32
Wickstead v Browne (1992) 30 NSWLR 1

MARTINO DCJ: The plaintiffs appeal against an order of a Deputy Registrar striking out paragraphs of the statement of claim. It is well settled that the appeal is a rehearing of the original application by the defendant: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
By a chamber summons dated 24 February 2005 the defendant applied for an order that pars 3, 11, 14, 15, 16 and 17 of the amended statement of claim be struck out. The application was made "pursuant to O 20 r 19" of the Rules of the Supreme Court, but did not comply with O 20 r 19(3)(b)(i) as it did not specify the subparagraph of par (1) of the order under which the application was made. At the commencement of the hearing before me I pointed out the irregularity and asked counsel for the defendant to specify the subparagraph under which the application was made. He informed me that it was made under sub-par (c) ie, that the paragraphs may prejudice, embarrass or delay the fair trial of the action.
A pleading will not be struck out on this ground merely because it contains some unnecessary material: Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472. It is necessary to be cautious in striking out pleadings: General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125.
The statement of claim had been amended without leave pursuant to O 21 r 3(1). The plaintiffs' solicitors annexed to submissions filed for the hearing before the Deputy Registrar a minute of proposed re-amended statement of claim in which material contained in particulars in the amended statement of claim was also pleaded as material facts. Counsel for the plaintiffs did not pursue an application to re-amend the statement of claim before me.
The material facts pleaded in par 3 of the amended statement of claim the plaintiffs are:
"On or about 24 December 2002 a contract was made between the plaintiffs and the defendant whereby the defendant would use the services of the plaintiffs to transport the defendant's timber at the rates set out in a letter from the plaintiffs to the defendant dated 6 December 2002 for a period of 3 years (24 December 2002 – 24 December 2005) to the exclusion of any other transport contractor whenever the plaintiffs were able to carry out a particular job ('the Contract')."
The paragraph then contains particulars that the contract is partly written and partly oral or alternatively to be inferred by conduct and the matters relied upon to support the plea. It is the particulars contained in par 3 to which the defendant objects.
In summary the matters particularised are:
1. Until October 2002 Australian Plantation Timber Ltd ("APT") carried on business producing and selling timber under the business name Timber Treaters WA;
2. In October 2002 the administrator of APT sold the business of Timber Treaters WA to the defendant;
3. Mr John Sykes was employed in the business from August 1999 and remained employed after the sale to the defendant;
4. From 1997 to November 2002 the plaintiffs had been the preferred haulage contractor to that business and had first option of transport for all of the products of the business;
5. In November 2002 the defendant wrote to the plaintiffs inviting a submission for a three year contract to transport the defendant's product;
6. The plaintiffs responded to that letter by letter dated 6 December 2002;
7. On 24 December 2002 Mr Sykes telephoned the first named plaintiff and said: "the contract is yours".
The defendant objects to the particulars on the grounds that many of them relate to events that pre-date the defendant acquiring the business. On my reading of the particulars the matters are pleaded as the plaintiffs' allegations of communications between the plaintiffs and the defendant and the background to those communications known to both parties, to put their communications in context.
Whether the parties entered into the contract that the plaintiffs allege will involve the objective determination of the intention of the plaintiffs and the defendant from a consideration of their communications in the context in which they were made: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540. In my view the fact that matters upon which the plaintiffs wish to rely in establishing that context pre-date the defendant acquiring the business does not mean that the matters cannot be relevant to that context. I conclude that the objection is not soundly based.
The defendant also contends that the particulars should be pleaded as material facts. The plaintiffs are willing to plead the particulars as material facts, and did so in the minute of proposed re-amended statement of claim that was before the Deputy Registrar. However, in my view it is confusing to do so. The material fact is the alleged contract. The matters relied upon are particulars to support that material fact and are properly pleaded in that way.
The defendant's third objection to the paragraph is that a number of the allegations do not logically support a plea of exclusivity binding the defendant. I have noted the caution that must be exercised on an application to strike out a pleading. In my view the point taken by the defendant should be determined at trial after hearing the evidence, not on an application to strike out pleadings.
Paragraph 11 of the amended statement of claim is as follows:
"Had the Contract not been terminated, it is likely that shortly before or shortly after the expiry of the term of the Contract on 24 December 2005 the defendant would have entered into a further contract with the plaintiffs whereby the defendant would use the services of the plaintiffs to transport the defendant's timber for a period of time to the exclusion of any other transport contractor whenever the plaintiffs were able to carry out a particular job."
Particulars are then given, which relate to the course of dealings between the plaintiffs and APT since 1997. The defendant's objections to the paragraph are substantially the same as the objections to par 3. In my view the objections do not support the application to strike out the pleading. Whether the material relied upon by the plaintiffs establish their claim should be determined at trial, not on a strike out application.
By pars 14 to 17 of the amended statement of claim the plaintiffs plead that in October 2002 they purchased two trailers in the reasonable expectation that they would obtain a contract with the defendant and as a result of not doing so they have suffered a loss on that purchase. The defendant objects to the pleading on the grounds that at October 2002 no contract existed between the plaintiffs and the defendant and on the same grounds to which it objects to par 11 of the amended statement of claim.
There is a sound legal basis upon which the plaintiffs may recover these damages: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64. Whether it can do so cannot be determined on a strike out application, but is a matter for trial.
I conclude that the defendant's application should be dismissed.