Henderson v Amadio Pty Ltd

[1995] FCA 65

JUDGMENT No. ..,..6Sb

C)

1

VICTORIA DISTRICT REGISTRY	1	No. VG 260 of 1993
1
GENERAL DIVISION	)
B E T W E E N :

RUSSELL FRASER AENDERSON P ORS

Applicants

- and -

-D10 PTY LIMITED

Respondent

JUDGE : Heerey J

DATE	'	16 February 1995
--

PLACE : Melbourne 24 FEES 1995

REASONS FOR JUDGME

In the light of the explanation that

me by M r Smith as to how the applicants put their case, I do imaginative reader could glean from a perusal of the further amended statement of claim, nevertheless I understand that it is now put that various accountants introduced them to this scheme, and in doing so implicitly represented that the promoters of the scheme, and, in particular, Gray & Winter, were reliable persons of good business repute.

not think the allegation the subject of this striking out

application is irrelevant or scandalous, in the sense that

that term is used in the context of striking out applications.

Leaving aside for the moment questions of pleading, such an allegation does not strike me at the moment as inherently irrelevant in a case of this nature. Nor does it seem

necessarily irrelevant that the person in question did have

quite recently a prohibition order made against him as a

consequence of being a director of a company which went into

liquidation and paid less than 50 cents in the dollar, or a

conviction under the Securities Industries Code.

I think, however, the way the matter appears, and particularly

in the particulars at page 121, that is Appendix B, Part sought to be put by the applicants. Without wishing to be unduly pedantic, I would point out that the confusion which has arisen underlines once again the wisdom of the rule of good pleading practice that allegations are made in the active

voice rather than the passive. I can understand that the

allegation is embarrassing in the non-technical sense to the

gentleman concerned, but that in itself is not enough, and

once one understands that the allegation is of a

representation being made by the accountants, the fact that

the gentleman concerned also happens to be a party is merely

coincidental. The applicants should provide further and

better particulars within seven days of the particulars in

Appendix B, Part C(iv)

I will reserve the costs of the application.

I certify that this and the

preceding two (2) pages are

a true copy of the reasons

for judgment of his Honour

Mr Justice Heerey.

Dated: Id F& nuq 19%

Associate Cea_-

AvDearances

Counsel for the applicant:	Mr R Smith
Solicitor for the applicant:	A P Kelly & Associates
Counsel for the respondent:	Mr S Wilson QC
Solicitor for the respondent:	Gray & Winter
Date of hearing:	16 February 1995