Higgins v Thermomix in Australia Pty Ltd
[2016] WADC 24
•3 MARCH 2016
HIGGINS -v- THERMOMIX IN AUSTRALIA PTY LTD [2016] WADC 24
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 24 | |
| Case No: | CIV:2165/2014 | 18 DECEMBER 2015 | |
| Coram: | REGISTRAR KINGSLEY | 3/03/16 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| PDF Version |
| Parties: | ELISABETH HIGGINS THERMOMIX IN AUSTRALIA PTY LTD |
Catchwords: | Application for further and better particulars of statement of claim Turns on own facts |
Legislation: | Nil |
Case References: | Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82 STP (Gas) Retail Pty Ltd v Jubilee Road Pty Ltd (Unreported, WASCA, Library No 980690, 17 September 1998) |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
THERMOMIX IN AUSTRALIA PTY LTD
Defendant
Catchwords:
Application for further and better particulars of statement of claim - Turns on own facts
Legislation:
Nil
Result:
Application allowed in part
Representation:
Counsel:
Plaintiff : Mr C Slater
Defendant : Mr T Palmer
Solicitors:
Plaintiff : Morgan Alteruthemeyer
Defendant : Murfett Legal
Case(s) referred to in judgment(s):
Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82
STP (Gas) Retail Pty Ltd v Jubilee Road Pty Ltd (Unreported, WASCA, Library No 980690, 17 September 1998)
1 REGISTRAR KINGSLEY: Thermomix sell to the public a specific type of food preparation and cooking machine. The business model of Thermomix is to sell the machine through, as it pleads in its defence, independent contractors, described as consultants, who are paid commission on the sales. There is a hierarchy of consultants, at the top of which is a Group Leader. The consultants are assigned to teams headed by the Group Leader. The division of teams and Group Leaders is based on geographical location.
2 The plaintiff (Higgins) bought a Thermomix in January 2007 and at that time sought to become a consultant with Thermomix. In February 2007 Thermomix advised Higgins that she had become a consultant and, under a Group Leader, was assigned a geographical area (the particular area not being pleaded). In April 2008 Higgins was assigned an area south of the Swan River and East of Kwinana Freeway from South Perth to Gosnells.
3 Higgins pleads, in her Further Amended Statement of Claim dated 20 February 2015 (the FASOC), that by January 2009 she had received from Thermomix a representation (the Transfer Representation) that without Higgins' consent, consultants would not be transferred either, by changing the area in which a Group Leader could source recruit train and manage consultants, or by changing the list of consultants for whom commission on the sales would be paid to the Group Leader. Higgins pleads that in February 2009 she was appointed Group Leader pursuant to a Thermomix Group Leader Agreement.
4 Higgins goes on to plead that in August 2009, relying on the Transfer Representation she and Thermomix (through its Managing Director) amended the terms of the Thermomix Group Leader Agreement (the 2009 Group Leader Agreement). By that date Higgins pleads she had sourced, recruited, trained and managed 18 consultants.
5 Higgins goes on to plead express terms of the 2009 Group Leader Agreement in relation to activities, duties, and responsibilities. Higgins pleads Thermomix would pay her an amount as specified under 'Group Leader Commission' of the Thermomix Group Leader Manual. Higgins pleads implied terms that no consultant would be transferred from Higgins' team without the consent of all parties, and that no area allocated to Higgins would be transferred to another consultant without the consent of all parties.
6 Higgins further pleads that the consultants recruited by her were relevant to the commissions payable to her. In breach of the 2009 Thermomix Group Leader Agreement, Thermomix transferred consultants that were sourced recruited trained and managed by Higgins. Further, in breach of the 2009 Group Leader Agreement Thermomix reduced the size of the geographical area without the consent of Higgins. The action of Thermomix in both cases resulted in loss of commission on sales. On 1 April 2014 Higgins pleads that Thermomix terminated the agreement.
7 Thermomix contends there are deficiencies in the plaintiff's FASOC. Thermomix brought an application dated 9 April 2015 to compel particulars of Higgins' FASOC. There had been correspondence between the solicitors for Higgins and Thermomix relating to perceived deficiencies in the statement of claim going back to, at least, November 2014. A request for particulars dated 4 March 2015 was amended on 7 April 2015 (the 7 April request). Higgins responded to the 7 April request on 11 June 2015, but Thermomix considered the Higgins' response was not a proper response. Thermomix then pursued its 9 April 2015 application.
8 The first point of contention was the width of Thermomix's 7 April request for further and better particulars. The request provides:
… That wherever the 'usual particulars' of any agreement term, transaction or thing is sought, say whether the same is wholly or partly in writing, or oral or to be implied. Insofar as the same was in writing identify sufficiently the document or documents constituting the same and say in whose possession each such document now is and where it may be inspected and if lost or destroyed say where a copy thereof may be inspected and if there be no copy, give the material substance thereof. Insofar as the same was oral, say when, where and between what actual persons the conversation or conversations constituting the same took place and give material substance thereof. Insofar as the same was to be implied, give the acts, facts, matters and circumstances and things (with relevant dates and places) giving rise to each such implication.
AND TAKE NOTICE that wherever 'the usual details' are sought, specify with all material dates and places each act, fact, matter, circumstance, thing, event, happening, occurrence, omission error and neglect or default relied on.
9 It is still the case that a party is entitled to a statement of the opponents case in sufficiently clear terms to allow that party a fair opportunity to know and meet the case. Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82 said:
Particulars should be provided in an appropriate case, where they are necessary to meet the fundamental objectives to which I have referred; that is to say the true enunciation of the issues that are to be tried and the identification of the case that has to be met.
10 In Barclay Mowlen Martin CJ went on to say that the requirement of particulars must be assessed in the knowledge that contemporary case management requires pre-trial disclosure of the evidence that will be adduced at a trial.
11 Counsel for Thermomix submitted that it is not the practice in this court for evidence-in-chief to be given by a witness statement exchanged in advance. As civil trials in this court regularly proceed on the basis of the evidence-in-chief being given by oral testimony, particulars continue to play an important function in advising the opposing party of the case they have to meet.
12 There is no doubt that particulars play an important role in ensuring parties understand the pleaded case. In the end however, the party responding to a request for particulars need go no further than providing sufficient particulars to allow the applicant a fair opportunity to meet the case against it, to confine the issues in litigation, and prevent surprise and delay (STP (Gas) Retail Pty Ltd v Jubilee Road Pty Ltd (Unreported, WASCA, Library No 980690, 17 September 1998)). In my opinion the width of the 7 April request made to the plaintiff was unhelpful, and in some cases oppressive. All the plaintiff need do is respond to the request with such particulars as are necessary to inform Thermomix of the case that it has to meet.
13 I can understand that defining 'the usual particulars' and 'the usual details' will make it easier to draft a request for particulars. However, the definition should not be cast so widely that it becomes oppressive. In this case there are instances where a request is oppressive. One example of the inappropriate use of the definition 'usual particulars' and 'usual detail' is request 10(a) going to par 25 of the amended claim. Paragraph 25 pleads:
The Plaintiff expected to earn from these Consultants $60,617.16 in the year ending 31 December 2014.
14 All that Thermomix seeks in request 10(a) is the names of the consultants. Yet the request seeks, in my opinion, wholly irrelevant and oppressive detail by requesting the 'usual particulars' and the 'usual details' of what in reality is the names of the consultants.
15 The definition of 'usual particulars' and 'usual detail' in the 7 April request suggests a cut and paste from a precedent document without reflection on what information is sought from Higgins so that Thermomix can better understand the case it has to meet. The slavish use of a precedent without consideration of the issues in dispute should be discouraged.
16 In these reasons there are instances when Higgins is required to answer the request. In answering the request all Higgins is required to do is provide sufficient particulars for Thermomix to understand the case it has to meet.
17 Turning to the 7 April request, request 1 enquires how Higgins was informed in April 2008 as to the change in the allocated geographical areas. Higgins pleads she was informed by two names persons, or other representatives of Thermomix. In my opinion Thermomix is entitled to know whether Higgins was informed in writing or orally, and if in writing identify the writing, and if orally give the date, and substance of the conversation, and between whom.
18 Request 2 goes to par 13(a) of the FASOC. The particulars to par 13(a) state that the Transfer Representation was expressed in a Group Leader Manual addendum dated October 2007. Request 2 enquires how the addendum was provided to Higgins. In my opinion this request is not a proper request. The particulars are clear – how Higgins got the addendum will not assist Thermomix in better understanding the case it has to meet.
19 Paragraph 13(b) of the FASOC Higgins pleads she sourced, recruited and trained a further nine consultants who were accepted by Thermomix as consultants. By request 3 Thermomix is entitled to a response as to how Thermomix accepted the further nine consultants. How Higgins sourced her consultants is irrelevant. Request 3 also asks the usual particulars and usual details of the allegation Higgins had 10 consultants. That request is oppressive - a reading of pars 12 and 13 of the FASOC shows that by January 2009 Higgins had 10 consultants.
20 Request 4 goes to par 16 of the FASOC. The request seeks details of the plea that Higgins had sourced, recruited, trained and managed 18 consultants as at August 2009, and that the 18 consultants were accepted by Thermomix as consultants within the team of Higgins. This issue goes to the alleged breach of the Transfer Representation and the quantification of damage. Requests 4(b) and (c) should be responded to. The names of the 18 consultants would enable Thermomix to better understand the quantification of the claim for damages by Higgins. This is not the same as a request for names of witnesses. Both Thermomix and Higgins know who were the consultants, as it is upon the consultants sales the commissions are paid. However, how Higgins sourced her consultants is irrelevant.
21 Paragraph 18 of the FASOC pleads that Higgins was allocated a stated geographical area pursuant to par 3 of the 2009 Group Leader Agreement. Request 5 seeks particulars of that allegation. Thermomix admits it had allocated to Higgins certain geographical areas, although there is dispute as to the suburbs within those geographical areas. In my opinion Thermomix is entitled to particulars of Higgins' allegation that she was allocated the area south of the Swan River and east of the Kwinana freeway from South Perth to Gosnells. One of the breaches alleged by Higgins is that Thermomix reduced the geographical area without her consent. Thermomix is entitled to know the geographical area that Higgins is referring to so it can better understand the case it has to meet.
22 Request 6 goes to par 20 of the FASOC. Thermomix admits that the sales of the consultants within Higgins' team were relevant to the commissions payable to her. Higgins goes on to plead that she will provide further particulars of the commission after discovery and particulars by the defendants. I am not prepared to order that Higgins provide respond to Request 6.
23 Request 7 refers to par 21 of the FASOC. The plea in par 21 goes to the heart of the purported breach of the Transfer Representation. Higgins pleads Thermomix transferred her consultants without her consent, and failed to pay commission that would result from sales by those consultants. Thermomix is entitled to understand how it was Thermomix transferred the consultants. The names of the allegedly transferred consultants are, in my opinion, a proper request. It enables Thermomix to better understand how the loss of income could well be calculated. However, the request for particulars of the amounts claimed by way of loss of income can be better dealt with in the form of a Scott Schedule. I will not order particulars of the calculation of loss as yet.
24 Request 8 goes to par 22 of the FASOC. The request seeks particulars of the original area allocated to Higgins. It is plain from the defence of Thermomix that Thermomix well understands the geographical areas and the particular suburbs comprised within each geographical area (see par 20(d) defence). Accordingly I am of the opinion that no further particulars are necessary for Thermomix to better understand Higgins' case.
25 In relation to requests 8(c) and (d), the plea by Higgins is that Thermomix removed from the original area the areas of Belmont (from 31 December 2009), and Gosnells, Canning and half of St James (from 31 December 2010) with an approximate number of households stated. In my opinion this is a proper request. Higgins has made that specific plea and Thermomix is entitled to know whether, in its geographic reallocation, that number of households in each particular suburb are likely to have been removed. Thermomix is entitled to know how it is alleged that it reduced the geographical areas in the manner pleaded.
26 Paragraph 24 of the FASOC pleads that, at 1 April 2014, Higgins had 13 consultants. Request 9 seeks particulars of how these consultants were recruited, which in my opinion is irrelevant. However the names of the consultants are relevant as that goes to the issue of quantification of the damages.
27 Paragraph 25 of the Amended Claim pleads that Higgins expected to earn $60,617.16 from the consultants referred to in par 24. Request 10 again seeks the names of the consultants. This request is oppressive – request 9, going to par 24 of the FASOC, seeks the names of consultants. It is obvious that par 25, the subject of request 10, refers to the consultants mentioned in par 24.
28 As to the allegation Higgins expected to earn $60,617.16, Thermomix is entitled to particulars of that allegation. By this time the agreement had been terminated. How Higgins calculates the loss of commission would enable Thermomix to better understand the quantification of damages.
29 Paragraph 27 of the FASOC pleads that Thermomix took consultants from Higgins and allocated their commission to another Junior Group Leader or Group Leader without paying compensation. In my opinion Thermomix is entitled to particulars of how it is that it took consultants away from Higgins, and how it is Thermomix allocated the commissions payable to another Junior Group Leader or Group Leader. In my opinion in the context of the pleaded allegations, the names of the transferred consultants are irrelevant.
30 I will hear counsel on the form of orders and on costs.
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