J.C. Hutton Pty Ltd v Darling Downs Co-Operative Bacon Association Ltd

[1988] FCA 83

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) QLD G192 of 1987
GENERAL DIVISION	)

BETWEEN: J. C. HUTTON PROPRIETARY	LIMITED
Applicant

AND:  DARLING DOWNS CO-OPERATIVE BACON ASSOCIATION
LIMITED

Respondent

AND:  DARLING DOWNS CO-OPERATIVE BACON ASSOCIATION
LIMITD

Cross-Claimant

AND: J. C. HUTTON PROPRIETARY LIMITED

Flrst Cross-Respondent

AND:  TANCRED BROS. PTY. LIMITED

Second Cross-Respondent

PND: FRED PAUL ( MERRYLANDS ) PTY. LTD.

Thlrd Cross-Respondenc

MIWUTSS OF ORDER

m:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

JUDGE MAKING ORDER: PINCUS J .

DATE OF ORDER:	17 FEBRUARY 1988
bIHEPE MADE:	BRISBAXE
THE COURT ORDERS THAT:

1.    the costs of today be reserved.

IN THE FEDERAL COURT OF AUSTRALIA	)
DUEENSLAND DISTRICT REGISTRY	) QLD G192 of 1987
GENERAL DIVISION	1

BETWEEN: J. C. HUTTON PROPRIETARY LIMITED

Applicant

AND:  DARLING DOWNS CO-OPERATIVE BACON ASSOCIATION
LIMITED

Respondent

AND: DARLING DOWNS CO-OPERATIVE BACON ASSOCIATION

LIMITED

Cross-Clamant

A N D :  J. C. HUTTON PROPRIETARY LIMITED

First Cross-Respondent

AND:  TANCRED BFOS. PTY. LIMITED

Second Cross-Respondent

AND:  FRED PAUL (MERRYLANDS) PTY. LTD.

Thlrc! Cross-Respondent

PINCUS J. 17 FEERUAXY l988

M TEMPOXE REASONS FOR 7JUDGYEENT

These are my reasons f o r ~udqment wlth respect to an

applicatlon heard this mornlng. The genesls of today's hearing

was really an order I made on 18 November 1987 when I gave leave

to the respondent to serve a cross-claim subject to the rights of

the proposed cross-respondents	to apply to set it aside.
L .

By an error on the part of the cross-claimant, one of

the cross-respondents, Fred Paul (Merrylands) Pty. Ltd., was not

served and has not entered an appearance. The absence of that

cross-respondent was thought by Mr Mulr Q.C., who appeared for

Tancred Bros. Pty. Limited, the second cro2-respondent, to make it

n

impractlcal to argue the question of whether or not the

cross-claim should be allowed. He also informed me that his

client wlshed to consult with Fred Paul (Merrylands) Pty. Ltd. to

determine whether they shared a common attitude towards the

cross-clalm, that is, towards the question of whether It should be

struck out. For those reasons the questlon of the propriety of

the cross-claim was not argued and it appears to me that, partly

to f l l l that gap, I have been beguiled	with	an argument about
particulars.

The dlscusslon of partlculars 1 s convenlently begun wlth

a letter from Messrs Clewett Corser and Drummond, Sollcltors,
dated 23 January 1988, whlch 1 s ln evldence and whlch was replled

to very recently, namely, on	15 February by Messrs H.G. Lyons and
Co. The complaints whlch were made In the former letter were In part not sufflclently harkened to by Messrs M.G. Lyons and	Co.,

and Mr Drummond, who appeared to pursue the request for

particulars further contended, puttlng the matter generally, that

the supposed particulars constituted by a document filed on 23

December 1987 were, In	fact, not sufficlently particular but too
general.

Putting the matter broadly, Mr Muir's defence of the

particulars was that the document filed on 23 December constituted

the best particulars	which could be given.	Again, putting the
matter generally, I	am not convinced that there	1 s any point in

requlrlng further and better particulars; nor	1 s it clear to me
that further and better particulars could be glven.	Mr Mulr sald,

In effect, that he was not necessarlly familiar wlth all the

details of the information available to the applicant; nor did he

concede that it was proper to require him to inform me about the

nature of the mformatlon available. It 1 s a llttle puzzling

that, I n some respects, better particulars are sald	not to be able
to be given for reasons	I wlll elaborate shortly.

The other pomt that counsel argued is what should be

done about the costs. As regards the costs of the purely

potentlal attack upon the cross-clalm, it seems to me that nothing

needs to be sald. The attack was not made; nevertheless, the

circumstances In whlch that attack was not made may be thought to

bear sllghtly upon what should be dcne about the ccsts of the

partlculars - that 15, the respondent-cross-clalmant was at fault

In not seralng the thlrd cross-respondent, but he second

cross-respondent (whlch is the flrst newly	~oined	party) Tancred
Bros. Pty. Limlted could have argued the	pomt.	As far as the

costs otherwlse are concerned, I am of the vlew that the same

should be reserved. I thlnk it wlll appear in due course whether

or not further and better partlculars could, in fact, have been

given; I am not presently satisfled that t'nese are the best

partlculars available.

To deal with some, but not all, of the points made by Mr

Drummond about the particulars in a little more detail, an attack

was made both by the letter and in argument upon	the presence of
par.11 on p.4 of the amended statement of clalm.	It was sald that

that paragraph, in the light of the partlculars, turns out to be

superfluous. It does not seem to me to be necessary to strike out

par.11, since the particulars make it clear enough what	1 s alleged
with respect to the matters there referred to.	I agree with what

Mr Drummond says,	namely, that It really adds nothlng but it	1s
innocuous.

Of more concern, from my point of view, 1 s the complaint

made by Mr Drummond wlth respect to the partlculars appearlng in

the document, further and better particulars of the applicant's

statement of clalm, filed on 23 December from p.6 on, which is

exemplifled by the flrst, whlch reads:

"(1)	. . .
(a) It 1 s alleged thar: every	Item of these

products produced by the Respondent between

the 24th Aprll	1985 and the date hereof	has
been of lnferlor quallcy	~n	that it has not
been treated	wlth natural wood smoking	as

speclfled In the reclpe for thls type of

product,	namely	the	reclpe	entitled	Cooked
smoked	mlddle	rashers	included	I n	the

documents referred to	In paragraphs 2(a)(i)(3)
ar?d	2(a)(11) hereof.

(b)	The Appllcant is unable to provlde particulars
of any further failure by the Respondent to
comply with the sald reclpe untll after

dlscovery and inspectlon."

The assurance whlch was, In effect, that nothlng more could be

said In answer to the request for particulars - and the same

assurance was given	with	respect to numerous other paragraphs in
the further particulars	-	to my mlnd, lacks a little conviction.

. '

5.

I do find it dlfficult to accept that nothing further could be

done without condescending to disclose evldence by way of

informing the respondent of the applicant's case. Nevertheless,

In llght of the repeated assertion that these were the best

partlculars available, so far as Mr Mulr	knew, it seems to	me to
be rather frultless to make	an order for further particulars.	I

should add, however, that it may	be that if these are in fact the
best partlculars whlch can be given, some question mlght arlse	as

to the propriety of full dlscovery, in the sense of an attempt by

the appllcant to rake through a vast quantlty of the respondent's

business records looking for breaches. That, however, is not a

matter whlch is before me directly today, although counsel from

time to tlme made reference to It.

In par.6(a) of the lecter from Nessrs Clewett Corser and

Drummond dated 2 8 January 1988, complalnt is made of a fallure to

explaln an allegation ,n the amended statemenc of clalm alleglng a

common attltude towards the respondent's products. Paragraph

14(b) of the statement of clalm, which 1 s the relevant paragraph,

says that certaln goods have become recognlsed in the meat

lndustry as products of lnferlor standard and quallty. I thlnk It

1 s true to say that Mr Drummond dld not, In the end, press this

assertlon. I smply say that I thought hls not presslnq it was

well advised,	because	it seems to me to be not the sort of
allegation whlch could usefully be particularlzed.	It was	also
said by Mr Drummond	In relatlon to certain other sub-paragraphs	of

the particulars In par.14 of the amended statement of claim that

surely the applicant could give particulars derived from

information obtamed from its associated company, Tancred Bros.

S	I	*
Pty. Limited, the second cross-respondent. Those allegations In
sub-pars.(d), (e) and (g) of the particulars in par.14 of the
amended statement of claim relate to instances of interaction
between the respondent and those wlth whom it deals; sub-par.(d) is a sufflcient example - “numerous complalnts have been made by
consumers . . . ”

An affldavit was filed, to whlch Mr Mulr ob~ected,

saying that Tancred Bros. Pty. Llmlted had purchased goods

manufactured by the respondent under the “Huttons“ mark, and the

total amount of purchases	is sald to be large. The objection made
by Mr Muir was that that paragraph, and that which	followed, 1 s In

improper form. I agree with the objectlon as to form, but I

propose to overlook It and to overrule the objectlon to those

paragraphs, whch seems to me to	be, wlth respect,	a llttle
pedantlc.

The more substantlal polnt whlch has somewhat troubled

me is Mr Drummond’s contentlon that It can nardly be true that the

applicant does not know whether the compialnts, the sub~ect of the

partlculars In ( a ) , (e) and (g) of par.14, relate to any of the

deallngs whlch the respondent has had wlth the second

cross-respondent. The way in whlch It is put in the letter from

Messrs Clewett Corser and Drummond, p.4, par.(c)(ll), is thls:

“Your parent company, Tancred Bros. Pty. Ltd., has

throughout the relevant perlod right up to now,

purchased large quantitles	of the goods In question
which have been	manufactured by our Cllent and

marked by it with the Huttons‘ marks. If Tancreds has made any complaints about any of these goods, either orally or in wrlting, you must be able to

Particulars give of complaints, these

- . l .

notwlthstanding the assertlons In paragraph

5(c) (iil) and (iv) of your Further Particulars that

you are completely unable to particularlze any complalnts until after dlscovery. Please therefore confirm that Huttons will not be alleging that

Tancreds made any complalnts about any of the

product it bought from our Client which our Client

manufactured and marked with the Huttons' marks

provide details of all such complalnts."

What Mr Mulr said, in effect,	as I understood hlm, was that since
there was no	speclfic allegation in the statement of claim that

these matters related to goods the sub~ect of any dealings with Tancred Bros. Pty. Llmlr;ed, there could not be any obllgation to particularize with respect to such dealings. While that has theoretical merlt, It seems to me to affront common sense a little. The partlculars whlch have been glven, in fact, include

detalls of some complaints whlch were given	by customers (on p.40
of the further and better partlculars), and	I flnd It hard to see

why the applicant could not have taken a course of partlcularlzlng comlalnts, If any, made In respect of goods sold to Tancred Bros.

Pty. Llmlted, or following the orher course suggested by Messrs

Clewetc Corser and Drunmond saylng there were no complalnts with respect to such goods.

Nevertheless, I have declded that the beizter course, In

the sense of the more practlcal course, 1 s to accept for the

moment Mr	Mulr's assurance that these are the best partlculars
that could	be g:  3 ven.

The last complalnt made on which I propose to make

specific mention is that as to par.8 on p.57 of the	further	and
better particulars.	It	is unnecessary to explain the details of

* ' '	8.
" I	-

that, suffice to say that the explanation glven by Mr Muir

convinces me that the terms of par.8 are inapt, in that it does

not appear to be any part of the case for the appllcant that the applicant has been exposed to legal actlon in Vlctoria or South

Australia. Mr Muir explained that the only reason for the

reference to those cases is that a certain company carrles on

buslness In those States. However, I do not really see that It 1s

necessary to do anythlng about It. Although Mr Drummond's

complaint is In essence well justified, it is not a matter	which
is going to embarrass him at all in the trial, and	I do not see
any necesslty to correct the slight error whlch	has been made.

In the result then, the consequence of today's hearlng

will be that, apart from the deletion whlch I ordered In the

further and better partlculars	of the statement of claim, namely,
the strlking out of a word	in par.3 on p.5, I do not see that It

is approprlate at thls stage	to order any further change	to	the
particulars. It may	appear	In	due course, as Mr Drummond

suggests, that better partlculars could have been glven, and I

lnvite the parties to draw my attentlon to the fact that the costs

of today have been reserved If elther of them thinks at a later

stage that an order for costs should be made In its favour. The

circumstances In whlch the costs are reserved wlll appear from the

reasons. Also this mornlng I ordered that the respondent	have
leave to amend Its defence.

i cert i fy that thls 2nd the 7 preceding

psges are a true copy cf the reasons for

I u d g v e n t hcreln	of His Honour
Mr Justice Plncus	5%-
Associate

Dated 17 F&fUhVL 1988

J