Jacqualine Pty Ltd v Valsand Pty Ltd - [2011] FCA 1037

FEDERAL COURT OF AUSTRALIA
Jacqualine Pty Ltd v Valsand Pty Ltd [2011] FCA 1037

Citation: Jacqualine Pty Ltd v Valsand Pty Ltd [2011] FCA 1037

Parties: JACQUALINE PTY LTD ACN 120 812 759 and JACQUALINE ELIZABETH FULLERTON v VALSAND PTY LTD ACN 072 348 568, SARAH JANE VOCKLER, FRONTLINE RECRUITMENT GROUP PTY LTD ACN 078 126 851 and PETER JOHN DAVIS

File number: SAD 75 of 2011

Judge: LOGAN J

Date of judgment: 19 August 2011

Catchwords: PRACTICE AND PROCEDURE – pleadings and particulars – application to strike out paragraphs of the amended defence of the third and fourth respondents - orders for particulars

Cases cited: Ewing International LP v Ausbulk Ltd (No 2) [2009] SASC 381 cited
McNeill & Ors t/a The Front Row v O’Kane for himself [2002] QSC 144 considered
Moratic Pty Ltd v Lawrence James Gordon & Anor [2007] NSWSC 5 cited

Date of hearing: 19 August 2011

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 14

Solicitor for the Applicants: LynchMorgan Lawyers

Counsel for the First and Second Respondents: The First and Second Respondents did not appear

Counsel for the Third and Fourth Respondents: Mr M Jones

Solicitor for the Third and Fourth Respondents: HWL Ebsworth Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

SAD 75 of 2011

BETWEEN:
JACQUALINE PTY LTD ACN 120 812 759
First Applicant

JACQUALINE ELIZABETH FULLERTON
Second Applicant

AND:
VALSAND PTY LTD ACN 072 348 568
First Respondent

SARAH JANE VOCKLER
Second Respondent

FRONTLINE RECRUITMENT GROUP PTY LTD ACN 078 126 851
Third Respondent

PETER JOHN DAVIS
Fourth Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

19 AUGUST 2011

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application is dismissed.
2.The third and fourth respondents have leave further to amend paragraph 33 of the existing amended defence.
3.The further amended defence is to be filed and served by 30 August 2011.
4.There be no order as to costs.

Note:Entry of orders is dealt with in Rule 39.362 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

SAD 75 of 2011

BETWEEN:
JACQUALINE PTY LTD ACN 120 812 759
First Applicant

JACQUALINE ELIZABETH FULLERTON
Second Applicant

AND:
VALSAND PTY LTD ACN 072 348 568
First Respondent

SARAH JANE VOCKLER
Second Respondent

FRONTLINE RECRUITMENT GROUP PTY LTD ACN 078 126 851
Third Respondent

PETER JOHN DAVIS
Fourth Respondent

JUDGE:

LOGAN J

DATE:

19 AUGUST 2011

PLACE:

BRISBANE

REASONS FOR JUDGMENT

The first and second applicants, whom it is convenient to call the Jacqualine parties, have applied for interlocutory orders against the third respondent, Frontline Recruitment Group Pty Ltd, and the fourth respondent, Peter John Davis. It is convenient to refer to the third and fourth respondents collectively as the Frontline parties. The application seeks the striking out of para 33(c) and para 63(c) of the amended defence of the Frontline parties. Alternatively, the Jacqualine parties seek an order that the Frontline parties deliver further and better particulars of paras…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FCA 1037
Decision Date: 19 August 2011

CaseChat Overview and Summary

Jacqualine Pty Ltd, a company involved in the apparel industry, was engaged in litigation with Valsand Pty Ltd, a supplier of fabrics. The case before the Federal Court was an application by Jacqualine to strike out certain paragraphs of the amended defence filed by the third and fourth respondents. The court was tasked with determining whether the specified paragraphs of the defence were so vague or uncertain that they failed to disclose a reasonable cause of action or defence. Additionally, the court was asked to consider whether the respondents should be granted leave to further amend those paragraphs.

The court considered whether the paragraphs in question were sufficiently clear and precise to allow the applicant to respond adequately. The respondents argued that the paragraphs in question contained sufficient information to enable a fair defence. The court noted that while the paragraphs might not have been perfectly drafted, they were not so unclear as to warrant a strike out. The court found that the respondents should be given an opportunity to further amend the paragraphs to ensure they met the required standard of clarity. The court concluded that the application to strike out was not well-founded, but the respondents were granted leave to further amend the specified paragraphs to ensure they were clear and precise. The court set a deadline for the filing and serving of the further amended defence.

The court dismissed the application to strike out the paragraphs of the amended defence. It granted the third and fourth respondents leave to further amend paragraph 33 of the existing amended defence. The further amended defence was required to be filed and served by 30 August 2011. The court made no order as to the costs of the application.

Orders

Orders of the court

1. The application is dismissed.

2. The third and fourth respondents have leave further to amend paragraph 33 of the existing amended defence.

3. The further amended defence is to be filed and served by 30 August 2011.

4. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.362 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Jacqualine Pty Ltd v Valsand Pty Ltd [2011] FCA 1037
Parties:		JACQUALINE PTY LTD ACN 120 812 759 and JACQUALINE ELIZABETH FULLERTON v VALSAND PTY LTD ACN 072 348 568, SARAH JANE VOCKLER, FRONTLINE RECRUITMENT GROUP PTY LTD ACN 078 126 851 and PETER JOHN DAVIS
File number:		SAD 75 of 2011
Judge:		LOGAN J
Date of judgment:		19 August 2011
Catchwords:		PRACTICE AND PROCEDURE – pleadings and particulars – application to strike out paragraphs of the amended defence of the third and fourth respondents - orders for particulars
Cases cited:		Ewing International LP v Ausbulk Ltd (No 2) [2009] SASC 381 cited McNeill & Ors t/a The Front Row v O’Kane for himself [2002] QSC 144 considered Moratic Pty Ltd v Lawrence James Gordon & Anor [2007] NSWSC 5 cited
Date of hearing:	19 August 2011
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	14
Solicitor for the Applicants:	LynchMorgan Lawyers
Counsel for the First and Second Respondents:	The First and Second Respondents did not appear
Counsel for the Third and Fourth Respondents:	Mr M Jones
Solicitor for the Third and Fourth Respondents:	HWL Ebsworth Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	SAD 75 of 2011

JUDGE:	LOGAN J
DATE OF ORDER:	19 AUGUST 2011
WHERE MADE:	BRISBANE

JUDGE:	LOGAN J
DATE:	19 AUGUST 2011
PLACE:	BRISBANE