Latorre, J. v Caldwell & Pither Pty Ltd

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT

OF AUSTRALIA )

)

VICTORIA	DISTRICT	REGISTRY	1	V. No. G 109 of 1982
)

GENERAL DIVISION	J
BETWEEN:

J O H N	LATORRE	and	VINCENT	LATORRE	Applicants
and

CALDWELL & PITHER PTY. LTD.,

HENDERSON SEED CO. PTY. LTD.,

JACK ARCHIBALD

JAMES PITHER,

IVO KEITH CALDMELL,

B M B M A

J O A N PITHER,

PETER RICHARD MOUNTJOY and

HENDERSON SEED PRODUCTS PTY. LTD.

(trading as HENDEXSON’S SEED

Respondents

LTD.)

PTY.

PRODUCTS

C O U R T :

NORTHROP J .

m: 11 SEPTEMBER 1986

FLACE:

MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

There is before the Court

a motion on behalf of the

applicants for orders that the applicants

have leave to amend

the Statement of Claim In the terms

of the accompanylng

proposed amended Statement

of Clalm, and

an order that the

appllcants have leave to amend the

application in the terms

_ _

of the accompanylng

proposed amended application.

- 2 -

The history of these proceedlngs shows

a sad lack

of any sense of urgency.

The applicatlon was issued in

August 1982; a

number of

steps were taken and there was

re-amended Statement of Clalm flled on

the 12th day of

May

1983.

There were

certam other steps taken by September

1983, but then nothing happened untll about the mlddle	of
thls year.

The motion before the Court, notlce

of whlch

was

given on the 1st day of August 1986, is in a form which on the face of it is to substitute an amended Statement of Claim for the existing re-amended Statement of Claim. It is not directed to what may be said to be defects In the existing re-amended Statement of Claim, which in any event remains in

existence.

The proposed amended Statement of Claim is in

form

which

can

only

described

as rambling and

embarrassing.

On the face of it, it appears to be directed

to a claim for damages arising out

of a breach of contract

entered into between the applicants and

one group of

the

respondents during the period August to October 1981, and

clalms for damages

arlslng out of that

breach of contract,

damages which, at the latest, had arisen by August

1982.

The appllcants, by the proposed amended Statement

of Claim,

apparently

carry

on business as growers of

vegetables.

One

group

the

respondents,

Caldwell

and

Pither

Pty. Ltd., and

certain of

the named individual

respondents, are retailers of vegetable seeds.

The

other

group of

respondents, Henderson Seed Company Pty. Ltd. and

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Henderson's Seed Products Pty. Ltd., are In the nature either of wholesalers or possibly manufacturers of seed providing

seed to the

first group

of respondents who,

in thls case,

sold retail to the appllcants.

The proposed amended Statement

of Claim 1s in a

form which is said to

be based on claims under ss.52 and 53

of the Trade Practices Act 1974.

In addition, It sets out a

large number of other causes

action, being causes

action which normally come within

the

jurisdiction of the

Supreme Court or the County

Court,

and not directly wlthln

the ~urisdiction

uf the Federal Court of Australia.

Those

claims relate to breaches

of contract, negligence, breaches

of warranty under the Trade Practices

Act, Division 2 of Part

V, under the Seeds Act 1971 (Vic) and other types of actlons,

but for present purposes It 1 s necessary to see whether the

proposed amended Statement of Clalm discloses any cause of

actlon based on

the Trade Practices Act which comes within

the jurlsdiction of this Court.

In the absence of any

such

cause of action it is not necessary to consider the further

question of

whether the claims based upon common

law

and

Division 2 of Part V of the Trade Practices Act are appropriate to be dealt wlth in this Court under its accrued

~urisdiction. Likewise,

would

not

be necessary

consider whether, applylnq the principle

of Weldon v.

(1887) 19 Q.B.

334, as explained and applied in Cutrona

Harnischfeqer of Australla Pty. Ltd.

(1977) V.R. 306, leave

should be refused havlng regard to the fact that any claim

for damages under 55.52 and 53 of the Trade Practices Act

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must be brought wlthin three years of the date of the cause

of actlon accrulng.

In this case that

date, of necesslty,

must have been before August 1982, whlch is more than three

years ftom the date

of the hearmq of thls motion.

Accordingly,

the

Court

wlll

look only at the

primary questlon

of whether the proposed amended Statement

Clalm dlscloses any cause

of actlon based on

5.52 andlor 5.53

of the Trade Practices Act.

Under

0.13 r . 2 of the Federal

Court Rules, the Court

has power, at any stage

the

proceedings, to amend any pleadings. Normally, the Court

would allow an amendment sought if the amendment is a genuine

amendment, if It dlscloses a cause of action, and if it does

not cause any prejudice to opposing parties which cannot be

overcome by approprlate orders

for costs.

In my opinlon, a prejudice to an opposlng party,

and a

very real preludice, would arise if the amendments

sought, in thls case the proposed amended Statement

of Clalm,

disclosed no cause

actlon ~ustlclable by this Court

justifying a refusal to glve leave to amend the Statement of proposed amended Statement of Claim to see if it does

disclose any cause of action which can be	brought In	thls
Court.

- 5 -

Most

the

submlsslons

counsel

for the

appllcants were directed to paragraphs

to 10, insofar as

they apply to the first group

of respondents,

that is the

retailers, and paragraphs 10A to 11D

the Statement

Claim

lnsofar as they

apply

the

second

group

respondents,

the

wholesalers.

substance,

paragraph

alleges

that

between

August

1981 and

October 1981 the

applicants entered into three contracts wlth the retallers,

or some or other of

them, whereby they purchased

and the

retailers sold and supplied certaln eggplant seed

three

lots of sealed tins.

Particulars are then glven of those

three contracts. Paragraph 7 is cruclal.

It reads:-

"7. The seed supplied pursuant to the first and

second contracts in paragraph 6 ('the first

seed'

)

was :

and there are then set out a number of sub-paragraphs, (a),

(b), (c), (d) and the relevant one

1s (e):-

"(e) represented to the Applicants by the

retailer as being:

(i) MS

seed;

further

alternatively

(li) standard MS seed."

MS 1s to be read

as Market Supreme variety seed.

The other sub-paragraphs of paragraph 7 are all

directed to issues In relatlon to the seeds supplled, but It

was submitted on behalf of the applicants that

sub-paragraph

(e) on its proper construction alleged conduct entered	m t o
by the first group of respondents whlch was deceptive or

misleading or llkely to mislead

or deceive withln the meanlng

of	5 . 5 2 of the Trade Practices Act.

It was argued

that

thls was

a pleading alleging

that prior to the contracts alleged

in paragraph 6 there were

representatlons

made

that

the

goods

supplied

under

the

agreement

were of a certain

kind.

Grammatically,

opinion, that is a

completely untenable construction of the

paragraph. On its face and in my opinion, what is being alleged is that in purported compliance wlth the contracts, the retaller respondents supplied goods which did not comply

with the terms of the contract. It is clearly an allegatlon of breach of contract and nothing more. The use of the word "represented" in sub-paragraph (e) cannot, in m y opinion, be

used to found an argument that it is

an allegatlon of conduct

engaged in prior to the contracts and conduct

whlch

was

misleading or deceptive

or likely to mislead or deceive by

reason of the

fact that goods supplled pursuant

to the

contract were not

of that kind.

Paragraph 7A 1s

of a similar kind in relation to

the thlrd of

the contracts referred to in paragraph

and

there are a number

of sub-paragraphs to that paragraph

of a

- 7 -

slmilar kind to those in paragraph 7.

T h e only relevant

one

for present purposes

1s as follows, and I read:-

"74. The seed supplied pursuant

to the

third

contract In paragraph 6 ('the last seed') was:

...

(e)

represented to the Applicants by the retailer as being:

(1) eggplant

seed yleldmg frult

of the kind In

sub-paragraphs

(a)(l), (li)

and/or

(iii)

('alternatlve

and

seed'

'alternative fruit'); further

or alternatively

(ii) BB seed;

further

alternatively

(iii) standard BB seed."

BB is to be read as

Black Beauty variety seed. What I

have

said in relation to paragraph	7 has equal application as	far
as paragraph 7A is concerned.

Paragraph 8 alleges that none of the seed supplied

pursuant to the first

or second agreement was MS seed or of

standard variety, and other matters

that kind,

again

matters which one would expect to	find in	a	breach of
contract case.

Paragraph 8A

1 s a

s m l l a r type of allegatlon in

relation to the seed supplied pursuant to the thlrd contract.

Paragraph 3 reads, and I quote the whole paragraph:-

"9.

By reason of

the matters

In paragraphs 6 , ?

and B and further or alternatively,

paragraphs 6 , 7A and

BA the retailer engaged

in conduct In

trade and commerce that was:

(a) misleadlng or deceptive or likely

mislead or deceive;

(b)

in contravention of section 52 of

the Trade Practices

Act 1974 ('the

Act'

) .

On my reading of

the Statement of Claim there is

nothing in any of those paragraphs which alleges any

facts

giving rise to

an allegatlon of mlsleading

or deceptive

conduct or conduct that is llkely

to mlslead

deceive.

Under the Federal Court Rules, 0.11, a pleading 1s

requlred

to contain statements

in a summary form of the material facts

upon which the party relies, but not the evldence by which

those facts are to

be proved.

In the present case, the

Statement of Claim,

in my opinion, does not allege any

material fact supporting an

allegation that the first group

of respondents engaged in conduct that was mlsleading

deceptive or likely to	mislead or decelve under	5 . 5 2 of	the
Trade Practices Act.

The mere reference to

that sectlon and the use of

the words contalned in that sectlon

of the Trade

Practices

A A of

themselves are not

a sufficient pleading to import

allegations of fact which could amount to conduct which was

- 9 -

misleading or deceptlve

or likely to mislead or deceive.

There was and 1s no

allegatlon at all

that the applicants

were induced to enter into any

one

or more

of the three

contracts referred to in paragraph

6 by reason of conduct of-

the flrst group

of respondents which was misleadlng or

deceptlve or llkely to mlslead

or deceive. Accordingly, In

my	opinion, the proposed amended Statement of Claim on the

face of it shows no cause of actlon at all agalnst the

first

group of respondents based upon 6 . 5 2 of the Trade	Practices
A S .

Similar opinions and conclusions

are reached in

relation to paragraph 10, which is an additional

alternative

claim,

that

reason

the

matters

paragraphs 6, 7 and B or 6, 7A and 8 A , the retailers in trade

and commerce made

false representations to the applicants in

relation

to a number of matters

contravention

paragraphs 53(a), (c) and/or (f) of the Trade Practices Act.

The views I have expressed already have equal applicatlon to

the allegatlons contalned In paragraph 10.

They simply do

not allege any conduct by the

first group of

respondents

leading up to the making

of the contract

from whlch the

applicants are now claiming damages.

The claims against-the wholesalers, Hendersons,

are

in an

even more tenuous position.

There was

no dlrect

contact

alleged

as between

the

wholesalers

and

the

appllcants, except the fact that they had delivered to them

by the retailers t m s

of seed contalning on them notices to

- 10 -

the effect that

the seeds contamed in them were of a certaln

kind. These tins were supplied by the retallers to the

appllcants, and the allegation is that those seeds were not

of the type described. There is just no allegation at all

that the wholesalers engaged in conduct of the kind referred

to in a s . 5 2 or

53 of the Trade Practices Act and that

as a

result of that conduct the applicants suffered damage.

Accordingly,

in my opinion,

the

applicant

has

falled to show that the proposed amended statement of claim discloses any cause of actlon agalnst any of the respondents.

In those circumstances, if the amended Statement

of Claim 1s

allowed It would be

case where the respondents would be

prejudiced in that they would have to apply

to the Court by

motion to have the Statement

of Claim struck out.

Again,

thls is a case

where having formed the views I have, it is

not necessary for me to look at the other claims

whlch are

sought to be included in the present proceedings pursuant to

the accrued jurisdictlon, but	I do	make some additional
comments.

Having regard to the authorltles in this matter particularly the recent decision of the High Court in

and

Stack

v. Coast Securitles (No. 9) Pty. Ltd.

(1983-84) 154 C.L.R.

261, this appears

to be a case where

it would not be

appropriate for thls Court to embark upon

jurisdlctlon

under the accrued

~urlsdictlons concept on such a tenuous

base as 1s alleged and as arlslng from a 5.52 and s.53

case.

Thls is

case where there has been long delays in the

- 11 -

prosecution of the matter. It 1s a case whlch on the face of it sould be heard In the State Courts and 1s a case whlch has grave difficulties In its way of bclng heard In all Its aspects-in thls Court. To force the respondents to have to

plead to an amended Statement of Claim or take proceedlngs to

try and determine those matters by havlng them struck out, to

incur all these additional costs on the parties would in

opinion be unfair to the respondents.

On the face of

it,

there is no reason to believe there are grounds whereby the

matter could not be litigated in the Supreme Court or County

Court, except possibly those claims which are brought under

Division 2 Part 5 of the Trade Practices

Act, with the

limitation period

of three years.

Accordingly, the motlon to

have leave to amend the

Statement of Claim in the terms of the accompanying proposed

amended Statement of

Claim is refused. Likewise the claim

for the order for leave to amend the application

In the terms

of the accompanying proposed amended application is refused.

In the circumstances, as

I said earlier, I do

not

propose to make any comments on the question of whether the

llmitation period has any application in this case, nor do I

propose to say anything further about the other claims.

I have dealt wlth the Statement of Claim In a broad

way because

of the embarrasslng nature

of the way it

1 s

framed at the

present

ime.

would

completely

lnappropriate to go through and deal

with each word or

- 12 -

paragraph or sub-paragraph contalned in a very, very long, complex and confused document when the matter can be dealt wlth In this broad manner.

What has been sald leaves the proceedings

the

posltlon that the existing pleadings

are stlll in exlstence.

The matter can proceed

on these pleadings.

I suppose there

is nothing to stop the applicants from seeklnq leave

to amend

thelr Statement of Claim further. They are all matters whlch

will need to be consldered if and when

the matter comes

for hearing in the future.

The only order I propose to make

at the moment

is that the motion be refused.

This is a case where the appropriate orders should

be that the applicants pay the respondents' costs of the motion. The applicants were seeking an indulgence of the

Court.

They have failed and there is

reason why the

ordinary course of events should not follow, namely that the

successful party or parties

are charged with their costs.

Accordlngly, the formal orders are:-

1. The motion is refused.

2 . The applicants to pay the respondents' costs of the motion.

[1986] FCA 426

9 Nov 1986