Love v North Goonyella Coal Mines Pty Ltd
[2017] QSC 131
•12 June 2017
SUPREME COURT OF QUEENSLAND
CITATION:
Love v North Goonyella Coal Mines Pty Ltd & Anor [2017] QSC 131
PARTIES:
MARC JACOB LOVE
(Plaintiff)
v
NORTH GOONYELLA COAL MINES PTY LTD ACN 010 912 526
(Defendant)
And
WILSON MINING SERVICES PTY LTD ACN 003 948 605
(Third Party)FILE NO/S:
S31 of 2016
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland at Mackay
DELIVERED ON:
12 June 2017
DELIVERED AT:
Rockhampton
HEARING DATE:
30 May 2017
JUDGE:
McMeekin J
ORDER:
1. Paragraph 11(b)(ii) of the Third Party Amended Statement of Claim is struck out;
2. That on or before 4pm on 26 June 2017 the Defendant provide further and better particulars of its Amended Statement of Claim in accordance with the requests set out at paragraph 2(a), (b), (c) and (d) of the application filed 24 May 2017;
3. That on or before 4pm on 26 June 2017 that the Defendant make disclosure of those documents comprising the material previous course of dealing between the parties in relation to labour on which it relies and which are directly relevant to paragraph 8 of the Third Party Amended Statement of Claim;
4. The Defendant have leave to re-plead as it may be advised, any such pleading to be filed and served on or before 4pm on 26 June 2017;
5. The Defendant pay the Third Party’s costs of the application;
6. The parties have liberty to apply.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – REQUEST FOR TRIAL – where plaintiff seeks to dispense with the Third Party’s signature on the Request for Trial – whether Plaintiff’s proceeding against the Defendant can proceed separately from the Third Party proceedings.
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – PLEADING – FURTHER AND BETTER PARTICULARS – where the Third Party seeks to strike out the Defendant’s Amended Statement of Claim – where the Third Party seeks that specific paragraphs be struck out – where the Third Party seeks that the defendant provide further particulars of its pleading – whether Defendant has adequately plead and particularised the case against Third Party.
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – NON-PARTY DISCLOSURE – where the Third Party seeks disclosure of various categories of documents – whether Defendant is required to further carryout the exercise of disclosure.
Uniform Civil Procedure Rules 1999 (Qld), r 154, r 157, r 158, r 159, r 161, r 171
Barrymores Pty Ltd v Harris Scarfe Ltd (Administrators Appointed) (Receivers & Managers Appointed) & Ors [2001] WASC 210, followed
NRNQ v MEQ Nickel Pty Ltd [1991] 2 Qd R 592, cited
COUNSEL:
GF Crow QC for the Plaintiff
P Cullinane for the Defendant
K Holyoak for the Third Party
SOLICITORS:
Macrossan & Amiet Solicitors for the Plaintiff
Minter Ellison Lawyers for the Defendant
Barry Nilsson Lawyers for the Third Party
McMEEKIN J: There are two applications before the Court. In one the plaintiff seeks to dispense with the Third Party’s signature on the Request for Trial and seeks a date of trial. In the other the Third Party seeks to strike out the Defendant’s Amended Statement of Claim against it or in the alternative that paragraphs 3(iv), 4, 5, 6, 7, 8 and 9 of that document be struck out, both applications being made pursuant to r 171 UCPR. Alternatively the Third Party seeks that the defendant provide further particulars of its pleading against the Third Party. Further the Third Party seeks disclosure of various categories of documents.
The Plaintiff and the Defendant have each executed the Request for Trial. It is evident that the Third Party proceedings are not ready for trial. The Plaintiff’s claim is for damages for personal injuries suffered by him in the course of his employment with the Third Party. It is common ground that his labour had been hired by the Third Party to the Defendant. For present purposes in issue between those two parties are the terms of the contract pertaining between them.
Neither the Defendant nor the Third Party could point to any prejudice if the Third Party proceedings were heard separately. Seven years have already passed since the subject accident. There will be further significant delays if the Plaintiff must await the Third Party proceedings being prepared. I therefore determined in the course of the hearing that the Plaintiff’s proceeding against the Defendant proceed separately from the Third Party proceedings and allocated trial dates.
There remains the Third Party’s application.
The Third Party complains that the Defendant has failed to adequately plead and particularise the case against it.
The crucial issue, but not the only issue, is whether the Third Party is required to indemnify the Defendant in respect of the Plaintiff’s claim. The Defendant contends that the indemnity is contained in the terms and conditions of a purchase order issued by the Defendant to the Third Party and that those terms and conditions form part of the contract between them.
The fundamental point is the basis on which the Defendant contends that those purchase order terms and conditions came to be adopted as a contractual document. The point is crucial as the Third Party pleads that the contract was formed following acceptance of its “Proposal”, the Proposal being a written document which contained terms and conditions by which the Defendant was required to indemnify the Third Party.
It is evident from the extraneous evidence led that the parties have been dealing with each other for years before the supply of the plaintiff’s labour. Their dealings have included the supply of both labour and materials. The Defendant’s pleading makes no reference to the inception point of the contract.
The Defendant pleads that labour was supplied pursuant to a contract identified as follows:
(a) That on 10 August 2010 the Defendant provided to the Third Party a purchase order NG 186470, along with the terms and conditions for purchase orders, the order being for the “August supply of labour for remedial and emergency support to be performed at the North Goonyella Coal Mine”;
(b) That the quantity of labour and the price of that labour had been determined prior to the issuance of that purchase order;
(c) That the contract was formed by that purchase order and the “agreed quantity of labour and price of that labour”;
(d) In the alternative it is pleaded in paragraph 8 of the Amended Statement of Claim:
“The clauses of the purchase order NG186470 (dated 10 August 2010) pleaded in paragraph 6 above were incorporated into the oral agreement of mid/late July 2010 between the parties for the provision of labour by the third party to the defendant (as pleaded in paragraph 5 above) by a course of dealing between the parties over approximately 4 years as at mid-2010 through which the defendant issued purchase orders (and terms and conditions for purchase orders) with identical terms and conditions to NG186470 (and the terms and condition for purchase orders provided with NG184670) for labour provided to it (the defendant) by the third party and to which the third party had never objected and/or demurred prior to the plaintiff sustaining injury. ”
How and when the determination of the quantity and price of labour (referred to in (c) above) took place is not pleaded. As well, by its terms, the purchase order refers to an “agreement in place”, i.e. an agreement in place antecedent to the purchase order. What the Third Party seeks is a pleading and proper particularisation of what the Defendant says constitutes that prior agreement.
In a request for particulars the Third Party asked the Defendant to identify the “inception of the contract … by particularising the offer and acceptance and the communication of the offer and acceptance or otherwise how and when the contract arose”. That request was ignored.
The Third Party also asked whether the contract alleged was oral or in writing. It asked for the documents to be identified if the contract was in writing and if oral or partly oral for the conversations relied on to be identified by reference to the place, dates, parties and substance.
The Defendant’s response was that representatives of the two companies “would meet on a monthly basis to negotiate the rates and quantity of labour required … for the upcoming month”. It asserted that meetings would “typically take place in the middle of each month” and would “typically be attended by a combination of” certain named representatives of each company. It is said that “pursuant to negotiations at the monthly meetings a purchase order and the standard terms and conditions for purchase orders would be issued to the third party”.
The Defendant then concluded that the contract “can otherwise be implied by the past course of dealings” between the parties. The Third Party is referred back to paragraph 8 of the Amended Statement of Claim.
The particulars suggest that the Defendant cannot assert with any greater particularity when any meeting took place and who attended those meetings.
There are at least three problems with the particulars supplied – putting to one side the failure to respond at all to the request to identify the inception of the contract.
First, the Defendant effectively ignores the requirement that it identify the documents that form the contract. Presumably it seeks to assert either that the purchase order of August 2010 is such a document or that each purchase order ever issued (and there is evidence of many such documents) before then is such a document, but that is not said.
Secondly, it is not acceptable to assert who may have “typically” attended a meeting at which a contract may or may not have been formed. The defendant is entitled to say that one or other of certain named persons attended at meetings where an agreement was reached and that it is unable to supply any better particulars. The Third Party (a corporation) at least then knows who of its servants or agents, and for that matter the Defendant’s servants or agents, are relevant, or potentially relevant, witnesses. As the particulars stand the Defendant has not tied itself to only those nominated.
Thirdly, the Defendant essentially avoids tying itself to a plea of what the substance of the conversations were in so far as they dealt with the crucial issue – what discussions there were about the terms and conditions attached to the purchase orders. To plead as the Defendant has done that “pursuant to negotiations at the monthly meetings a purchase order and the standard terms and conditions for purchase orders would be issued to the third party” is to at least imply that the delivery of the terms and conditions was a result of express conversations about the matter. This approach obscures the issue.
If in fact there were no such conversations then the pleading is quite misleading. The purchase orders were not delivered “pursuant” to negotiations but merely following after those negotiations. If there were such conversations then they have not been identified.
The request for particulars sought further information as to the allegation that the quantity and price of labour were “determined” by the parties prior to the issuance of the purchase order. The request sought precise particulars as to any contract alleged, the quantity agreed, the price agreed, seeking that any written evidence of any agreement be identified, and if any oral agreement be relied on then it be particularised by reference to the place, dates, parties and substance.
The particulars supplied make no reference to any identified rate or quantity of labour. There is a statement that “the standard hourly hire labour rates”, and they are not identified, “would not typically vary month to month” and “if there was a change to the standard hourly hire labour rates requested by the third party then a variation might be made” and “any variation would typically be carried forward to the subsequent months”. There is a reference to the labour that was “typically” supplied and a reference to the monthly meetings referred to in the preceding particulars.
The Third Party can legitimately complain that the detail sought by its request is ignored. While there may be some forensic, and therefore legitimate, advantage to tie the Defendant to an account of this detail, the issue here is not what rates and quantities of labour were agreed to be supplied. The issue is whether the terms and conditions incorporated in the purchase order of 10 August 2010 form part of the contract between the parties. In that respect I am not at all persuaded that the case is as obscure as the Third Party submits.
I am conscious that one iteration of the Defendant’s case is that the contract between the parties consists of a purchase order issued on 10 August 2010 with its antecedent oral agreement (presumably, but perhaps not necessarily, being the monthly meeting held immediately prior). On that case it is completely unsatisfactory that no particulars, and reasonably precise particulars, of the relevant meetings are given. If the Defendant does not know who attended the meeting or meetings and what was discussed there then how can it plead that a contract was formed as a result? And how does the Third Party meaningfully prepare and respond?
The Defendant argues that it is not obliged to provide any further particulars. It submits that there is no obligation to reveal the evidence on which it intends to rely, and therefore to reveal the substance of the conversations relied on, and that it has supplied the best particulars it can. Further it says that the Third Party representatives were at the monthly meetings and so the Third Party has knowledge of the matters discussed.
As to the last point the Third Party seeks to know what the defendant alleges took place at the meetings, not what its representatives (if they can be identified) say occurred.
As to the claim that the Defendant cannot give better particulars, if that is so then it cannot establish at least one aspect of the case that it has pleaded (the oral contract resulting from the mid July meeting) and that part of the case should be struck out. I will give the Defendant the chance to re-plead and provide particulars but if it cannot improve on this then the Third Party’s argument to strike out is sound.
As to the first point these arguments are, with respect, misconceived.
The submission that the particulars might disclose the evidence to be relied on is not a reason to avoid giving the particulars, if the particulars are otherwise necessary to properly inform the other side of the case it has to meet and so avoid surprise, and to enable a properly pleaded response. See rules 157 to 159 UCPR; NRNQ v MEQ Nickel Pty Ltd [1991] 2 Qd R 592, at 594-5.
What then is the proper response? I do not think it appropriate to strike out the pleading. What the Defendant seeks to assert is clear enough even if rather poorly expressed.
On the one hand it seeks to assert a contract partly oral and partly in writing constituted by a conversation between the representatives of each company held in mid July 2010 and the subsequent purchase order of August 2010. At the meeting the Defendant requested the provision of labour, and terms were agreed (or confirmed) concerning rates and quantities. Those agreed terms were then reflected in the nominated purchase order of 10 August 2010. As well, the purchase order contained or included the terms and conditions relied on. The acceptance of those terms consisted in the act of supplying the labour requested without objection to the attached terms and conditions.
The risk for the defendant here is that it may be argued (and held) that the purchase order was a post contractual document. Hence the alternative case is pleaded that an inference should be drawn from a long course of dealing between the parties over the preceding years that the terms and conditions contained in the purchase order of August 2010 form part of the contract.
Mr Holyoak submitted that for the Defendant to succeed on that alternative case four requirements needed to be satisfied and therefore the subject of a pleading. He submitted that Roberts-Smith J correctly identified the relevant principles in Barrymores Pty Ltd v Harris Scarfe Ltd (Administrators Appointed) (Receivers & Managers Appointed) & Ors [2001] WASC 210 in the following passage:
“[98] Contractual terms may be inferred from the business relationship of parties if the course of their dealings raises the reasonable expectation that terms imposed on previous occasions will form part of the contract on a subsequent occasion. For that to be done four requirements need to be satisfied:
(1) the terms previously used must be identifiable (usually by reference to contractual documents);
(2) those previous occasions must be sufficiently numerous and frequent;
(3) the conduct must be consistent enough to constitute a regular course of dealing;
(4) which raises the reasonable expectation that the same terms should be included in the subsequent contract.
(D W Greig & J L R Davis "The Law of Contract", Law Book Company Ltd, 1987, p 575).”
The pleadings and particulars supplied satisfy the first three of those requirements. While there is an express pleading that as a result of that long course of dealing the terms are incorporated in the oral agreement reached in mid to late July it might be said that the pleading is defective in not asserting that the incorporation comes about because the conduct relied on raised a “reasonable expectation that the same terms should be included in the subsequent contract”. If such a plea is essential then it is appropriate that leave be given to amend accordingly. The Third Party is certainly conscious that that is the argument.
The Third Party’s complaint I think is twofold – that there is no particular supplied relating to the course of dealing with respect to labour or the type of labour supplied by the plaintiff; and that this case is inconsistent with the defendant’s primary contention that the purchase order of August 2010 constituted an offer which was accepted by the supply of labour.
The latter point is not relevant – the Defendant is entitled to plead inconsistent cases in the alternative: r 154 UCPR. Neither case at this stage is necessarily the primary contention advanced.
The first point depends on the Third Party’s assertion that the course of dealings must necessarily be restricted to the supply of labour only or that it is necessary that the supply of labour be divorced from the supply of materials. Where the Defendant contends that the course of dealing was not so restricted, then I cannot see that it is essential that the division be maintained in the pleading to enable a proper understanding of the case. It may well be relevant to the Defendant’s case to assert that in all their dealings with the Third Party, whatever be the subject of the supply, the Defendant has advanced these terms and conditions. That is not to say that the Third Party is not entitled to seek particulars directed solely to the supply of labour and that the Defendant ought to supply such particulars for precisely the opposite reason – that the Third Party may wish to argue that there was no sufficient course of dealing in relation to the supply of labour.
The pleadings in my view set out the case sufficiently and the particulars supplied are, I think, adequate to show a tenable case and to enable the Third Party to respond. In fact the Third Party has responded with a detailed pleading.
Given the deficiencies that I have identified it is appropriate that the Defendant be ordered to supply further and better particulars pursuant to r 161 UCPR. As I apprehend the argument the particulars that the Third Party seeks are set out in paragraph 2 of its application. In case I am wrong in that I will give liberty to apply. To an extent the requests are more in the nature of interrogatories. However if leave was sought to deliver interrogatories of that type I would be inclined to allow them given the deficiencies in the Defendant’s pleading and particulars, so it makes little sense to complain about the form of the requests.
Finally there is complaint made about the pleading and particularisation of a claim for $164,654. It became evident in the course of submissions that the claim is merely for costs not for damages. It is appropriate that paragraph 11(b)(ii) of the Amended Statement of Claim be struck out and leave given to re-plead.
There is complaint about disclosure. On the day of the hearing of the application the Defendant obtained leave to file and read an affidavit of Mr Cobb, the general counsel employed by the Defendants’ parent company. Mr Cobb largely answered the various complaints made about non-disclosure. I think that the only remaining complaint is that the Defendant makes no distinction in its disclosure of what documents relate to the supply of labour and what relate to the other dealings between the parties. For the reason previously identified it is appropriate that the Defendant carry out that exercise of identifying which of the 371 purchase orders disclosed relate to the supply of labour.
The orders will be:
(a) Paragraph 11(b)(ii) of the Third Party Amended Statement of Claim is struck out;
(b) That on or before 4pm on 26 June 2017 the Defendant provide further and better particulars of its Amended Statement of Claim in accordance with the requests set out at paragraph 2(a), (b), (c) and (d) of the application filed 24 may 2017;
(c) That on or before 4pm on 26 June 2017 that the Defendant make disclosure of those documents comprising the material previous course of dealing between the parties in relation to labour on which it relies and which are directly relevant to paragraph 8 of the Third Party Amended Statement of Claim;
(d) The Defendant have leave to re-plead as it may be advised, any such pleading to be filed and served on or before 4pm on 26 June 2017;
(e) The Defendant pay the Third Party’s costs of the application;
(f) The parties have liberty to apply.
I have made no order in relation to the complaint concerning the waiver of the limitation defence on the Defendant’s undertaking that it does not seek to rely on any advices, if they exist, given to it by its solicitors or counsel concerning that waiver.
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