Pacific Blues (Fiji) Ltd v Levi Strauss (Australia) Pty Ltd No. Scciv-00-1293

[2003] SASC 101

PACIFIC BLUES (FIJI) LTD v LEVI STRAUSS (AUSTRALIA) PTY LTD
[2003] SASC 101

Masters Appeal

1. Gray J     This is an appeal from an order of a Master striking out paragraphs of the plaintiff’s reply and defence to counter claim.

2. The plaintiff’s claim arose from a contractual dispute concerning the manufacture and supply of jeans. The pleaded issues are complicated. For present purposes they do not need to be discussed in any detail. The parties have agreed on the outcome of the appeal. However it is convenient to record a number of matters.

3. A dispute exists about the terms of the contract between the parties. The defendant alleges that an agreement in writing was entered into on 14 July 1999. The plaintiff denies that it entered into this agreement but pleads that if there was was such an agreement certain of its terms were void, as they amounted to a penalty. The dispute on the appeal related to the pleading of particulars of material facts said to be relevant to a determination of the question of penalty. The particulars challenged raised matters occurring after the date of the contract. Counsel for the plaintiff accepted that those matters could not be material facts. The plaintiff’s argument was that evidence of those matters allow an inference to be drawn about state of affairs existing at the time of the contract. This was said to be relevant and probative evidence to be led at trial. Counsel for the defendant acknowledged that adequate notice of the proposed evidence had been provided. However it was said that it was only proposed evidence and no more. Pleading should be restricted to material facts. Evidence should not be pleaded.

4. The plaintiff sought to amend the paragraphs that had been struck out to limit the date to which they refer.  Those amendments have now been made. Once the amendments were made, counsel for the defendant acknowledged that material facts were pleaded. On that limited basis counsel for the defendant did not oppose the court allowing the appeal in respect of the amended paragraphs.

5. During the course of the appeal the plaintiff purported to amend its reply by adding paragraphs 8A to 8F. Counsel for the plaintiff acknowledged that leave was required to make these amendments and had not been obtained. It was agreed that the appropriate course to follow was for the plaintiff to withdraw the proposed amendment. The plaintiff indicated that it would make application to amend when it was in a position to fully particularise the proposed plea. In the circumstances I made the following orders.

   1.     Leave to the plaintiff to amend its reply and defence to a counter claim in the terms initialled and approved.

   2      The   appeal from the master is allowed to reinstate paragraphs 8.2.2 and 8.3 of the reply as amended.

   3      The appeal is otherwise dismissed.

   4      The plaintiff is to pay two thirds of the defendant’s costs of the appeal in the cause.