Parker v Churchill

425

No. G.8 of 1385

"ND:

LEWAS FOULTRY

PTY

LIMITED

Cross rlaimant

The Appl ica t ion

dismissed.

The

Cross

C l a i m

be d i smis sed .

The o r d e r nf t h e C m r t made on 1 March 1985 srherobp

l t was ordered tha t the p roceed inss entitled Lefkas

Poul t ry

Ptg.Limited

v Russel l

Hockhmg,

number

107 of

1985,

i n the Supreme court

,>f V i c t o r i s

b e

stayed be

r e sc inded .

The a p p l i c a n t pay to the respondent

i t s ccsts of

the

p r o c e e d m g s .

m c l u d l n q

the

c o s t s of

th is motion.

i s not

s u f f i c i m t (Tene ra1

i n t e re s t

IN THE	FEDERAL	i7QrJRT	OF .\USTPALIA	)
)

MEW SOUTH	MALES	DISTRICT REGISTRY	’
1

GENERAL

DIVISION

)

BETWEEM :

RrJSSELL HQlTKHIMG TRADIFJG

AS LAKEMBA FOULTRY

MJD

FPQZEN FOODS

Appl icant

LEFVAS

POULTRY

PTY

LIMITED

Respondent

P-EID :

LEFF-AS

FOrJLTF?

FT? LIMITED

Crgsz Clalmant

AND :

ETJFSELL HOL‘FHING TRADING

’

LAKEMBA PQULTRY AMI?

FPOZEM

FOQDS

This i3 the hearlnq of a Notlce qf Motion filed ?r?

behalf cmf

9 respondent co proceedinus said to have been

brought pursuant to

5 5 . 5 2 and 53 (of the Trade Practices Act

1974. The Appllcation,

which was filed on 21 January 1985,

claimed orders that the respondent had contravened those

sections and It l l s o claimed orders in respect of neqllqence

and breach of contract.

The Appllcaticn souuht damaqes and

interest as well as costs.

On 75 March l985 9 Statement of Claim was flled.

that Statement of Claim the

applicant alleged that he csrrles

on the busmess of a wholesaler and distributor of frozen pml%ry and operates Chrnuqh the whole of the Sydney rec(101:

providlnq and selling frozen poultry

t9 butchers' shops anil tg

clubs. This

alles?3tion is not in lssue.

HP fclrther a l l e ~ e d

that the respondent is a company duly incorporated and

llable

to be sued in its corporate name; and thls also is not	m
Issue.

3 .

The substance of these allegstions was nct in issue:

but there was dispute between the parties, as appeared when

the respondent's Ijefence was

filed, as to the subsequent

allecfations by rhe applicant that chickens which were supplied

were not of-good quality. In particular, the allegation was

made khat some of the chickens were not frozen. It was said

that 10 per cent of the frozen chlckens delivered to the

appllcant were not of

good quality and had not been properly

frozen by the respondent; vere thawed out prlor to dellrrer:~ to the applicant: and were rotten and misshapen and generally not fit for human consumption. The Statement of Claim alleged that the respondent's conduct was such as to contravene the prwisions of ss.52 and 53 nf the Trsde Frsctlces Act.

On 1 March 1985 the matter came before Sheppard

J. at

a directions hearin?. On that day his Honour directed that

the matter be trled on affidavit evldence supplemented by

Qral

evidence and he

uave directions for the iilina

of the

sffidavlts of the applicant snd of the respondent respectively

by particular fates.

Prior t9 that date the respgndent had flled

a rt-955

Clam in which it souaht to recover the sum gf

$74,383.54,

belng the ,claimed balance cf sccount In respect, .If the SUpp1:I

bp it tn the applicant cf chickens. The 13rc-a Claim allrqed

total dellverles worth	$3'?1,?16.82 less payments nf
, I 216 ,?33 .1&.

Psrtlculsrs were sought by the solicitors for the

respondent in relation to the allegation of the dellvery

rotten and misshapen chickens, and bg letter of

3 June 1995

the applicant‘s solicltors identifled three dellveries being

those of 25 August 1984, 28 Qctober l984 and 5 November 1994

The total value of these deliveries is some

$27.000.

The matter was again in the directlons list

on 14

June 1985. before Lockhart ST., when a varistlon was made

9 8 tg

the dates Ilpon whlch affidavits were to be flled. Plursuant

t o

the directions of his Honour, affidavits have been flled on

each slde of the matter, apparently

in an attempt to put sach

party’

E case fully on affidavit, as I am sure was the Intent

of ZheFpard J. In malr.inT the original directlons.

The present Application was flled on

9 August 1985.

It seeks to have the proceedings of the

applicant dismissed

with consequential crrders w , alternatively, to have the

present Statement of Claim struck out for failure to disclose

9 proper cause of 3ctlon with leave bein? reserved to the

applicant tn amend.

In relation to the Statement of Claim as present1:r

frame?, it seems tc me clear beyond question that the present

dccument 1.5 defective.

As I have sald. the case pl-rrportrz to

be base? upon s s . 5 2 snd 53 of the Trsrle Practices Act, b u t

there is nowhere to be found in the Statement of Claim any

alleqation of any representatlon having been made

by or on

behalf of the respondent. "hat is alleqed

1 s that an

agreement was made between the parties for the supply nf

frozen chicken and that chicken was supplied which was not

frozen or, alternatlvely, was of unacceptable quality. I do

nnt see In the Statement of Claim any conduct whlch can be

said to answer the description

of misleading or deceptive

conduct -- 5 .52 -- snd I do not see any alleqiatlon	of conduct
amounting to a representation -- 5.53.

It 1 s of ccurse c lear that s.52 1 s not available

simply to recover damages for breach

of a promise made by a

c~~rp~ration

in the course Gf trade and cnmmerce: see B

Acceptance Ccrporation

V G b1 A Limited '1983! 55 A.L.F. 242

In respect of the Statement of Claim

3s framed. M r

Evstt on behalf of the appllcant has referred to

para.5 m

whlch the alleqation is made that the respondent "agreed to

supply certain frozen chickens". He says that thls is ,zspable

cf beiny read as a reference tn existiny frozen chickens and

3 s containing an alleyatlon that the respondent made

representations as tg the then existence and nature 3f	slJch
,chickens.

I am mable tc2 read the parayraph I n that way And I

t h i n k it

1 s sufficient tn say, without being too pehqtl,: on

the polntr, that if m all?gatic7n is made of misl?ading

deceptive conduct in making representations, or If

slleqation is made of the making of

a statement or

representation under 5.53 then thls needs to be stated in

terms.

It cannot be sufficient that lt is not inconsistent

with a cause of action pleaded in

a quite different way that

some statement may have been made between the parties at	the
relevant time.

Mr Evatt a l s o refers to Fara.11 of the Statement of

Claim. but this does

n’3 more than refer to ss.52 and 53;

iontalns no alleffation

of fact to bring the case

mthin the

ambit of those sectlons.

For these reasons it seems to me clear that the

present Statement of Claim

1 s demurrable snd should be struck

out. Ordlnarily.

If an sppllcant sought leave to amend. come

opportunity would be given for this to be done. In the

present case, however, the partles and the Court have the

advantage of the affldavits which are

on file and which are

intended to show the nature of

the dispute and the nature

or‘

the claim made

by the applicant.

Mr Eymtt has sclJqht an adjournment Df the mattsr

tc:

allow him to obtaln further lnstructions aff31nst the

possibilltp that additional evidence is available. but

I would

not be disposed to take this course. Under the dlrectl~ns

made by Lockhart J., the applicant’s sffldavlts were supposd

to be filed on

or befgre 26 June 1985.

It Yould in my view be

an incorrect exercise of discretion to allow counsel

a further

ad~ournment.

some sis weeks after the expiry

of that time. in

order to obtain

mstructions with a n e w to determinmg

whether or not there may	be 9 case avallable to him under the
Trade Practices Act.

I have read the evidence filed on behalf

of the

applicant.

For the plurposes of the present application, the

applicant is entitled to havr that evidence read in his

fanur

in the sense that any ambiguity should be resolved

favourab1:r

to him and any conflict between his evidence and that of the

respondent should be resolved in his favour. Even s o , there

is no material whatever

to bring the case Yithin either

5 .52

,311

5.53.

The essence of the applicant's case is that in

relatlon to three out of a considerable number of deliverles

chicken was delivered from the respondent's works in Melbsurne

to the applicant's premlses in Sydney which. upon

delivery,

turned out not to

be frqzen.

On each occaslon there was

telephonlc communication between the parties. as

a r5su l t ,

;rhich the applicant aqreed to accept the naterial.

lccordinq

to the applicant. that chicken turned out to

be of

unacceptable qua1it:r when passed on to customers

of the

applicant and he sald that he received complaints.

8 .

There 1s an issue between the partles both

as to the

extent of unfrozen chicken delivered and

a l s o on the question

whether the chlcken. whether frozen

or otherwlse. was of

merchantable quality. But takin9 the applicsnt's case at its

highest. it zeems to me that it amounts to no more

-- and of

course no less

-- than a claim that in respect of certain

qoods ordered by the applicant from the respondent the product

delivered was not of merchantable quality and therefore was

product m relation to which

he was not liable to pay the

supplier. that is the respondent. The applicant goes further

and says that he suffersd consequential

lass in that his

reputatlnn wlth hi3 customers was adversely affected.

A11

this may have ]ustlflcation -- I make no findinq on that

but I simply say that it has nothing to do with either s . 5 2 or

s . 5 3 of the Trade Practices Act. The claim is simply one for

breach of ccntract to supply chicken whlch was both frozen an?.

of merchantable quality.

Havlnq regard to the nature of the case which the

applicant has dlsclosed in his affidavits. it appears to me

that no ?god purpose

woul-l be served either bg an adjournment

gf the matt?r or by permittinq any amendment. It seems to me

that the reality is that this 1 s not a trade practices case.

It may gr may not be a good contracts case, but there

is no

basls for the applicsnt's case remaining In this

#:curt. I

therefore propose to accede to the submisslon on behalf	cbf the
respondent that the application be dismlssed.

9 .

This leaves the question

of the disposition of the

Cross Claim. At a very early staqe

of these proceedings an

order was made by consent staying further proceedings by the

respondent in relation to

an action for debt which

It had then

recently commenced in the Supreme Court of Victoria.

I am

informed that this action had got

no further than the 1ssue

originating process and it seems that the originating process the only reason why no further steps have been taken in reiation to the action is the stay directed by this Court.

map not even have been served. However. the fact is that the

There has been discussion bFfore

me as to .whether the

respondent's claim should proceed by

way of ,?foss Claim In

this Court or bp way of

action in the Supreme Court of

Victoria. There are scme advantages in

the matter bein9 dealt

wih in this

Court, having regard to the stage

which the matter

has reached, but in the absence

of an application by the

respondent that its claim remain

m , and be determmed by,

th13 Court. I do not prcpos? to consider whether ther?

jurlsdlstion in the Court to

permit that course to be taken

p if s o , whether it is a course which is proper

3 s a matter

of discretion.

I think that the respondent 1s entitled to

elect the course tn be taken.

It commenced proceedings in the

Supreme Colurt of Victoria and they were stayed Only because of the application brouqht In this Court. If the respondent

wishes to have its

claim dealt with in the Supreme Court

Tllctoria. assuming that that court has jurisdiction

-- a

matter about which	I make no comment	-- then that is a matter
for It.

It will, of course, be open to the present applicant

to raise by way

of defence and/or cross

claim any natter of

contract which is open to it in answer to that claim.

The respondent seeks an order for payrnen~ by the

sppllcant of its costs In this Court. I am 3f the gpinion

that such an order should be made.

The respondent seeks that

in respect of part of the work that has been

done, namely, all

work d m e in relation to an analysis of each of

3.11 the

particulars of the applicant's claim furnished by the

applicant to	l k , the costs be taxed an	a solicitor and client
basis.

I appreclate that a considerable amount of work was

lnvolved in this task, but

I do not know of any reason which

:muld justlfy me making

a sperial order for taxation on

solicitor/client basis. It yill be for the taxinq master tc quantify the work and to allow costs in accordance with the proper scale.

Cclunzel for the respondent has

also smuht a special

nrder in regard to counsel's fees, pointing ou t that the

preparatlon of the arTument toda~r has involved

a considerable

11.

amount of tlme In relation to the jurlsdictlon of the Court.

I do not think that it is proper for me to make any order

31ve any direction, but

I will simply note for the benefit of

the taxing master that counsel for the respondent did come to

Court ready to argue in some detall the extent of the

sncilliary jurisdiction of the Court and in my

vlew, it was

proper for him to prepare such

an argument.

The orders that I make are:

!l)	The Application be dismissed:
( 2 )	The Cross Clalm be dismissed;

( 3 ) Rescind the order made by me on

1 March l985

whereby it was ordered that the proceedings entitled Lefkas Poultry Pty Limited v Russell Hockhlng, number

107 of 1985, in the Supreme Court	of Victorla be
stayed;

(4) Th? applicant pay to the respondent its c o s t 5 of

the proceedings, including the costs of this motlon.

For the avoidance

of any doubt

or even argument on

the questlon, I make it c lear t’lat the dizmlssal

of both the

Appllcatlon ani the Cross Claim is withcut prejudlce

to the

entltlement of the applicant and the respondent respectivelg

to bring or to maintain such oth?r cr further

proceedings as

he o r it resFectively ma:r

desire to brinq In relation to

the

claims the subject	of the Applicstinn and the	CKOSS Cl3im
respectively.

1 2 .

I certify that the eleven !11)

precedmg pages are a true copy of the Reasons for Judument herein of his Honour Mr. Justlce Wilcox.

Assoclate:

Date :

29 August IS85

Counsel for	the	applicant:	Mr C E m t t with
Mr A J J Renshaw

Solicitors fr?r the applicant:	Messrs Newman S	Assoclatcs	i
Counsel for the respondent:	Mr D H Hill

Solicitors for the respondent:

Messrs S l y C Russell

Pat?.!s) of hearins:

15 August

1 4 P 5

[1985] FCA 425

15 Aug 1985