Public Transport Corporation v Bus Proprietors Association (Vic) Inc
[1990] FCA 146
•29 Mar 1990
JUDGMENT NO. .. 1 4-6 I .?.Q.....
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) NO VG 193 of 1989 ) GENERAL DIVISION )
BETWEEN: PUBLIC TRANSPORT CORPORATION
(Applicant)
AND : BUS PROPRIETORS' ASSOCIATION
(VIC.) INC. & ORS.(Respondents)
Judge Making 0rder:Ryan J
Date of Order: 29 March 1990
RETIVED
Where Made: Melbourne 18 APR 1990
FEDERAL COURT OF
AUSTRALIA PRINCIPAL
MINUTES OF ORDER REGlSRY
THE COURT ORDERS:
1. That the respondents within 28 days from 29 #arch 1990:
(a)
provide further and better particulars of paragraph 23(b) of their Defence and Cross-claim particularising any overt acts or statements done or made by or on behalf of the applicant which are relied on to show that the applicant did not intend to consider tenders on their merits, but intended to consider them with a predetermination to award contracts or routes to persons other than the bus proprietors who presently operated bus services over the routes tendered for;
(b)
provide further and better particulars of paragraph 35(a) of their defence and cross-claim specifying as to the verbal resolution and agreement alleged therein each person who participated in each conversation constituting the same and stating the substance of each such conversation;
(C) provide the further and better particulars of paragraph 138 of their defence and cross-claim
which have been requested by the applicant.
2. The costs of this day, insofar as they are referable to the directions hearing, and the relief which is sought by paragraphs 1, 3 and 4 of the notice of motion dated 23 warch 1990, be reserved.
That the applicant and the respondents respectively bear its and their own costs referable to the relief sought by paragraph 2 of the said notice of motion.
That the directions hearing herein be adjourned to 17 May 1990.
NOTE: Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
1
VICTORIA DISTRICT REGISTRY ) NO VG 193 of 1989 ) GENERAL DIVISION )
BETWEEN: PUBLIC TRANSPORT CORPORATION
(Applicant)
AND : BUS PROPRIETORS' ASSOCIATION
(VIC.) INC. & ORS(Respondents)
Coram: Ryan J
Date: 29 March 1990
Place: Melbourne
EX TEMPORE REASONS FOR JUDGMENT
BY notice of motion dated 23 March 1990, the applicant seeks, amongst others, an order that:
"The respondents deliver within seven days further and better particulars of paragraphs 23(b) and 35, 129, 132, 134, 135, 136, 138 and 142 of the defence and cross-claim dated 9 February 1990."
By paragraph 23(b) of the defence and cross-claim it is
pleaded that:
"Further, they (the respondents) deny that the processes, whereby the Applicant called for expressions of interest in October 1987 (referred to in paragraph 16 thereof) and the process whereby the Applicant called for tenders in February 1988 (referred to in paragraph 20 thereof) were, or were intended to be, competitive.
PARTICULARS
The Appllcant did not intend to consider expressions of interest received by it and tenders received by it on thelr merits, but rather intended to consider them with a pre- determination to award contracts for routes to persons other than the bus proprietors who presently operated bus services over those
routes. "
On 23 February 1990, the applicant made this request for further and better particulars of paragraph 23(b) of the defence and cross-claim:
"(a) State each and every act, fact, matter, circumstance or thing relied on in support of the allegation that the processes therein referred to -
(i) were not;
(ii) were not intended to be,competitive;
(b)
state whether it is alleged that the applicant gave expression to the intention alleged in the first paragraph of the particulars and, if so, give the usual particulars of each such expression of intention;"
That request was met with this response from the
respondents:
"(a) The Applicant did not intend to consider expressions of interest and tenders received by it on their merits, but, rather, intended to consider them with a pre-determination to award contracts for routes to persons other than the bus proprietors who presently operated bus services over those routes. By doing so, the Appllcant intended to displace operators from their existing routes, in the hope that such operators would then be forced to bid for the routes of other operators. By doing so, the Applicant intended and hoped to create what was
described by Hr. Justice OrBrvan of the Su~reme - Court of victoria, in Waverley Transit pty.-~td. v. Metropolitan Transit Authority (unreported, 2 June 1988), as a 'muslcal chalrsl situation.
(b)
The Applicant is not entitled to the particulars sought. The request for particulars is too wide, vague, oppressive, fishing and irrelevant."
M r.raxwel1, who appeared for the applicant on the motion, pointed to 0.12 r.3 of the Rules of this Court which stipulates that:
"(l) A party pleading any condition of mind
shall give particulars of the facts on which he
relies.
(2) In sub-rule (1) 'condition of mindr includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge."
Mr Maxwell also referred, in seeking to establish the insufficiency of the particulars of paragraph 23(b), to Feeney v Rix [l9681 3 All E.R. 22 where the Court of Appeal dismissed an appeal from an order for further particulars of a plea that the plaintiff never intended that any contribution by him to a joint account should be a gift.
His Lordship, Cross J., at first instance, had ordered:
"Further and better particulars particularising any overt acts of the plaintiff and any other acts relied upon to show that the contributions (if any) of the plaintiff when made by the plaintiff (if at all) were made with no intention of being made as a gift to the defendant."
That order was upheld on the basis that the plea regarding intention was not a mere negative but was in substance a positive allegation. Similarly, I regard the allegations in 23(b), as they have been particularised, as a positive assertion that the tender processes were not competitive because of a condition of mind of the applicant, namely its intention in setting those processes in motion.
Mr Kaye, who appeared for the respondents on the motion, sought to distinguish Feeney v Rix on the basis that it was there necessary for the plaintiff to prove a communicated intention not to make a gift in order to make out his case of a resulting trust. However, the respondents here having elected to make a positive assertion about the condition of mind of the applicant, can be required to give particulars of any overt act or statements done or made by or on behalf of the applicant which are relied on to show that the applicant did not intend to consider tenders on their merits, but intended to consider them with a predetermination to award contracts or routes to persons other than the bus proprietors who presently operated bus services over the routes tendered for.
Mr Kaye made a cricitism with considerable force that a request for particulars of every expression of intention is
too wide. However, in my view, particulars in the form which I have just indicated would not be as wide as that. Moreover, they would not require the respondents to indicate the evidence by which they propose to prove the existence of the intention which they assert but would outline to the applicant the case which it has to meet on this issue. I therefore make an order in that more limited form for further and better particulars of paragraph 23(b) of the defence and cross-claim.
BY paragraph 35(a) of the defence and cross-claim it is
pleaded:
"(a) They admit that on or about 8 June, 1989 the members of the BPA who operated metropolitan route bus services resolved and agreed that from midnight on 12 June, 1989 each such bus proprietor would either-
(i) no longer provide bus services to the public;
(ii) continue to provide bus services over the routes then operated by them, but charging their own fares for the service; or
(iii)continue to provide services on the basis of the provisions of the contract of 1 July, 1986 between such bus proprietor and the Applicant;
according to the decision of the individual
bus route operator;"
The respondents were asked in respect of that paragraph
to:
"(a) Give the usual particulars of -
(i) the resolution;
(ii) the agreement, referred to in sub-paragraph (a) thereof;"
In response to that request the respondents have indicated that:
"(a) The resolution and agreement was verbal. It was made at a meeting of the BPA at Transport House, 592 City Road, South Melbourne on 8 June, 1989."
In sub-paragraph (b) of that response there is set out a list of some thirty-seven bus proprietors, most of which are proprietary limited companies.
I consider that if, as seems inherently unlikely, it is intended to convey by the further and better particulars that the resolution and agreement between all of those proprietors was constituted by a conversation in which representatives of each of them participated, the particulars should identify each person who participated in that conversation and the substance of what was said. I therefore order that the respondents provide the further and better particulars which have been sought of the resolution and agreement referred to in paragraph 35 of their defence and cross-claim.
BY paragraph 129(b) of the defence and cross-claim it
is pleaded:
"b) Further, if the Applicant has suffered loss and damage (which is denied), the Respondents will seek to set off against any such loss and damage the loss and damages claimed by them in the cross-claim herein in extinction or alternatively dimimution of any claim against them by the Applicant for such loss and damage."
It was contended by Mr Maxwell that, since a right to set off is only available in certain circumstances, it should be made to appear from particulars to that pleading what the circumstances are on which the respondents rely as giving rise to a set off. In my view, the circumstances relied on sufficiently appear from the issues raised elsewhere in the pleadings. In saying that, of course, I say nothing as to whether those circumstances are sufficient in law to give rise to a set off.
Whether particulars should be ordered depends on "the good sense of the thing", to use the expression adopted in American Flange v Rheem Australia Pty Limited 119631 NSWR 1121 at 1126. Having regard to my view that the circumstances relied on sufficiently appear from what emerges from the rest of the pleadings, I decline to order further and better particulars of paragraph 129(b) of the defence and cross- claim.
By paragraph 132 of the defence and cross-claim it is
pleaded:
"Between !lay and June 1989 the first Cross- Applicant ("the BPA"), on behalf of the bus proprietors, entered into negotiations with the Cross-Respondent ("the PTC") in respect of contracts to be entered into by the bus proprietors and the PTC for the future provision of bus services by the bus proprietors to the public in the Melbourne and metropolitan areas."
The applicant sought the usual particulars of the
negotiations therein referred to and was supplied with this
response :
"The negotiations referred to in paragraph 132 of the cross-claim took place during several meetings between representatives of the bus proprietors and the BPA and representatives of the PTC during the months of May and June, 1989 including the following:-"
Then followed particulars of a meeting on 8 May 1989, some correspondence, a meeting on 10 Itay 1989, some further corrspondence, two further meetings on 17 May 1989 and 26 Nay 1989, a draft industry agreement, a draft industry package, further meetings on 31 May 1989, and two meetings on 1 June 1989.
The complaint is made on behalf of the applicant that those particulars are not said to be exhaustive of the negotiations but simply indicate that the negotiations occurred at meetings, including those set out in the body of the particulars. Mr Kaye, on behalf of the respondents, has indicated that, if the applicant is apprehensive that some other meetlngs or other correspondence other than those set out in the particulars provided might be raised against it, then he could obtain instructions to delete the word "including" from the prefactory words of the further and better particulars already provided of paragraph 132.
Mr Maxwell, in reply, indicated that such an amendment would alleviate the concern which prompted his application
for further and better particulars of those already provided
to paragraph 132. In the circumstances, having regard to the indication given by Mr Kaye, I decline to order further and better particulars of paragraph 132.
By paragraph 134 of the defence and cross-claim it is pleaded, after a plea in paragraph 133 of two representations, that:
"The PTC made the aforesaid representations and undertakings with the Intention that the bus proprietors would rely thereon."
particulars were sought by requiring the respondents
to:
"(a) State each and every act, fact, matter, circumstance or thing relied on to support the allegation that the PTC made the representations and undertakings therein referred to with the intention that the bus proprietors would rely thereon;
(b) State whether it is alleged that the PTC gave expression to the alleged intention and if so, give the usual particulars of each such expression of intention."
In my view, the allegation of the existence of an intention in paragraph 134 is different in character from that asserted in paragraph 23(b) of the defence, which I have already discussed. I consider, in the context in which it appears, that paragraph 134 is mere surplusage or a pleaderrs flourish, and, having regard as well to what has already been said about the width of a request for particulars of "every expression" given to an alleged intention, I decline to order the further and better particulars which have been sought of
paragraph 134.
By paragraph 135 of the cross-claim, it i s pleaded:
"The bus proprietors and each of them relied on the said representations and undertakings and acted on the faith thereof and were induced thereby -
(a)
to continue further negotiations with the PTC in respect of the said seven year contract;
(b)
in the course of the said negotiations to make and offer significant concessions to the PTC."
Further and better particulars were sought of that paragraph requiring the respondents to:
"(a) State in respect of each bus proprietor therein referred to each and every act, fact, matter, circumstance or thing relied on to support the allegation that each bus proprietor -
(i) relied on the alleged representations and undertakings;
(ii) acted on the faith thereof;
(iii)was induced thereby to act as therein alleged;"
Particulars provided of paragraph 135 are:
"(a) All of the bus proprietors (who were members of the BPA) through their representatives in the negotiations Kevin Norris and Peter Stawell relied on the representations and undertakings acted on the faith thereof and were induced to act as alleged in paragraph " - F
(b) The further negotiations include those
* . referred to in the particulars to paragraph (C) The concessions were oral concessions made by Kevin Norris on behalf of the bus proprietors during the course of negotiations referred to in paragraph 11. The concessions concerned tIetlink, the question of Quince, tendering of
new services and productivity."
Insofar as those further and better particulars are said to be infected by the vice which arises from the use of the word "include" in sub-paragraph (b), I consider that their apparent insufficiency vrould be cured by the indication already given by Mr Kaye in respect of the other inclusive reference to negotiations. Accordingly, I decline to order further and better particulars of paragraph 135.
paragraph 136 of the defence and cross-claim alleges
that the representations referred to in paragraph 133 were:
"false, untrue and misleading in that -
(a) the PTC did not, at the time of making such representations, intend that the said contracts would contain a provision whereby, at the conclusion of the seven year period, the bus proprietors would have such right of first refusal; (b) further or alternatively the PTC, at the time of making such representations, did not have any reasonable grounds for making such representations. "
Further particulars were sought of that paragraph requesting the respondents to:
"(a) State each and every act, fact, matter, circumstance or thing relied on to support the allegation that the PTC did not intend that the contracts referred to would contain a provision of the kind referred to in sub- paragraph (a).
(b)
State each and every act, fact, matter, circumstance or thing relied on to support the allegation in sub-paragraph (b) that the PTC did not have any reasonable grounds for making the alleged representations."
These further and better particulars were collectively provided in response to the two parts of that request:
"(a) and (b). In negotiating with the bus proprietors, the PTC took direction and instruction from the Minister of Transport. The fact is that the PTC and the Mlnister for Transport, Mr. J. Kennan, did not have any, or any genuine, intention that the contracts would contain a provision whereby, at the conclusion of the seven year period, the bus proprietors would have a right of first refusal. Further or alternatively, before making the said representations to the bus proprietors, the PTC had not made any or any proper enquiry of the said Minister to ascertain whether the said Minister did have such an intention. Accordingly, the PTC did not have any or any proper basis upon which to make such representations to the bus proprietors."
I consider that assertion of intention also to be different in kind from that in paragraph 23(b) of the defence and cross-claim, and because I consider that the basis of the assertion of lack of the requisite intention emerges sufficiently from the existing pleadings as supplemented by the further and better particulars already given, I decline to order the further and better particulars which the applicant seeks of paragraph 136.
Paragraph 138 of the defence and cross-claim is an
allegation that:
"In consequence of the matters aforesaid the bus proprietors have each suffered loss and damage. The bus proprietors will contend at the trial of the action that they are entitled to claim exemplary damages."
Particulars are given directed to the issue of exemplary damages but the applicant has requested full particulars in relation to each bus proprietor of the loss and damage
Kaye, on behalf of the respondents, does not dispute the alleged to have been suffered by that bus proprietor. Plr entitlement of the applicant to those further and better particulars, but has indicated that some considerable time would be necessary to obtain particulars which will vary according to the circumstances of each of the thirty-seven or so bus proprietors. I therefore propose to order the provision of further and better particulars of paragraph 138 and I shall hear counsel on the appropriate order specifying time for the giving of those particulars.
Paragraph 142 of the defence and cross-claim also contains a plea of intention in these terms:
"The PTC made the aforesaid representations with the intention that the bus proprietors would rely thereon."
That plea is indistinguishable in form from that contained in paragraph 134 and, for the reasons indicated in respect to that paragraph, I decline to order the further and better particulars which have been sought of paragraph 142.
The costs of this day, insofar as they are referable to the directions hearing, and the relief that is sought in paragraphs 1, 3 and 4 of the motion of notice dated 23 March 1990, will be reserved. Secondly, I order that each party bear its or their own costs in respect of the relief sought by paragraph 2 of the said notice of motion.
I adjourn the directions hearing in this matter to 17
May 1990.
I certify that this and the preceding
twelve (12) pages are a true copy of
the Reasons for Judgment of HisHonour Mr Justice Ryan.
Associate
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