Puntukurnu Aboriginal Medical Service Aboriginal Corporation v Red Dirt Communications Pty Ltd
[2019] WADC 101
•23 JULY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: PUNTUKURNU ABORIGINAL MEDICAL SERVICE ABORIGINAL CORPORATION -v- RED DIRT COMMUNICATIONS PTY LTD [2019] WADC 101
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 15 JULY 2019
DELIVERED : 23 JULY 2019
FILE NO/S: CIV 4774 of 2018
BETWEEN: PUNTUKURNU ABORIGINAL MEDICAL SERVICE ABORIGINAL CORPORATION
Plaintiff
AND
RED DIRT COMMUNICATIONS PTY LTD
First Defendant
RN TELECOMMUNICATIONS PTY LTD
Second Defendant
DANIEL MILLS
Third Defendant
Catchwords:
Circumstances in which springing order can be made
Legislation:
Nil
Result:
Further and better particulars of defence ordered
Representation:
Counsel:
| Plaintiff | : | Mr M McKenna |
| First Defendant | : | Mr A Lynn |
| Second Defendant | : | Mr A Lynn |
| Third Defendant | : | Mr A Lynn |
Solicitors:
| Plaintiff | : | Gilbert & Tobin |
| First Defendant | : | Andrew Lynn Lawyers |
| Second Defendant | : | Andrew Lynn Lawyers |
| Third Defendant | : | Andrew Lynn Lawyers |
Case(s) referred to in decision(s):
Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179
Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203
PRINCIPAL REGISTRAR MELVILLE:
This is the plaintiff's chamber summons for judgment against the defendants in the event of any further non‑compliance with orders that they provide further and better particulars of allegations made in their defence (the springing order).
The plaintiff commenced proceedings for damages arising out of a contract with the first and second defendants of whom the third defendant is the sole director. The plaintiff's case is that on 28 June 2017 a contract was entered into whereby the first and second defendants were to construct four towers at Newman, Jimlebar, Murrumunda, and Jigalong and supply an internet link to the Jigalong community at a speed of 100/100 Megabits per second (Mbps). The plaintiff alleges the first and second defendants failed to construct the necessary structure and failed to install infrastructure that would provide the necessary speed, it providing only 65/65 Mbps. The plaintiff alleges that the defendants made false representations as to the speed of the service and the quality of the infrastructure, and provided goods that were not fit for purpose.
The defendants filed their defence on 22 February 2019. The defence pleaded what appears to be a number of irrelevancies and a quantity of evidence, all of which has caused confusion, delay, expense and prompted a request for extensive, and in the end some unnecessary, further and better particulars. The defendants then filed an amended defence on 18 June 2019 and provided more particulars by way of a letter dated 4 July 2019 addressed to the plaintiff's solicitors, which letter has been produced before me.
Between the defence, amended defence and the submissions made by the defendants at the hearing of the plaintiff's application on 15 July 2019 it became clear that the defence was that the contract was entered into on 27 June 2017, that what was provided was in compliance with the contractual requirements, and that the reason the plaintiff is unable to obtain the necessary internet speeds is because the plaintiff, and not the defendants, is required to connect its hardware to the internet service and either has not done so or not done it correctly. However, the amended defence does not clearly plead the date of the contract and it will need to be further amended to do so.
As a result of pars 5A ‑ 9 of the amended defence being struck out on the basis they do not form part of the material facts of the defence, and the statement by the defendants' counsel that they say that the contract was entered into on 27 July 2017, a number of the requests for further and better particulars have now been rendered redundant. However the plaintiff contends that other requests still need to be answered, the purported answers to them are no answers at all, the failure to properly answer them is contumelious and that a springing order should be made. The requests that the plaintiff pursues are requests numbered 4, 8, 9, 10, 12(c), 15, 16, 17, 20, 21, 22 and 23. The other requests fell away due to the amendments made to the defence and the advice of defendants' counsel that the offer was made 20 March 2017 and accepted on about 27 June 2017 (ts 11, ts 13, ts 14, ts 15 and ts 21).
The background to the application
The writ issued on 19 December 2018. On 8 March 2019 orders were made that the parties serve any requests for further and better particulars by 15 March 2019 and provide those particulars by 29 March 2019. Whilst the plaintiff served the request for further and better particulars, the defendant did not provide the answers.
On 5 April 2019 orders were made extending the time for compliance by the defendants to 12 April 2019. The defendants did not comply.
On 26 April 2019 orders were made further extending the time for compliance by the defendant to 10 May 2019. The defendant did not comply.
On 15 May 2019 the plaintiff brought this chamber summons for the springing order. The application came on for hearing at a special appointment on 11 June 2019 at which time the defendants were ordered to file and serve an amended defence by 17 June 2019 and to file further and better particulars by 24 June 2019. The summons was adjourned to facilitate compliance with these orders and to review the position following the amendments and the provision of particulars. The defendants filed an amended defence on 18 June 2019 and filed their further and better particulars on 4 July 2019.
In light of the amended defence and concessions made by the defendants' counsel at the hearing of this application, the issues now appear to be:
1.what was the Internet upload and download speed that was delivered;
2.what is the quality of the infrastructure that was provided;
3.were the goods that were provided fit for the purpose for which they were to be provided;
4.whether the plaintiff has connected its hardware (whatever exactly is meant by that) to the service provided by the defendant (whatever is exactly meant by that); and
5.whether the terms of the contract required the defendant to connect the plaintiff's hardware to the service or whether that was beyond the scope of the contract.
It is apparent, and in my opinion understandably so, that the plaintiff wants to know more particularly what was the equipment used by the defendants in purported compliance with the contractual requirements. It seems clear to me that the purpose of these particulars is to enable it to take steps to ascertain whether the equipment was capable of providing or does in fact provide the necessary 100/100 Mbps and whether the alleged failure by the plaintiff to connect to the internet service is as a result of the equipment provided by the defendants or a failure or deficiency on the part of the plaintiff.
The application is supported by an affidavit of Ms A Tolӗ who annexes what the plaintiff says is the contract, including the 'network design'. The defendants have filed an affidavit of Mr D Mills who has also annexed the same documentation. It now seems common ground this documentation is the contractual documentation relevant to this action. The 'network design' contains some technical data relating to the network. I make this observation now, not because it is necessarily relevant to whether there has been adequate provision of further and better particulars, but whether any failure to provide adequate further and better particulars should be regarded as contumelious or warrant the making of a springing order.
Have the defendants complied with the order to provide further and better particulars?
It is not always easy to decide whether an order of the court has been complied with or not. The difficulty is well illustrated in Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203 where the court was required to decide whether the applicant had complied with an order regarding the filing of the applicant's evidence, the consequence being that if there was non‑compliance with the order the application could stand dismissed. French J said [102]:
The summary dismissal of a proceeding for non-compliance with directions is a drastic measure, particularly where, as in this case, it would raise the real possibility that a cause of action relied upon would thereafter be statute barred - see s 82 Trade Practices Act 1974 (Cth). Where compliance requires, as in this case, filing of the applicant's evidence, the failure to file anything at all would have the clear consequence that the application would stand dismissed. Where the evidence filed could be characterised as so incomplete in material respects as to be a derisory or colourable compliance then again there would be little difficulty in concluding that the self‑executing order had not been complied with and that the application stood dismissed.
The Court of Appeal in Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179 in addressing circumstances in which bringing orders might be made at [35] endorsed those comments of French J.
The Court of Appeal went on to discuss the considerations that might be taken into account in deciding whether or not to make a springing order. At [41] ‑ [49] the Court of Appeal observed that devising and applying appropriate sanctions for non‑compliance with orders is a major problem facing case managers and that an innocent party is entitled to expect that the court will act to support the integrity of its processes where another party is in default. On the other hand the entry of judgment prior to trial without regard to the merits of the case is generally speaking the antithesis of justice. Because of the potential for injustice, a springing order should only be made when the party in default has shown a contumelious disregard for compliance with the orders and when there is no other less severe sufficient and appropriate sanction available which would unable the court to determine the matter in a way which was procedurally fair to the parties and give them sufficient opportunity to present their cases.
The issue in this application before me is whether the defendants' further and better particulars of defence filed 4 July 2019 in purported compliance with the plaintiff's request can be characterised as derisory or colourful compliance or whether some of the answers therein can be characterised as derisory or colourful compliance.
Request 4
By this request the plaintiff seeks full particulars of the written 'proposal' pleaded in par 9 of the defence. Whilst par 9 has been deleted it has been replicated by the insertion of par 9C. In answer to this request the defendants say they submitted a proposal dated 14 March 2017. In my opinion this is not a proper answer and can be regarded as somewhat derisory in nature. However given the amendments to the defence, the concessions made by way of submissions and the fact that each party has in its possession, and has annexed to their affidavits a copy of the proposal and the network design, it is my view no further answer is required.
Request 8
By this request the plaintiff seeks particulars of any proposal other than the one referred to in par 12 (which was deleted by the amended defence) and whether it is in writing or oral. Again, in my opinion it is now clear which is the proposal in issue in these proceedings, namely the proposal dated 14 March 2017, and it is unnecessary for any further particulars to be provided.
Request 9
For the same reasons given in respect to request number 8 I consider it unnecessary for any further particulars to be provided.
Request 10
The defendants purport to answer this request by reference to answers given to request number 7. In my opinion cross‑referencing is not a proper way to answer particulars and the defendant should be required to file and serve further and better answers. In my opinion it is not appropriate to require the court and any other reader to search through multiple pages of questions and answers like some game of hide and seek, especially in this age of word processing where earlier answers can be copied and pasted in immediate answer to the request.
Request 12(c)
By this request the plaintiff seeks details of the role or relationship the recipient of an email had to the defendants. No answer is provided.
Request 15
By this request the plaintiff seeks particulars as to why the service the defendants say was provided pursuant to the contract was said to be operational. It also seeks particulars as to why it is alleged the plaintiff was unable to connect to the internet service, what precisely is meant by the 'Internet service' and what is meant by the 'scope of works'. In my opinion there is a complete failure to provide those particulars and the purported answers are derisory. The defendant should be ordered to provide answers.
Request 16
By this request the plaintiff seeks particulars of what the first and second defendants say was the 'only representation made', the contract to which the defendants refer when they deny that 'the contract as allege applies' and of the proposal made on 27 June 2017. In light of what now appears to be common ground that it was the proposal of 14 March 2017 made 20 March 2017 and accepted on about 27 June 2017 it is my view no useful purpose is served by requiring the defendants to provide further and better particulars and instead the defendants should be required to amend their defence to reflect this common ground.
Request 17
To large extent this request replicates request 15(b). However it also seeks particulars of the allegation that the plaintiff failed to 'appropriately implement the service'. In my opinion no answer has been provided to this request or, to the extent it has, it is derisory.
Request 20
By this request the plaintiff seeks particulars of the technical specifications and the internet speeds that could be provided by the goods referred to in par 28 of the defence. There the defendants say 'the goods' referred to in par 14, being two Cisco Routers were fit for the internet speeds represented.
By way of answer the defendants refer to the answer given in respect of request 18, the answer being the defendants say that the contract did not provide for the supply of goods, only the provision of a 'carriage service'. In my opinion this answer is derisory. Firstly it is not consistent with the defence that avers goods were provided and secondly it is clear that equipment was not utilised in the provision of the 'carriage service'.
Request 21
By this request the plaintiff again seeks further particulars of the technical specifications of the equipment, the internet speed that it could provide, why it is said the service had been an 'operational' internet service, and how the plaintiff had failed to connect to the internet service and what constituted correct connection. In a context in which the defendants plead it was only required to provide an internet carriage service, the request seems reasonable. In my opinion the answer is either no answer or derisory and the defendant should be ordered to answer it.
Request 22
At par 32 of the defence the defendants say the service supplied to the Western Australian Police Department continues to work as specified (the same service said to be supplied to the plaintiff). The plaintiff seeks particulars of that service, the agreement under which that service was supplied to the Western Australian police and how the service 'continues to work as specified'. Again the answer does not address the request and is derisory.
Request 23
By this request the plaintiff seeks particulars of the date of inception and the nature of the service referred to by the defendants in par 33 of the defence where the defendants allege that the plaintiff failed to pay them the 'monthly service fee as agreed'.
The answer is this; 'the service, if what is meant is the WA police service, was a 100 Mbps Internet carriage service'. In my opinion it is clear that any questions relating to what is meant by use of the word 'service' in the defendants' defence, is not directed to what the plaintiff thinks it means, but what the defendants think it means. Again, there is either no answer to the request or to the extent there is an answer, it is derisory.
Conclusion
In the final analysis I do not consider it necessary for the defendants to answer several requests. Whilst I consider further and better answers should be given to requests 10 and 12C, I do not consider the failure to properly answer those requests justify the making of a springing order. However, I do find the failure to provide proper answers to requests 15, 17, 20, 21, 22 and 23 to be derisory or of colourful compliance and in the context of a history in which there has been repeated failures by the defendants to comply with orders of the court, I consider it appropriate that judgment should be entered for the plaintiff against the defendants unless those answers are provided. I will hear counsel as to how long the defendants should be given.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer23 JULY 2019
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