Pyropanel Developments Pty Ltd v Adelaide Fire Doors Pty Ltd

[1994] FCA 611

611 J 99

JUDGMENT NO. .n..nn*ur a m w w a m

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION ) No:G394 of 1994

PYR0PANF.L mVFVFLOPMENTS PTY

LIMITWACN 005 2l.LUI

First Applicant 1

AUSCO FIRESTOP PTY L1Mm.D

1-

Second Applicant

ADELAIDE FIRE DOORS PTY J . I m
UCN 053 179 016)
First Respondent

ALLIED FIRE PROTECTION SYSTEMS
(AUSTRALIA) PTY J .IMITED
Second Respondent

GARY SOMERVILLE
Third Respondent

JANE ADELE ROBERTSON

FEDERU COURT OF

CRINCIPAL	Fourth Respondent
PAUL ROBERTSON Fifth Respondent

Coram:	Lindgren J
Place:	Sydney
Date:	17 August 1994

and the amended Notice of Mot~on filed in court on 17 August 1994 be dismissed,

with each party bearing its own costs.

DIRECTS the respondents to make any request for further and better particulars

on or before 5 September 1994.

MINUTE OF ORDERS

THE COURT:

1.        DIRECTS the applicants to file and serve an amended Statement of Claim on or before 22 August 1994.

1. ORDERS that the Notice of Motion filed by the respondents on 10 August 1994

-	D	the applicants to respond to that request on or before 19 September
1994.

p.IRECT$ the respondents to file and serve thelr defences and or respective

cross-claims on or before 4 October 1994.

DIRECT$ the applicants to file and serve Replles (if any) on or before 11

October 1994.

DIRECT$ the applicants to file and serve their defence to the Cross-Clalm on or

before 18 October 1994.

RIRECXS the partles to file and serve verlfied l~sts	of documents on or before 1
November 1994.
U E C T S the partles to inspect d~scovered	documents on or before 8 November
1994.

0RDF.Q that the proceedings stand over for directions at 9.30 am on 15

November 1994.

WE:  Settlement and entry of orders is dealt wlth in Order 36 of the Federal
Court Rules

IN THE FEDERAL COURT OF AUSTRALIA	I
NEW SOUTH WALES DISTRICT REGISTRY	1
GENERAL DIVISION	) No:G394 of 1994

PYROPANF,L DF.VEr .OPMENTS PTY

ED (ACN 005 211 147)

Flrst Applicant

AUSCO FIRESTOP PTY LIMITED
(ACN 057 078 592)

Second Apphcant

ADELAIDE FIRE DOORS PTY L I M m
(ACN 053 179 016)

First Respondent

P	N	SYSTF.MS
(AUSTRALIA) PTY LIM- Second Respondent

GARY SOMERVLI &

Third Respondent

JANE ADFLE ROBERTSON

Fourth Respondent

PAUL ROBERTSON

Fifth Respondent

Coram:	Lindgren J
Place:	Sydney
Date:	17 August 1994  REASONS FOR JUDGMENT

Before the Court today there 1s a motlon whlch was brought on by notice of motion bearing date 5 August 1994 but filed on 10 August 1994 by the respondents seeking an order that the appl~cat~on filed on 28 June 1994 be d~smissed and seeking an order that

the applicants pay the costs of the respondents ~nc~dental	to the application itself and to
the motion.

There was filed in Court an amended notlce of motlon seeking, in the alternative to an

order that the substantive application filed on 28 June be damissed, an order that the Statement of Claim be struck out on various bases, namely that it fails to disclose a reasonable cause of action, that it has a tendency to cause prejudice, embarrassment or delay in the proceeding, andlor that it is an abuse of the process of the Court. That amended notice of motion was filed in Court today although it bears date 15 August

- 1994.

The matter has had an unfortunate history. It 1s unfortunate that it is necessary now that although the parties have resolved the motlon question, 1 have to determine the question of costs. On the hearing today, MS D. Skennar of counsel appears for the respondents in the proceedings, that is the applicants on the motion, and Mr M. Ellicott of counsel appears for the applicants m the proceedings, that is the respondents on the motion.

The proceedings were last before the Court on 18 July 1994 when they were before his Honour Mr Justlce Davies. One direction whlch was made on that occasion was that the applicants file and serve a Statement of Claim on or before 1 August 1994. That direction was not complled with Insofar as time is concerned. A draft of a proposed Statement of Claim was supplled on 8 August 1994. There followed correspondence in relation to the form of the proposed Statement of Clalm. The correspondence is annexed to an affidavit of Yves Raphael Hazan sworn 16 August 1994 and filed m the

proceedings.	I will not deal with every Item of correspondence in detail.
complained about the content of the draft Statement of Claim and said, lnter alia, that	In summary, on 8 August 1994, the sollcltors for the respondents m the proceedings
it did not dlsclose a cause of actlon on its face. By letter dated 10 August 1994, the solicitors for the applicants in the proceedings asked for particulars of the respondents' sohcitors' complaint that the proposed Statement of Clalm was "crude" and "deficient". It was on 10 August 1994, that the orlg~nal notlce of motion was filed. On 10 August 1994, again the solicitors for the respondents in the proceedings replied to the effect that they wshed to clarify any misapprehension whlch may have arisen with respect
to the notlce of motlon. The letter contained the following paragraph.

Please note that the Notice of Motion relates to the fact that your client has failed to lodge a Statement of Claim to date, despite the Federal Court's direction to lodge the same on or before the 1st of August 1994. It is not proposed to challenge the contents of the drafr Statement of Claim at this hearing.

- The -respondents' solicitors went on to say that it was not the usual ~ractice for a

respondent to advlse an applicant as to the contents of the applicant's Statement of Claim. While I agree with that comment as a generalisation and m so far as it may be intended to convey the idea that it is not incumbent on one party to litigation to safeguard the interests of the other party in the way in which that party's own legal advisers are obliged to do, yet in terms of frank and open exchanges between the legal representatives of the parties, and in terms of consequences for costs, it can be significant that one party does not inform the other of a point of criticism which is to be made of a pleading.

On 12 August 1994, the respondents' solicitors wrote advising the applicants' solicitors that it was proposed to amend the notice of motion to include a request for an order that the Statement of Claim be struck out because it failed to disclose a reasonable cause of action. Thus, by this letter, it was made clear that the respondents were reverting to the position that the complaint was one of pleading and not merely one of untimeliness.

By letter dated 12 August 1994, the solicitors for the applicantswrote to the solicitors for

the respondents enclosing a form of Statement of Claim settled by counsel whlch	included certain amendments. However, those amendments d ~ d not go to matters which
have been urged this morning as remaining defects in the pleading. The two criticisms which are stlll made of the pleading are that, first, it does not plead that the conduct complained of as having been engaged in by the respondents was engaged in "in trade or commerce", and, secondly, that the pleading does not plead a cause of action against the fourth and fifth respondents.
I agree that the pleading is defectlve for not referring to "trade or commerce", and I
think that Mr Ellicott accepts that the pleading should be amended, at least in that respect. This shortcoming is not a matter of great significance in the present context.

It would seem extraordinary that a respondent, belng aware of the omlsslon of the words "in trade or commerce" could decllne to inform the applicant of thls and succeed in recovering costs, essentially because it took some tlme for the applicant to discover its oversight.

-	In elation to the second of the two crfllcrsms made of the document, the positlon 1s not so clear. By paragraph 5 of the form of amended Statement of Cla~m, it a pleaded that
a certain document was published by the first respondent and distnbuted by each of the
,-and that by that "the respondents" (in the plural) and gach of them, has
made certaln representatlons. It 1s then pleaded in paragraph 6 that the second to fifth respondents made certaln representatrons, and in paragraph 7 it 1s pleaded that each of the representations referred to in paragraphs 5 and 6 have at all tlmes been false. Although there is no doubt that the pleadlng could be more clearly framed, it does seem to me that a cause of actlon agalnst the fourth and fifth respondents is pleaded. Of course, whether that is the partlcular cause of action whlch ultimately the pleader will wish to press on the hearlng and whether the evldence will support that cause of action is another matter.
MS Skennar makes a further point, namely, that paragraph 8 of the form of Statement of Claim refers back only to paragraphs 5 and 6 as constituting mlsleadlng and deceptive conduct and does not refer as well to paragraph 7. Thls is a valid criticism, although it seems to have come late in the day.
apparently been agreed between the partles that the motlon should, by consent, be All things considered, and havlng regard to the course of correspondence, whilst it has
dismissed and that a timetable to be handed up be d~rected, I do not think it is a proper matter in which it ought to be ordered that the respondents on the motlon pay the costs of the applicants on the motlon. It seems to me that the proper exerclse of the Court's discretion, hav~ng regard in partlcular to the course of correspondence and to the matters that I have referred to in relation to the pleadlng, IS that each party bear its own costs of the amended motlon, and I so order.
I make orders and directions in accordance wth paragraphs 1 to 10 inclusive of the handwritten document handed up and lnltlalled by me and dated today. I order, in accordance with paragraph 10 of that document, that the proceedings be stood over until 9.30 am on 15 November 1994 before me for further directions. I grant leave to the solicitors for the appl~cants to uplift the handwritten document on their undertaking to

- return that to my associate with a typewritten transcription.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren

Dated: s-.&Jd~ 17%

nSiWd:	17 August 1994
0a.S	Sydney

m: 17 August 1994

ALuEWWS:	Mr M.R.J. Ell~cott of counsel, instructed by Palombi Hazan appeared for the Appllcant, Respondent on the motlon.
MS D.A. Skennar of counsel, instructed by Tnscott and Assoc~ates appeared for the Respondent, Appllcant on the motion.