Queensland Power Tools & Anor v Denning

[1998] QCA 388

COURT OF APPEAL   [1998] QCA 388

McMURDO P
PINCUS JA
JONES J

Appeal No 7951 of 1998

QUEENSLAND POWER TOOLS &
TRADETOOLS PTY LTD  Respondent (Plaintiff)

and

TRACEY ANN DENNING  First Applicant (First Defendant)

and

LEON NEVILLE DENNING  Second Applicant (Second Defendant)

BRISBANE

..DATE 19/10/98

JUDGMENT

THE PRESIDENT:  This is an application for leave to appeal against an order relating to particulars of a plaint issued in the District Court.  The plaintiff sued the defendants for $162,142 and alleged in its pleading that the first defendant stole that sum sharing some or all of the proceedings with the other defendant.  Particulars of the claim were given and they consisted in whole of particulars of the expenditure of the defendants on various matters.

The plaintiff applied for summary judgment and supported that application by an affidavit alleging, among other things that the first defendant was employed for some years by the plaintiff which owns a number of shops and a warehouse, as the office manager of it and was in control of the banking of all incoming moneys. 

For various reasons the directors of the plaintiff it appears suspected the first defendant of theft.  It is said they arranged to have the first defendant filmed during her work and the affidavit says that a police officer saw the first defendant as she was being filmed stealing money.  The affidavit also said that the first defendant admitted to the police having taken about $20,000.

The solicitor for the defendant asked for further particulars of all kinds of matters in the plaint.  The request has not the appearance of being confined to matters which would have been necessary for the defendants to know in order to plead to the allegation made.  To take an example extensive particulars are sought of the allegation that the first defendant was

employed. The request about employment covers some pages although one would be surprised if the fact that she was employed is really in issue. 

A defence was filed which simply put the plaintiff to proof and that was followed by an application for further particulars. The Judge refused to order most of the particulars sought.  In a written submission in support of the application for leave one finds assertions that the claim against the defendants involved serious allegations, which undoubtedly is so, and that the plaintiff relied upon an alleged lavish lifestyle and an alleged shortfall in the takings in the business to support its claim.   It is also said in the submission that no attempt has been made to particularise each alleged banking in terms of the amount of the takings, the signatory on a deposit slip or to exclude the possibility that some other person could have taken the money.

This Court would not ordinarily entertain a complaint about particulars of a District Court pleading unless it were clear that the deficiencies relied on were such as to be likely to cause substantial injustice. One starts with the position referred to above that the request for particulars was in important respects one redolent of vexation rather than a genuine desire to ascertain the nature of the case being brought. 

It appears that the case of the plaintiff is that a large sum of money appears to be missing, that as to a minor part of the sum in question it claims to have some direct evidence of

dishonest conduct and that it will ask the Court to draw an inference against the defendants on the basis that they seem to have spent far more in a relevant period then they could possibly have obtained by honest means. 

Whether a misappropriation case mounted along these lines will ultimately be able to be proved or whether, as the defendants suggest, the plaintiff will succeed in showing no more than suspicious circumstances is not a question which needs to be discussed here.  If the plaintiff subsequently discovers additional facts upon which it intends to rely these must be clearly pleaded where, as here, serious allegations are made against both defendants. 

Looking at the matter in a common sense fashion it is unlikely that in a case of this kind the supposedly defrauded employer would be able to supply precise details of how, when and in what amounts sums of money were taken.  There is, it appears, no outstanding complaint about discovery so one may infer that proper discovery has been given of relevant records of takings and bankings. The obligation of the plaintiff is only to supply such particulars as it is able to supply and as are reasonably necessary to set out the nature of its case and enable the defendants to prepare to meet it. 

The primary Judge, although he gave no reasons for his decision, no doubt thought that no further particulars than were the subject of his order were necessary for these purposes.  It is regrettable that the learned primary Judge did not give at least brief reasons. Parties are entitled to

know why their application in part or in whole is refused.

An application for leave to appeal to an interlocutory judgment will generally be refused unless it appears that the decision from which it is sought to appeal is attended with sufficient doubt to warrant its being reconsidered and also that, supposing the decision below to be wrong, substantial injustice would result if leave were refused Westpac Banking Corporation v. Klef Pty Ltd, unreported, Queensland Court of Appeal 8204 of 1998 judgment delivered 16 October 1998, applying Decor Corporation Pty Ltd v. Dart Industries Incorporated 1991 33 Federal Court Reports 397 at 398 to 400. 
This case is plainly not one warranting the grant of leave to appeal. I would refuse the application.

PINCUS JA:  I agree with the proposed order and with the reasons which have been given. I would add only that I agree with the contention of Mr Bain to the effect that the pleadings of the plaintiff are not in particularly good order, however this Court cannot, and in my view should not, undertake the task of the day to day supervision of pleadings in the District Court.

JONES J:  Yes, I agree with the remarks that fall from the President and His Honour Justice Pincus and I agree with the order proposed.

THE PRESIDENT:  The order is the application for leave to appeal is refused with costs.
  -----