Scarboro Motors Pty Ltd v Zai Consultancy Pty Ltd
[2024] WADC 98
•19 NOVEMBER 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SCARBORO MOTORS PTY LTD -v- ZAI CONSULTANCY PTY LTD [2024] WADC 98
CORAM: PRINCIPAL REGISTRAR MCGIVERN
HEARD: 27 SEPTEMBER 2024
DELIVERED : 19 NOVEMBER 2024
FILE NO/S: CIV 2460 of 2023
BETWEEN: SCARBORO MOTORS PTY LTD
Plaintiff
AND
ZAI CONSULTANCY PTY LTD
Defendant
Catchwords:
Practice and procedure - Pleadings - Application for further and better particulars of amended statement of claim - Considerations relevant to exercise of discretion - Delay - Turns on own facts
Legislation:
District Court of Western Australia Act 1969 (WA), s 87
District Court Rules 2005 (WA), r 6
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 20 r 8, O 20 r 13, O 20 r 19
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | Mr A J C Mossop |
| Defendant | : | Mr W Vogt |
Solicitors:
| Plaintiff | : | Thomson Geer |
| Defendant | : | Vogt Legal |
Case(s) referred to in decision(s):
Ammon v Consolidated Minerals Ltd [2005] WASC 156
Attorney General of Western Australia v President of the Legislative Council of Western Australia [2020] WASC 399
Ave v Palermo [2022] WADC 121
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Bruce v Odhams Press Ltd [1936] 1 KB 697
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361
Frank Jasper Pty Ltd v Deloitte Touche Tohmatsu (a firm) [2004] WASC 54
Gardiner v Ray [1999] WASC 140
Goldsmith v Sandilands [2002] HCA 31
Jensen v Nationwide News Pty Ltd [No 2] [2018] WASC 129
John Holland Pty Ltd v The Minister for Works [2021] WASC 312
Litigation Capital Partners LLP Pte Ltd (Registration No 200922518M) v ACN 117 641 004 Pty Ltd (in liq) (formerly known as Vale Cash Management Fund Pty Ltd) [No 2] [2024] WASC 20
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357
Nadinic v Cheryl Drinkwater as Trustee for the Cheryl Drinkwater Trust [2020] NSWCA 2
Nationwide News Pty Ltd v Moodie [2003] WASCA 273
Sims v Wran [1984] 1 NSWLR 317
Turner v Citywalk Pty Ltd [2013] WADC 21
Vassilou (an infant) by Next Friend Tracey Louise Vassilou v Roberman [2007] WADC 145
PRINCIPAL REGISTRAR MCGIVERN:
Introduction
The plaintiff and defendant are both in the business of selling vehicles. The substantive dispute the subject of the action arises out of the acquisition by the plaintiff of three used vehicles from the defendant.
The defendant brings the present application for further and better particulars of the claim.
For the reasons that follow, the application is dismissed.
Relevant procedural history
The plaintiff commenced the action against the defendant by a writ of summons filed on 24 May 2023, and filed a statement of claim on 22 June 2023 (SOC).
In broad terms, the plaintiff's claim is that:
(a)in or around January 2023, the defendant displayed three motor vehicles for sale (Vehicles), which were inspected by the plaintiff (by its employee);
(b)the plaintiff purchased the Vehicles from the defendant;
(c)at the time the Vehicles were displayed and sold to the plaintiff, the defendant knew, but did not disclose, that in each case the odometer reading did not or may not correspond with the kilometres travelled by the Vehicle (Inaccuracy);
(d)each Vehicle had travelled significantly more kilometres than was shown on the odometer;
(e)the plaintiff would not have purchased the Vehicles had it known the true kilometres travelled or had the Inaccuracy been disclosed;
(f)the defendant's conduct was misleading or deceptive; and
(g)the plaintiff has suffered loss and damage by reason of purchasing the Vehicles.
The defendant filed a defence on 6 July 2023.
Pursuant to orders made by consent, an amended statement of claim was filed on 15 December 2023 (ASC).
Any amended defence was due to be filed by 29 December 2023. That was not done and instead, on 22 January 2024, the defendant applied:
(a)to strike out, and in the alternative sought further particulars of, par 11of the ASC; and
(b)to strike out par 2 of the prayer for relief in the ASC.
That application was heard on 28 March 2024. The presiding registrar ordered that the plaintiff provide particulars of par 11 of the ASC and otherwise adjourned the application sine die.
On 11 April 2024, the plaintiff filed a re-amended statement of claim (RASC) which included, but was not limited to, the provision of particulars in accordance with the order made on 28 March 2024.
More specifically:
(a)par 4 of the RASC is in terms that:
4.In the circumstances a reasonable expectation arose that if:
(a)the odometer reading of any Vehicle did not correspond with the actual amount of kilometres travelled by the vehicle since its manufacture; or
(b)it was reasonably possible that the odometer reading of any Vehicle did not correspond with the actual amount of kilometres travelled by the Vehicle since its manufacture,
that matter would be disclosed by Zai Motors …
and
(b)par 8 of the RASC is in terms that:
8.In reliance upon the Implied Representations and, or alternatively, the Conduct by Silence, and, or alternatively, acting on the faith and truth of the Implied Representations and induced thereby, Scarboro Toyota entered into oral agreements with Zai Motors to purchase each of the Vehicles (each an Agreement and together the Agreements) and paid the purchase prices under the Agreements.
Particulars
(a)Each Agreement comprised Mr Potts, for or on behalf of Scarboro Toyota, saying to Mr Ahmad Alyas Ahmadzai, the sole director of Zai Motors, words to the effect that he agreed to purchase the relevant Vehicle.
(b)Payment of the purchase prices of the Vehicles was made on or about:
(i)in the case of the Landcruiser, 4 January 2023;
(ii)in the case of the Colorado, 9 January 2023; and
(iii)in the case of the Triton, 11 January 2023.
(c)The purchase prices were:
(iv)in the case of the Landcruiser, $68,000 (being $61,818.18 plus $6,181.82 GST);
(v) n the case of the Colorado, $28,000 (being $25,454.55 plus $2,545.45 GST); and
(vi)in the case of the Triton, $31,700 (being $28,818.18 plus $2,881.82 GST).
(original emphasis)
On 13 May 2024, the defendant filed a request for further and better particulars of the RASC (Request), in the following terms:
The DEFENDANT hereby requests the Plaintiff to, within 14 days, provide the following particulars of the Re-Amended Statement of Claim dated 11 April 2024 (Amended Statement of Claim) as follows:
1.As to paragraph 4 of the Amended Statement of Claim, provide further and better particulars as to what 'circumstances' are being relied upon by the Plaintiff in asserting that the reasonable expectation set out in paragraph 4(b) of the Amended Statement of Claim arose.
2.As to paragraph 8 of the Amended Statement of Claim, and the averment 'Scarbro Toyota entered into oral agreements with Zai Motors to purchase each of the Vehicles…', provide further and better particulars as to:
a.when each of the 'oral agreements' was made;
b.where each of the 'oral agreements' was made; and,
c.what the terms were of each of the 'oral agreements'.
(original emphasis)
By chamber summons filed 31 May 2024, together with an affidavit in support,[1] the defendant applied for orders requiring the plaintiff to provide the particulars the subject of the Request.
[1] Affidavit of Benjamin Sasson made 31 May 2024.
The application was heard at a special appointment on 27 September 2024, at which each party appeared by counsel, and made oral and written submissions.[2]
[2] As to the latter, the defendant filed an outline of submissions on 15 August 2024 (defendant's written submissions) and the plaintiff filed an outline of submissions on 20 September 2024 (plaintiff's written submissions).
Rules and principles
It is convenient to begin by identifying the rules to which I will refer in these reasons, beginning with the observation that, except as otherwise provided by the District Court Rules 2005 (WA) (DCR) the Rules of the Supreme Court 1971 (WA) (RSC) apply to actions in this court.[3]
[3] District Court of Western Australia Act 1969 (WA) s 87; DCR r 6.
In relation to pleadings generally, RSC O 20 r 8 relevantly provides that:
(1)Subject to the provisions of this rule, and rules 11, 12 and 13 every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.
(2)Without prejudice to subrule (1), the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material.
As to particulars, RSC O 20 r 13 requires that 'every pleading must contain the necessary particulars of any claim, defence or other matter pleaded'[4] and, in relation to making orders giving effect to that broad requirement, relevantly provides:
(3)The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just.
…
(5)An order under this rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.
(6)An order under this rule shall not be made unless a written request for the particulars required by the applicant has been filed and served within 30 days of the service of the pleadings or such other time as the Court may allow.
[4] RSC O 20 r 13(1).
As appears from that wording:
(a)the discretion to order a party to provide further particulars is very broad;[5]
(b)the time within which to make a request for particulars runs from the time of service of 'the pleadings' in question; and
(c)the approach to making an order for particulars sought out of time, and to extending the time allowed, should be a cautious one.[6]
[5] And there is nothing in the DCR that is inconsistent with that power, or with its exercise by a registrar (as to the latter, see for example: Vassilou (an infant) by Next Friend Tracey Louise Vassilou v Roberman [2007] WADC 145 (Vassilou) [8].
[6] Reflected in the phrase 'shall not be made' in RSC O 20 r 13(6).
The discretion to order, or refuse to order, further particulars is to be exercised in a manner that:
(a)reflects the contemporary role of pleadings, in the context of contemporary case management practices;[7] and
(b)best attains the objectives contained in RSC O 1 r 4A and O 1 r 4B,[8] which relevantly include:
(i)avoiding delays and facilitating the timely disposal of business;
(ii)promoting the just determination of litigation; and
(iii)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute.
[7] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 (Barclay Mowlem) [5].
[8] RSC O 1 r 4B(2); Barclay Mowlem [8].
As I have previously observed,[9] a balance is to be struck between:
(a)on the one hand, avoiding the expense, delay and inefficiency that may arise from such lack of particularity or precision in one party's pleading as to impact significantly on the proper preparation for and presentation of the opposing case;[10] and
(b)on the other hand, avoiding the expense, delay and inefficiency of pedantic objections to pleadings and requests for particulars that are unreasonable or disproportionate to the benefit to be derived from them.[11]
[9] Ave v Palermo [2022] WADC 121 (Ave) [28].
[10] John Holland Pty Ltd v The Minister for Works [2021] WASC 312 (John Holland) [15] and [23].
[11] Barclay Mowlem [9].
Parties' positions
As to the application generally:
(a)the plaintiff:
(i)places weight on RSC O 20 r 8(1), which relevantly provides that:
… every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits (emphasis added)
and
(ii)argues that the merit of the defendant's application is weakened by delay and its apparent capacity to plead 'in some detail' to earlier iterations of the paragraphs that were in the same or similar form;
and
(b)the defendant argues that:
(i)it is unable to understand the case that it is required to meet in relation to par 4 and par 8 of the RASC; and
(ii)delay is not an adequate answer to an application for particulars of a deficient pleading.
Paragraph 4 of the RASC
In par 4 of the RASC, the plaintiff alleges that it had a reasonable expectation 'in the circumstances' that the defendant would disclose:
(a)the existence of any Inaccuracy, if it arose; and
(b)that such Inaccuracy was reasonably possible, if that possibility arose.
In relation to that paragraph, the defendant contends, in summary, that:
(a)the allegation in par 4(a) has been on foot since the SOC and no issue is taken with it;
(b)par 4(b) 'introduces a new expectation' involving a lower threshold (arising upon the possibility, rather than the actuality, of an Inaccuracy); and
(c)the defendant is unable to plead to the allegation in par 4(b) because the plaintiff has not particularised 'the circumstances' in which:
(i)the 'new expectation' is said to arise; and
(ii)the 'new expectation' is said to be reasonable.
The plaintiff's responsive contentions are, in essence, that:
(a)as a matter of law, the assessment of whether there has been misleading conduct by silence is undertaken by reference to all the circumstances of the case;[12]
(b)the relevant circumstances are apparent from the pleading as a whole, including as identified by the particulars of par 11 of the RASC; and
(c)par 4(b) of the RASC relies on the same 'circumstances' as par 4(a), to which the defendant has pleaded and to which no objection is taken.
Paragraph 8 of the RASC
[12] Plantiff's written submissions, pars 3 ‑ 7, citing: Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, 41; Nadinic v Cheryl Drinkwater as Trustee for the Cheryl Drinkwater Trust [2020] NSWCA 2 [40]; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357.
In par 8 of the RASC, the plaintiff alleges that it entered into 'oral agreements' with the defendant to purchase the Vehicles.
In relation to that pleading, the defendant contends, in summary, that:
(a)where the plaintiff pleads that it was misled by the defendant into entering into any agreement, it is necessary to identify the terms of, and the circumstances said to give rise to, each alleged agreement; and
(b)it is unable to understand the case that it is required to meet because, in relation to the alleged oral agreements, the plaintiff has not particularised:
(i)the terms of each agreement;
(ii)when each agreement was made; and
(iii)where each agreement was made.
The plaintiff's responsive contentions are, in essence, that:
(a)the plaintiff does not advance a cause of action in contract;
(b)rather, the plaintiff pleads par 8 to demonstrate reliance, being material to its claim of misleading and deceptive conduct;
(c)the pleading in par 8 has been on foot since the SOC and the defendant:
(i)has not previously taken issue with it; and
(ii)has pleaded to par 8 in terms that denies any oral agreement and has positively pleaded that the contracts were partly written and partly by conduct;
and
(d)in any event, particulars of the oral agreements are contained in the plaintiff's reply filed 19 July 2023.
Consideration
I begin by considering issues relevant to the application as a whole, before moving to the issues specific to each paragraph in question.
Delay
As noted above, a common feature of the plaintiff's contentions in resisting the application is that it is made late.
The following observations of Steytler J,[13] made in relation to an application under RSC O 20 r 19 to strike out a pleading, are in my view equally apposite to applications made under RSC O 20 r 13:
… The purpose underlying [the] time limit is that of ensuring that, if an application of this kind is brought, it should be brought promptly so that it might at once be disposed of and the action continued without further interruption. The time limit is one to which more than lip service should be paid. Those who wish to bring an application of this kind, … should consider, within the period fixed for that purpose, what benefit will be derived by bringing the application and then weigh against that the inevitable consequences of delay and expense. If the benefit is outweighed by the delay or expense, or both, the application should not be brought. If the converse is true, the application should be filed promptly.
[13] Gardiner v Ray [1999] WASC 140 [33]. See also: Nationwide News Pty Ltd v Moodie [2003] WASCA 273 (Nationwide) [69]; Litigation Capital Partners LLP Pte Ltd (Registration No 200922518M) v ACN 117 641 004 Pty Ltd (in liq) (formerly known as Vale Cash Management Fund Pty Ltd) [No 2] [2024] WASC 20 (Litigation Capital) [14].
It follows also that when objections to pleadings are raised, they should, as far as reasonably possible, be complete. Objecting to pleadings should not be an exercise of 'death by a thousand cuts'.
Having cited the observations made by Steytler J, Hill J commented in Litigation Capital that:[14]
… allowing a party to take advantage of the service of an amended pleading to apply to strike out paragraphs of the pleading which are long-standing is inconsistent with the purpose of the rule (as articulated by Steytler J) as well as the case management principles set out in O 1 r 4A and 4B of the Rules. Accordingly, even if an extension of time to bring an application to strike out a pleading is not required, I consider that a relevant factor in the exercise of the court's discretion to strike out a pleading under O 20 r 19(1) is the length of time the relevant paragraph has formed part of the pleading and the reason for the delay in raising the issues. Where the defects raised by a party do not, in any material way, impede the progress of the action, it is my view that any application concerning long-standing paragraphs should be refused.
(citations omitted)
[14] Litigation Capital [17].
I pause here to note that the language of RASC O 20 r 19(1) differs from that in O 20 r 13(6). The former expressly refers to time running from 'the service of a pleading or amended pleading' (emphasis added) whereas the latter refers only to service of 'the pleadings'. The service of amended pleadings has been held not to entitle an opponent to reopen requests under RSC O 20 r 13 for particulars of such of the pleadings as have not been amended.[15]
[15] Dow Corning Australia Pty Ltd v Girys [2001] WASC 361 [18]; but see also Turner v Citywalk Pty Ltd [2013] WADC 21 (Turner) [15].
The defendant contends that Hill J's comments in Litigation Capital '[imply] that, where defects raised by a party do impede the progress of the action in a material way, the application should be granted, notwithstanding that it relates to long-standing paragraphs'.[16]
[16] Defendant's written submissions, pars 15 - 16.
I accept that submission only insofar as it is consistent with the view that delay is but one factor to be weighed in the balance in the exercise of the discretion in an application under RSC O 20 r 13. Whether or not it will be fatal in any particular case will depend on the circumstances, including the reasons for and degree of departure from the ordinary time allowed and the merits of the substantive request.[17]
Summary statement and ability to plead
[17] Ammon v Consolidated Minerals Ltd [2005] WASC 156 [4]; Turner [14] - [16].
Two other common planks of the plaintiff's contentions are that:
(a)RSC O 20 r 8(1) requires a statement in summary form only of the material facts of the case; and
(b)the defendant has filed a defence responding to pars 4 and 8 of the SOC, and has therefore demonstrably been able to plead to the plaintiff's case.
As to the first of those contentions, as I have previously observed:[18]
(a)the confines of RSC O 20 r 8(1) cannot be an adequate answer to a request for particulars because, by its own terms, that rule is expressly subject to the operation of RSC O 20 r 13;
(b)the role of particulars is to expand, where appropriate, the content of a pleading beyond the scope of a statement described in RSC O 20 r 8(1);
(c)the provision of proper particulars may sometimes require that parts of the evidence be disclosed;[19] and
(d)the question of whether particulars are required in any given case is not, therefore, to be determined by reference to RSC O 20 r 8(1), but by reference to whether further detail is necessary and desirable to meet the requisite pleading objectives.[20]
[18] Ave [20] - [26].
[19] Holland [13].
[20] As to which, see: Dare v Pulham (1982) HCA 70; (1982) 148 CLR 658, 664; Barclay Mowlem [7].
Although the distinction between material facts, particulars and evidence can be difficult to discern,[21] that task is properly informed by the function and purpose of each. Relevantly:[22]
[t]he function of particulars is not to expand the issues defined by the pleadings, but 'to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial'.
[21] Jensen v Nationwide News Pty Ltd [No 2] [2018] WASC 129].
[22] Goldsmith v Sandilands [2002] HCA 31 [2] (Goldsmith), citing Bruce v Odhams Press Ltd [1936] 1 KB 697, 712 - 713.
The assessment of whether a party is sufficiently appraised of the opposing case as to meet it is not confined to the time of trial.[23] Neither is it properly confined to the time of a responsive pleading, because 'meeting a case' requires steps taken, beyond close of pleadings, to prepare for trial by. Those steps include attending to discovery and gathering evidence to 'advance or cut down' the case of each party[24] (which steps must occur within the framework of the pleadings and relevant law).
[23] Ave [26], citing: Sims v Wran [1984] 1 NSWLR 317, 321; Attorney General of Western Australia v President of the Legislative Council of Western Australia [2020] WASC 399 [104].
[24] Goldsmith [2]. See also Ave [26].
As to the contention in [36(b)], the fact that the defendant has pleaded to the relevant paragraphs is also not, of itself, an adequate answer to a request for particulars. That is because:
(a)the wording of RSC O 20 r 13(5) makes it apparent that the usual time to make an application is after a defence has been served (so that the rule itself reflects that an opponent's ability to plead is usual, rather than a bar to an application for an order requiring particulars); and
(b)as articulated above, whether a defendant is in a position to understand and meet the case against it is an enquiry that takes account of steps beyond the time of pleading.
I now turn to considerations pertaining to the particular paragraphs in question.
Paragraph 4 - 'the circumstances'
The central thrust of the plaintiff's contentions in opposition to the application for particulars of 'the circumstances' pleaded in par 4 of the RASC is that, in the absence of specificity, the plea incorporates all of the pleaded circumstances.
The plaintiff does not contend that it may rely on circumstances or lead evidence falling outside the scope of the facts in the RASC[25] - rather, it contends that the RASC must be read as a whole to discern the circumstances because, as a matter of law, the whole of the circumstances are relevant.[26]
[25] ts 13 - ts 14, 27 September 2024.
[26] See [24]; ts 14, 27 September 2024.
It is not uncommon for various bodies of law, particularly when determining what was reasonable, to require an assessment of 'all the circumstances'. In my view, pointing to such operation of the law does not adequately answer a pleadings point. Indeed, to some extent, it highlights the need to identify the circumstances being relied upon.
But, as previously noted, it is equally true that proportionality and context are essential considerations in relation to pleadings points.
Whether or not the circumstances as pleaded are ultimately sufficient to support the claim is a strategic decision for the plaintiff. The question for me is whether further particulars are necessary for the defendant to understand the case it has to meet, giving due weight to the proportionate value of any order imposing such requirement.[27]
[27] See, for example: John Holland [15].
The defendant argues that, in the absence of specifying or particularising the circumstances relied upon by the plaintiff, the plea is embarrassing. That contention would have significantly more weight in the context of a lengthy or factually complex statement of claim. That is not the case here.
The RASC in this case runs to a total of 16 paragraphs, 14 of which precede pleas of loss.
The pleaded case involves a confined exchange between the parties resulting in the purchase by the plaintiff of the Vehicles.
When par 4 is read in the context of the RASC as a whole, a tolerably clear view of the case to be met by the defendant on this point emerges - which is, in essence, that:
(a)the defendant displayed the Vehicles for sale;
(b)the plaintiff inspected the Vehicles before buying them; and
(c)in the absence of being warned of the Inaccuracy, the plaintiff reasonably relied on the odometer readings of the Vehicles, as displayed and inspected, as an accurate representation of the distance travelled by each Vehicle.
I consider that an order requiring further particulars in relation to par 4 would be disproportionate to the benefit or additional clarity it might be expected to yield.
Given that conclusion, it is unnecessary for me to deal with the question of whether there has been any material delay in the request for further particulars of 'the circumstances' in par 4. In any event, I do not consider that the addition of subpar 4(b) in the RASC materially alters the need for particulars of the circumstances from the time of the ASC.[28]
Paragraph 8 - the 'oral agreements'
[28] Similar, for example, to: Frank Jasper Pty Ltd v Deloitte Touche Tohmatsu (a firm) [2004] WASC 54 [7] - [8].
The issue of delay carries considerably more weight in relation to this part of the application. Taking account of the comments and considerations outlined in [30] ‑ [32], it is notable that:
(a)there is no dispute that this part of the pleading has subsisted in its present form since the SOC;
(b)the present application is brought some 12 months after the SOC was filed and more than five months since the defendant brought its application in relation to the ASC;[29] and
(c)the request for particulars is therefore one that is significantly delayed, without there being any reason proffered in that regard.
[29] See [8]. I note that the defendant points to comments of the registrar in relation to delay in that application: defendant's written submissions, par 18. I observe that the context differs markedly in this case, given both the passage of time and the fact that the plaintiff has already had and taken the opportunity to object to the pleading.
It follows that the application, as it pertains to par 8 of the RASC, is made contrary to the expectation that any pleadings objections should be made in a timely fashion (particularly when the defendant has already brought an application in relation to the adequacy of the pleadings, when the paragraph in question existed in its present form).
In that context, the case on the merits would need to be overwhelming for me to be satisfied that it was appropriate to grant the application. The matters identified by the plaintiff, as outlined at [27], satisfy me that it is not.
In the circumstances, I am not inclined to exercise my discretion to require further particulars of par 8 of the RASC.
Final observation - scope of any orders
For completeness, I note in closing that the defendant contended in oral submissions that it would be open and proper on the present application for me to strike out the plaintiff's pleadings if I considered them embarrassing or likely to delay the trial.[30]
[30] ts 12 - 13, 29 September 2024.
I do not accept that submission.
This is an application under RSC O 20 r 13, and nothing in the chamber summons or written submissions of the defendant moved for an order striking out any part of the RASC. In those circumstances, whatever the merits (which are addressed above), it would in my view be procedurally unfair for any such order to be made.
Conclusion
The application is dismissed.
Costs ordinarily follow the event and, subject to hearing from the parties, I am inclined to follow that usual course in relation to the application.
I will hear submissions as to the precise terms of the order that should be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ZO
Associate
19 NOVEMBER 2024
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