Scarfe, Delegate of the Chief Executive Officer of Customs v Coflexip Stena Offshore International SA

Case •

[2000] WASC 153

•

13 JUNE 2000

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SCARFE, DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF CUSTOMS -v- COFLEXIP STENA OFFSHORE INTERNATIONAL SA & ORS [2000] WASC 153

CORAM:   MASTER SANDERSON

HEARD:   1 JUNE 2000

DELIVERED          :   13 JUNE 2000

FILE NO/S:   CIV 1721 of 1999

BETWEEN:   ROBERT WILLIAM SCARFE, DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF CUSTOMS

Plaintiff

AND

COFLEXIP STENA OFFSHORE INTERNATIONAL SA
First Defendant

COFLEXIP SA
Second Defendant

COFLEXIP STENA OFFSHORE ASIA PACIFIC PTY LTD
Third Defendant

FLORA JANE DIXON
Fourth Defendant

TASSO PAPAELIAS
Fifth Defendant

ERNST & YOUNG (sued as a firm)
Sixth Defendant

Catchwords:

Practice and procedure - Leave to amend pleading - Turns on its own facts

Legislation:

Cutsoms Act 1901

Result:

Leave granted

Representation:

Counsel:

Plaintiff:     Mr M J McCusker QC & Mr E Carlose

First Defendant             :     Mr P C S Van Hattem

Second Defendant         :     Mr P C S Van Hattem

Third Defendant           :     Mr P C S Van Hattem

Fourth Defendant          :     Mr M J Deleuil

Fifth Defendant            :     Mr M J Deleuil

Sixth Defendant            :     Mr M J Deleuil

Solicitors:

Plaintiff:     Australian Government Solicitor

First Defendant             :     Freehill Hollingdale & Page

Second Defendant         :     Freehill Hollingdale & Page

Third Defendant           :     Freehill Hollingdale & Page

Fourth Defendant          :     Mallesons Stephen Jaques

Fifth Defendant            :     Mallesons Stephen Jaques

Sixth Defendant            :     Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Comptroller‑General of Customs v D'Aquino Bros Pty Ltd (1996) 130 FLR 383

Goulding, Delegate of the Chief Executive Officer of Customs v Waylen Enterprises Pty Ltd t/as Harlan Tyres (in liq) [2000] WASC 119

Scarfe v Coflexip [1999] WASC 242

Scarfe, Delegate of the Chief Executive Officer of Customs v Coflexip Stena Offshore International SA & Ors [1999] WASC 203

Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131

Case(s) also cited:

Ashbury v Reid [1961] WAR 49

Bainbridge-Hawker v Minister of State (1958) 99 CLR 521

Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 17 WAR 499

Coe v Commonwealth (1979) 24 ALR 118

Dare v Pulham (1982) 148 CLR 658

De Bussche v Alt [1878] 8 Ch D 287

E F Hutton & Co v Mofarrij [1989] 1 WLR 488

Evans v Button (1988) 13 NSWLR 57

Forsyth v Rodda (1989) 87 ALR 699

Giorgianni v The Queen (1985) 156 CLR 473

Goulding v Waylen Enterprises Pty Ltd (1997) 140 FLR 309

Hardie v Childern [1928] 1 KB 663

Healey v Ballarat Bowling Club [1961] VR 206

Jack Brabham Holdings Pty Ltd v Button (1988) 94 FLR 278

Johnson v Youden [1950] 1 KB 544

Kennedy v Sykes (1993) 93 ATC 4,012

L Vogel & Son Pty Ltd v Anderson [1968] 120 CLR 157

Lloyd v Great Western Dairies [1907] 2 KB 732

Ludwigs Canberra Bond Cellar Pty Ltd v Sheen (1982) 46 ACTR 13

McKellar v Container Terminal Management Services Ltd [1999] FCA 1101

Murphy v Burns Philip & Co Ltd, unreported; SCt of Vic; 21 April 1993

Oxnard v Rahn [1998] 3 All ER 20

Philip Morris v Nixon (2000) 170 ALR 487

R v Brown [1990] VR 820

Stuckey v Iliff (1960) 105 CLR 164

Tarn v Scanlan [1928] AC 35

Waterhouse v Reid [1938] 1 KB 743

Yorke v Lucas (1983) 80 FLR 143

Young v Tieco, unreported; SCt of SA; Library No BC 9502313

  1. MASTER SANDERSON:  This application involved the return of a number of chamber summonses.  By summons dated 30 May 2000 the plaintiff sought leave to amend its writ of summons.  The amendment was minor and involved only a change to the title of the plaintiff.  Although there was no consent by the defendants to the amendment to the writ, no submissions were made which raised any real objection to the amendment.  Accordingly, leave to amend was granted.

  2. The other three chamber summonses were brought by the defendants.  They came about in this way.  On 3 December 1999, on the application of the fourth, fifth and sixth defendants, I struck out the plaintiff's statement of claim:  see Scarfe v Coflexip [1999] WASC 242. I gave the plaintiff leave within 28 days to bring in a minute of substituted statement of claim. In fact, no minute was filed within the 28 days provided and on 15 March 2000 Registrar Powell extended time. The minute was filed on 21 March 2000. The defendants took objection to the form of the minute. When I made orders on 3 December 1999 I gave the parties liberty to apply. The fourth, fifth and sixth defendants took the view, correctly in my opinion, that if they were not satisfied with the form of the minute of substituted statement of claim they could object to its standing as the statement of claim. As the application proceeded it was essentially treated as a strike out application. On 10 April 2000 the first, second and third defendants also filed a chamber summons to strike out the statement of claim In addition to the strike out applications, the fifth defendant sought an order that he be removed as a defendant to the proceedings.

  3. At the conclusion of argument I indicated to the parties that I was satisfied that the minute of substituted statement of claim was in a proper form and that it should stand as the statement of claim.  I also indicated to the parties that I would publish reasons for my decision.  These are those reasons.

  4. Apart from the earlier strike out application I referred to above, the first and second defendants had also made application to set aside service of the writ:  see Scarfe, Delegate of the Chief Executive Officer of Customs v Coflexip Stena Offshore International SA & Ors [1999] WASC 203. In that decision I gave a brief summary of the facts, so far as they concerned the first, second and third defendants (see par 4). In my earlier decision on the strike out application I outlined the facts, so far as they concerned the fourth, fifth and sixth defendant (see par 2 to par 6). I need not repeat what I said in these two earlier decisions and the paragraphs to which I have referred should be regarded as part of these reasons.

  5. Dealing first with the application of the first, second and third defendants, it is said that the description of the plaintiff in par 1 of the minute of substituted statement of claim (which I will hereafter refer to as "the minute") does not properly describe the plaintiff.  It was submitted that proceedings for the recovery of penalties are Customs Act prosecutions as set out in s 244 of the Customs Act 1901.  These proceedings may be instituted by the Chief Executive Officer in the name of that officer:  see s 245(1).  On the other hand, customs duty which is to be recovered, are proceedings in the name of the Collector:  see s 153.  These are not Custom Act prosecutions.

  6. The plaintiff has clearly addressed this concern by its amendment to the writ.  This amendment, in my view, cures any defect:  see Comptroller‑General of Customs v D'Aquino Bros Pty Ltd (1996) 130 FLR 383. There is no substance in the objection.

  7. Paragraph 2.1 of the minute identifies the first and second defendants as companies incorporated in France and says that both companies, at all material times, carried on the business of manufacturing and installing flexible undersea pipes.  It is said that there is reference to two defendants and one business and par 2.1 is embarrassing because it is not clear whether the business is carried on jointly by the defendants or whether both defendants carry on the same business.  In my view, there is nothing confusing about the paragraph and there is no reason why the defendants individually could not plead to it.

  8. Paragraph 2.3 identifies the fourth defendant and alleges that she advised the third defendant in relation to the importation of "raw materials" into Australia.  The defendants say the term "raw materials" is not defined in the Customs Act or the relevant by‑laws and is therefore confusing.  With respect, the term is easily understood.  It is not a term of art and it need not be defined in the pleading.  There is no substance in the defendants' objection.

  9. Paragraph 2.6 alleges two separate agency agreements.  First, it is said the fifth defendant, in his dealings with the third defendant, acted as agent of the remaining partners of the sixth defendant.  Secondly, it said that the fifth defendant in his dealings with the Australian Customs Service ("the ACS") acted as agent of the first, second, third defendants and the remaining partners of the sixth defendant.  By par 2.7, essentially the same two agency relationships are alleged between the fourth defendant and the other defendants.  It is said by the defendants that these two paragraphs do not plead material facts to properly ground the agency relationship.  Given the way that the fourth, fifth and sixth defendants are identified in par 2.3, par 2.4 and par 2.5 of the minute, it is not difficult to see the basis of the agency relationship.  It may be the defendants could seek further particulars of par 2.6 and par 2.7.  However, in my view, in their present form they are satisfactory and should stand.

  10. Paragraph 3 of the minute makes reference to the Tariff Export Concession Scheme which is defined as the TEXCO Scheme.  The pleading then outlines the nature of the scheme.  In essence, it is said to operate if, and only if, "it was intended" at the time of importation of raw materials that they would be used for manufacturing products which would be exported and not sold or supplied within Australia.  The defendants say that it is not clear from the pleading who was to have the intention.  With respect, the pleading is perfectly plain.  Obviously, the party importing the goods must have the necessary intention because it is that party who is claiming the benefit of the scheme.  That clearly emerges from par 3 and there is no substance in the objection.

  11. The objection taken to par 4.2 and par 4.4(c) involved the deletion of the word "also" in par 4.2 and the replacement of the words "at the time" in par 4.4(c) with the words "as the date".  These errors are really typographical errors and the plaintiff conceded they should be rectified.

  12. Paragraph 4.4 of the minute pleads that certain goods were imported which were not intended to be used in goods manufactured for export, were not then subject to the TEXCO Scheme and were liable for duty.  Sub‑paragraphs (a) through to (e) plead the material facts giving rise to the liability for duty.  Paragraph 4.4(e) is in the following terms:

    "By virtue of the false and misleading statements hereinafter pleaded, ACS granted to the Third Defendant the concession under the TEXCO Scheme, with the result that the goods were released without the duty to which the goods were liable being paid."

  13. The defendants say that par 4.4(e) is inconsistent with par 3.  It is said that there is nothing in par 3 about the TEXCO Scheme requiring any "concession" being "granted" by the ACS.  In my view, that is clearly the way in which the TEXCO Scheme worked and that is apparent from the way par 3 is pleaded.  In my view, there is no merit in the objection.

  14. Paragraph 5 of the minute pleads that "at all material times" the first, second and third defendants were owners of the goods pursuant to certain Acts and were therefore liable to pay duty at the date of importation.  The defendants say that the reference to "at all material times" is ambiguous.  It is said that it is not possible to ascertain by reference to the schedule attached to the minute what time relates to what goods.  In my view, there is nothing in this objection.  It is clear from the schedule, when read with the pleading, that liability for duty arose on certain dates as a consequence of the importation of certain goods.  There is no difficulty understanding what the plaintiff alleges.  In my view there is no substance in this allegation.

  15. Paragraphs 5(a) and (b) provide "particulars of ownership" of the goods referred to in par 5. It is said that the expression used in both sub‑paragraphs is meaningless. In fact, the expression picks up the definition of "owner" to be found in s 4 of the Customs Act.  In my view, it is perfectly plain what is being alleged and there is no substance in the objection.

  16. It is further said that par 5(a) and (b) are insufficiently particularised.  In my view the particulars provided are sufficient.  It must be remembered that the defendants do not have to plead to the particulars.  If, at a later date, it is found that the particulars are insufficient then a request for further and better particulars can be made.  There is no substance in the objection.

  17. Further, in relation to par 5(a), it is said that the claim the first and second defendants were beneficially interested in the goods as a result of their being shareholders of the third defendant is bad in law.  This is an issue I addressed in the decision of Goulding, Delegate of the Chief Executive Officer of Customs v Waylen Enterprises Pty Ltd t/as Harlan Tyres (in liq) [2000] WASC 119. Based upon my earlier decision, I would be prepared to allow the pleading in its present form, although I acknowledge the logical difficulty about claiming shareholders as being beneficially interested in goods held by a company. In this case the position is somewhat different from the position in the Goulding case.  Not only is ownership alleged on the basis of the beneficial interest of the shareholders, but it is said that the first and second defendants, the shareholders, also have control over disposition of the goods.  I am satisfied, looked at as a whole, that par 5(a) is a proper plea.

  18. Objection is taken to par 6.1 because, it is said, it is inconsistent with par 3.  In par 6.1 there is reference to a "concession under the TEXCO Scheme".  I have dealt with this issue when dealing with the objection to par 4.4(e).  I am not satisfied there is any merit in the objection.

  19. Paragraph 6.2 alleges that certain statements pleaded in par 6.1 were false and misleading.  Particulars of the falsity or misleading nature of the statements are provided in par 6.2(a) and (b).  It is said that these particulars are not proper particulars of par 6.2.  The complaint is that in par 6.1 reference is made to "raw materials" and in the particulars the reference is to "pipes manufactured".  In my view, par 6.2 read with par 6.1, make it plain what is pleaded against the defendants.  There is no substance in the objection.

  20. Much the same objection is raised to par 7.2(a) and (b) and par 7.3(a) and (b).  For the same reasons I expressed in relation to par 7.1(a) and (b), I am satisfied there is no substance in the objection.

  21. In relation to par 8, the defendants object to the use of the phrase "at all material times".  This is essentially the same objection that was raised in relation to par 5.  In my view, it has no substance.

  22. In relation to par 9.1, it is said that the reference to approving "the First Application" which is referred to in par 7.1 is embarrassing because par 3 which defines the TEXCO Scheme does not refer to any approval process.  I have dealt with a similar objection in relation to par 4.4(e).  I am satisfied there is nothing in this objection and I need say nothing further.

  23. Paragraph 9.1 refers to the TEXCO Scheme and an application for the importation of raw materials under the scheme pursuant to the First Application without payment of duty.  This arrangement is referred to as the "TEXCO Agreement".  This, the defendants say, is embarrassing.  This is an objection which is repeated in relation to a number of paragraphs.  In my view, there is nothing confusing about the pleading.  As I have said, the pleading of the TEXCO Scheme is clear.  It is also clear that when an application was made to import goods pursuant to the TEXCO Scheme it was open to the ACS to grant a concession and allow the importation of goods without the payment of duty.  The TEXCO Agreement in any particular case is nothing more than a pleading of the arrangements made pursuant to the TEXCO Scheme.  The pleading in this regard is simple, straightforward and easily comprehensible.  There is no substance to the defendants' objection to the form of pleading.

  24. The objection to the use of the phrases "TEXCO Scheme" and "TEXCO Agreement" is raised in relation to par 9.2, par 10.1, par 11(a), par 11(b), par 11(f), par 12, par 14.1 and par 14.2.  There is no merit in any of these objections.  Paragraph 11 pleads that certain statements pleaded in par 10.2 and par 10.4 were false and misleading.  Paragraph 11(a) through to (f) plead particulars of the false and misleading statements.  It is said that paragraphs 11(a) and (f) are not particulars of the allegation in par 11.  In my view, both paragraphs are necessary to provide cogency to the particulars.  There is no merit in the objection.

  25. It is said that par 11(b) is embarrassing.  The paragraph reads as follows:

    "Further, the Third Defendant had been utilising the TEXCO Agreement to import goods which were used and intended to be used in the manufacture of pipes sold within Australia without paying duty, being the goods specified under the East Spar and Wandoo projects in the Schedule."

  26. The objection taken to this paragraph, as expressed in the first, second and third defendants' submissions, is in the following terms:

    "It is not clear whether it is being alleged that the third defendant intended that the goods be used without paying duty, or whether it is simply being that the third defendant intended that the goods be used in manufacture of pipes sold within Australia.  Further, the issue of where the goods are sold does not appear to be relevant in the context of the pleaded case.  The issue as pleaded is whether the goods were intended to be exported, not where the contract is entered into."

  27. With respect, par 11(b) seems to me to be entirely clear.  The reference to the imported goods being "used and intended to be used in the manufacture of pipes sold within Australia" states precisely what is being alleged by the plaintiff.  In my view par 11(b) is proper and should stand.

  28. In relation to par 11(c), objection is taken to the use of the phrase "at all material times".  I have dealt with this issue above and I need say nothing further.

  29. Paragraph 13 of the minute pleads that in relation to the third defendant that statements made in par 10.4 and par 10.2 were made knowing they were false and misleading.  Sub‑paragraphs 13(a) and (b) give particulars of that knowledge and do so by reference to provisions of the Customs Act.  It is said that the Customs Act draws a clear distinction between statements and declarations.  Reference is made to s 25, s 26, s 71D(6), s 114A(4) and s 183A in relation to declarations and s 219L(2)(b) in relation to statements and declarations and s 234(1)(d) in relation to statements.  I am satisfied that the particulars provided to par 13 are proper particulars.  It may be by reference to the sections I have quoted that there is some confusion between the use of the words "statements" and "declarations".  But no confusion arises in the pleading itself.  It is perfectly plain what the plaintiff is alleging and what allegations the defendants have to meet.  I am satisfied that par 13 and the particulars thereto are in a proper form.

  30. The objections taken to par 14.1 and par 14.2 follow on from the objections made to par 13(a) and (b).  In the circumstances, both paragraphs are unobjectionable.

  31. In relation to par 15.1, objection is again taken to the use of the phrase "at all material times".  For the reasons I have given above, I am satisfied this is a proper plea and should stand.

  32. Paragraph 15.2 pleads the way in which the TEXCO Scheme was used and it is said that the allegation is not sufficiently particularised because it is not said who made the insertion in relation to each particular entry.  This may be a matter where further particulars are required.  However, par 15.2 is not in its present form so vague or embarrassing as to not allow the defendants to plead to it.  In my view it should stand.

  1. In relation to par 15.3, it is said that it does not follow as a logical consequence from par 15.1 and par 15.2.  Paragraph 15.1 and par 15.2 set up the practice followed in relation to the import of goods under the TEXCO Scheme.  It seems to me the conclusions drawn in par 15.3 follow, as a matter of logic, from what was said in the earlier two paragraphs.  In my view the paragraph is unobjectionable.

  2. Further objection is taken to par 15.3 and par 15.4 because, it is said, there is no reference to "intention" and the paragraphs are therefore inconsistent with the pleading of the TEXCO Scheme in par 3.  It may be that in par 15.4 the word "intention" should be added.  As some amendments are to be made to the pleading in any event, the plaintiff may care to adjust this paragraph.  Having said that, I am satisfied that the defendants can easily ascertain what is being alleged against them and the omission from par 15.4 of the reference to intention is not embarrassing.  Further in relation to par 15.4 there is reference to pipes which were to be and were supplied within Australia.  Clearly, what is relevant in this claim is the intention of a party importing goods.  It may be that the fact the goods were eventually sold in Australia is relevant to the intention of a party when the goods were imported.  But I do think some amendment to par 15.4 to more properly reflect the nature of the claim against the defendants would be appropriate.

  3. Objection is taken to par 15.5(a) and (b) on the grounds they are not proper particulars of par 15.  The two sub‑paragraphs provide particulars of knowledge in the same way it is pleaded in par 13 and the sub‑paragraphs thereto.  On the same basis, I am satisfied it is a proper plea.

  4. Sub‑paragraphs 15.5(c) and (d) are said to be particulars of the knowledge which is pleaded in par 15.5.  The sub‑heading is a little confusing.  Consistent with par 13 it would appear that par 15.5(a) and (b) are particulars of knowledge by reference to statutory provisions.  In relation to par 15.5(c) it is alleged that the particulars are insufficient.  It may be that a request for further and better particulars would lie in relation to that sub‑paragraph.  However, for present purposes the plea is sufficient.  In relation to par 15.5(d), I am not entirely sure I understand the objection.  In any event it would seem to me to be a proper plea and it can stand.

  5. In relation to par 16, par 17, par 22 and par 23.4 objection is taken to certain phrases.  In my view, there is no substance in any of these objections and each paragraph should stand.

  6. In relation to par 24.2, it is said that the paragraph does not follow on from what was pleaded in par 24.1.  In my view, it does just that.  Both paragraphs deal with stainless steel strip.  Paragraph 24.1 refers to a letter in which representations were made about that strip and its eventual use.  Paragraph 24.2 pleads the statement was false or misleading.  I am satisfied that there is no substance in the objection.

  7. It is said that par 24.3 is insufficiently particularised.  I think that paragraph has to be read in conjunction with par 24.1 and par 24.2.  As I have said, par 24.1 pleads a specific statement in a specific letter.  Paragraph 24.2 pleads the statement was false or misleading.  The third defendant, as maker of the statement, either knew it was false and misleading or they did not.  There is no difficulty about pleading to that paragraph and in my view the way the three paragraphs are structured makes it clear what case the defendants have to meet.

  8. I am also satisfied there is no substance in the objection to par 24.4.  That paragraph pleads as an alternative to par 24.2 and par 24.3 that the strip "was for use in the production of pipes that were to be sold and supplied within Australia".  It is said that this implies intention and that if that is to be implied then it should be particularised and the identity of the person having the intention should be pleaded.  Again, I think par 24.4 has to be read in conjunction with the previous three paragraphs.  The fact of the use of the stainless steel strip in Australia is said to give rise to the intention.  It is clear the allegation is being made against the third defendant.  In the circumstances, I am satisfied that it is a specific plea.

  9. In relation to par 22, it is pleaded that the third defendant has "since" paid a sum of duty leaving a certain further sum due and owing.  The third defendant says that it should be provided with the date of that payment as that is a material fact.  Clearly, the third defendant is right on this point and that was conceded by the plaintiff during the course of the hearing.

  10. I now turn to the objections to the minute taken by the fourth, fifth and sixth defendants.  At the commencement of his submissions, counsel for these defendants adopted the submissions of counsel for the first, second and third defendants in relation to the paragraphs of the minute.  Of course, I need not deal with these paragraphs again but it is proper that I acknowledge that the fourth, fifth and sixth defendants raised the same objections as raised by the first, second and third defendants to the minute.  In reaching a decision in relation to the objections of the fourth, fifth and sixth defendants, I have had reference to their submissions dated 24 May 2000.  I intend only to deal with the further objections raised by the fourth, fifth and sixth defendants and not touched upon by the first, second and third defendants.

  11. In relation to par 6.3, it is said that the knowledge of the fifth defendant in relation to false and misleading statements is not sufficiently particularised.  The particulars of knowledge, as pleaded in par 6.3(a), are as follows:

    "In a letter dated 16 November 1993 signed by the Fifth Defendant, the Sixth Defendant advised the Department of Industry, Technology and Regional Development that, as from March 1995, 60% of the pipes manufactured in Fremantle would be supplied to the Australian market with the remaining 40% to be supplied to the South East Asian market."

  12. On behalf of the fifth defendant it is said that the pleading does not refer to the actual knowledge of the fifth defendant.  As I understand the objection, it is said that the mere statement that a letter was sent which may subsequently have proved to be false, does not go to establish that the fifth defendant knew that the information was false when the letter was written.  In other words, there is no direct plea of actual knowledge.

  13. The answer is, I think, that the state of knowledge of the fifth defendant is to be ascertained from all surrounding facts.  To this extent a reading of par 6.3(a) in isolation is to adopt the incorrect approach.  This holistic approach is consistent with what was said by Isaacs J in Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131 at 144. It is not correct to say, I think, that knowledge is to be implied from the facts. Rather, given all the circumstances, knowledge might be constructive or imputed. Looked at in this way, I think par 6.3(a) is a proper plea.

  14. I think the same reasoning can be applied to par 17 and, in relation to the fourth defendant, to par 18.1.  It is relevant to note that the third defendant did not take objection to par 17, save as to the use of the words "in the premises".  Clearly that phrase picks up all of the preceding pleas so far as they relate to the third defendant and the importation of goods into Australia.  If the pleading in par 17 can stand because the intent necessary to establish the goods were smuggled can be imputed, or, perhaps the facts justify a finding of constructive knowledge, then the pleadings so far as the fourth defendant of aiding, abetting, counselling or procuring can stand.

  15. The further objections taken by the fourth, fifth and sixth defendants largely follow the same line.  Taken in the overall, I am satisfied that the pleading in its present form is proper and ought not be struck out.

  16. That leaves, finally, the question of whether the fifth defendant should be retained as a party to this action.  He is a partner of the sixth defendant and is by implication, the sixth defendant being a partnership, sued in his own right.  This was a matter which I raised in the reasons I gave in relation to the earlier strike out application.  I think the answer is that the claims made by the plaintiff against the fifth defendant differ slightly from the claims made against the sixth defendant.  The fifth defendant is said to have been a principal offender and an accessory and vicariously liable to the plaintiff, whereas the remaining partners are alleged only to be vicariously liable.  Under the Rules of the Supreme Court it is possible to sue three entities - individuals, companies and partnerships.  Once these three possibilities are acknowledged I think it becomes clear that it is open to the plaintiff to sue the fifth defendant in his own right as well as in his capacity as a member of the sixth defendant.  I am not satisfied that the fifth defendant ought be removed as a party to these proceedings.

  17. I could not conclude without saying something generally as to the nature of this application.  There is no doubt that the first statement of claim was confusing and it could not stand.  The plaintiff obviously took the complaints made by the defendants on board and produced a minute which is clear, readable and logically consistent.  The first, second and third defendants raised 46 separate objections to the minute.  The fourth, fifth and sixth defendants a like number.  In the circumstances, it is reasonable to ask what was likely to be achieved by these objections?  A reading of the minute shows what case the defendants have to meet.  The use of a fine tooth comb to tease out from a pleading objections which are matters of form, not substance, is a waste of time and effort.  In large measure, the objections taken to this minute fall within that class.  Having said that, however, I should also acknowledge the concerns of the fourth and fifth defendants in relation to the pleading against them of actual knowledge.  I would accept that the points raised in this respect were both reasonable and significant.

  18. I will hear the parties as to the precise form of order and as to costs.

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