Sides Engineering Pty Ltd v Energetech Australia Pty Ltd - [2005] FCA 1672

FEDERAL COURT OF AUSTRALIA
Sides Engineering Pty Ltd v Energetech Australia Pty Ltd [2005] FCA 1672
PRACTICE – particulars – whether proper requests – whether answers sufficient.
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 applied
R v Associated Northern Collieries (1910) 11 CLR 738 applied
Sims v Wran [1984] 1 NSWLR 317 applied
SIDES ENGINEERING PTY LTD v ENERGETECH AUSTRALIA PTY LTD
NSD 1280 OF 2005
EDMONDS J
22 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1280 OF 2005

BETWEEN:

SIDES ENGINEERING PTY LTD
APPLICANT

AND:

ENERGETECH AUSTRALIA PTY LTD
RESPONDENT

JUDGE:

EDMONDS J

DATE OF ORDER:

22 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicant provide the further and better particulars to the respondent’s requests as indicated in the reasons for judgment on or before 13 December 2005 or on or before such later date as may be agreed between the parties.

2. The applicant pay the respondent’s costs of the motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1280 OF 2005

BETWEEN:

SIDES ENGINEERING PTY LTD
APPLICANT

AND:

ENERGETECH AUSTRALIA PTY LTD
RESPONDENT

JUDGE:

EDMONDS J

DATE:

22 NOVEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(MOTION FOR PARTICULARS)
EDMONDS J:

This is a motion, filed 22 September 2005, by the respondent in the proceedings, Energetech Australia Pty Ltd (‘Energetech’), seeking further and better particulars from the applicant, Sides Engineering Pty Ltd (‘Sides Engineering’), of certain claims made in its Statement of Claim. Sides Engineering filed an Amended Statement of Claim on 4 October 2005 but Energetech’s requests for further and better particulars do not go to any of the paragraphs of the Statement of Claim that were amended by the Amended Statement of Claim.
The underlying dispute in this case concerns drilling and coring services which Sides Engineering undertook to provide to Energetech in connection with its Port Kembla Wave Energy Project pursuant to a contract entered into on or about 7 June 2004.
The instant dispute arises out of the following requests and responses:
(1)Energetech’s original requests for further and better particulars of the Statement of Claim: Letter from Clark McNamara to Doyles dated 5 September 2005;
(2)Sides Engineering’s responses to those requests: Letter from Doyles to Clark McNamara dated 15 September 2005;
(3)Energetech’s requests for additional further and better particulars as well as pressing some of its original requests in the form of a consolidated request: Letter from Clark McNamara to Doyles dated 4 October 2005.
(4)Sides Engineering’s responses to the consolidated request for particulars: Letter from Doyles to Clark McNamara dated 31 October 2005.
The claims in the Amended Statement of Claim allege various material facts over some 165 paragraphs. The dispute over the provision of further and better particulars is, in this context, quite narrow. It concerns pars 11(c) and (d); 20; 29, 30 and 31…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCA 1672
Decision Date: 22 NOVEMBER 2005

CaseChat Overview and Summary

In the case of Sides Engineering Pty Ltd v Energetech Australia Pty Ltd, the plaintiff, Sides Engineering, alleged that the defendant, Energetech, had engaged in misleading or deceptive conduct by making certain representations and subsequently reneging on them. The dispute was before the court, which was tasked with determining whether the plaintiff's claims were sufficiently particularised. The central issue before the court was whether the plaintiff had provided adequate particulars to substantiate the allegations made in paragraph 87 of the Amended Statement of Claim. Energetech sought further and better particulars to clarify the nature of the informal arrangement between the parties and the manner in which the representations were made and accepted.

The court examined the plaintiff's allegations and found that they were too vague and general, lacking the specificity required to understand the basis of the claim. The court held that the plaintiff had not sufficiently detailed the informal arrangement or the means by which the representations were made and acknowledged. The court emphasised the importance of particulars in ensuring that the respondent could properly respond to the allegations. The plaintiff's failure to provide these details led the court to order that further and better particulars be supplied within a specified timeframe.

The court ruled that the plaintiff must provide the requested particulars by a certain date, failing which the allegations could be struck out. Additionally, the court ordered the plaintiff to pay the defendant's costs associated with the motion. This decision underscores the necessity for plaintiffs to provide clear and detailed particulars to support their claims, ensuring that the defendants can adequately respond and prepare their defence.

Orders

Orders of the court

1. The applicant provide the further and better particulars to the respondent’s requests as indicated in the reasons for judgment on or before 13 December 2005 or on or before such later date as may be agreed between the parties.

2. The applicant pay the respondent’s costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EDMONDS J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

Paragraph 87 of the Amended Statement of Claim claims:‘87. By:(a)making the Co-operation Representation and the Notification and Extension Representation;(b)continuing to accept and acknowledge the informal arrangement whereby the Applicant kept the Respondent fully informed of all relevant matters and developments and continuing to deal with the Applicant on that basis; and(c)subsequently seeking to resile from the Co-operation Representation and the Notification and Extension Representation, the Respondent has engaged in conduct that is misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the TPA [Trade Practices Act].’(Sub-paragraph (c) was inserted by the Amended Statement of Claim.) In its consolidated request of 4 October 2005, Clark McNamara, on behalf of Energetech, wrote:‘87(b)This global allegation is not otherwise a subject of specific paragraphs which contain the material facts on which the Applicant sets up basis for allegation of this type. We require the following further and better particulars.As to the “informal arrangement”:(i)does the applicant allege that an arrangement arose as a result of some communication or communications between the parties?If YES, was the communication oral, written, or partly oral and partly written?If oral, who were the parties of the conversation, what was the substance of each conversation, and when did the conversation(s) … occur?If written, provide copies of all documents which form the written communication.(ii)If NO, what are the facts, matters and circumstances which the applicant alleges gave rise to the informal arrangement?(iii)The only term of the “informal arrangement” that appears in the pleading is one where it is maintained that the Applicant kept the Respondent “fully informed” of “all relevant matters and developments”.With respect, the generality of this assertion makes it impossible to understand the case that the Applicant is seeking to make.It would be surprising that the Court would allow such an allegation to move forward without its full elaboration by allegations of the material facts.Unless we receive particulars that assist us in appreciating the case that is sought to be made we will move to strike out paragraph 87(b) and will amend the Notice of Motion accordingly.In an attempt to avoid further dispute your client may wish to reconsider its position and the answer that it has provided.The Respondent is entitled to know what “relevant matters” is said to encompass.The Respondent is entitled to know what “developments” is intended to refer to.The Respondent is entitled to know how the applicant maintains it “kept the Respondent full[y] informed” of these matters.Please provide the necessary information that we sought to expose by our original request for further and better particulars without delay, and which we repeat:In relation to each of the alleged acceptance and acknowledgment referred to in paragraph 87(b), was the acceptance or acknowledgment respectively:(iv)Express; or(v)Implied?If it was express, was it:(A)Written;(B)Oral:(C)Partly written and partly oral?If it was written or partly written, please identify the documents and provide copies.If it was oral or partly oral, pleases identify the parties to, date and location of, and substance of, any alleged conversation.If the alleged acceptance and acknowledgement was implied, please provide full particulars of the facts, matters and circumstances the Applicant asserts gives rise to that implication.(vi)As to paragraph 87(c) and (d), please provide full particulars of the facts, matters and circumstances forming the basis upon which you allege that the Respondent formed an intention to resile from its alleged position, and then intentionally conceal that intention.’

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1280 OF 2005

BETWEEN:	SIDES ENGINEERING PTY LTD APPLICANT
AND:	ENERGETECH AUSTRALIA PTY LTD RESPONDENT
JUDGE:	EDMONDS J
DATE OF ORDER:	22 NOVEMBER 2005
WHERE MADE:	SYDNEY

JUDGE:	EDMONDS J
DATE:	22 NOVEMBER 2005
PLACE:	SYDNEY