The Humane Society of WA (Inc) v Carryer - [2000] WASC 250

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: THE HUMANE SOCIETY OF WA (INC) -v- CARRYER & ORS [2000] WASC 250

CORAM: MASTER SANDERSON

HEARD: 27 SEPTEMBER 2000

DELIVERED : 27 SEPTEMBER 2000

PUBLISHED : 13 OCTOBER 2000

FILE NO/S: CIV 2123 of 1999

BETWEEN: THE HUMANE SOCIETY OF WA (INC)
Plaintiff
AND
SALLY CARRYER
First Defendant
JULIA CARRYER
Second Defendant
ROBERT FRASER
GINA FRASER
ROBERT RAYMEN
ROSE RAYMEN
SUSAN KELLY
Third Defendants

Catchwords:

Practice and procedure - Application to strike out part of statement of claim and particulars - Turns on its own facts

Legislation:

Rules of the Supreme Court, O 20 r 2(1)

Result:

Application successful in part

Representation:

Counsel:

Plaintiff:     Ms S P Richardson
First Defendant             :     Mr A O Karstaedt
Second Defendant         :     Mr A O Karstaedt
Third Defendants          :     Mr A O Karstaedt

Solicitors:

Plaintiff:     Cannon Bowden & Co
First Defendant             :     Jackson McDonald
Second Defendant         :     Jackson McDonald
Third Defendants          :     Jackson McDonald

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

Nil

Case(s) also cited:

Blackbird Entertainment Pty Ltd v IO Research Pty Ltd, unreported; SCt of WA; Library No 980646; 3 November 1998
Ciavarella v Balmer (1983) 153 CLR 438
Emlen Pty Ltd v Wallbrook Trustees (Jersey) Ltd (No 2), unreported; SCt of WA; Library No 970315; 19 June 1997
Hayes v Calderwood, unreported; SCt of WA; Library No 970021; 31 January 1997
Key Transport Pty Ltd v Saipem Australia Pty Ltd, unreported; SCt of WA; Library No 970342; 11 July 1997
Robinson v Adshead (No 2) (1965) 2 WAR 577
Speidel v Plato Films Ltd [1961] AC 1090
Temwood Holdings Pty Ltd v Oliver, unreported; SCt of WA; Library No 980034; 4 February 1998
Todd v Novotny, unreported; SCt of WA; Library No 970029; 7 February 1997

MASTER SANDERSON: This is an application by the defendants to strike out certain paragraphs of the plaintiff's amended statement of claim which was amended pursuant to the orders of Registrar Rimmer dated 5 July 2000. The date of the amended statement of claim so described is dated 14 July 2000.
The complaints made also tie in the plaintiff's answer to the defendants' request for particulars of the statement of claim. Those answers are dated 21 June 2000. They were given in relation to an earlier version of the statement of claim but the criticisms made of the present statement of claim and of the particulars can all be tied in with the amended statement of claim dated 14 July.
Dealing briefly with each of the defendants' complaints the first relates to par 47(3) of the statement of claim. That paragraph pleads that in relation to certain loss allegedly suffered by the plaintiff " … further particulars of loss and damage will be provided prior to trial". The particulars provided indicate that, in fact, there are no further claims for loss and damage other than those pleaded in par 47(1) and par 47(2). It is apparent from the particulars that par 47(3) is superfluous. I think to make the position entirely clear par 47(3) ought be struck out. There can be then no question of there being a false issue raised or any embarrassment caused to the defendants by the inclusion of that paragraph in the statement of claim.
Complaints were made in relation to prayers 9 and 10 of the statement of claim. These two prayers relate respectively to damages at common law and equitable compensation. The complaints arise largely because of the particulars provided when requests were made as to what damages and what equitable compensation was being sought.
The system of pleading which applies and has applied since the Judicature Act requires that the plaintiff plead the material facts upon which its claim is based. The plaintiff does not plead a cause of action as was required under the pleading rules prior to the Judicature Act. There is still, under O 20 r 2(1) a requirement that the relief or remedy claimed must be pleaded but no relief or remedy can be obtained when the material facts pleaded simply do not lead to any right to such relief or remedy.
I think that the position, shortly stated, is this: the defendants cannot be embarrassed by what is contained in a prayer for relief. What they must do is meet the case pleaded as represented by the material facts in the statement of claim. If those material facts do not give rise to any of the relief claimed in the prayer for relief that is the end of the matter.
There is no requirement to plead specifically to a prayer for relief. The usual plea is simply to deny that the plaintiff is entitled to the relief claimed or any relief. In the circumstances it seems to me, while the generally expressed prayer for relief is perhaps slightly misleading, it is not a matter which could in any way embarrass the defendants and certainly not a matter where I should strike out either of the paragraphs in the prayer.
A complaint is made in relation to par 41A and par 41B. In relation to par 41A the complaint is two‑fold. First, there is a complaint that reference is made to par 34(c). Paragraph 34(c) refers to payments allegedly made to one of the defendants pursuant to what is described as the second purported committee resolution. The reference is specifically to long service leave. It is said that as there is no claim to recover payments made pursuant to long service leave the reference to par 34(c) in par 41A is embarrassing and raises a false issue.
It would seem to me that what is pleaded in par 41A is nothing more than a reference to the facts and what actually occurred. It may well be that the reference to par 34(c) adds nothing more than a complete narrative of what actually occurred. Viewed in that light I think, at worst, the reference to par 34(c) is benign and I cannot see that it raises a matter which the defendants could find embarrassing. I would not strike par 41A out on that basis.
The further complaint in respect of both par 41A and par 41B is that, married with the particulars, they do not state precisely the amount that is said to have been overpaid to the first and second defendants. The complaint about the paragraphs is not put quite in that way but after the submissions from counsel for the defendants that, I understand, is the main complaint. It seems to me that the complaint is well founded. The particulars provided do not, for one reason or another, provide a precise calculation of the amount it is said was overpaid to each of the first and second defendants.
Requests 4 and 5 are in question. I think the defendants are entitled to know precisely what amount it is said they were overpaid and precisely what claim is put against them. Whether a problem has arisen as a consequence of the need for the plaintiff to obtain discovery prior to providing an exact figure is neither here nor there. As matters stand at the moment I think that the figure should be provided.
By par 6A and par 6B of an amended chamber summons filed 26 September 2000 the defendants sought to strike out certain paragraphs of the particulars on the basis that the plaintiff had not answered the defendants' requests. In light of the orders I propose to make in relation to precisely what amounts it is said were overpaid to the first and second defendants, I need not deal specifically with these two paragraphs. I would not be prepared to strike out the particulars as sought by the defendants.
What I would propose to do is order that the plaintiff provide particulars of precisely what amounts it is said were overpaid to the first and second defendants. Provided that such particulars are forthcoming, par 41A and par 41B can stand.
I could not leave this matter generally without making some broad general comments about the nature of the action as a whole. There is not a great deal at stake, at least not by the standards of matters which generally come before this Court. I appreciate, as counsel for the plaintiff pointed out, that it may be the relief sought by the plaintiff is equitable relief and therefore there is no alternative but to proceed in this Court. Be that as it may, it seems regrettable that a benevolent society such as the plaintiff should be racked by these internal divisions and as a consequence funds which could be better spent elsewhere go in legal fees.
It would seem to me that if there is any possibility of a settlement in this case it should be explored and explored thoroughly. As two experienced counsel are involved no doubt those are matters taken into account when advice is provided. All I can do is suggest that it is a case which should be settled and I would urge all of the parties involved to use their best endeavours to ensure that it is settled.