Wan, W.W.Y.L v McDonald, D.R.
[1990] FCA 627
•7 Nov 1990
THE FEDERAL COURT OF m ) G3 of 1990 1
L
BETWEEN : 92ENDY WAI YIANG LEUNG WAN Applicant
AND : DONALD ROBERT McDONALD First Respondent
AND : RANALD MURRAY McDONALD Second Respondent
AND : POTWELL INVESTMENTS PTY. LTD. Third Respondent
MINUTES OF ORDER
| JUDGE MAKING ORDER: | PINCUS S . |
| D A T E O F | 7 NOVEMBER 1990 |
| WHERE: | BRISBANE |
COURT ORDERS THAT:
1. The application made by each Notice of Motion filed on 24 October 1990 be dismissed.
2. The first respondent pay the applicant's costs of and incidental to the Notice of Motion brought on his behalf, to be taxed.
| m!T&: | Settlement and entry of orders is dealt with in |
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3. The third respondent pay the applicant's costs of and incidental to the Notice of Motion brought on its behalf, to be taxed.
4. Defences be filed and served on or before 23 November 1990.
5. Replies (if any) be filed and served on or before 7 December 1990.
6 . Discovery take place on or before 14 January 1991.
7 . Inspection take place on or before 28 January 1991.
| ZN THE FEDBseL COURT OF AUSTRALIA | G3 of 1990 | I |
| OUEgNSLAND DISTRICT REGISTRY | 1 |
| GENERAL DIVISION | - | 1 |
BETWEEN: WENDY WAI YIANG LEUNG WAN
Applicant
AND: -D ROBERT McDONALD First Respondent
AND: W A L D MURRAY McDONALD Second Respondent
AND: POTWELL INVESTMENTS PTY. LTD.
Third Respondent
| a: | PINCUS J. |
| a: | BRISBANE |
| m: | 7 NOVEMBER 1990 |
The first and third respondents have applied by two
Notices of Motion filed on 24 October 1990, to strike out various
paragraphs of the applicant's Statement of Claim and (as to the
Notice of Motion filed on behalf of the third respondent) that the
principal application itself be struck out. The main ground of
complaint about the Statement of Claim, which I was invited to read with the particulars of that document which have been furnished, was that it does not plead a sufficient case on the question of authority. The Statement of Claim, in a number of places, alleges that representations were made or other things done by named persons on behalf of the respondents, and the respondents say in
effect that one can see from the leading as particularised that
the applicant has laid no proper foundation for such allegations.
A general answer which was made by counsel for the applicant was that full particulars of authority or any other allegation in a Statement of Claim will not necessarily be required in advance of a defence; the Court has a discretion. It was suggested that if, in some respects, the applicant's knowledge of the basis of the relationship between the three respondents and of the relationship between them and other persons mentioned in the Statement of Claim is incomplete, the Court will not necessarily require the applicant to give, as a condition of being allowed to pursue her claim, information on those points, which she simply does not have. Reference was made to Order 12 Rule 5 ( 3 ) which obliges the Court not to make an order for particulars under that
rule -
"... before the filing of the defence unless, in
the opinion of the Court, the order is necessary or desirable to enable the respondent to plead or for some other special reason".
| One reason for this rule is that experience of debates about | particulars supports the view that they are too often |
| academic ; the allegation (e.g. of authority) of which | |
| particulars are sought may not, in the end, be seriously in dispute. It is undesirable that the opportunity to sue in this Court should be subject to the litigant's engaging in, as a matter of routine, lengthy and expensive disputes about such | |
| matters - i.e. queetiona which are not genuinely in issue. A |
bad example of such a case is discussed in pacific Acce~tance
cor~oration Ltd, v. Forsvth (1970) 112 W.N. (N.S.W.) 29 at 119, A perusal of the pleading by no means supports the suggestion that the applicant, in pleading (as she claims to have done to the best of her present ability) the relationships between the various parties said to have been involved, is merely speculating. The Statement of Claim makes
quite specific allegations which give (if made out) solid ground for thinking that there were business connections between the various respondents, and between the respondents on the one hand and Jackson Chan and Frances Cheung mentioned in the Statement of Claim. It is alleged (paragraphs 2 and 3) that the first and second respondents are directors of the third. Then paragraph 7 says that Chan and Cheung made representations on behalf of the first and third respondents which included mention of paying $10,000 to the first respondent to act as a solicitor. It is also alleged by the
| Property Agency and that an advertising brochure distributed | applicant that Chan was the secretary of the Kawana Waters | ||
| by that agency contained representations suggesting that the agency had authority to act on behalf of the first respondent. | |||
| It is also alleged that Cheung represented to the applicant that if she wished to proceed with the scheme which ie the subject of the proceedings, she should retain the first respondent as her solicitors to act for her in a certain respect, that the applicant signgd a letter of appointment including terms that a sum would'ba paid by way of deposit to the first respondent, and that legal advice would be given by the first respondent. The pleading alleges that $10,000 was paid under this letter of appointment to the first respondent, who invested it on behalf of the third respondent. | |||
| The second respondent appears, on the pleading, to have had less to do with the matter than did the first and third respondents, but he receives mention; for example, it is said that the second respondent (said to be the first respondent's son) made representations of a somewhat similar kind to those alleged against Chan and Cheung. It is also alleged that the first and second respondents conversed on the telephone with the applicant about matters mentioned by Chan, Cheung and by the second respondent. | |||
| Insofar as the pleading alleges that Chan held himself out to be acting as an agent for other respondents, | |||
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| is so, but later actions by B may implicate him or her by giving ground for inference that what A said was authorised by B. Here the pleading alleges specifically that Cheung collected sums of money, in consequence of the representations and sent them to the first respondent and provided the first reepondent'e receipts for those payments. It ie of course possible that even if these allegations are established, it will appear that the receipt og the money by the first respondent had nothing to do with tl\e statements made by Chan and Cheung. But, on the face of it, the allegations of payment of monies and issue of receipts provides some connection between the first respondent and the representations. | |||
| The respondents' counsel complain that the pleading and particulars do not say precisely how and when Chan and Cheung obtained authority on behalf of any respondents to make any representations or to receive money or to do any of the other things which it is alleged they did. It commonly happens, of course, that a person such as the applicant, who deals with people claiming to be agents, has not this sort of information. Counsel for the applicant says that better particulars may be able to be given when discovery is obtained. Even if discovery brings to light no documents clarifying the precise relationship between Chan, Cheung and the respondents, I am far from thinking that the pleading | |||
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| speculative case on the question of authority. | |||
| Mr. Redmond, on behalf of the third respondent, described the applicant as "launching a fishing expedition". | |||
| I think this not to be a fair description of the pleading. | |||
| m. Redmond also pointed out that an order for particulars was | |||
| made. That is so, in the sense that a date was fixed by which the applicant has to respond to tQe requests for particulars; but it was neither express nor implicit in that order that the applicant was obliged to supply particulars of matters which she says she simply does not know and which one would be | |||
| surprised if she did know - for example, particulars of the | |||
| writing (if any) whereby Chan and Cheung are alleged to have obtained authority to act and particulars of the "substance and effect of each conversation relied upon as constituting the appointment", if an oral appointment is relied on. The Court did not order, nor could anyone reasonably think the Court to have ordered, that the applicant must give such particulars. The respondents were obliged to respond to the request for particulars, but that did not involve supplying all the information demanded; the requests were not considered by the Court until the hearing of the Notices of Motion. Insofar as the submissions on behalf of the third respondent imply that the applicant's inability to furnish better particulars of authority than she haa done has resulted in a breach of an order the Court made, that implication is | |||
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| The Statement of Claim is not free from imperfections. As I read the authorities, it is not a condition of a citizen's right to approach this Court that his or her lawyers produce a pleading with a faultless legal and logical structure; few cases would get to Court if that were so. One might well criticize the particulars here, insofar as they may seem to be drawn on the assumption that a representation by A that he or sbe acts for B is in itself some evidence of that fact. As I .have pointed out, however, such a representation may be inferred to be true by reason of | |||
| other facts proved - in particular, if B later so acts as to | |||
| establish a sufficient connection with the representations purporting to have been made on his or her behalf. | |||
| To my mind, the argument which was raised on the question of particulars of authority illustrates the inconvenient results which can ensue from making an order | |||
| (whether by consent or otherwise) for the furnishing of particulars in response to a request, content unconsidered, to be delivered; unless the request is confined to matters which sensibly might be aeked, then the whole exercise can become a waste of time and money. | |||
| Apart from the major attack (the alleged deficiency in particulars of agency) counsel for the third respondent said the applicant's pleading should be struck out because of | |||
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| possibly be a basis for the relief sought; for example, complaint is made of the fact that the applicant is unable to provide particulars of the state of mind of the makers of representations. That etate of mind is alleged in the usual way and I see no occasion for further particulars at this etage. In any event, none are sought. It is aaid boldly that the fraud case must simply be struck out. Various other complaints about the pleading aye made but none of them, plainly, is sufficient to warran't etriking out. There is no necessity to discuss separately the complaints of counsel for the first and second respondents, which were along the same lines as those already dealt with. | |||
| One might perhaps have been sympathetic to a request for an order for further particulars of the pleading in some respects, but the Notices of Motion seek striking out and that plainly cannot be ordered. Defences should be delivered. If there is any residual and genuine difficulty about particulars, after delivery of defences, no doubt the reapondents will raise the matter with the applicant's solicitors. | |||
| The application made by each Notice of Motion is dismissed. It is ordered that the first respondent pay the applicant's costs of and incidental to the Notice of Motion brought on his behalf, to be taxed; and also that the third | |||
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| on or before 28 January 1991. 1t.will be necessary, also, to | |||
| fix a date for further directions. . |
I certify that this and the eight preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.
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