Warner v Queensland Fencing Supplies Pty Ltd

[2009] VCC 383

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-07-04139

Douglas Graeme Warner	Plaintiff
v.
Queensland Fencing Supplies Pty Ltd	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2009
DATE OF JUDGMENT:	4 May 2009
CASE MAY BE CITED AS:	Warner v. Queensland Fencing Supplies Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 0383

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Application for further and better discovery – Inadequate particularisation of pleading – Breadth of discovery sought not justified

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Foster	Matthew Shaw & Associates
For the Defendant	Mr M. Creelman	Creelman Lawyers
HIS HONOUR:

1      This proceeding commenced by writ on 18 October 2007. The statement of claim annexed to the writ has been the subject of minor amendment today. The defence and counterclaim was filed on 11 December 2007. The issues in dispute between the parties have therefore been clear for a considerable time. Two trial dates have been vacated; firstly, the trial date of 3 November 2008 and more recently a trial date of 27 April 2009. The proceeding is currently set down for trial on 29 June 2009.

2     The plaintiff has recently given notice that one of the claims set out in the original statement of claim has been abandoned and the calculation of loss and damage has been slightly amended. These matters are the subject of a specific order made by me setting out the proposed changes. It is appropriate for the plaintiff to file a document which contains those changes. It is unnecessary for the defendant to file a pleading responding to those changes, unless it wishes to make admissions, which is highly unlikely. If the defendant were to file an amended pleading, in my view, it should not recover the costs of that amended pleading, regardless of the provisions of Rule 63A.17, or the ultimate result of the litigation.

3     The second matter dealt with today, related to complaints by the defendant about the plaintiff’s discovery. In paragraph 8(e) of the defence dated 11 December 2007, the defendant pleads that “during the second agreement, the plaintiff purchased from the third parties product similar or equivalent to that manufactured by the defendant and the

subject of the second agreement the particulars of which cannot be pleaded until
disclosure has been completed by the plaintiff”. In its reply, filed 2 May 2008, the plaintiff
stated in paragraph 1(e), “In relation to paragraph 8(e) of the defence, the plaintiff admits
that it purchased custom panels from third parties other than the defendant in
circumstances where the defendant ceased making custom panels for use by the
plaintiff”.

4     The defendant has sought further discovery of a number of documents relating to this pleading, including “purchase orders to each of its suppliers or all of the invoices it has received from such suppliers…invoices directed to its only customers…[and]…its

financial statements including its profit and loss and balance sheets during the period of
the agreement”.

5     In my view, the original pleading by the defendant was inadequate and remains inadequate, it contains no particulars at all of the products referred to or the third parties from whom the plaintiff was alleged to have purchased those products. In the absence of any such particulars or an explanation for a lack of those particulars, it seems to me that it is an insufficient basis to seek further discovery from the plaintiff. The plaintiff has in its reply joined issue with the allegations in the defence, whilst admitting that because of the circumstances relating to the defendant ceasing to make custom panels for use by the plaintiff, it purchased custom panels from third parties other than the defendant.

6     In paragraph 2 of a letter dated 6 April 2009 from the plaintiff’s solicitors to the defendant’s solicitors, the circumstances in which the defendant ceased making custom panels for use by the plaintiff are set out in some detail and the purchases from third parties which followed those matters are said to be restricted to certain invoices from a named supplied, J-Pac Engineering Pty Ltd, copies of which were contained in a supplementary affidavit of documents, sworn by the plaintiff on 15 April 2009. Copies of the relevant documents were apparently forwarded to the defendant’s solicitors with a letter dated 26 March 2009. In these circumstances, it is my view that the further documents sought by the defendant are not justified by the original pleading by the defendant, which remains unparticularised, or by the concession made in the reply by the plaintiff which has led to the further discovery and the provision of what are said to be the only documents relevant to that concession

7     The defendant also seeks “various drafts of and correspondence relating to the agreement identified in paragraph 2 of the statement of claim”. This request was justified on the basis that paragraph 2(b)(ii)(4) of the defence, dated 11 December 2007, pleaded that as part of the agreement between the parties, there was a material term that “the plaintiff will open up additional retail outlets to service the marketplace in Victoria”. In further and better particulars of the defence and counterclaim, dated 28 July 2008, it was said that “this term was agreed during a telephone conversation between the plaintiff and Mr Robert Gwyn Jones (“Jones”) on behalf of the defendant on a date and time that the defendant cannot specify but in any event before the execution of the document dated 15 September 2003 which forms part of the second agreement”.

8     Despite being requested to do so, defendant’s counsel could not identify what relevance the drafts of the agreement or correspondence relating to the written agreement would have to the alleged telephone conversation between the plaintiff and Mr Jones. It was not said, for example, that the drafts of the written agreement contained a term as alleged by the defendant in the defence. In the circumstances, there is no basis for the request for further and better discovery.

9     The final matter raised by the defendant was that, “The plaintiff has not disclosed any documents relating to the extent to which it has established additional retail outlets to service the marketplace in Victoria in compliance with the term of the agreement alleged

in paragraph 2(b)(ii)(4) of the defence”. There is no material filed in support of the
application, suggesting that there are in existence any documents which might fit within
this category and which might be in the possession, power or control of the plaintiff. In
the absence of such evidence, I consider that it would be inappropriate to make an order
for further discovery.

10 The defendant’s complaints as to the insufficiency of the plaintiff’s further and better

particulars relate primarily to annexures 1 and 2 to the further and better particulars of
claim and defence to counterclaim, dated 6 October 2008. Those matters were explained
during the hearing by plaintiff’s counsel, and the details of that explanation have been
included in the amendments to the particulars of loss joined to paragraph 6 of the

amended statement of claim.

11 These matters are further explained, in my view satisfactorily, in paragraphs 2 and 3 of

the letter dated 6 April 2009 from the plaintiff’s solicitors to the defendant’s solicitors. Accordingly, there is no further dispute in relation to this matter which requires further attention.

12 It is difficult to understand why this case has taken so long to reach trial. The initial trial

date of 3 November 2008 was fixed at the request of the parties, and two trial dates have
had to be vacated because the parties were not ready. As a result of the orders I have
made today, the plaintiff has amended its statement of claim and the further and better
particulars of his reply and defence to counterclaim, which were in part non-responsive,
have now been clarified by reference to a letter from his solicitors dated 6 April 2009. The
defendant’s application for further discovery was mostly misconceived, in my view, and
the complaints about the plaintiff’s further particulars were largely answered by the letter
dated 6 April 2009. It is for this reason I have foreshadowed, subject to hearing from
counsel, that the costs of the hearing today should await the determination on the merits

of the dispute between the parties.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 4 May 2009.

Dated: 4 May 2009

Caroline Dawes

Associate to His Honour Judge Anderson