Vulcan Steel Ltd v McDermott HC Auckland CIV-2010-404-003254

[2011] NZHC 587

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-003254

BETWEEN  VULCAN STEEL LTD Plaintiff

ANDPAUL THOMAS MCDERMOTT First Defendant

ANDH J ASMUSS & CO LTD Second Defendant

Hearing:         13 June 2011

Appearances: C T Patterson for Plaintiff

K Beck and D Dickinson for Second Defendant

Judgment:      13 June 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors/Counsel:

Murdoch Price Ltd (M P Hall), P O Box 217006, Manukau

Swarbrick Beck Mackinnon (P Swarbrick), PO Box 7120, Wellesley Street, Auckland

C T Patterson, PO Box 2886, Auckland

VULCAN STEEL LTD V MCDERMOTT HC AK CIV-2010-404-003254 13 June 2011

[1]      Vulcan Steel Ltd, the plaintiff, and H J Asmuss & Co Ltd second defendant, are steel distribution companies.  They are in competition.  Paul McDermott, the first defendant, used to work for Vulcan Steel as its indent trading manager.  He resigned on 3 May 2010.   His last day of work at Vulcan Steel was on 2 June 2010.    On

6 May 2010, he entered into an agreement to work for H J Asmuss & Co Ltd and started work with that company on 3 June 2010.  During May, while still employed by Vulcan Steel, he downloaded information onto a USB memory stick.   Vulcan Steel says that the information he downloaded was confidential to it.  Vulcan Steel claims that it has confidential information which is not in the public domain. It is information about customers, about debtors, about creditors, arrangements with suppliers, business reports, financial statements and financial reports.  Vulcan Steel says that while Mr McDermott worked for it, he was entrusted with that sort of confidential information.  Vulcan Steel’s case is that it was information the law will protect.  It points to evidence of that in its employment contract for Mr McDermott which contained confidentiality provisions.  It also shows that Mr McDermott gave an  undertaking  as  to  confidentiality  during  his  employment  and  also  when  he resigned from employment.

[2]      On 17 May 2010, Mr McDermott’s lawyers returned the memory stick to Vulcan Steel with renewed undertakings by Mr McDermott to maintain the confidentiality  of  information.    But  Vulcan  Steel  was  alarmed.    It  knew  that Mr McDermott was going to work for a competitor although at that stage it did not know who.   Vulcan Steel took the view that if Mr McDermott had downloaded confidential information onto a memory stick in breach of his employment obligations, that information could be of value, not only to Mr McDermott but also to any competitor who might employ Mr McDermott.  Vulcan Steel obtained search orders under Part 33 of the High Court Rules.  The search orders were executed at Mr McDermott’s home and at the offices of H J Asmuss.  At H J Asmuss’ premises, the search warrant was executed only on the actual workspace used by Mr McDermott.  At the time of the search, he had only just begun employment.  The search did not reveal anything of interest which would implicate H J Asmuss as having received any confidential information belonging to Vulcan Steel.

[3]      Vulcan Steel remains highly suspicious that Mr McDermott has imparted its confidential information to H J Asmuss.   For its part, H J Asmuss has protested loudly right from the start of this proceeding that it has not received any such information  from  Mr  McDermott.    In  this  proceeding,  Vulcan  Steel  has  sued Mr McDermott for breach of confidence in equity, breach of the statutory duty of good faith under the Employment Relations Act, conversion, deceit and breach of copyright.

[4]      Vulcan Steel Ltd has sued H J Asmuss for breach of copyright, liability for receipt of confidential information as a third party, and wrongfully inducing breach of contract.

[5]      The matter before the Court is the application by H J Asmuss to strike out the statement of claim against it and for summary judgment.   It says its basis for the application is:

(a)      It should never have been made party to these proceedings, and full disclosure at the time of the application for the without notice search orders  would  have  made  clear  that  there  was  no  need  for  orders against it or any potential second defendant;

(b)There is no factual basis to support the plaintiff proceeding with its claims against the second defendant;

(c)      The plaintiff has from the outset failed to plead any facts against the second defendant which support the alleged causes of action or to disclose any relationship between the first and second defendants at relevant times;  and

(d)The second amended statement of claim is a classic example of generalised and imprecise allegations meant to get the plaintiff ’s foot in the door in the hope that discovery will put it in a better position to plead.  It is a fishing expedition.

[6]      I make a preliminary comment.  H J Asmuss complains that on the without notice application for search orders, there was not adequate disclosure to the court of the letter by Mr McDermott’s lawyers of 17 May 2010 returning the memory stick and giving confidentiality undertakings to Vulcan Steel. This complaint is part of the background, but it is not directly relevant to what the Court has to decide today. Even if Vulcan Steel had made fuller disclosure of the 17 May letter, it would still be entitled to join H J Asmuss as a defendant.  The merits of today’s orders do not turn on the validity or otherwise of the search orders.

Application for summary judgment

[7]      In the application for summary judgment under r 12.2, H J Asmuss must show that none of Vulcan Steel’s causes of action can succeed. If Vulcan Steel’s chances of success are no more than fanciful,  then  it does not have a realistic prospect of proving its case and summary judgment should be given to H J Asmuss. The legal burden remains on the H J Asmuss throughout, but if it shows a basis for giving it judgment, there may be an evidential onus on the part of Vulcan Steel.  The leading authority on defendants’ applications for summary judgment is the Court of

Appeal’s decision in Westpac Bank v MM Kembla NZ Ltd[1].

[1] [2001] 2 NZLR 298 (CA) at [58] – [68].

[8]      In this case, Vulcan Steel’s claims against H J Asmuss & Co Ltd are weak. Vulcan Steel Ltd has good evidence that Mr McDermott was under an obligation of confidence   to   it,   that   it   held   confidential   information   that   it   shared   with Mr McDermott in circumstances which required him not to use it for his personal benefit or to disclose it to others outside Vulcan Steel’s organisation, and that he did breach  those  obligations  of  confidence  by  downloading  information  onto  the memory stick.  But its claim against H J Asmuss is, at best, circumstantial only.  It relies on the fact that the information downloaded by Mr McDermott would be of value to any employer of Mr McDermott as well as to Mr McDermott himself, and it notes  that  Mr McDermott  started  employment  immediately  after  leaving Vulcan Steel. It does not have any direct evidence that Mr McDermott has actually imparted

any of Vulcan Steel’s confidential information to H J Asmuss.  It does not have any

direct evidence that H J Asmuss has made any use of that confidential information. It has grounds for suspicion but its case is no higher than that.  Vulcan Steel refers to the information imbalance.  H J Asmuss has the information whether Mr McDermott disclosed the confidential information to it, Vulcan Steel does not. It points to the injustice of judgment being entered against it at the summary judgment stage, before it has had discovery.  On the other hand, H J Asmuss says that Vulcan Steel’s claim is speculative and the plea for discovery is no more than fishing.

[9]      In Kembla  at [63] the Court of Appeal said:

Except  in  clear  cases,  such  as  a  claim upon  a  simple  debt  where  it  is reasonable to expect proof to be immediately available, it will not be appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff’s claim. That would permit a defendant, perhaps more in possession  of the facts  than  the  plaintiff  (as  is  not uncommon  where  a plaintiff is the victim of deceit), to force on the plaintiff’s case prematurely before completion of discovery or other interlocutory steps and before the plaintiff’s evidence can reasonably be assembled.

[10]     That is the case here.   H J Asmuss’s application for summary judgment asserts that Vulcan Steel does not have evidence to prove that it is liable.  Of Vulcan Steel’s three causes of action, the one that may offer the best chances of succeeding is the claim for wrongful use of confidential information. Proof of receipt of Vulcan Steel’s confidential information may be all that is required for the Court to hold that H J Asmuss should be enjoined from using that information. On the other hand, there are wider gaps in the evidence to support the other causes of action. H J Asmuss knows whether it holds Vulcan Steel’s confidential information. At the summary judgment stage the Court cannot uncritically accept the assertions by H J Asmuss that Mr McDermott has not passed on to it Vulcan Steel’s trade secrets. There is a triable issue as to  the liability of H J Asmuss.   With the information imbalance between Vulcan Steel and H J Asmuss on this liability question, there would be an injustice in terminating Vulcan Steel’s claim now before all interlocutory steps are completed. As there is at least one cause of action of Vulcan Steel that is triable, summary judgment should not be given against it.

[11]     Ms  Beck  submitted  that  Vulcan  Steel  Ltd’s  response  to  the  summary

judgment was simply to throw up hypothetical possibilities.  The response to that is

that she is in effect asking the Court to accept her client’s evidence uncritically.  The Court  of Appeal’s  judgment  in  Kembla  suggests  that  such  an  approach  is  not appropriate in a case like this.

[12]     H  J  Asmuss  filed  its  application  earlier  this  year.  There  is  no  express application for an extension of time, although the time for filing an application under r 12.4 has long expired.  Ms Beck referred me to a minute of Associate Judge Faire in October last year where he gave directions for the filing of strike-out applications and a summary judgment application.  She invited me to accept that that was a grant of leave for the filing of summary judgment application out of time.  I accept that submission.  She is not to be criticised for not making a fresh application for leave once she had received the green light from Associate Judge Faire.  Nevertheless, it needs to be borne in  mind that defendants’ summary judgment  applications are meant to be heard early to enable an assessment to be made early in the proceeding whether the plaintiff has an arguable case before the parties invest in interlocutory steps in preparation for hearing.   The summary nature of the application indicates that it should be able to be decided without the need for discovery and other interlocutory steps.  Here, it is not possible to come to a clear decision that Vulcan Steel’s causes of action can never succeed unless there is, first, an extensive review of the information and knowledge held by H J Asmuss.  That is simply not possible on  a  summary  judgment  application.    I  dismiss  the  application  for  summary judgment.

Strike out application

[13]     H J Asmuss invokes both the inherent jurisdiction and r 15.1 of the High

Court Rules for its application:

15.1   Dismissing or staying all or part of proceeding

(1) The court may strike out all or part of a pleading if it—

(a)   discloses  no  reasonably  arguable  cause  of  action,  defence,  or  case appropriate to the nature of the pleading; or

(b) is likely to cause prejudice or delay; or

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of the process of the court.

(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4) This rule does not affect the court's inherent jurisdiction.

[14]     In particular, H J Asmuss says that the statement of claim does not show any reasonable causes of action and is an abuse of process.

[15]     To a certain extent, the parties diverge on the approach to be taken on these applications. The plaintiff’s submissions focused primarily on the strike out application being an attack that the pleadings did not show a tenable cause of action against H J Asmuss. Vulcan Steel cited familiar authorities[2] for these propositions:

[2] Attorney-General v Prince [1998] 1 NZLR 262 (CA), and Couch v Attorney-General [2010] 3

NZLR 149 (SC) at [33].

(a)      Pleaded facts, whether or not admitted, are assumed to be true, but this does not extend to pleaded allegations which are entirely speculative and without foundation;

(b)The cause of action or defence must be clearly untenable.   It is inappropriate to strike out a claim unless the Court can be certain that it cannot succeed;

(c)      The jurisdiction is to be used sparingly, and only in clear cases.  This reflects the Court’s reluctance to terminate a claim or defence short of trial;

(d)The  jurisdiction  is  not  excluded  by  the  need  to  decide  difficult questions of law, requiring extensive argument;  and

(e)      The Court should be particularly slow to strike out a claim in any developing area of the law, particularly where a duty of care is alleged

in a new situation. Particular care is required in areas where the law is confused or developing.

[16]     Vulcan Steel also submitted to the effect that the proceeding was orthodox and there was no abuse of process.

[17]     H  J Asmuss’ strike  out  application  was  in  essence  a  complaint  that  the pleadings were generalised, rather than specific.  Vulcan Steel is now onto its second statement  of  claim  and  it  is  still  unable  to  particularise  its  causes  of  action. H J Asmuss therefore asks me to find that there cannot be a sound basis for the cause of action and they should not be allowed to run. The authority that gives H J Asmuss most  support  for  its  argument  is  the  judgment  of  Robertson  J  in  Commerce

Commission v Fletcher Challenge Ltd[3] . There he said (at 102, 767):

[3] (1999) 6 NZBLC 102,752 (HC).

This leads to a critical issue, namely whether the Commission is entitled to call the defendants to account on the basis of some generalised allegation in the hope and anticipation that after they have obtained discovery they will be able to particularise inferences which they allege may then be drawn ...

In my judgment it is contrary to principle to suggest that when confronted with a strike out proceeding the plaintiff can lamely say, well after discovery it may be that we can draw a further amended pleading which by inference will establish that there has been a violation of principles of various parts of the Act ...

I am not persuaded that such an approach to pleadings in this area is proper nor is it justifiable.   One does not overlook the fact that there are major commercial imperatives for parties such as the defendants in advancing a course of action which may come near to the boundaries permitted under a competition regime.  But it is in my view anathema to our system of justice to suggest that any plaintiff (even a regulatory body with important enforcement obligations)  can make generalised and non-specific allegations in a wide and undisciplined way, point to some historical narrative without precise clear and unambiguous allegations and suggest that it is entitled to be immune from a strike out application because of its hope and anticipation that at some later stage it will be in a better position than it is now.  In my judgment that is neither good law nor good sense.

[18]     Robertson J struck out the statement of claim in that case, but gave the plaintiff leave to file a new statement of claim addressing the defects identified in the judgment.   The short point is that, where summary judgment is not available to a

defendant, complaints about the adequacy of the pleadings are likely to lead to decisions giving the plaintiffs the opportunity to put their house in order.

[19]     There is a further comment.  I do not go all the way with Robertson J where he suggests that a plaintiff cannot ask for discovery before being required to finalise his pleadings.

[20]     In Marshall Futures Ltd v Marshall, Tipping J said[4]:

It seems to me that in a case where the plaintiff can undoubtedly start again, being within time, the Court should only strike out if satisfied that on the best view of the facts from the plaintiff's point of view he cannot succeed at law, or alternatively where the pleading is so deficient as to require a de novo  start  rather  than  an  amendment. As  Mr  Goddard  aptly  put  it,  the question will often be one of degree. The difference, using by analogy the terminology of motor vehicle insurance, is between a pleading which is a total write off and one which is deficient but is capable of effective repair.

[4] [1992] 1 NZLR 316 (HC) at 324.

[21]     In the present case, there are defects in the pleadings.   H J Asmuss is on sound ground in referring to the particulars required under r 5.26:

The statement of claim—

(a)  must show the general nature of the plaintiff’s claim to the relief sought; and

(b)  must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action; and

(c)  must state specifically the basis of any claim for interest and the rate at which interest is claimed; and

(d)  in a proceeding against the Crown that is instituted against the Attorney-General, must give particulars of the government department or officer or employee of the Crown concerned.

[22]     While the statement of claim states the general nature of Vulcan Steel’s claims for each cause of action under 5.26(a), it lacks the particulars required under r 5.26(b).

First cause of action – breach of copyright

[23]     The pleading of breach of copyright does not:

(a)        Identify the particular works for which it claims copyright;

(b)State  whether  they are  literary  or  other  works  under  s  14  of  the Copyright Act 1994, although in submission Mr Patterson clarified that copyright was claimed under the literary works head;

(c)       Identify the authors of the works;

(d)      State how the plaintiff is the owner of the works; (e)   State to what extent the works are original;  and

(f)       State what actions of H J Asmuss amount to breach of copyright.

[24]     Most of these matters are readily understood.  But some comment on the last is required.   Vulcan Steel pleads that Mr McDermott copied its copyright works. That is primary infringement under s 30 of the Copyright Act.  Vulcan Steel does not allege any primary infringement by H J Asmuss.  It needs to plead some relevant act of primary or secondary infringement under the Copyright Act.  It is not clear from the present pleading what acts of infringement under the Copyright Act are alleged against H J Asmuss.  In submission, Mr Patterson clarified that the relevant act of secondary infringement was possession of infringing works within s 36 of the Copyright Act.   If that is the relevant act of infringement alleged, it needs to be pleaded.

[25]     While  copyright  law  can  be  used  to  protect  privacy  and  confidential information,  it  needs  to  be  remembered  that  copyright  protects  the  original expression of an idea (by restricting certain activities), but it does not protect the ideas themselves.  Paragraph 9 of the statement of claim suggests that Vulcan Steel is claiming copyright for information as well as for original works.  Using ideas in a copyright work that does not involve doing any restricted act under s 16 of the

Copyright Act or doing any infringing act under Part 2 of the Copyright Act will not give rise to liability under the Copyright Act.

[26]     As the statement of claim is presently drafted, H J Asmuss is in difficulty because it cannot tell what works Vulcan Steel is claiming copyright protection for and what it is supposed to have done or to be about to do that could make it liable.  It is entitled to be told.

Second cause of action – breach of confidence

[27]     As to the second cause of action, for breach of confidence, H J Asmuss has the difficulty that in taking on Mr McDermott it has employed someone with years of experience in the steel industry.   Mr McDermott is entitled to use his general knowledge and skills built up over many years of work in the steel industry and H J Asmuss is entitled to the benefit of his knowledge and skills as its employee.  But it is  also  clear  that  in  his  new  job  at  H  J  Asmuss,  Mr McDermott  cannot  use information given to him in confidence while working for Vulcan Steel.  It may be difficult as a matter of law as well as a matter of fact to know where to draw the line.

The following passage from the Laws of New Zealand[5] states the test:

Continuing obligation of employees after termination of employment. The implied term imposing a continuing obligation on an employee after termination of employment not to use or disclose information may cover secret  processes  of  manufacture.  It  may  also  cover  designs  or  special methods of construction, and other information which is of a sufficiently high degree of confidentiality as to amount to a trade secret even though not expressly described as such. However, the obligation will not restrict an employee after termination of employment from using confidential information which would only be prohibited from disclosure to a third party during employment because such disclosure would be a clear breach of the duty of good faith. This will not permit an employee to copy information, nor will deliberate memorising be allowed. However, to the extent that the information is carried away in the head of the employee and is not a trade secret the employee is free to use the information for his or her own benefit or the benefit of any future employer.

[5] Laws of New Zealand: Intellectual Property: Copyright at [70]. See also Faccenda Chicken Ltd v

Fowler [1987] Ch 117 (CA).

[28]     H J Asmuss needs to know what information Vulcan Steel says is confidential to it and cannot be used by others.  H J Asmuss needs to be able to assess whether

that  information  is  already  in  the  public  domain  or  not;  whether  it  has  that

information; and, if it has it, whether it received it from Mr McDermott.  It needs to be able to distinguish confidential information from Mr McDermott’s general knowledge and skills built up over many years in the steel industry.

[29]     The present pleadings make only general assertions of confidentiality.  They do not help H J Asmuss understand Vulcan Steel’s case against it. A more targeted pleading is required. The pleading does not have to disclose the confidential information.   It should be possible to describe the information while preserving secrecy.   If Vulcan Steel finds difficulty on this aspect, it can ask the Court for directions.

[30]     H  J  Asmuss  also  demands  pleading  of  how  and  when  confidential information was provided to it.  On that, Vulcan Steel cannot be expected to go much further than it has already, given that H J Asmuss knows what information it has received from Mr McDermott.   If, for example, Vulcan Steel were to plead that Mr McDermott   imparted   the   information   from   a   given   time   when   it   was contemplated that he would work for  H J Asmuss, that would be enough to tell H J Asmuss about that aspect of the case.

[31]     On the other hand, Vulcan Steel should be able by now to say what use H J Asmuss has made of its confidential information.  It may not have been able to say that a year ago, but any use of the information should be apparent by now, if there has been wrongful use of information.

Third cause of action – inducing breach of contract

[32]     In Jiao v Barge[6] the Court of Appeal set out the ingredients of the tort: (a)     There must have been a legally enforceable contract in existence;

[6] Jiao v Barge CA236/05 at [56].

(b)The  defendant  must  have  known  of  the  contract  and  deliberately intended to interfere with it in order to harm or bring pressure to bear

on the plaintiff;

(c)      The   interference   may   have   been   occasioned   either   by   direct persuasion or interference, or indirectly, but if the latter, some independently unlawful means had to be shown;

(d)      the interference must have been without legal justification;

(e)      The interference must cause loss to the plaintiff or, if an injunction is sought, there must been clear indication that such loss would occur.

[33]     The Law of Torts in New Zealand[7]points out that New Zealand courts may follow the decision of the House of Lords in OBG Ltd v Allan[8] that there is not a tort of interference with contractual relations, but instead a tort confined to conduct that induces a breach of contract. The ingredients are said to be:

[7] Stephen Todd (ed) 5th ed, The Law of Torts in New Zealand (5th ed, Thomson Reuters, Wellington

2009) at [13.2].

[8] [2008] 1 AC 1 at [33]-[34].

(a)       There must be a legally enforceable contract in existence;

(b)The defendant must have engaged in conduct which in fact induced a breach of the contract;

(c)      The defendant must have known that his or her conduct would induce the breach; and

(d)The defendant’s conduct inducing the breach must have caused loss or damage to the plaintiff or, if an injunction is sought, there must be a clear indication that such loss will occur.

[34]     The text also says the  defence of justification might arise in exceptional circumstances but if that is a matter of defence, that is a matter to be raised by a defendant. For this case, it does not seem to matter which formulation of the tort is applied – in this case Vulcan Steel has pleaded for inducing breach of contractual obligations of confidence and contractual obligations of good faith. I do not have to

decide whether the OBG case is to be followed in New Zealand.

[35]     In submission, Mr Patterson said that the breach of contract he was relying on was the breach of the contractual obligation of confidence.  He said that that was a contractual  obligation  which  survived  the  end  of  the  employment  agreement. Ms Beck did not appear to take issue with that proposition.  It should be made clear, however, whether the acts of inducing breach of contract are those that are said to have occurred before or after the end of Mr McDermott ’s employment.  That at least should be made clear to H J Asmuss.

[36]     Vulcan Steel also alleges that H J Asmuss induced Mr McDermott to breach his duty of good faith, but the duty of good faith does not survive the employment relationship.  Mr Patterson did not submit that it does.   If Vulcan Steel Ltd is relying on inducing a breach of duty of good faith, then that should be separated out from inducing breach of confidence obligations.  There should be specificity as to when those actions, that is, inducing breach of contractual terms as to good faith, were committed.

[37]     The position of H J Asmuss is that it had nothing to do with Mr McDermott downloading information to the memory stick.  Affidavits from it show the tenor of the evidence it will give.  It acknowledges having discussions with Mr McDermott during his period of garden leave that led to his taking up employment.  In alleging breach of contract, Vulcan Steel alleges that H J Asmuss did something more than what H J Asmuss said it did.  Vulcan Steel does not say what that something more is, other than make a general assertion of inducing breach of contract.   Again, H J Asmuss is entitled to know the case it is facing.

Conclusion

[38]     Under Tipping J’s test in Marshall Futures Ltd v Marshall, Vulcan Steel’s pleading is not a total write off. While defective, it is capable of repair. Vulcan Steel should be given the opportunity to file an amended pleading.

[39]     At the same time, I have sympathy for Vulcan Steel’s complaint that H J Asmuss has held off making discovery while insisting that pleadings should be struck out for lack of particulars when it holds the relevant information that would

enable those particulars to be given.   Ordering discovery now will test whether Vulcan  Steel  can  put  together  an  arguable  case  on  all  its  causes  of  action. Accordingly, I give directions for both discovery and new pleadings:

(a)      Both parties are to file and serve affidavits of discovery within fifteen working days;

(b)Inspection  of  documents  is  to  be  completed  within  a  further  ten working days;

(c)      Vulcan Steel is to file and serve a further amended statement of claim, fully particularising its claim, within a further ten working days.  The particulars will include those I have identified in this decision;

(d)H J Asmuss is to file and serve a statement of defence within ten working days of receiving the new statement of claim;

(e)      Leave is reserved to seek a conference at short notice for directions as to  the  scope  of  discovery,  protection  to  be  given  for  documents claimed  to  be  confidential,  and  protection  for  any  particulars  for which confidentiality is also claimed.  I hope that the parties will be able to resolve those matters without the Court’s assistance.

[40]     The application for summary judgment is dismissed.  I adjourn the strike out application to be called in my Chambers list on 19 August 2011.   I will hear any argument that Vulcan Steel’s new pleadings are still defective.  By that stage, Vulcan Steel should know what causes of action it can still sustain.  Continued generalised pleadings risk being struck out.  I reserve costs for this hearing.  They can be fixed

on 19 August 2011.

R M Bell

Associate Judge