EnergyAustralia v Australian Energy Limited [2001] FCA 1049 (3 August 2001)

Last Updated: 8 August 2001

FEDERAL COURT OF AUSTRALIA

EnergyAustralia v Australian Energy Limited [2001] FCA 1049

PRACTICE AND PROCEDURE - Federal Court of Australia - application for an order that certain questions be determined separately and in advance of other issues in the proceedings

PRACTICE AND PROCEDURE - Federal Court of Australia - pleadings - where applicant has pleaded conclusions in addition to statements of fact - whether applicant is required to provide further and better particulars

Federal Court Rules O 11 r 9, O 29 r 2

Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142 followed

Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]- [9], [12] followed

Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7] followed

ENERGYAUSTRALIA v AUSTRALIAN ENERGY LIMITED & ANOR

N 430 of 2001

STONE J

3 AUGUST 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 430 OF 2001

BETWEEN:	ENERGYAUSTRALIA APPLICANT
AND:	AUSTRALIAN ENERGY LIMITED (ACN 083 183 028) FIRST RESPONDENT AUSTRALIAN ENERGY SERVICES PTY LIMITED (ACN 067 609 803) SECOND RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	3 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the applicant's motion for the determination of certain questions separately and in advance of all other issues in the proceeding be dismissed;

2. the applicant provide further and better particulars in respect of paragraphs twenty and twenty-two of its statement of claim;

3. the costs of both notices of motion be costs in the cause.

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	N 430 OF 2001

BETWEEN:	ENERGYAUSTRALIA APPLICANT
AND:	AUSTRALIAN ENERGY LIMITED (ACN 083 183 028) FIRST RESPONDENT AUSTRALIAN ENERGY SERVICES PTY LIMITED (ACN 067 609 803) SECOND RESPONDENT

JUDGE:	STONE J
DATE:	3 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant and the respondent each conduct a business that includes the retail supply of electricity. These business are conducted, in the case of the applicant, under the name, ENERGYAUSTRALIA, and in the case of the respondent, under the name, AUSTRALIAN ENERGY. The applicant claims that the name, `AUSTRALIAN ENERGY', is a "colourable imitation" of the applicant's name `ENERGYAUSTRALIA' and that its use involves misleading and deceptive conduct as well as passing off. The resolution of these claims is for another day.

2 At present I must consider two notices of motion. The first, filed by the respondents on 17 July 2001, is a demand for further and better particulars of some of the claims made in the applicant's statement of claim. The second is an amended notice of motion filed in Court by the applicant. It seeks orders pursuant to O 29 r 2, for the determination of some issues in the proceeding separately and in advance of all other issues in the proceeding. It is convenient to deal with the applicant's notice of motion first.

ADVANCE DETERMINATION OF CERTAIN ISSUES

3 The questions that the applicant seeks to have determined separately and in advance of other issues are directed to the respondents' liability for misleading and deceptive conduct and passing off, the availability of certain orders for injunctive and other relief as well as certain issues concerning a trade mark of which the first respondent is the registered owner.

4 Order 29 r 2 provides:

"The Court may make orders for-

(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and

(b) the statement of a case and the question for decision."

5 Although O 29 r 2 clearly allows a separation of issues such as the applicant seeks, the starting point is still that in the ordinary course all issues of fact and law should be determined at the one time; Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142. A party seeking to depart from the ordinary procedure needs to point to some perceptible benefit to be gained from such course. The relevant legal principles were summarised by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]- [9]. As her Honour concluded:

"Ultimately the issue for the Court to determine when consideration is being given to the making of an order under O 29 r 2 is whether it is `just and convenient' for the order to be made..."

6 In Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 ("Idoport") at [7], Einstein J cautioned against too ready separation of issues stating that:

"The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings..."

7 I am not convinced that this is a case where separation would have such a benefit. I have a number of concerns but chief among them is that, where there are claims of misleading and deceptive conduct and relief is sought under ss 82 and 87 of the Trade Practices Act 1974 (Cth), it is not possible to separate liability and damage completely; see Reading Australia Pty Ltd v Australian Mutual Provident Society (above) at [12].

8 Another issue concerns the nature of the evidence that would be adduced by the parties at the separate hearings. While I have no information concerning the evidence to be brought by either party, given the nature of the claims, it would not be surprising if there was a commonality of witnesses and an overlap of evidence. If the issues concerning liability were separated from other issues this might cause difficulty. Added to these concerns is the possibility referred to by Einstein J in Idoport at [7](5)(c) that,

"the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings..."

9 Among the questions that the applicant seeks to have determined before other issues is whether certain orders by way of injunction, both restrictive and mandatory, should be made. An important consideration in deciding whether to grant such relief is likely to be the loss or damage that would be suffered by the applicant in the absence of such an order.

10 The concerns I have expressed in the preceding paragraphs are sufficient to convince me that the usual course of determining all issues at the one time should be followed in this proceeding. The applicant's motion is therefore dismissed.

FURTHER AND BETTER PARTICULARS

11 There has been some correspondence between the parties concerning this issue. In response to the respondents' requests the applicant has provided some additional information but the respondents allege that there is still insufficient particularisation of some claims. The respondents have concentrated their request for particulars on ten paragraphs of the statement of claim, being paragraphs thirteen, sixteen, eighteen, twenty, twenty-one, twenty-two, twenty-three, thirty, thirty-one and thirty-two.

12 The obligation to provide particulars is an important element in the preparation of a case for trial and, properly discharged, it will contribute significantly to the efficient and speedy resolution of the issues. It is not the purpose of particulars to fill gaps in the pleadings or to describe the evidence by which the case is to be proved. It is well established that the purpose of particulars is to limit the generality of the pleadings and refine the issues so that the respondent knows the allegations that must be met and can prepare an appropriate defence. It follows that the Court will not order the provision of particulars that cannot reasonably be seen as contributing to this object.

Paragraphs thirteen, eighteen, twenty-one, thirty, thirty-one and thirty-two

13 Paragraph thirteen states:

"The name "AUSTRALIAN ENERGY" is a colourable imitation of the applicant's name "ENERGYAUSTRALIA."

The applicant's position is that it is not possible to give particulars of this statement because it is a matter for argument and for the Court to decide. With respect, this is correct, but the applicant's response shows where the problem lies. Paragraph thirteen states a conclusion, not a fact. Strictly speaking, it is not a proper pleading and it is therefore not surprising that the applicant is unable to particularise the conclusion. While, under O 11 r 9, it is permissible for a party to raise a point of law in its pleadings, there is no provision in the Federal Court Rules that sanctions the statement of conclusions in pleadings. Nevertheless it is not an irrelevant statement and it does serve the main purpose of a pleading, that is, to put the respondents on notice of the case they have to meet. For this reason I do not regard it as embarrassing. Similar comments apply to paragraphs eighteen, twenty-one, thirty, thirty-one and thirty-two. The respondents' request for further particulars in relation to these paragraphs really amounts to a request for details of the evidence supporting these conclusions. The respondents' confusion may have been avoided if the statement of claim had been drawn more carefully. Nevertheless, the applicant is not obliged to disclose its evidence at this stage.

Paragraph sixteen

14 Paragraph sixteen states that, "[b]y reason of the matters referred to in paragraphs 11 and 12", the respondents (or one or both of them) have made or threatened to make certain representations in trade or commerce within Australia. It is not necessary to set out the alleged representations in terms. It is sufficient to say that they are representations that would invite confusion between the businesses and identities of the applicant and the respondents. Paragraph sixteen is not particularised but, as noted above, it refers to paragraphs eleven and twelve.

15 In response to a request for further and better particulars, the applicant's solicitors, in their letter of 22 June 2001, provided additional particulars in relation to paragraphs eleven and twelve. They referred to specific comments in a prospectus apparently put out by the first respondent and stated that these particulars also applied to paragraph sixteen. In their letter of 12 July 2001, the applicant's solicitors stated that the representations arise from the use of the name, Australian Energy, in connection with the retail supply of electricity in Victoria and its threatened use in New South Wales and Queensland. It also claimed that the "facts are pleaded with sufficient particularity in paragraphs 11 and 12 of the statement of claim". In my opinion the information provided in connection with paragraph sixteen is sufficient for the respondents' purposes.

Paragraphs twenty and twenty-two

16 Paragraphs twenty and twenty-two claim that the applicant has suffered loss or damage by reason of the respondents' conduct. No particulars are provided. In their letter of 22 June 2001 the applicant's solicitors stated that, "The applicant relies upon, amongst other things, damage to its commercial reputation including, without limitation, damage arising by reason of the misappropriation of its goodwill." Thereafter the applicant steadfastly refused to provide further particulars. As the applicant's solicitors allege in their letter of 12 July 2001, the applicant is not obliged to quantify its loss at this time. This does not, however, excuse it from providing particulars of its claim to have suffered loss. The phrase, "damage to its commercial reputation" refers to the cause of the loss; it does not identify the loss. In addition the applicant's use of the phrases "amongst other things" and "without limitation" suggests that it is alleging heads of damage not yet specified. In my view, the respondents are entitled to further particulars. If the position is that there are no facts on which the applicant can base such a claim and the applicant is really only seeking relief quia timet, then the respondents are entitled to know this.

Paragraph twenty-three

17 This position is different with respect to the claim in paragraph twenty-three in which the applicant alleges that the respondents' conduct has resulted in it making profits. This claim is ancillary to the claim of loss and damage and is designed to keep open the applicant's right to elect to between damages and account of profits. Particulars of a claim for an account of profits are peculiarly within the knowledge of the respondents and one would not expect it to be separately particularised by the applicant. The respondents' request in respect of this paragraph is really a request for the applicant's evidence.

COSTS

18 Although I have rejected the applicant's motion seeking orders that certain questions be determined separately, the motion was properly brought. It is not unreasonable that such an issue be considered in the course of pre-trial management. For this reason I do not propose to order that the applicants bear the costs of this motion. In relation to the motion seeking further and better particulars, the respondents were only partially successful and no party is beyond criticism in the approach adopted in relation to this issue. Accordingly, in my view, the most appropriate order is for the costs of both motions to be costs in the cause.

ORDERS

19 For the above reasons, I make the following orders:

1. the applicant's motion for the determination of certain questions separately and in advance of all other issues in the proceeding is dismissed;

2. the applicant is to provide further and better particulars in respect of paragraphs twenty and twenty-two of its statement of claim;

3. the costs of both notices of motion shall be costs in the cause.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 3 August 2001

Counsel for the Applicant:	Mr D R Sibtain
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr I Faulkner
Solicitor for the Respondent:	Piper Alderman
Date of Hearing:	27 July 2001
Date of Judgment:	3 August 2001