BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No.2) [2002] FCA 87 (12 February 2002)

Last Updated: 20 February 2002

FEDERAL COURT OF AUSTRALIA

BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No.2)

[2002] FCA 87

PRACTICE & PROCEDURE - pleadings - adequacy of pleadings - whether pleadings disclose cause of action - whether pleadings have tendency to cause prejudice, embarrassment or delay in the proceeding.

Trade Practices Act 1974 (Cth) ss 52, 53, 58 75B, 78B, 82

Federal Court Rules, O 11 r 16

Banque Commerciale SA en Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 - referred to

Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) 17 ATPR 41-434 - referred to

Beach Petroleum NL v Johnson (1991) 105 ALR 456 - referred to

Bond Corp. Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 - referred to

Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 - applied

Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 - referred to

Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 - referred to

General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 - referred to

Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (Federal Court, 3 September 1991, unreported) - referred to

King v GIO Australia Holdings Ltd [2001] FCA 308 - referred to

Murex Diagnostics Australia Pty Ltd v Chiron Corporation (1995) 55 FCR 194 - referred to

Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 - applied

BWK ELDERS AUSTRALIA PTY LTD (ACN 000 320 794) v WESTGATE WOOL COMPANY PTY LTD (ACN 007 387 902) and PETER JOSEPH ANDERSON, MATT ILMARI KAINE and GRAEME JOHN MOYLE (NO.2) AND BETWEEN WESTGATE WOOL COMPANY PTY LTD (ACN 007 387 902) and PETER JOSEPH ANDERSON and MATT ILMARIE KAINE and GRAEME JOHN MOYLE and BWK ELDERS (AUSTRALIA) PTY LTD (ACN 000 320 794)

S.105 of 2001

MANSFIELD J

12 FEBRUARY 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.105 OF 2001
BETWEEN:	BWK ELDERS (AUSTRALIA) PTY LTD (ACN 000 320 794) APPLICANT
AND:	WESTGATE WOOL COMPANY PTY LTD (ACN 007 387 902) FIRST RESPONDENT PETER JOSEPH ANDERSON SECOND RESPONDENT MATT ILMARI KAINE THIRD RESPONDENT GRAEME JOHN MOYLE FOURTH RESPONDENT
AND BETWEEN:	WESTGATE WOOL COMPANY PTY LTD (ACN 007 387 902) FIRST CROSS-CLAIMANT
	PETER JOSEPH ANDERSON SECOND CROSS-CLAIMANT MATT ILMARI KAINE THIRD CROSS-CLAIMANT GRAEME JOHN MOYLE FOURTH CROSS-CLAIMANT
AND:	BWK ELDERS (AUSTRALIA) PTY LTD (ACN 000 320 794) CROSS-RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	12 FEBRUARY 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. With respect to the notice of motion of the respondents filed on 18 January 2002:

(1) the orders sought in paragraphs 1 and 2 are refused

(2) the notice of motion is otherwise adjourned to a date to be fixed, with liberty to any party to have it relisted for further hearing.

2. Leave to the applicant to amend the application, if so advised, by adding claims for damages for breach of contract, for misrepresentation, for deceit, and for exemplary damages.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.105 OF 2001
BETWEEN:	BWK ELDERS (AUSTRALIA) PTY LTD (ACN 000 320 794) APPLICANT
AND:	WESTGATE WOOL COMPANY PTY LTD (ACN 007 387 902) FIRST RESPONDENT PETER JOSEPH ANDERSON SECOND RESPONDENT MATT ILMARI KAINE THIRD RESPONDENT GRAEME JOHN MOYLE FOURTH RESPONDENT
AND BETWEEN:	WESTGATE WOOL COMPANY PTY LTD (ACN 007 387 902) FIRST CROSS-CLAIMANT
	PETER JOSEPH ANDERSON SECOND CROSS-CLAIMANT MATT ILMARI KAINE THIRD CROSS-CLAIMANT GRAEME JOHN MOYLE FOURTH CROSS-CLAIMANT
AND:	BWK ELDERS (AUSTRALIA) PTY LTD (ACN 000 320 794) CROSS-RESPONDENT
JUDGE:	MANSFIELD J
DATE:	12 FEBRUARY 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The respondents in the action have applied by motion dated 18 January 2002 to strike out the whole of the applicant's Amended Statement of Claim filed on 11 October 2001 (the Statement of Claim). They allege that the Statement of Claim discloses no reasonable cause of action. Independently, they allege that par 88 discloses no reasonable cause of action against the second third and fourth respondents (the personal respondents). Alternatively, they seek to have pars 88, 89 and 91 of that Statement of Claim struck out as having a tendency to cause prejudice, embarrassment or delay in the proceeding. Order 11 r 16 empowers the Court to make such orders.

2 It is clear that the power to strike out a pleading should be exercised sparingly and only in clear cases: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Murex Diagnostics Australia Pty Ltd v Chiron Corporation (1995) 55 FCR 194. "Embarrassment" in the context of O 11 r 16 involves pleadings which contain allegations which are vague or inconsistent, or which are confusing so that the purpose of pleadings are not properly served: Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) 17 ATPR 41-434 (Bartlett), although of course that description is not exhaustive.

3 The purpose of pleadings is to define the issues so that the parties may know in advance of the hearing the case they have to meet. That enables them to prepare fairly and efficiently for the trial. It also enables the trial to be conducted sensibly and efficiently and to be properly controlled: see generally Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664; Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135. The pleadings must disclose a reasonable cause of action by alleging material facts which, if established at the trial, will enable the applicant to make out all elements of the cause or causes of action. They must also contain sufficient particularity to inform the opposing party of the case which is to be met.

4 The Statement of Claim makes serious allegations against the respondent. To address the respondent's contentions, it is necessary to refer briefly to the claims in the Statement of Claim. The applicant and the first respondent both carry on business in the sale and purchase of wool. The personal respondents are employees and directors of the first respondent. The applicant makes allegations about six separate purchases of wool from the first respondent, identified by the destination of the wool purchased. The six transactions extend over the period October 2000 to July 2001. The allegations about the six purchases follow the same template. It is necessary to refer to one only of those purchases.

5 Paragraphs 4 to 14 of the Statement of Claim refer to what is called "the Parkes wool". The Statement of Claim alleges that the applicant purchased the Parkes wool from the first respondent in May and June 2001 (par 4). The Parkes Wool comprised 13 lots, each identified by number allocated by the first respondent, by the brand name of the wool in each lot, and by the number of bales in each lot (par 5). The purchase of the Parkes wool followed the inspection of the wool by an officer of the applicant at the first respondent's premises, who inspected a sample of the wool offered for sale known as a "grab sample". Each grab sample was in a display box, together with a statement of the lot number, the bale numbers of the wool, and the number of bales comprising the lot and with a certificate issued by the Australian Wool Testing Authority (AWTA) (par 8). The applicant's agent examined each of the grab samples and of the accompanying documents (par 9). It is alleged that, by the presentation of the grab samples with the accompanying documents, the first respondent represented various matters about the Parkes wool, including its particular characteristics (par 10). It is further alleged that the first respondent made those representations intending that the applicant should rely upon them (par 11), and that it did so when it contracted to buy the Parkes wool (par 12). The applicant then paid for the Parkes wool, and it was delivered to the applicant by the first respondent through a trucking contractor; that delivery also amounted to representations by the first respondent that the Parkes wool was that agreed to be purchased by the applicant, and conformed to the representations about it (par 13). The applicant then alleges that the representations were not accurate and were misleading; detailed particulars are provided (par 14).

6 After dealing in a similar manner with each of the six purchases, the Statement of Claim alleges that the first respondent, at the time it made each of the representations, did not intend to deliver to the applicant the lots of wool to which the representations related, but wool with different characteristics (par 83), and that the representations were made fraudulently (par 84). The conduct in making the representations about the characteristics of the wool is also said to contravene ss 52 and 53(a) of the Trade Practices Act 1974 (Cth) (the TPA), and by accepting payment for the wool the first respondent is said to have contravened s 58 of the TPA (pars 85, 86 and 87).

7 Paragraph 88 of the Statement of Claim alleges that the personal respondents aided, counselled or procured those contraventions or were knowingly concerned in the contraventions; a series of facts are then asserted against each of the personal respondents (par 88). Thus the applicant seeks to allege accessorial liability on the part of the personal respondents, by reason of s 75B of the TPA.

8 Paragraphs 89 and 90 deal with damages. Paragraph 89 alleges that, by reason of the representations and the conduct of the respondents in the Amended Statement of Claim, the applicant has suffered loss and damage and will continue to do so. Detailed particulars are provided. Paragraph 90 alleges facts to sustain a claim for compound interest as damages.

9 There is then a detailed claim for relief (par 91), involving claims for declarations of contraventions of the TPA and damages pursuant to s 82 of the TPA, damages for breach of contract, damages for fraud, damages for misrepresentation, and exemplary damages and interest and costs.

10 The respondents contend principally that the Statement of Claim should be struck out because it does not allege material facts necessary to make out causes of action for contraventions of the TPA because:

(1) there is no pleading that any of the "matters" alleged occurred in trade or commerce,

(2) there is no pleading that the applicant has suffered loss or damage by conduct done in contravention of any of ss 52, 53 or 58 of the TPA

and, in relation to the cause of action pleaded in deceit, there is no pleading that the applicant acted upon any alleged false statement and sustained damage by doing so.

11 The attack upon par 88 of the Statement of Claim is that it contains no allegations of material facts so as to enliven s 75B of the TPA. In particular, it is contended that no material facts are alleged that any of the personal respondents knew that the alleged representations were made by the first respondent or that they were misleading or deceptive or false, nor in respect of s 58 of the TPA that they knew at the time the first respondent accepted payment for the six transactions that the first respondent intended not to supply the wool contracted to be sold but intended to supply wool with materially different characteristics.

12 Finally, it is contended, pars 88, 89 and 91 of the Statement of Claim should be struck out as embarrassing because they do not indicate which allegations are made severally as against each of the personal respondents.

13 The respondents also complain that par 91 is in the nature of a prayer for relief and should not, for that reason, be permitted to remain in the Statement of Claim. They also complain that the application contains the claim for damages under s 82 of the TPA but does not contain a claim for damages at common law, so the Statement of Claim should not be permitted to do so and that the allegation relating to the claim in deceit should therefore be struck out. Senior counsel for the applicant acknowledges there is no claim in the application for damages at common law. His client seeks leave to amend the Application to do so. I give that leave. That point then falls by the wayside. I also do not propose to strike out par 91 of the Statement of Claim simply because it contains a prayer for relief.

14 I turn to consider the principal submissions.

15 In my view, the Statement of Claim adequately pleads that the conduct alleged on the part of the respondents occurred in trade or commerce. It alleges in pars 1.3 and 2.3 that each of the applicant and the first respondent were engaged, inter alia, in trade and commerce in the sale and purchase of wool. That is a pleading of a conclusion. That does not prevent it from being a pleading of a material fact: see per Carr J in Bartlett at 40,888. His Honour cited with approval remarks of French J in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (Fed Ct, 3 September 1991 unreported) to the following effect:

"I do not accept that the pleading of something which can be described as a conclusion cannot also be a pleading of a material fact. The real issue in a case where such an objection is raised is whether the facts are pleaded at too great a level of generality."

That pleaded conclusion must be seen in context. In relation to each of the six separate transactions involving the purchase of wool, the applicant has alleged detailed facts. It is unnecessary to refer to each of those transactions. Each alleges a period during which the applicant purchased a quantity of wool from the respondent, in the manner summarised when setting out the nature of the transactions above. In my judgment, it is quite clear from those facts the basis upon which the applicant alleges that the conduct of the first respondent about which it complains was conduct in trade or commerce.

16 I also consider that the Statement of Claim adequately pleads that the applicant has suffered loss or damage by conduct done in contravention of ss 52, 53 and 58 of the TPA. In relation to each of the six transactions, it is specifically pleaded that the applicant relied upon the alleged representations, and was induced by them, to enter into the several contracts to purchase wool from the first respondent. Particulars of those contracts are given. Moreover, par 89 of the Statement of Claim commences in the following terms:

"B. By reason of the representations and the conduct of the respondent set out herein, [the applicant] has suffered and will continue to suffer loss and damage."

Standing alone, an expression such as "By reason of the foregoing ..." may be deficient. But in the immediately preceding paragraphs of the Statement of Claim, there are allegations that the first respondent contravened ss 52, 53 and 58 of the TPA. The representations and conduct referred to in par 89 clearly are those which gave rise to those alleged contraventions of the TPA. In my view, the respondents know perfectly clearly the case which they are required to meet, and the objection is disingenuous.

17 I also consider that the next objection of the respondents, namely that it is not pleaded that the applicant acted upon an alleged false statement and sustained damage by doing so, so as to complete the cause of action in deceit, is also disingenuous. The nature of the applicant's claim is clear. I have set out the nature of those claims when briefly describing the content of the Statement of Claim. The concluding paragraphs of the Statement of Claim allege that at the time of the representations, the first respondent did not intend to deliver the wool to which its representations related to the applicant (par 83) and that the first respondent made the representations fraudulently (par 84). Paragraph 89 then pleads that, by reason of the representations, the applicant suffered and will continue to suffer loss and damage. In the allegations relating to each of the six transactions, there are, as I have noted above, allegations which clearly indicate that the applicant asserts that it relied upon the representations in relation to those six separate transactions in entering into the contract to purchase the wool and in then paying for the wool.

18 I have dealt above with the complaint that there is only a prayer for relief in par 91 of the Statement of Claim seeking damages for breach of contract, for fraud, and for misrepresentation, but those claims are not contained within the Application. As I have indicated, I give leave to the applicant to amend its Application to include those claims. There is nothing of substance in that point.

19 The complaint about the adequacy of the Statement of Claim concerning the accessorial liability of the personal respondents (par 88) does not involve any dispute as to what must ultimately be proved to enable the applicant to succeed against those respondents. In Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 4-5, Finkelstein J said:

"A contravention of s 52(1) of the Trade Practices Act can occur regardless of whether the corporation is acting honestly or reasonably: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 197. But where it is sought to make a person liable as an accessory to a contravention of s 52(1) based on s 75B it is necessary to establish that the person has intentionally participated in the contravention. To establish intentional participation it must be proved that the person has knowledge of the essential matters that make up a contravention of s 52(1): see generally Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661; Edwards v R [1992] HCA 19; (1992) 173 CLR 653. In this regard `knowledge' means actual and not constructive knowledge. For example, it would not be sufficient merely to show that the person charged with accessorial liability had shut his eyes to the obvious if that is intended to be a substitute for actual knowledge: Giorganni v R [1985] HCA 29; (1985) 156 CLR 473. Of course, where there is a combination of suspicious circumstances and a failure to make an inquiry it may be possible to infer knowledge of the relevant essential matters: Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 63 ALJR 1 at 3."

Moore J adopted that formulation in King v GIO Australia Holdings Ltd [2001] FCA 308 at [7]. An essential matter to establish contraventions of ss 52, 53 and 58 of the TPA and to show deceit or fraud on the part of the personal respondents is that they knew that the representations made were in fact false or misleading. Paragraph 88 of the Statement of Claim alleges that each of the personal respondents were knowingly concerned in those contraventions, and contains detailed allegations of the role of each of them. In particular, it alleges that each was a director and a full-time employee of the first respondent, working principally at its premises from which the transactions took place. Each was involved in the request for the testing of the wool by the AWTA and each was involved in the presentation of the grab sample and associated documents in the display boxes as alleged. It further claims that each was aware that the applicant would rely upon the displayed material, and the representations contained therein in deciding whether to acquire the wool. There are also separate allegations regarding each of the personal respondents. Each of the second and third respondents are alleged to have classed certain of the lots of wool purchased by the applicant from the first respondent which did not comply with the representations. The fourth respondent acted as auctioneer in the sale of the wool. Each is alleged to have played a part in affixing classing house stencils onto that wool inconsistent with the representations. Particulars of those matters are given.

20 The tendency in pleadings in recent years has been to address matters of substance rather than matters of form. Thus, as von Doussa J pointed out in Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466, the strict distinction between material facts and particulars has not been rigidly adhered to, and technical objections raised to pleadings on the ground of alleged want of form are not so enthusiastically received. The Court's focus has been upon ensuring the case is identified with clarity, so that the opposing party knows the case to be met and the issues for trial are identified. The focus upon case management, to ensure the efficient and fair conduct of proceedings, has also led to the emphasis on technical pleadings rules being diverted to an emphasis upon ensuring that, in substance, the objectives of pleadings, as discussed for example by the High Court in Banque Commerciale SA en Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J, are fulfilled.

21 Thus Beaumont J in Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 at 414 said:

"... Under the modern system of pleading, the question is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the applicant upon the pleadings to prove facts at the trial which would constitute a cause of action."

Those views were adopted by Carr J at 40,887.

22 In my judgment, the Statement of Claim adequately identifies facts which, if proved at the trial, could enable the Court to conclude that each of the personal respondents abetted and was knowingly concerned in the alleged contraventions of the TPA by the first respondent. I think that the facts alleged in par 88 of the Statement of Claim are capable of leading to findings that each of the personal respondents knew of the making of the alleged representations by the first respondent and knew that those representations were misleading or false. In addition, the pleadings concerning each of the six separate transactions allege that the displays by which the alleged representations were made were at the direction of the personal respondents. Those allegations also indicate the nature of the case the respondents have to meet. The Statement of Claim also alleges facts which, in terms of s 58 of the TPA, are capable of leading to findings that, at the time the first respondent accepted from the applicant payment for the six purchases of wool, the personal respondents knew that the first respondent intended to supply wool other than that which had been agreed to have been purchased.

23 For those reasons, I do not accept that the Statement of Claim fails to disclose a cause of action against each of the personal respondents so that, as against them, par 88 should be made out.

24 I also reject the claim that pars 88, 89 and 91 of the Statement of Claim are embarrassing, as that expression is used in O 11 r 16, so that they should be struck out. Those paragraphs do make allegations which, by reference to the paragraphs of the Statement of Claim to which they refer, are detailed and complex. It is correct that there are a number of representations alleged, and that there are a number of pieces of conduct alleged, on the part of the first respondents in which the personal respondents are alleged to be complicit. Neither the nature nor the extent of those allegations, of themselves, makes those allegations vague or inconsistent or difficult to respond to. The nine sub-paragraphs of par 88 identify the personal respondents to whom they relate. Although the introductory wording of par 88 does not discriminate between the personal respondents, I see no difficulty in each of them understanding the case each of them severally has to meet. The applicant's case is that, whatever the individual actions of each of them, the personal respondents were together aware of and acting towards the alleged conduct of the first respondent.

25 The complaint about par 89 is in part on the same basis. For the reasons already given, in my judgment that complaint should be rejected. It is clear that the applicant alleges that the first respondent and each of the personal respondents, by his role in the conduct of the first respondent, are liable for the full amount of its claimed losses. The respondents also contend that the material facts necessary to establish the causal link between the conduct complained of and the loss alleged have not been pleaded. It is accepted by the applicant that it is necessary to do so, and that the expression "by reason of such conduct ..." is an insufficient pleading: see per French J in Bond Corp. Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222. Here, however, I consider that the nature of the causal connection is amply pleaded. The representations are those specified in pars 86 and 88 and the conduct is that specified in pars 85 and 87 of the Statement of Claim. The allegations concerning each of the six separate transactions assert that the particular representations induced the applicant to buy the particular wool from the first respondent and to pay for it and that it was not of the character represented. The nature of the claimed losses from each of those six transactions is also pleaded in considerable detail.

26 In my judgment, the respondents are not embarrassed by having to plead to those paragraphs of the Statement of Claim. I have already rejected the complaint concerning par 91 of the Statement of Claim.

27 For those reasons I refuse the orders sought in pars 1 and 2 of the respondents' notice of motion of 18 January 2002. I give liberty to the applicant to amend the Application by adding claims for damages at common law for breach of contract, for misrepresentation, for deceit and for exemplary damages as it may be advised. I adjourn that motion to a date to be fixed, with liberty to apply to relist it for hearing on reasonable notice to deal with the costs of that motion. It may also be relisted on notice to raise any issue as to the adequacy of the particulars of the Statement of Claim raised by the respondents.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 11 February 2002

Counsel for the Applicant and Cross-respondent:	Mr RC White QC and Mr R Kennett
Solicitor for the Applicant and Cross-respondent:	Kelly & Co.
Counsel for the Respondents and Cross-applicants:	Mr J Hammond QC and Mr N Russell
Solicitor for the Respondents and Cross-applicants:	Andrew Woolfe & Co.
Date of Hearing:	1 February 2002
Date of Judgment:	12 February 2002