Gordon & Gotch (Australasia) Ltd v Cox [1923] HCA 1; (1923) 31 CLR 370 (16 February 1923)

HIGH COURT OF AUSTRALIA

Gordon & Gotch (Australasia) Limited Defendant, Appellant; and Frederick John Cox Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

16 February 1923

Isaacs, Higgins and Starke JJ.

Sir Edward Mitchell K.C. and Walker, for the appellant.

Robert Menzies, for the respondent.

Isaacs J.

It appears that this appeal has been proceeded with under an apprehension that the Supreme Court said that the plaintiff's conduct while manager of the old company could not be admissible as showing unfitness to perform properly his duties as managing director of the new company, the present appellant. It is not clear from the judgment under appeal that the Supreme Court so intended. But it is clear to us that while misconduct in the service of the old company cannot ipso facto be a justification for dismissing him from the service of the new company, it may be admissible as being relevant in the circumstances as they may appear at the trial, to the issue of the fitness of the plaintiff to perform or observe his contractual obligations with the new company.

As to par. 14 of the defence, this paragraph is open to objection on the ground of the want of allegations showing a duty to disclose and showing proper particulars of fraud.

As to whether as promoter there was a duty on the plaintiff to disclose, and an omission to disclose which amounted to fraud, that may stand over for future consideration.

With these observations the appeal will be dismissed, and, by consent, the undertaking of the defendant not to amend is withdrawn and leave is given to the defendant to amend as it may be advised within fourteen days. Of course there will be the usual right of the plaintiff to amend when he gets the amended pleadings. The plaintiff is to have the costs of the appeal.

Higgins J.

I concur with what my brother Isaacs has said, but I should like to add something as to the abuse of "particulars." I hope that counsel responsible for pleadings will consider more carefully what the object of particulars is. There has been growing up a practice of using particulars for stating matters of history and evidence—a practice which leads to long spun out arguments as to the meaning of the particulars. Particulars, after all, are intended to limit the scope or ambit of the pleading, as the Full Court of Victoria has pointed out. They are meant to save time, and to prevent the other party from being taken by surprise. I feel sure we are getting on to the wrong track.

Starke J.

I agree with the opinion expressed by my brother Isaacs.

Appeal dismissed with costs.

Solicitors for the appellant, Williams & Matthews.

Solicitors for the respondent, Home & Wilkinson.