Australian Agricultural Services P/L v G & D Elliott P/L [2007] QDC 51

DISTRICT COURT OF QUEENSLAND CITATION: Australian Agricultural Services P/L v. G & D Elliott P/L [2007] QDC 051 PARTIES: Australian Agricultural Services Pty Ltd ACN 091934717 (Applicant) AND G&D Elliott Pty Ltd ACN 077 356 284 (Respondent) FILE NO: Ipswich D13/06 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Ipswich District Court DELIVERED ON: 23 March 2007 DELIVERED AT: Ipswich HEARING DATE: 14 March 2007 JUDGE: Judge J.M. Robertson ORDER: a) That the defendant provide further and better particulars of paragraphs 3(c)(i); 5(b) and 8(b)(i)-(iii) of the Defence and serve an Amended Defence within 21 days. b) The plaintiff is given 14 days thereafter to re-plead its Reply. c) That there be mutual disclosure within 21 days of service of the Amended Reply. d) That there be mutual inspection within 10 days of the service of each party’s List of Documents. e) No order as to costs. CATCHWORDS: Particulars; whether a denial based on a failure to particularize is a deemed admission; general philosophy and spirit of the Rules; pleading generally. Cases cited: Robinson v Laws [2003] 1 QdR 81 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Legislation: Uniform Civil Procedure Rules 1999 COUNSEL: G. Egan for the Plaintiff/Applicant M. R. Bland for the Defendant/Respondent SOLICITORS: Rostron Carlyle for the Plaintiff/Applicant QBM Lawyers for the Defendant/Respondent 1 -- 1 of 5 -- [1] The Plaintiff is claiming damages for breach of two agreements in May and June for the supply of goods and services to the defendant for the purposes of the construction of a poultry farm. An amended Statement of Claim was filed 28 March 2006 and the Defence on 7 April 2006. [2] On 24 April 2006 the plaintiff’s solicitor forwarded a detailed request for further and better particulars of the defence, and on 28 April 2006 the plaintiff’s Reply was filed. [3] On 9 May 2006 the defendant’s solicitor provided some further and better particulars of the defence but declined many of the requests on the ground that the plaintiff had by its reply admitted the allegations in the defence. This pleading point is ventilated fully in Mr Bland’s written outline dated 13 March 2007. He expanded on that submission in oral submissions by reference to a number of cases. [4] He submits that because of the way in which the reply is pleaded various paragraphs in the defence are deemed by law to be admitted. Preliminary Pleading Argument [5] Mr Bland’s argument can be understood by reference to one example from the reply in paragraph 1 which is in these terms: 1. With respect to paragraph 2(c) of the defence the plaintiff: a. Denies the allegation in paragraph 2(c)(i) because it is untrue and cannot plead further until the defendant provides proper particulars of the allegation. b. Denies the allegation in paragraph 2(c)(ii) because it is untrue and says that the plaintiff was to supply and install fixtures and fittings in accordance with its quotations as pleaded in the statement of claim. [6] 2(c)(i) of the Defence relates to the first agreement pleaded in the amended Statement of Claim and asserts: (c) in so far as the agreement was oral, an express term of the agreement was that the plaintiff would: (i) provide to the defendant advice as to the proper set-up of fixtures and fittings and chattels necessary to operate a high quality poultry farm from the site to the specifications of “Inghams”; and (ii) provide and install such fixtures and fittings and chattels in accordance with such specifications. [7] The argument focuses on Rule 166 of the Uniform Civil Procedure Rules. [8] Pursuant to that rule, a party is deemed to admit an allegation of fact in a pleading unless it is denied or not admitted. Sub-rule (3) limits the use of non- admissions, and (4) provides that a party’s denial or non-admission of an allegation of fact must be accompanied by a direct explanation for the parties belief that the allegation is untrue or cannot be admitted. Sub-rule (5) provides 2 -- 2 of 5 -- a sanction that if the denial or non-admission does not comply with sub-rule (4) the party is deemed to have admitted the allegation. [9] Mr Bland submits that whereas a want of particulars of an allegation might explain a belief that the allegation cannot be admitted, it will not explain a belief that the allegation is untrue. This is probably correct as a matter of logic, but it might seem surprising that the rules would operate in these circumstances to convert a positive denial into a deemed admission particularly in circumstances such as pertain to 2(c)(i) of the defence where, despite its contention that the allegation of fact contained in 2(c)(i) was, as a matter of law deemed to be admitted, nonetheless the defendant was prepared to provide further and better particulars of it after receipt of the Reply. [10] Mr Bland was not able to refer me to any specific authority in which this point has been decided. The authorities he referred to do no more than confirm the requirements of Rule 166. For example Robinson v Laws [2003] 1 QdR 81 was concerned with pleadings in a defamation case and denials in a Defence which were impugned. The reference in the Chief Justice’s judgment to r166(4) at (88) was really by way of confirming that the pleading of denials was also constrained at common law by requiring the pleader to explicitly state the ground for the denial. One of the reasons for this is revealed from the passage quoted immediately above the Chief Justice’s reference to r166(4) from the judgment of Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 527-8; and that is to avoid the opposing party being taken by surprise. It can hardly be said that the defendant here is taken by surprise by the way in which the impugned paragraphs in the Reply have been pleaded. [11] The conclusion that Mr Bland contends for in the particular circumstances of this case, albeit logically correct in terms of the wording of sub-rule (4), seems to me to offend against the general philosophy of the Rules set out in r(5)(1) and (2) UCPR. His proposal that the proper course for the plaintiff is to apply under r188 for leave to withdraw the deemed admissions, is certain to add unnecessarily to the delay and expense of both parties. This is particularly so in circumstances in which his client has failed to properly particularize some paragraphs of the Defence, and, in relation to 2(c)(i) has acted quite inconsistently. In my view, the proper course is for his client to provide the particulars that I order below, and to permit the plaintiff to re-plead its Reply in response to those particulars. The Particulars Point [12] It is trite that a party is required in its pleadings to comply with r157 UCPR so as, in this case, to allow the plaintiff to understand the case that is intended to be conducted by the defendant at trial. [13] As I have noted, the defendant did provide some limited particulars on 9 May 2006, but largely seems to have been distracted by the pleading point discussed above. 3 -- 3 of 5 -- [14] The plaintiff’s Application filed on 23 January 2007 sought a striking out of the Defence pursuant to Rule 171(a) and alternatively particulars of specified paragraphs in the Defence, and a striking out of the Counter Claim. [15] By the time of the hearing on 14 March 2007, the issues had been confined somewhat, particularly in relation to particulars, and in that regard I refer to the affidavit of Mr Streten, the solicitor for the plaintiff, sworn 22 February 2007 and filed 26 February 2007. I will deal with the paragraphs in the Defence referred to in that affidavit seriatim: 2(c)(i) [16] The defendant has given further particulars of this pleading which relates to the first or May agreement. The particulars provided are sufficient to enable the plaintiff to understand the case it has to face. 2(c)(ii) [17] The plaintiff’s request set out in paragraph 2(b) of Mr Streten’s affidavit is clearly seeking evidence. 3(c)(i) [18] This paragraph relates to the second agreement and is pleaded in the same words as 2(c)(i). For reasons that were not able to be explained by Mr Bland, his client chose not to respond and instead insisted that the paragraph was sufficiently particularized to enable the plaintiff to understand the defence case. This response can be contrasted with the defendant’s response in relation to paragraph 2(c)(i) which relates to the first agreement, and in which it acknowledged that the further particulars were required. The defendant should provide further particulars of this paragraph. 3(c)(ii) [19] Provided the particulars are given in relation to 3(c)(i) it is not necessary for this paragraph to be further particularized. 5(a) [20] Paragraph 16 of the amended Statement of Claim pleads, by reference to five communications, that the plaintiff requested access to the site to provide equipment pursuant to the second agreement, and in paragraph 5(a) of the defence this is admitted however the defendant denies that it received all of the communications. The plaintiff seeks further particulars of which of the communications the defendant did not receive. Apart from being an obvious attempt to obtain evidence, further particulars are simply unnecessary as the plaintiff knows that the defendant is not disputing that it requested access to the site. 5(b) [21] Although, as a result of the admission in 5(a) the plaintiff can proceed on the basis that the defendant admits that the plaintiff did request access, nevertheless 5(b) pleads alternative express terms of the agreement that are not the same as the agreement pleaded in the Statement of Claim. The defendant should therefore provide the particulars sought. Again, the defendant’s refusal to 4 -- 4 of 5 -- provide particulars is in contrast to it’s response for particulars in relation to 2(c)(i); and it is difficult not to conclude that the defendant’s lawyers have not given sufficient thought to the request. 5(c) [22] This is clearly a request for evidence and not particulars. 8(b)(i)-(iii) [23] The plaintiff is entitled to particulars sought in paragraph 10 of it’s request. As to paragraph 13 of the request, Mr Bland concedes that although the rectification works are fully particularised in the schedule to the Defence, there is no attempt to relate the particular rectification works to the first and second agreements. This involves some minor amendment to his client’s Defence and his client should have leave to amend accordingly. The Counterclaim [24] The plaintiff also seeks to strike out the Counterclaim pursuant to r171(a) and/or (b) UCPR. Mr Egan ultimately conceded that once his client received the further and better particulars that I made clear I would order, his client would not be embarrassed by the way in which the counter claim has been pleaded, that is by repeating and relying upon paragraphs in the Defence. Conclusion [25] In relation to the plaintiff’s application filed 13 January 2007 I order pursuant to paragraph 2 that the defendant provide further and better particulars of paragraphs 3(c)(i); 5(b) and 8(b)(i)-(iii) within 14 days. For the reasons I have exposed, the plaintiff should be given 14 days thereafter to re-plead its Reply so as to avoid the operation of r166(5). For the reasons I have exposed, such a result best accords with the spirit and philosophy of the Rules and is most likely to avoid unnecessary delay and cost. The defendant is given leave to amend it’s Defence within 14 days to deal with the issues of linking the rectification works in the schedule with what it pleads are beaches of the first and second agreements by the plaintiff. [26] The plaintiff’s application to strike out the Defence and Counterclaim is dismissed. [27] I will hear the parties further on costs and directions for the conduct of the litigation. 5 -- 5 of 5 --