Agipcoal Australia Pty Ltd v Idemitsu Queensland Pty Ltd & Ors [1991] QSC 67

C C IN THE SUPREME COURT OF QUEENSLAND No. 1139 of 1990 HELD AT BRISBANE Before Senior Master Horton Q.C. BETWEEN: AGIPCOAL AUSTRALIA PTY. LTD. Plaintiff AND: IDEMITSU QUEENSLAND PTY. LTD. & ORS Defendants EXTEMPORE REASONS - SENIOR MASTER HORTON Q.C. Delivered the Eighth day of March, 1991 In this application the applicant/plaintiff seeks to have parts of the defence and ce.unter-claim struck out for breach of an obligation on behalf of the respondents to supply further and better particulars of those allegations. In general terms the allegations complained of involve an assertion that the Italian company E.N.I. by reason of its overwhelming majority shareholding in the plaintiff Agipcoal 0 Australia Pty. Ltd. directed Agipcoal Australia Pty. Ltd. through its directors to carry out their administrative duties to the benefit of the Italian holding company. Mr. Sofronoff of Queen's Counsel who appears for the respondent freely concedes the inability of the respondent to give the usual particulars of the acts and circumstances of such direction. Instead he points to the numerous particulars (and that is the respondents' description of them) that have -- 1 of 3 -- () 0 2 been supplied by the respondents pursuant to the requests delivered by the present applicants. Mr. Gibson of Queen's Counsel who appears for the present applicant has pointed me to a number of authorities where in the absence of particulars of an act or acts, a pleading has been struck out. As His Honour Mr. Justice Fitzgerald said in Lyons & Anor. v. Kern Konstructions (Townsville) Pty. Ltd. & Anor. (1983) A.T.P.R. 40 - 343 at 44, 158 : - "Each case must be decided on its merits and particular circumstances. The ultimate object is to mould the Court's procedure to do justice between the parties". Here what is required to be done is to ensure that justice is done to the parties. In my respectful view it is not appropriate to immerse oneself in a frenzy of judicial authority upon entirely different facts and circumstances of earlier cases but rather to ensure that each party is fully appraised of the case which at trial it must meet. Having then effectively satisfied itself that this has been done, the Court in this sort of application must then go on to satisfy itself of the task as formulated in General Steel. Is the present applicant fully appraised of the cases which at trial it must meet with regard to the allegation that E.N.I. directed Agipcoal Australia Pty. Ltd? As Mr. Sofronoff of Queen's Counsel has indicated they are not at present in a position to give those sorts of particulars that were referred to by His Honour Mr. Justice -- 2 of 3 -- 3 W.B. Campbell in Castlemaine Perkins v. Queen Street Hotel Pty. Ltd. (1968) Qd.R. 501 at 510. They are unable to say in what manner and when it is alleged that E.N.I. directed Agipcoal. They are unable to say whether the alleged acts performed .or attempted to be performed were done by way of written or oral directions. Th~t, of course is frequently the case where a plaintiff sets up a circumstantial case? /~\, What however they are able to do is to point to those '\ I i_,/ !'\ circumstances and facts which they will say at trial points to conduct up to the date at which the letter from the Honourable the Minister for Mines to Mr. Gaffrini, President of Agipcoal Milan, Italy calling for a decision by noon 6th April, 1990, admits only one explanation on the balance of probabilities; namely that E.N.I. directed by its control and shareholding Agipcoal Australia Pty. Ltd. to act in a manner consistent not with the interests of Agipcoal Australia Pty. the interests of E.N.I., its 99.9% shareholder. Ltd. but with ~v' In my view the present applicants have been fully appraised of the case which at trial they will have to meet and accordingly I dismiss the summons with costs of today to be taxed. -- 3 of 3 --