Case: Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
Outcome: cited
The applicant prayed in aid of its statement of claim an observation by Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 where his Honour said (at [5] [6]): In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; firstly, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; secondly, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; thirdly, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourthly, the exchange of chronologies; and fifthly, the exchange of written submissions. Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met. 4 The definition of issues generally does not occur as a result of the preparation of the trial bundle or the exchange of witness statements or expert reports. It may emerge from the exchange of written submissions but absent pleadings or a statement of facts and contentions or issues that is very late in the day. The invocation, by counsel for the applicant in this case of a "robust approach" does not avail to sustain a statement of claim which obscures rather than clarifies the issues in the case. 5 What follows is an outline of the broad content of the amended statement of claim which does not descend into its near fractal detail. The allegations are set out in a narrative form. They are only allegations. The summary does not involve any finding by the Court. 6 Wainter Pty Ltd (Wainter) sues Freehills, a firm of legal practitioners and one of its partners, David Woolfe. It also sues Peter Malone, a director of New Tel Ltd (New Tel) which carried on the business of providing telecommunications primarily in the way of mobile phone services. Wainter names, albeit not as a respondent, Paul Evans, who was a director of New Tel from 27 September 1996 to 16 August 2001. From 23 June 2000 he was a partner in Freehills. Another person named as a director of Wainter after 10 September 1996 is Barry Granville Waller (s/c 1-6). 7 Between September 2001 and January 2002 Wainter owned 35 million shares in Cable &amp; Telecoms Ltd (C &amp; T). It also had 20 million options to acquire shares in that company. Its shareholding represented 39.8% of issued C &amp; T shares and about 55.7% of issued C &amp; T options. On or about 11 April 2000 Wainter agreed to sell to C &amp; T all of its shares in UDC Group Pty Ltd. This was constituted by a document dated 11 April 2000. It was later amended. The parties to it were Wainter, C &amp; T, Barry Waller and Christine Margaret Waller (s/c 8 and 9).