mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Beach Petroleum NL v Johnson (1991) 105 ALR 456
Outcome: discussed
his Lordship notes, there can be an overlapping between material facts and necessary facts, and as von Doussa J observed in Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466, the distinction between material facts and necessary particulars has tended to become more obscured as the years have gone by. Nevertheless, necessary particulars can be, but do not have to be, in the statement of claim (O 12 r 1) and a party is not required to plead to necessary particulars, although it is not uncommon for that to be done. In so far as the respondents' objections are based on a failure to provide necessary particulars, they must be taken to be asking for an order that particulars be provided even though a defence has not been filed. For their part, the applicants did not seek to identify paragraphs where the true basis of the objection was a failure to provide necessary particulars and then submit that the provision of particulars should be at least postponed until after a defence is filed. They sought discovery before particulars and seem to accept that if they are successful they would thereafter provide the necessary particulars even though a defence had not been filed.
Case: Bruce v Oldhams Press Ltd [1936] 1 KB 697
Outcome: discussed
the case of a number of pleas, counsel for the respondents' objection, as shown in the table, was that the plea was insufficiently particularised. In relation to those cases where the true basis of the objection is that the necessary particulars are not provided, it must not be overlooked that the Rules provide that, in the ordinary case, particulars will not be ordered before a defence is filed (O 12 r 5(3)). The Rules proceed on the basis that there is a clear distinction between the pleading of material facts and the provision of necessary particulars. The distinction between material facts and necessary facts was identified by Scott LJ in the well-known passage from Bruce v Oldhams Press Ltd [1936] 1 KB 697 (at 712-713): "The cardinal provision in r. 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one "material" fact is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology, and in the new is liable to be 'struck out' under Order XXV., r. 4: see Philipps v. Philipps ; or 'a further and better statement of claim' may be ordered under Order XIX., r. 7. The function of 'particulars' under r. 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a 'material fact' and a 'particular' piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them." (Citation omitted.)
Case: Computershare Limited v Perpetual Registrars Limited (2000) 1 VR 626
Outcome: cited
addition to the above authorities, I refer to the discussion by Warren J (as her Honour then was) in Computershare Limited v Perpetual Registrars Limited (2000) 1 VR 626 at 635-638. In my opinion, this is an appropriate case for an order for discovery before particulars. As I have said, there does not seem to be much doubt that the first respondent (and perhaps other respondents) acted as the applicants' agent, owed fiduciary obligations to them and, from time to time, had control of moneys belonging to the applicants. One such obligation was and is a liability to account and to provide information to the applicants. That seemed to be acknowledged by the first respondent because one of his arguments on the applicants' application was that he has already provided a proper reconciliation to the applicants. Secondly, the evidence established that the respondents are in possession of the relevant information and, in a relative sense at least, the applicants do not have the information, or at least all of the information. Thirdly, there is a prima facie case of unauthorised use in relation to a sum of $28,915.27 because it seems that this sum was used by the first respondent to discharge a liability for personal expenses. Both counsel took me through a number of financial and other documents relating to the transactions referred to in the statement of claim. The purpose of the exercise from the respondents' point of view was to establish that all moneys had been used for the applicants' benefit, or in accordance with their instructions, and that they had been provided with all the information to which they were entitled, or, which they had requested. The difficulties in engaging in such an exercise at this early stage are obvious. There are a number of transactions and they are complex transactions. I am not satisfied on the evidence before me that the respondents have established a sufficiently clear case of the type they advanced to overcome those reasons for making an order for discovery before particulars and, in my opinion, it is appropriate to make such an order. Conclusion
Case: Edelston v Russell (1888) 57 LT 927
Outcome: cited
reasons I will give, I think this is an appropriate case for discovery before particulars. I do not think the fact that a defence has not been filed is an impediment to such an order at this stage ( Edelston v Russell (1888) 57 LT 927). For reasons I will give, I think that some paragraphs in the statement of claim should be struck out. The defects in the statement of claim are not sufficient to warrant an order that the statement of claim be struck out. I do not think the applicants should be required to replead before discovery is made, even in relation to those paragraphs struck out on grounds other than the ground of a failure to provide necessary particulars. That would be time-consuming and wasteful. I turn now to consider the particular objections to the statement of claim. In some cases, the same objection is taken to a number of paragraphs. It is convenient to deal with these paragraphs as a group. I start with the groups of paragraphs and then move to the objections to individual paragraphs.
Case: Mayor, &amp; c., City of London v Horner (1914) 111 LT 512
Outcome: discussed
plea will have a tendency to cause embarrassment if it is ambiguous or irrelevant, or if it is inconsistent with another plea. The latter case is to be distinguished from a plea which is clearly put in the alternative to another plea which is permissible. For present purposes, it is sufficient to refer to Mayor, &amp;c., of City of London v Horner (1914) 111 LT 512 at 514 per Pickford LJ and Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429 ; (1995) ATPR 41-434 at 40,889 per Carr J.
Case: Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 7 FLR 135
Outcome: discussed
Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 7 FLR 135 , Fitzgerald J discussed in detail the circumstances in which discovery before particulars may be ordered in a case involving allegations of fraud (at 148-151) and the meaning of "fishing" in this context (at 151-152). It is clear from the authorities to which Fitzgerald J referred that discovery before particulars may be ordered even in cases involving allegations of fraud, although that will only be done where there is a special relationship between the parties or something in the nature of exceptional circumstances. His Honour also made it clear that discovery will not be ordered before pleading or particulars for the purpose of "fishing".
Case: Millar v Harper (1888) 38 Ch D 110
Outcome: cited
before particulars may be ordered where the party against whom the order is sought has means of knowing the facts in dispute and the party seeking the particulars does not: Millar v Harper (1888) 38 Ch D 110.
Case: Trade Practices Commission v CC (New South Wales) Pty Limited (1995) 58 FCR 426
Outcome: discussed
meaning of "fishing" was considered by Lindgren J in Trade Practices Commission v CC (New South Wales) Pty Limited (1995) 58 FCR 426. Lindgren J said (at 438): "What does the reference to a 'fishing expedition' mean? After all, ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware (similarly, the administering of interrogatories will often, if not always, reveal information of which the other party was not previously aware). What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists: see, for example, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; Associated Dominions Assurance Society Pty Ltd v John Fairfax &amp; Sons Pty Ltd ; WA Pines Pty Ltd v Bannerman ; Barbarian Motor Cycle Club Inc v Koithan (1984) at 486; Nestle Australia Ltd v Commissioner of Taxation (1986) at 82-83; Mobex Pty Ltd v Comptroller-General of Customs (unreported, Federal Court, Foster J, 18 May 1994), at p 18. In WA Pines Pty Ltd v Bannerman at 181, Brennan J said that what is required is that 'sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery'. On the facts of particular cases, the application of the distinction between 'fishing' and 'non-fishing' may well be difficult." (Citations omitted.)
Case: WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 41 FLR 175
Outcome: discussed
WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 41 FLR 175 , the respondent applied to strike out an allegation in a statement of claim and the applicant sought discovery and leave to interrogate on the allegation. Brennan J (as his Honour then was) said (at 181): "Though the power to require discovery be acknowledged, how should it be exercised? It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought. In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which par. 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim: cases such as Ross v. Blakes Motors Ltd ., but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made by par. 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing." (Citation omitted.) The meaning of "fishing" was considered by Lindgren J in Trade Practices Commission v CC (New South Wales) Pty Limited (1995) 58 FCR 426. Lindgren J said (at 438): "What does the reference to a 'fishing expedition' mean? After all, ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware (similarly, the administering of interrogatories will often, if not always, reveal information of which the other party was not previously aware). What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists: see, for example, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; Associated Dominions Assurance Society Pty Ltd v John Fairfax &amp; Sons Pty Ltd ; WA Pines Pty Ltd v Bannerman ; Barbarian Motor Cycle Club Inc v Koithan (1984) at 486; Nestle Australia Ltd v Commissioner of Taxation (1986) at 82-83; Mobex Pty Ltd v Comptroller-General of Customs (unreported, Federal Court, Foster J, 18 May 1994), at p 18. In WA Pines Pty Ltd v Bannerman at 181, Brennan J said that what is required is that 'sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery'. On the facts of particular cases, the application of the distinction between 'fishing' and 'non-fishing' may well be difficult." (Citations omitted.)
Case: Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332
Outcome: cited
In hearing an application under s 1321 and/or reg 5.6.54, the Court conducts a hearing de novo : see Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 ( "Tanning Research" ) per Brennan and Dawson JJ at 339 and 341; Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 per Bryson J at 631 [3]; and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 ( "Brodyn" ) per Young CJ at [29] [33]. 33 In Tanning Research , Brennan and Dawson JJ said that the principles which determine the enforceability of a liability to which a proof of debt relates are, in the main, the same as the principles which would be applied in an action brought directly against the company to enforce that liability (at 339). Their Honours went on to explain the role played by a liquidator or administrator in an appeal brought under s 1321 or reg 5.6.54 (at 341): "In such a proceeding, a liquidator who defends his decision to reject a proof of debt is no longer acting in a quasi-judicial capacity; he is cast in the role of an adversary, defending the assets available for distribution against a liability which, according to the view he formed when acting quasi-judicially, is not legally enforceable. The liquidator may defend those assets against the creditor's claim on any ground on which the company might have defended the claim had it been sued by the creditor. If the liquidator relies on those special defences which allow him to go behind a judgment, an account stated, a covenant or an estoppel in order to ascertain the true liability of the company, he is none the less in the role of an adversary. The issue in the proceeding is whether the liability referred to in the proof of debt is a true liability of the company enforceable against it. The issue is contested between the putative creditor on the one hand and the liquidator on the other; the liquidator is a party litigant. And none the less so though the liquidator is required to act fairly in conducting the litigation."
Case: Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630
Outcome: cited
In hearing an application under s 1321 and/or reg 5.6.54, the Court conducts a hearing de novo : see Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 ( "Tanning Research" ) per Brennan and Dawson JJ at 339 and 341; Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 per Bryson J at 631 [3]; and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 ( "Brodyn" ) per Young CJ at [29] [33].
Case: Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230
Outcome: cited
In hearing an application under s 1321 and/or reg 5.6.54, the Court conducts a hearing de novo : see Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 ( "Tanning Research" ) per Brennan and Dawson JJ at 339 and 341; Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 per Bryson J at 631 [3]; and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 ( "Brodyn" ) per Young CJ at [29] [33]. 34 In a hearing de novo , the Court will act on the evidence that is placed before it. However, the onus remains with the party who challenges the decision to reject the proof of debt: see Westpac Bank Incorporation v Totterdell (1997) 25 ACSR 769 per Templeman J at 772 and 774. There is, however, no rule or practice whereby material that was placed before the liquidator or administrator is automatically material before the Court on the hearing of such an appeal: see Brodyn at [33].
Case: Westpac Banking Corporation v Totterdell (1997) 25 ACSR 769
Outcome: cited
In a hearing de novo , the Court will act on the evidence that is placed before it. However, the onus remains with the party who challenges the decision to reject the proof of debt: see Westpac Bank Incorporation v Totterdell (1997) 25 ACSR 769 per Templeman J at 772 and 774. There is, however, no rule or practice whereby material that was placed before the liquidator or administrator is automatically material before the Court on the hearing of such an appeal: see Brodyn at [33].
Case: Council of the City of Sydney v Goldspar Australia Pty Limited [2002] FCA 1064 
Outcome: related
On 28 August 2002 I delivered reasons for judgment in relation to four separate questions ordered to be determined in this proceeding pursuant to O 29 r 2 of the Rules of Court ( Council of the City of Sydney v Goldspar Australia Pty Limited [2002] FCA 1064). On 11 October 2002 I delivered reasons for judgment as to the orders to be made following the earlier reasons for judgment ( Council of the City of Sydney v Goldspar Australia Pty Limited (No 2) [2002] FCA 1268). In the result, the orders made on 11 October 2002 were varied on 17 October 2002 and 21 October 2002. The answers to the separate questions related, in essence, to issues concerning copyright and intellectual property.
Case: BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266
Outcome: applied
I am inclined to the view that the first part of the pleaded implied term (b) (annual notification) whilst sensible, is not a necessary implication in the requisite sense. However, I am persuaded that the second part of that term should be implied. Clause 17 must be construed in a manner that could apply to the supply and install option if chosen. It is clear enough that the clause cannot operate, literally construed, in isolation from the other provisions in relation to that option for reasons already explained. It is obvious that reasonable advance notice must be given of the precise locations, types of pole and accessories in order to make the contract effective. The pleaded term is a sensible application of the general Mackay v Dick obligation of cooperation and, if it be necessary, meets the requirements for implication of a term set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 283. Such a term would also have appropriate application to a supply contract. Clause 17 applies across the board and I have pointed out the absurdities involved in the literal construction of it proposed on behalf of the Council, even in the case of a supply only contract.
Case: Collins Hill Group Pty Ltd v Trollope Silverwood &amp; Beck Pty Ltd [2002] VSCA 205
Outcome: distinguished
The proposed implication is consistent with and supported by, but does not depend upon, the conduct of the parties in the performance of the contract. There has been considerable debate about the use that can be made of post-contractual conduct (eg Charles, 'Interpretation of Ambiguous Contracts by Reference to Subsequent Conduct', (1991) 4 Journal of Contract Law 16). The current received wisdom is that it may not be used for purposes of construction of the contract ( Winstonu Pty Ltd (t/a Harvey Norman Electrics) v Pitson [2001] FCA 541 ; Magill v National Australia Bank Ltd (2001) Aust Contract R 90 131, [2001] NSWCA 221 ; Collins Hill Group Pty Ltd v Trollope Silverwood &amp; Beck Pty Ltd [2002] VSCA 205) . However, Charles QC (as he then was) referred with approval to the view of Greig and Davis ( The Law of Contract (1987) 436 438) that subsequent conduct could provide a basis for implying an additional term into an existing contract. A similar view is expressed by the authors of Carter and Harland, Contract Law in Australia, 4 th ed, 2002 at [719]. I can see no difficulty in regarding subsequent conduct as relevant to the question as to whether a term is necessary to give business efficacy to the contract. Indeed, if a contract has been performed without adhering to, or without inconsistency with, the claimed term, without complaint or commercial difficulty, that would be powerful evidence that the term is not necessary. The law prefers facts to prophecies ( HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640 at [39] ). It would be odd to imply a term as necessary where such a conclusion would be contrary to the facts as they later appeared. If conduct may be relevant to negative the implication of a term as being necessary then it should also be relevant to support the implication of a term on the same basis. Here, the contract was always administered on the basis that advance notice of particular requirements was required to be given by the Council. Indeed, even Orders No 1 and No 2 illustrate that. It is a short, and appropriate, step to say that such notice must be reasonable, as had been the case in practice until 19 October 1999.
Case: Commissioner for Main Roads v Reed &amp; Stuart Pty Ltd [1974] HCA 53 ; (1974) 131 CLR 378 
Outcome: followed
That principle was applied by the High Court in Commissioner for Main Roads v Reed &amp; Stuart Pty Ltd [1974] HCA 53 ; (1974) 131 CLR 378 in circumstances relevantly not dissimilar from the present facts.
Case: Gardiner v Orchard [1910] HCA 18 ; (1910) 10 CLR 722
Outcome: cited
One of those authorities was Gardiner v Orchard [1910] HCA 18 ; (1910) 10 CLR 722, particularly the passage from Isaacs J, including the following, concerning a clause similar to cl 14 (at 739 740): 'In considering whether such a clause justifies a vendor in any given case in cancelling his contract, the Court must bear in mind three things: First, the purpose of every such condition, which is a matter of law, and is stated in the passage quoted from Greaves v. Wilson ((1858) 25 Beav. 290 [53 E.R. 647]); next, the necessity for bona fides on the part of the vendor in using his power for that purpose: see also Woolcott v. Peggie ((1889) 15 App. Cas. 42). This is a question of fact, and is admitted here. The third essential is that the cancellation must be reasonable. Reasonableness is a question of fact, dependent on the whole of the circumstances, though one of those circumstances consists always of the wording of the contract itself.' The reference to Greaves v Wilson was explained by Stephen J as follows (at 552): 'His Honour's reference to Greaves v. Wilson ((1858) 25 Beav. 290 [53 E.R. 647] is to a passage in which Sir John Romilly M.R. said ((1858) 25 Beav., at p. 293 [53 E.R., at p.649]) that such conditions were introduced to meet the case where a vendor finds that he is to be put to: " ... so much expense and trouble as to make it unreasonable that he should be called upon to do it." The learned Master of the Rolls emphasized that it was always "a question of the reasonableness of the thing required". As early as 1841 Lord Langdale M.R. had used reasonableness as a test of the validity of the vendor's rescission in his judgment in Page v. Adam ((1841) 4 Beav. 269, at p. 285 [49 E.R., 342, at p. 348]).'