Case: Brown v Jam Factory Pty Ltd (1981) 53 FLR 340
Outcome: cited
So, as a general principle, when a party pleads breach of s 52 it necessarily follows that the factual basis upon which the section is invoked must be stated with appropriate clarity in the statement of claim (Fox J in Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348). This is not the case here. The relevance of the failure to disclose the emails listed in paras 17A(g)-(k) to the applicants is not articulated in the Further Amended Statement of Claim, so as to present a case that the respondents can meet. This creates a problem which the applicants' submissions do not overcome. 267 A second fundamental flaw in the claim of the applicants in relation to the emails in each of paras 17A(g)-(k) is that, in the absence of articulation of the factual basis upon which the applicants allege that failure to disclose the relevant email was misleading or deceptive, the applicants do not substantiate their claim that the emails as distinct from any information in them be disclosed. The emails identified in paras 17A(g)-(k) were clearly internal emails sent as part of the management of the orchards, in the normal course of business. While it is undesirable for the Court to take an unnecessarily restrictive view of pleadings where the substance of an applicant's case is clear from the statement of claim, in this case the alleged substance of the applicants' case in paras 17A(g)-(k) is not clear from the manner in which it has been pleaded. In my view it would be unjust to the respondents to require them to meet a case which the applicants develop in their written closing submissions at the end of a long trial when the proper approach was clearly for the case to be unambiguously pleaded at the outset. 268 An illustration of the difficulties arising from the failure of the applicants to clarify the basis of their claim in each of these paragraphs through proper pleading can be seen by reference to the applicants' claim in para 17A(g) and the email of 7 December 2004. The substance of this email reads as follows: David Confirming what I need done at Sunstate. &#8226; Debbie to only work on an as required basis in the Tiaro orchard. &#8226; Steve, to service the Packing Shed line, only non cost repairs and servicing to be carried out. &#8226; Steve to work on Tiaro and Bundaberg on repairs when not in the shed. &#8226; You are to do any admin, casual wages and invoicing, then down to Tiaro for work there. &#8226; I need all R&amp;M external cost to be stopped with only internal repairs carried out by Steve and staff. &#8226; I agree to $61,000 worth of thinning in total for both farms. &#8226; All chemicals stocks to be run down, with all herbicide and tree chemicals to be used for stores to maintain spray programs. Chemicals can be rotated on consultant's advice. Transfer chemicals between farms if required. &#8226; All slashing, weed and tree spraying is to be well maintained. &#8226; The contract slashing is to cease, salary and casual staff to take over this role. &#8226; You will need to get authority for any expenditure from HO. staff such as Matt, Trevor and Steve are to be informed of the process. Regards Andrew Strahley ... 269 The applicants claim in their written submissions that the "Evidence contained in Exhibit" relevant to the matter contained in the email (and para 17A(g)) was "Only internal repairs carried out... Contract slashing is to cease" and the respondents' reply to this was "NIL". 270 However: &#8226; Even assuming that the failure to disclose this email could, without substantiation, be conduct misleading or deceptive within the meaning of s 52, the email itself contains a broad spectrum of instructions relevant to the ordinary course of management of the orchards including specific instructions regarding minor employees. To take random examples are the applicants suggesting that failure of the respondents to disclose an email with the instruction "Debbie to only work on an as required basis in the Tiaro orchard" or "Steve to work on Tiaro and Bundaberg on repairs when not in the shed" was conduct in breach of s 52? &#8226; It is clear that, in making this submission after conclusion of the trial, the applicants sought to articulate the factual basis for the claim in para 17A(g) that failure to disclose that email constituted a breach of s 52. However this submission is in the nature of particulars. If this material were to form part of the applicants' claim, it should have been included in the Further Amended Statement of Claim. &#8226; In any event, the submission was "Only internal repairs carried out... Contract slashing is to cease" in relation to this email. This does not explain why the claim under para 17A(g) is in any way relevant to an alleged breach of s 52.