FEDERAL COURT OF AUSTRALIA

Williams v FAI Home Security Pty Ltd (No 2) [2000] FCA 726

PRACTICE AND PROCEDURE – representative proceeding – misleading and deceptive conduct – representations made to group members – precision of statement of claim – specificity of representations in particulars – whether particulars exposed substance of representations. 

PRACTICE AND PROCEDURE – representative proceeding – accessorial liability – actual or constructive knowledge – whether pleading supported claim for accessorial liability – not to be decided prior to hearing. 

Federal Court of Australia Act 1976 (Cth):  s 33C

Bruce v Odhams Press Ltd [1936] 1 KB 697 cited

Connell v Nevada Financial Group Pty Ltd (1996) 139 ALR 723 cited

Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 considered

Bright v Femcare (1999) 166 ALR 743 cited

Yorke v Lucas (1985) 80 FLR 143 cited

Pereira v Director of Public Prosecutions (1988) 82 ALR 217 cited

Wickstead v Browne (1992) 30 NSWLR 1 cited

TIMOTHY WILLIAMS and SUSAN WILLIAMS v FAI HOME SECURITY PTY LTD & ANOR (No 2)

V 383 of 1999

GOLDBERG J

2 JUNE 2000

MELBOURNE

REASONS FOR JUDGMENT

1                     On 14 December 1999 I gave the applicants leave to file and serve a further amended statement of claim and to file and serve further and better particulars of pars 9, 11, 16 and 18 of the then current statement of claim or of such paragraphs as were equivalent paragraphs in any further amended statement of claim.  On 22 December 1999 the applicants filed and served a further amended statement of claim (“the statement of claim”) and further and better particulars of the statement of claim.

2                     By notice of motion filed on 14 February 2000 the respondents seek orders that:

·                    certain paragraphs in the statement of claim be struck out and that further and better particulars of certain paragraphs in the statement of claim be provided;

·                    the applicants provide particulars under various paragraphs of the statement of claim in respect of further group members as they became known to the applicants;

·                    the respondents’ solicitors be released from an undertaking given earlier not to disclose to the respondents the identity of group members whose identity had been supplied by the applicant’s solicitors

·                    the applicants disclose the identity of any new group member within fourteen days of any new group member becoming known to them. 

3                     The applicants bring the proceeding pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) (“the Act”) as a representative party.  The group members to whom the proceeding relates are persons who on or after 9 July 1993 purchased home alarm systems, known as Security Guard I and Security Guard II, from the first respondent (“FAI Security”).  It is alleged that the group members entered into loan contracts with the second respondent, (“FAI Finance”) to finance the purchase of the alarm systems.  It is alleged that it was represented to the group members that the systems were the latest technology available and that they acted on the faith of the representations by entering into the sales contracts and loans contracts and thereby suffered loss and damage. 

4                     In the statement of claim it is alleged that FAI Security carried on the business of supplying the alarm systems and that FAI Finance carried on the business of providing credit to consumers in relation to the acquisition of goods and services, including the alarm systems.  It is alleged that FAI Security established a distribution network through various distributors for the door‑to‑door sale of the alarm systems and prepared and supplied to the distributors various written materials for use in their sale.  It is alleged that on various dates after 9 July 1993 the distributors made sales presentations to consumers in accordance with the script prepared by FAI Security and entered into negotiations with the consumers in respect of the sale of the alarm systems. 

5                     Paragraph 16 of the statement of claim is in the following terms:

“In the course of the sales presentation referred to in paragraph 10 and the negotiations referred to in paragraph 11, the distributors, following the FAI instructions:

(a)               said to each of the consumers in respect of the first home alarm system or the second home alarm system, as the case may be, words to the effect that the system was the latest technology available; and

(b)               further said to some of the consumers in respect of the first home alarm system or the second alarm system, as the case may be, words to the effect that the system was:

(i)                 the best on the market; and/or

(ii)               for sale at much less than comparable systems.”

Particulars of those representations are then given under para 16 in the following terms:

“The representations were partly written, partly oral and partly to be implied.  Insofar as they were written, they were contained in the sales kit.  Insofar as they were oral, they were constituted by conversations between the consumers and the relevant distributors on various dates and at the homes of the group members in the course of the sales presentation:

(i)        in relation to the representation that the relevant system was the latest technology available, words to that effect and/or words to the effect that the system was:

(A)       the latest in wireless infrared technology

(B)        a revolutionary new type of radio‑based alarm system;

(C)       a brand new type of security system;

(D)       a brand new type of security package; and/or

(E)       the latest available in electronic surveillance

The substance of which was that the relevant system was the latest technology available;

(ii)       in relation to the representation that the relevant system was the best on the market, words to that effect and/or words to the effect that:

(A)       the system was a security package unlike any other;

(B)       FAI had to provide the consumer’s family with the best that FAI could provide;

(C)       the system would provide the consumer’s family with the maximum protection; and/or

(D)       the system was rated by independent research as the best of the best

The substance of which was that the relevant system was the best on the market;

(iii)      in relation to the representation that the relevant system was for sale at much less than comparable systems, words to that effect and/or words to the effect that:

(A)       FAI could sell its package anywhere from $3,000 to $3,500 because that was what a lot of companies would charge just for their alarm system;

(B)       the system was easily marketable for around $2,900‑$3,200; and/or

(C)       the system was far superior to at least a $5,000 alternative

The substance of which was that the relevant system was for sale at much less than comparable systems.

Insofar as they were to be implied, they were to be implied from showing the sales kit to the group members during the course of the sales presentation, and from the ordinary meaning of the words alleged above.”

In the further and better particulars of par 16 which have been delivered the applicants have supplied particulars of the representations specifically made to the applicants and to six group members known to the applicants.

6                     It is then alleged that the consumers entered into sales contracts in reliance upon the representations which were financed by loans entered into with FAI Finance, that the alarm systems were not the best on the market or the latest technology available and were not for sale at much less than comparable systems.  It is alleged that the conduct of the respondents was in contravention of s 52, s 53 and s 74G of the Trade Practices Act 1974 (Cth).  There is also a plea of negligent misstatement against FAI Security, and a claim against FAI Finance under s 73 of the Trade Practices Act.

7                     It is alleged that the distributors made the representations as agents of FAI Security and in the alternative it is alleged that FAI Security was involved in the contraventions by the distributors within the terms of s 75B of theTrade Practices Act.

8                     At an earlier stage of the proceeding the respondents challenged the applicants’ claim that there were seven group members as required by s 33C of the Act.  The applicants’ solicitors agreed to provide the respondents’ solicitors with the names of the group members at that time on the basis that those names not be disclosed to the respondents and be kept confidential by the respondents’ solicitors.  The names of the group members were provided on that basis. 

Paragraph 16 of the statement of claim

9                     The respondents criticised par 16 of the statement of claim in a number of respects.  They pointed out that although the distributors “said” the representations to each of the consumers, the particulars stated that the representations were partly written, partly oral and partly to be implied.  The drafting may not be precise but it is clear from the particulars that the representations relied upon were partly in writing, partly oral and partly to be implied and that the writing is identified, as are the relevant conversations and the matters from which the implications arise.  Counsel for the applicants accepted that “represented” should be substituted for “said”.  The applicants should have leave to amend the statement of claim accordingly. 

10                  Although the words relied upon in the particulars are not precisely congruent with the allegations in subpars (a) and (b) of par 16, I am satisfied that the paragraph, taken in conjunction with the particulars, sufficiently discloses what are the words constituting the representations, which are relied on by the applicants. 

11                  The respondents contended that it is not possible to work out whether the particulars of the conversations are words to the effect of what is found in subpars (a) and (b) of par 16 or words to the effect of what is stated in the particulars or a combination of both.  Although the drafting is not concise or precise I am satisfied that it is clear what the case is which the respondents have to meet and to what statements they have to respond.  It must be remembered that the function of particulars is not to fill in gaps in the allegations of material fact but rather to delineate the boundaries of the subject‑matter relied upon.  As was stated in Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712‑713:

“Their [particulars] 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.”

In my opinion, this is sufficiently carried out by the particulars under par 16.  The particulars define sufficiently the boundaries within which the relevant representations are to be found:  see also Trade Practices Commission v George Weston Foods Limited (1979) 39 FLR 182 at 186. 

12                  Although there may be differences between the actual terms of the statements made to the various group members that is not a bar to the proceeding continuing as a representative proceeding.  So long as there is a substantial common issue of law or fact, that is to say an issue which is real or of substance, then s 33C(1)(c) of the Act is satisfied:  Wong v Silkfield Pty Ltd (1999) 165 ALR 373 at 381.  It is no bar to such a representative proceeding that the claim is brought in respect of representations founded in different conversations made to different members of the class.  The threshold criterion is satisfied if the representations, albeit not in the same terms, are directed to substantially the same matters.  In Connell v Nevada Financial Group Pty Ltd (1996) 139 ALR 723, Drummond J said at 728:

“It is not, I think, an objection to proceedings being brought as representative proceedings and founded upon an oral (or a written) representation made to the various class members that the representation may have been made on different occasions and in a different form of words to each class member, so long as the court can be satisfied that the substance and effect of what was orally represented is the same.  But, in such cases, the court must be satisfied that each class member truly does set up a representation to the same substance and effect.”

The relevance of that observation, for present purposes, is that notwithstanding the need for allegations to be formulated in sufficiently precise terms to enable a respondent to understand the case it has to meet, there needs to be some leeway allowed where there have been representations made to various persons of a particular class in circumstances where there will be a divergence in the actual words by which the representations were conveyed.  So long as the representations are directly linked to a sufficiently defined subject‑matter and are to the same effect, a pleading should be allowed to stand even though there may be some differences in the actual words spoken to each group member.  In this respect I adopt the later observation of Drummond J in Connell v Nevada Financial Group Pty Ltd (supra) at 728:

“Here, I am prepared to accept that the pleading is sufficiently precise and shows that, while oral representations as to the exclusive availability of products were made in different words to the various class members on different occasions, they are all to the same substance and effect and so give rise to one issue of fact common to the claims of all the group members.”

13                  In the present case the substance of each representation is identified and it is then the subject of elaboration by reference to further words said to have been stated.  Taking the first representation as an example, the respondents know that the statement relied upon was to the effect that the system was the latest technology available.  There is little substantive difference between that statement and the statements that the system was the latest in wireless infrared technology, a revolutionary new type of radio‑based alarm system, a brand new type of security system, a brand new type of security package and the latest available in electronic surveillance.  However, by setting out these particulars the applicants are making it clear that although there is a range of statements upon which they rely, they are relied upon to justify a representation that the system was the latest technology available.

14                  Pleadings in proceedings brought under Pt IVA of the Act are liable to be struck out if they do not conform to the basic rules of pleading.  In Bright v Femcare (1999) 166 ALR 743 Lehane J said (at 750):

“There is nothing in Pt IVA which dispenses with the requirement that the applicant plead the material facts on which all claims for relief are made on behalf of each group member.  To the extent that that is not done the pleading, like a pleading in any other proceeding, is liable to be struck out.  Equally, if a claim made on behalf of any group member is to succeed, the factual basis of each element of the cause of action will have to be established by evidence.”

This passage was referred to by the Full Court (Femcare Ltd v Bright [2000] FCA 512 at [7]) which upheld Lehane J’s decision upholding the constitutional validity of Pt IVA of the Act.  The Full Court expressly refrained from considering the correctness of this passage.  Although it may be thought, on one view, that this passage supports the proposition that the particular case to be made by each group member must be specifically pleaded, there are passages in Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 which suggest that the pleading in a Pt IV proceeding does not need to plead the case of each individual group member.

15                  The relationship between the ordinary rules of pleading and proceedings brought under Pt IVA of the Act was considered by the Full Court of the Federal Court in Philip Morris (Australia) Ltd v Nixon (supra).  All the members of the Court concluded that the statement of claim was inadequate and that it should be struck out.  The majority (Spender and Hill JJ) held that leave to file a further amended statement of claim should be refused and declared that the proceeding no longer continue under Pt IVA of the Act.  Sackville J agreed that the statement of claim be struck out but dissented on the issue of leave to file a further amended statement of claim, which he would have granted.  Spender and Hill JJ agreed with Sackville J’s reasoning which led to their conclusion that the amended statement of claim should be struck out.  Sackville J considered the impact upon the ordinary rules of pleading of the representative procedure established by Pt IVA of the Act (at [131]‑[136]).  The passage is lengthy, but as it is directly relevant to the issues before me it merits quoting in full:

“131        The fact that Part IVA of the Federal Court Act preserves the ordinary rules of pleading in representative proceedings does not, however, necessarily mean that the applicant in such proceedings is bound to plead material facts specific to each individual member of the represented class.  The principal functions of pleadings are to furnish a statement of the case sufficient to allow the opposing party a fair opportunity to meet it;

·      to define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and

·      to enable the opposing party to understand and assess the pleaded case for the purposes of settling the litigation.

See Dare v Pulham (1982) 148 CLR 658, at 664, per curiam.

132          The requirement imposed by FCR O 11 r2, that a pleading contain a statement in summary form of the material facts on which the party relies, is to be understood by reference to the functions of pleadings.  Thus it is a well established rule that the permitted level of generality of a pleading must depend on the general subject matter and on what is required to convey to the opposite party the case that is to be met:  Ratcliff v Evans [1892] 2 QB 524 (CA).  For example, in some circumstances, it may be permissible to plead a conclusion rather than the material facts underlying the conclusion:  Kernel Holdings Pty Ltd v Rothmans of Pall Mall Australia Pty Ltd (French J, 3 September 1991, unreported); Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41‑691 (Drummond J), at 42,829.

133          In the context of representative proceedings, it may be sufficient for the applicant to plead the case of each member of the represented class at a reasonably high level of generality.  (I use ‘sufficient’ in the sense of adequate to enable the applicant to resist an application to strike out the pleading or dismiss the proceedings.)  This is illustrated by the sample statement of claim appended to the LRC’s report on Grouped Proceedings.  As has been explained, the sample statement of claim alleges material facts, such as the purchase of a defective product by group members and their reliance on misleading representations, only in the most general terms.

134          Unless the rules of pleading permit this degree of flexibility, serious inroads would be made into the utility of the representative procedure established by Part IVA of the Federal Court Act.  The general objectives of the legislation were identified in the second reading speech for the Federal Court of Australia Amendment Bill 1991 (Cth Parl Deb, HR, 14 November 1991, at 3174‑3175), in a passage quoted by the High Court in Wong v Silkfield, at 379: …”

His Honour then set out this passage and continued:

135                    As this extract shows, one of the key objectives of the representative procedure is to provide a genuine remedy where many people suffer small losses, but the total amount at stake may be large.  To achieve this objective it may well be necessary and appropriate for the represented group to consist of a very large number of people.  By way of example, a catastrophic event at an electricity or gas plant, causing a loss of services to many thousands of people, may give rise to representative proceedings in which the represented group is very large indeed:  cf Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) 166 ALR 731 (Merkel J), at 733.  If the individual claims of each member of the represented group had to be pleaded by reference to specific dates and events, the representative procedure might well be rendered ineffective for the very kind of group claim it is intended to facilitate.

136          Whether proceedings at a relatively high level of generality are permissible will depend on the circumstances of the particular case and the stage it has reached.  The facts material to the claims of each member of the represented group might not be necessary to ensure that the respondent adequately understands the case made on behalf of the represented class and has a fair opportunity to meet that case.  This may be the position, for example, where representative proceedings are brought in order to provide a mechanism to enable one or more common issues of law or fact to be resolved in a manner that binds the respondent and all class members, rather than to determine finally the claims of each class member.  (See Federal Court Act, ss 33Q, 33R.).”

16                  The consequence of Sackville J’s reasoning is that one should approach a pleading in a proceeding brought under Pt IVC of the Act, where the substantial common issue of law or fact centres on representations made to a number of group members, with a degree of flexibility.  Nevertheless it is important, as Sackville J pointed out in Philip Morris (Australia) Ltd v Nixon (supra), that the pleading define the issues for decision so as to enable the respondents to understand and assess the case made against them. 

17                  Although the pleading of the allegations in par 16 could be improved and tightened I am satisfied that it adequately exposes for the respondents the allegations as to the substance of the statements said to have been made.  The statement of claim makes it clear that the case made against the respondents is based upon statements made to consumers and potential consumers by distributors who were following instructions from the respondents.  It is said that the distributors made the statements they did either as agents of FAI Security or that FAI Security, speaking generally, aided or abetted or was knowingly concerned in, the misleading and deceptive conduct relied upon.  The nature and thrust of the representations is identified in pars 16(a) and (b) of the statement of claim and the particulars then confine those representations with a greater degree of particularity.

18                  Consistently with the reasoning of Sackville J in Philip Morris (Australia) Ltd v Nixon (supra) I do not consider that I should strike out any of the particulars under par 16.

19                  The respondents also submitted that the statements in the particulars were not capable of sustaining the representations set out in pars 16(a) and (b).  I reject that submission.  As I pointed out to counsel in the course of argument, it is a short step from saying that a system is the latest technology available to saying that the system is the latest in wireless infrared technology, or a brand new type of security system.  I am unable to say at this stage that the particulars under pars 16(a) and (b) cannot support the allegations of material fact.  More particularly is this so when the representations are said to be partly in writing, partly oral and partly to be implied.  Much may depend upon any interaction between the spoken word and the written word and the manner in which the sales kit was presented to the group members.  It is certainly premature to form a view that the particulars have little or no probative value in relation to the representations pleaded. 

Paragraphs 29, 29A and 30 of the statement of claim

20                  The respondents submitted that pars 29, 29A and 30 do not plead adequately accessorial liability upon which the applicants rely in the alternative to the allegation that the distributors made the representations as agents of FAI Security. 

21                  Paragraphs 29, 29A and 30 are in the following terms:

“29.     In the alternative to paragraph 17 above [the distributors made the representations as agents of FAI Security], FAI Security at all material times:

(a)        knew the matters set out in the particulars under paragraph 21;

(b)        encouraged or permitted the conduct of the distributors set out in paragraph 5 to 16 above.

PARTICULARS

Complaints were regularly made by customers to FAI Security’s telephone call centre in Sydney concerning false alarms given by the alarms [sic] systems; failure of the alarm systems to operate correctly; and burglaries in the homes of customers protected by the alarms [sic] systems (which included burglaries involving theft of the alarm systems themselves).  Remedies were provided by FAI Security for some of these complaints, including replacement of the alarm system with a hard‑wired perimeter alarm system.

Further particulars may be provided after discovery.

29A     In the premises, FAI Security:

(a)        aided or abetted, counselled or procured the contraventions referred to in paragraphs 21 and 24 above;

(b)        was directly or indirectly, knowingly concerned in, or party to the contraventions.

PARTICULARS

The applicants refer to and rely on paragraphs 5‑16 above and paragraphs 44‑45 below.  Further particulars will be provided after discovery.

30.       In the premises, FAI Security was involved in the said contraventions within the meaning of s.82(1) of the Act.”

The respondents submitted that accessorial liability requires the applicants to establish knowledge of the essential elements constituting the contraventions, including knowledge that the relevant conduct was misleading or false.  The applicants relied upon the principles found in Yorke v Lucas (1985) 158 CLR 661 at 670. 

22                  Paragraph 29 alleges that FAI Security knew the matters set out in the particulars under par 21, namely the respects in which the applicants’ allege the systems were not the best on the market, the latest technology available or for sale at much less than comparable systems.  The respondents accepted that the pleading, as required, alleged that FAI Security had knowledge of the falsity of the representations, but they contended that the particulars could not support the allegation that FAI Security knew that the representations were false or misleading in the respects identified in the particulars.  That is not a matter to be adjudicated upon at the present time.  It may or may not be so but it is a matter best left for trial.  The pleading itself is not obscure, vexatious, embarrassing or oppressive.  The particulars under par 29 refer to complaints made by customers to FAI Security’s telephone call centre, failures of the systems to operate correctly, the existence of burglaries in homes protected by the systems and replacement of some of the systems.  I do not consider that it should be said that there is no tenable connection between these facts and the knowledge alleged against FAI Security and that the applicants’ case is so untenable that it cannot possibly succeed:  Coles Myer Ltd v Bowman [1996] 1 VR 457 at 459.  It is not for me at the present time to determine whether the applicants can make out their case as a matter of evidence.  That issue must be dealt with at trial.

23                  The manner in which accessorial liability is established under s 75B of the Trade Practices Act may not be completely free from doubt.  The respondents submitted that actual knowledge of the essential facts constituting the contravention must be established and that constructive knowledge is insufficient.  They relied upon Yorke v Lucas (supra), Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681 at 693‑695; Westbay Seafoods (Aust) Pty Ltd v Transpacific Standardbred Agency Pty Ltd (unreported Burchett, Whitlam and Sundberg JJ, 20 August 1996) [6] noted in [1996] ATPR Digest 46‑162 and Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1.  The applicants contended that constructive knowledge was sufficient. 

24                  In Yorke v Lucas (1985) 80 FLR 143 the Full Court of the Federal Court said at 153:

“In our opinion, the words ‘party to the contravention’ refer to a person who participates in, or assents to the contravention in question.  To be regarded as participating or assenting, such a person must actually or constructively be aware of the elements constituting the contravention.  To our minds, it is not sufficient to render an individual liable if he is shown to be aware of some only of those elements.”

25                  In HECEC Australia Pty Ltd v Hydro‑Electric Corporation (1999) ATPR 46‑196 Einfeld J relied upon this passage in the judgment of the Full Court and said that the Full Court’s view was upheld by the High Court at 158 CLR 661 at 670‑671.  At that page the High Court approved specifically of an earlier passage in the Full Court judgment but it is not clear that the High Court approved of that passage in the judgment which refers to constructive knowledge.

26                  The distinction between actual knowledge and constructive knowledge for present purposes may well be blurred because in some circumstances actual knowledge may be inferred from relevant circumstances.  This issue was considered by the High Court in Pereira v Director of Public Prosecutions (1988) 82 ALR 217 where the Court said (at 219‑220):

“Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence.  However, three matters should be noted.  First, in such cases the question remains one of actual knowledge:  Giorgianni v R (1985) 156 CLR 473 at 504‑7; 58 ALR 641; He Kaw Teh (CLR at 570).  It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. …  Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available.  All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter.  In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer’s shorthand, be referred to as wilful blindness.”

27                  The authorities to which I have referred are such that it is not appropriate on a pleading summons to rule that the allegations contained in pars 29, 29A and 30 do not disclose a cause of action in respect of liability under s 75B of the Trade Practices Act.  The allegations in pars 29, 29A and 30 may disclose sufficient knowledge of the relevant essential facts for the purposes of accessorial liability.  That proposition is not unarguable.

28                  Even if the claim in relation to accessorial liability were to be struck out, the claim that the distributors acted as agents of FAI Security would remain, so that the matter would nevertheless proceed to trial.  This consideration makes relevant the observation of Kirby P in Wickstead v Browne (1992) 30 NSWLR 1 where he dissented from the majority’s view that a cause of action in negligence should be dismissed when other causes of action were proceeding.  His Honour said (at 5):

“Conformably with the decision of this Court, the matter will now proceed to trial.  It will be tried upon the two causes of action which the Court has unanimously upheld, viz, the statutory count based upon the Code and the claim for breach of fiduciary duty.  If there were to be no trial, there might be particular reasons for affirming the conclusion which Handley JA and Cripps JA have reached.  Then, the summary termination of this claim might save the respondent altogether from the ‘vexation of the continuance of useless and futile proceedings:  see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 84; Pannizutti v Trask (1987) 10 NSWLR 531 at 536.  But as the trial must now proceed, there is merit (as it seems to me) in permitting the appellant to present his case in various ways.  The marginal utility to the respondent of preventing the appellant from proceeding upon the alternative cause of action in negligence is minimal.  But the marginal cost of doing so would be very great if, subsequently, the trial was concluded, limited by the orders proposed, and it was then held, either by this Court or by the High Court of Australia, that the appellant’s cause of action in negligence was viable … ”

Although Kirby P dissented, the High Court granted special leave to appeal, allowed the appeal and expressed general agreement with the reasons of Kirby P for the conclusion that the negligence claim should not be dismissed:  Wickstead v Browne (1993) 10 Leg Rep SL 2.  I would not therefore, as an exercise of discretion, strike out pars 29, 29A and 30.

Particulars in relation to group members

29                  The respondents have also sought an order that the applicants provide particulars pursuant to pars 9, 11, 16 and 18 in respect of the representations made to any new group member becoming known to them or their solicitors from time to time.  In my earlier reasons for judgment ([1999] FCA 1771) I expressed the opinion that it was a proper request for further and better particulars to provide particulars at that time in respect of any group members then known to the applicants.  The respondents now seek such an order on an ongoing basis.

30                  I do not consider it appropriate at this stage to order that the applicants provide particulars of the representations made to each of the group members as the group members become known to the applicants.  The three categories of representation have been pleaded and there are sufficient particulars given in relation to the applicants and other group members identified in the particulars to give the respondents an understanding of the nature of the case which they have to meet.  In this respect I refer to the earlier observations of Sackville J in Philip Morris (Australia) Ltd v Nixon (supra).  I consider that there is a sufficient range of particulars at the present time to demonstrate to the respondents the range of the subject‑matter covered by the representations alleged to have been made and what is said to be the effect or substance of those representations.  The applicants are limited to the statements specified in the particulars.  If they wish to rely hereafter on any statements which are not covered by the particulars, they would have to seek leave to amend the particulars. 

Release from undertaking

31                  In the earlier reasons for judgment I did not consider that there was any basis at that stage to vary the undertaking as to confidentiality given in relation to the names of the group members supplied on a confidential basis, by the applicants’ solicitors to the respondents’ solicitors on 10 November 1999.  The parties had agreed that those names would not be disclosed by the respondents’ solicitors to the respondents without the consent of the applicants’ solicitors or until further order of the Court.  Since the delivery of those reasons the applicants have provided further and better particulars which enable the respondents to know the names of the relevant distributors alleged to have made the representations and the dates when they were made. 

32                  The applicants opposed the respondents’ application that the names of the group members presently known to the applicants be disclosed but did not advance any specific reason why those names should not be disclosed.  There was a suggestion that if the names were disclosed there was a concern that they might be approached not to continue with the proceedings.  There is no suggestion that that situation has occurred or might occur and I consider it appropriate that those names be disclosed to the respondents. 

33                  In these circumstances I consider it appropriate that the solicitors be released from their undertaking as to confidentiality so as to enable them to obtain instructions from the respondents in relation to the allegations made.  I do not consider that there is any disadvantage or detriment to the applicants in supplying the names of the group members to the respondents so that they may give proper consideration to the allegations involving the conduct of the distributors.

34                  Although the respondent’s motion in respect of the substantive matters argued should be dismissed, I consider it desirable, as I indicated in argument, that certain aspects of the statement of claim be tidied up.  I did not understand counsel for the applicants to dissent from this proposition.  I refer to the use of the term “said” in par 16(a) and (b) and to the particulars under par 16 where sentences appear after the words set out in the alphabetical subparagraphs.  I will give the applicants leave to make these amendments.

35                  The respondents’ motion will be dismissed.  I will hear the parties on the issue of costs. 

Associate:

Dated:              2 June 2000