FEDERAL COURT OF AUSTRALIA

DP World Sydney Limited v Maritime Union of Australia (No 1) [2013] FCA 278

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an application for the provision of further and better particulars. The first respondent is the Maritime Union of Australia and the other respondents are, or were, members of that Union. It is alleged that the first respondent was involved in industrial action at the Port of Botany stevedoring premises of the applicant on 18 and 19 December 2012. The applicant alleges that that industrial action was not protected industrial action, within the meaning of the Fair Work Act 2009 (Cth), and seeks compensation for what it alleges is loss and damage suffered by reason of that conduct. It makes that allegation in paragraph 41 of its statement of claim, which states, ‘by reason of each of the contraventions, the applicant has suffered loss and damage. Particulars will be provided closer to trial.’

2    On 5 February 2013, in a moment of weakness, at the suggestion of the parties, I separated the issues of liability from those of quantum. At the same time, by consent, however, I directed the respondents to serve, and the applicant to reply to, a request for particulars of paragraph 41. The request which eventually ensued included a request that the applicant provide the quantum claimed. On 20 February 2013, the applicant replied by letter in terms which included the following passage:

1.    Our client is not able to be fully quantify damages at this time. [sic] This will not be able to be done until the evidence for a hearing on damages has been filed and served. Your clients do not, in any event, need this information for a trial on liability. At this stage, we indicate that the categories of loss suffered by our client are as follows:

a.    storage fees at Port Botany that were payable by shipping lines but were required to be waived by our client because of the delay resulting from the industrial action;

b.    Port Botany Landside Improvement Strategy penalties incurred by our client as a result of rail and road transport delays caused by the industrial action;

c.    storage fees at West Swanson and Fisherman Island that were payable by shipping lines but were required to be waived by our client because of delays in vessels leaving Port Botany as a result of the Industrial action;

d.    wage costs not incurred in the usual course of business but necessary to work vessels that were delayed as a result of the industrial action; and

e.    additional refrigerated cargo expenses arising from the delay.

3    The first respondent says that this was an inadequate response to its request. It says that the particulars requested are needed to prepare the quantum part of the trial and also for the purposes of a mediation, which was the subject of directions made on 5 February 2013. The applicant says that since the trial of the liability issue has been severed from the quantum issue, no particulars of damage are needed at this stage and that the conduct of a mediation is not a reason to order particulars. Further, it submits that there is nothing inadequate about the particulars that it has, in any event, provided.

4    Rule 16.45 of the Federal Court Rules 2011 (Cth) (‘the Rules’) provides by subrules (1) and (2) as follows:

16.45 Application for order for particulars

(1)    If a pleading does not give a party fair notice of the case to be made against that party at trial and, as a result, the party may be prejudiced in the conduct of the party’s case, the party may apply to the Court for an order that the party who filed the pleading serve on the party:

(a)    particulars of the claim, defence or other matter stated in the pleading; or

(b)    a statement of the nature of the case relied on; or

(c)    if there is a claim for damages — particulars of the damages claimed.

(2)    An application under subrule (1) may be made only if:

(a)    the particulars in the pleading are inadequate; and

(b)    the party seeking the order could not conduct the party’s case without further particulars.

5    In the present case, there are two ways that the rule may be potentially enlivened. The first is that the conduct of the quantum part of the case falls within the expression, ‘the conduct of the party’s case’, where that appears in r 16.45(2)(b). The second is that the conduct of a mediation falls within that expression. I accept the first reading, but I do not accept the second. The expression, ‘the conduct of the party’s case,’ is apt to cover each stage of a party’s case where there has been a determination that there should be a separate trial of particular issues. On the other hand, it does not, in my opinion, encompass the conduct of a mediation. The words ‘case’ and ‘conduct’ refer to the running of a trial or action before a judge. Approached that way, I accept in principle that r 16.45(2) may be enlivened because the trial of the quantum part can be described as the conduct of a party’s case.

6    The next question is whether the particulars themselves are inadequate. Here, the question is to be determined as one of substance, and the underlying question will be: Are the particulars necessary in order for the respondent properly to run its case? I do not think that the particulars (a), (c) and (e) are inadequate in that sense. The applicant has provided the respondents effectively – in the case of those three paragraphs - with the heads of loss which it will be pursuing. That is sufficient to allow the respondents to make whatever enquiries they wish to make about those heads of loss, for example, by way of notice to produce or discovery and so on. It is not the case that in relation to those three matters, the applicant is required to provide what would be, in effect, its evidence of the matters there alleged.

7    On the other hand, insofar as subparagraphs (b) and (d) are concerned, it seems to me the matter is governed by r 16.44 of the Rules, which is as follows:

16.44 Damages and exemplary damages

(1)    A party who claims damages that includes money that the party has paid, or is liable to pay, must state in a pleading the amount of the money paid or liable to be paid.

(2)    If the party claims exemplary damages, the pleading must also state particulars of the facts on which the claim is based.

8    In terms, that rule applies to the two heads claimed in (b) and (d) because what is involved is either money which the applicant has paid or money which it has become liable to pay. Turning then to r 16.45, a pleading which does not comply with r 16.44 is, in my opinion, a pleading which is inadequate within the meaning of r 16.45(2)(a). It follows from that conclusion that r 16.45 has been enlivened in the case of the matters which are particularised as (b) and (d), but not in relation to the matters which have been particularised as (a), (c) and (e).

9    The question then is whether the power which has been enlivened should be exercised. One of the curiosities about r 16.45 is that it has added a requirement in the form of r 16.45(2)(b) that was not previously in its predecessor O 12 r 5. It is therefore possible for a particular which has been provided to be inadequate under r 16.45(a), but nevertheless, not activate r 16.45(b). The question then is whether the respondents need to have the quantification of the matters in (b) and (d), which r 16.44 contemplates that they will have, or whether they do not. For the same reasons that I do not think that the respondents need further particulars of (a), (c) and (e) for the conduct of the quantum part of the trial, I do not think that they need the quantification of the matters in (b) and (d). The heads of loss sufficiently signal the topics which will be in dispute and provide adequate information to allow for the preparation of the defence.

10    In those circumstances, although r 16.45(2)(a) is satisfied in the case of particulars (b) and (d), r 16.45(2)(b) is not. It follows that I have no power to order the particulars and I dismiss the application with no order as to costs (in light of s 570 of the Fair Work Act 2009 (Cth)).

Associate:

Dated:    28 March 2013