FEDERAL COURT OF AUSTRALIA

Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081

THE COURT ORDERS THAT:

1.    The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.

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

REASONS FOR JUDGMENT

1    The facts which give rise to the present dispute are within a deceptively narrow compass. The Applicant, Mr Kazumi Takemoto, maintains that he was employed by Moody’s Japan KK in June 1990 as a Managing Director, Investors Service Group. He says that he came to Australia in December 2003 and occupied the position of “Managing Director Investors Service Group Moody’s Australia Pty Ltd”. He further says that on 26 July 2006 he was given notice that his “Australian contract would terminate on 31 July 2006”. Mr Takemoto seeks damages. That claim was, until very recently, founded upon an asserted entitlement to receive benefits pursuant to a “Career Transition Program”. Notwithstanding an apparent simplicity in the facts giving rise to the dispute, Mr Takemoto’s path to vindication of his claims has been less than satisfactory.

2    He first claimed relief for breach of contract and damages pursuant to the Trade Practices Act 1974 (Cth) (“Trade Practices Act”) by way of an Application and Statement of Claim filed in June 2009. Parts of the Statement of Claim were struck out in April 2010 and leave to amend was granted: Takemoto v Moody’s Investors Service Pty Ltd [2010] FCA 407. Subsequent proposed amendments were thereafter considered – but the proceeding was struck out in June 2010: Takemoto v Moody’s Investors Service Pty Ltd (No 2) [2010] FCA 622. Leave to appeal was dismissed in September 2010: Takemoto v Moody’s Investors Service Pty Ltd [2010] FCA 1020.

3    Not to be deterred, Mr Takemoto commenced a fresh proceeding by filing an Application and a Statement of Claim on 23 July 2012 in the then Federal Magistrates Court. The Respondents were named as Moody’s Investors Service Pty Limited (“Moody’s Investors Service”) and Moody’s (Aust) Pty Limited. The proceeding was transferred to this Court in August 2012. Again, the claims for relief sought to be advanced for resolution included a claim founded in contract and a separate claim founded upon false and misleading representations in contravention of the Trade Practices Act. And, again, there has been a challenge to the manner in which the claims are now pleaded.

4    The Statement of Claim filed in the current proceeding has been amended on a number of occasions, the most recent amendment being made pursuant to leave granted on 19 August 2014. It is that version, namely the Further Amended Statement of Claim, that is the subject of the Interlocutory Application filed by Moody’s Investors Service on 3 September 2014 seeking orders either that:

    summary judgment be entered in favour of Moody’s Investors Service pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (“Federal Court of Australia Act”); or

    both the contract claims and the trade practices claims should be struck out pursuant to r  16.21 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”).

Such relief as was sought did not extend to the claim made by Mr Takemoto in respect to any failure to provide reasonable notice upon termination. Unlike an application that pleadings be struck out, where it is the adequacy of the pleadings which is in issue, an application pursuant to s 31A not only permits – but requires – a consideration of matters outside the pleadings: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [3] to [8], (2008) 252 ALR 41 at 43 to 44 per Finkelstein J. See also: Oliver v Commonwealth Bank of Australia (No 1) [2011] FCA 1440 at [23] per Perram J; J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 at [8] per Pagone J. On the application for summary judgment, in the present proceeding, evidence was filed by both Moody’s Investors Service and Mr Takemoto. That evidence included the form of the pleadings that were in issue in 2010 and some of the evidence then relied upon.

5    The resolution of the Interlocutory Application filed by Moody’s Investors Service does not call for any detailed elaboration of the principles to be applied in respect to either s 31A or r 16.21. Principles of relevance to the application of these provisions have been previously recounted when reasons for decision were published in 2010. Their application to the facts of the present case can most conveniently be addressed by separately considering the manner in which Mr Takemoto seeks to advance his claims in contract and thereafter his trade practices claims.

6    The hearing of that Interlocutory Application commenced on 3 September 2014 and was adjourned for further hearing on 18 September 2014. The adjournment was granted to permit Mr Takemoto an opportunity to file either evidence or an outline of evidence that he sought to rely upon to resist summary judgment being entered against him in respect to his then trade practices claim. That was the sole basis for granting the adjournment. An outline of that evidence was filed on 15 September 2014. Later, and during the evening on 17 September 2014, notice was given on behalf of Mr Takemoto of his intention to file his own Interlocutory Application seeking leave to further amend his Further Amended Statement of Claim. There was provided at that time a proposed Second Further Amended Statement of Claim. The long held reliance upon the Career Transition Program was abandoned.

7    Counsel for Moody’s Investors Service opposed any leave being granted to entertain an application to further amend. The hearing on 18 September 2014, however, proceeded upon the basis that final submissions would be heard in respect to the outstanding Interlocutory Application together with submissions in respect to the proposal on behalf of Mr Takemoto to further amend.

8    It is concluded that summary judgment pursuant to s 31A of the Federal Court of Australia Act should be entered in favour of Moody’s Investors Service in respect to both the contract claims and the trade practices claims pleaded in the Further Amended Statement of Claim. That only leaves for resolution the claim in respect to an alleged breach of a failure to provide reasonable notice on termination.

9    It is further concluded that the Interlocutory Application sought to be filed on behalf of Mr Takemoto seeking leave to further amend should be dismissed. No leave should be given to file a Second Further Amended Statement of Claim.

Summary judgment – s 31A

10    Section 31A of the Federal Court of Australia Act provides as follows:

Summary judgment

(1)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is prosecuting the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

(5)    This section does not apply to criminal proceedings.

It is a provision well-traversed in previous decisions of this Court, but a few basic principles as to meaning to be ascribed to this provision and the manner of its application should, again, nevertheless be expressly recognised.

11    First, s 31A was introduced by way of amendment and came into effect on 1 December 2005. It was a provision which was intended to establish a lower standard than that previously laid down by decisions of the High Court (e.g., Dey v Victorian Railways Commissioners (1948) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125), namely that allegations are “so clearly untenable that [they] cannot possibly succeed”. See also: Hicks v Ruddock [2007] FCA 299 at [12] to [13], (2007) 156 FCR 574 at 582. The effect of s 31A is to “soften the test for a successful application for summary judgment”: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [25], (2009) 178 FCR 401 at 407 per Spender, Graham and Gilmour JJ.

12    Second, the exercise of the power must necessarily be approached with caution: Spencer v Commonwealth of Australia [2010] HCA 28, (2010) 241 CLR 118 at 131 to 132 French CJ and Gummow J there observed:

[24]    The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence…

[25]    Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.

See also: Leahy v Commonwealth of Australia [2013] FCA 1454 at [22] per Foster J.

13    Third, the requirement that there be “no reasonable prospects of success” can be satisfied where there is a defect in the pleadings which cannot be cured or, alternatively, by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J (as his Honour then was).

14    Not surprisingly, considerable attention has been given to those circumstances in which this Court may be called upon to enter summary judgment – not upon the basis of resolving a legal issue – but upon the basis of resolving a factual question dividing the parties. One party may plead a material fact which is either not admitted or denied. Upon an application being made pursuant to s 31A, the Court can – in an appropriate case – resolve that factual issue. But the circumstances in which it should do so, and thereafter proceed to enter summary judgment or summarily dismiss a proceeding, should be approached with considerable caution. Although the parties may seek to adduce evidence in respect to the resolution of that factual question, the Court is called upon, in an application pursuant to s 31A, to form a view in advance of a final hearing as to how that factual question is to be resolved and whether or not it is a more proper exercise of the discretion conferred by s 31A to allow the matter to proceed to hearing.

15    When addressing the principles to be applied where summary judgment is sought and where there are disputed questions of fact, Finkelstein J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60, (2008) 167 FCR 372 at 382 said:

[22]    … If the test under s 31A raises the hurdle for the opposing party, it may be necessary for that party at a minimum to provide an outline of the evidence that will be relied upon. The outline must be sufficient to show that there is a genuine dispute about facts that are material to the outcome of the case. That will enable the judge to make some assessment of the merits. It would not, of course, be necessary, in most cases, to require the party to do more than provide an outline, because that would turn the summary judgment application into a trial.

[23]    In other words, the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party’s assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial.

Rares J expressed the proposition as follows:

[74]    Accordingly, if Jefferson Ford is able to establish that there was a real issue of fact or a real issue of law capable of being decided in its favour then, subject to the Court’s discretion to determine the question of law, the matter ought to be allowed to go to trial in the ordinary way.

Gordon J referred to the principle to be applied as follows:

[130]    A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success… So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has “no reasonable prospect of success”… On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim.

“Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial”: Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [37] per Sundberg J. See also: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [25] to [45], (2013) 220 FCR 256 at 266 to 271 per Reeves J. Summary judgment under s 31A may thus be appropriate “where the evidence is all one way so that only one conclusion can be said to be reasonable”: Australian Competition and Consumer Commission v Link Solutions Pty Ltd (No 2) [2010] FCA 919 at [108], (2010) 272 ALR 280 at 313 per Bennett J. Where there is “a triable issue of fact then summary judgment will not be entered”: Keynes v Rural Directions Pty Ltd (No 2) [2009] FCA 567 at [47], (2009) 72 ACSR 264 at 273 per Besanko J.

The strike out application – r 16.21

16    Rule 16.21 of the current Federal Court Rules provides as follows:

Application to strike out pleadings

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)    is otherwise an abuse of the process of the Court.

(2)    A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.

The present case does not require any great elaboration of the manner in which r 16.21 is to be either interpreted or applied. But again, a few basic principles should nevertheless be set forth.

17    First, the rule is “concerned only with the adequacy of the pleading” and “does not permit or allow consideration of facts or evidence outside the pleadings”: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [4], (2008) 252 ALR 41 at 43 per Finkelstein J. See also: Windsor v Sydney Medical Service Co-Operative (No 2) [2009] FCA 704 at [12] per Edmonds J.

18    Second, a pleading will be embarrassing, “where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Priest v New South Wales [2006] NSWSC 12 at [34] per Johnson J. The term “embarrassment” refers to a pleading that is “susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense”: Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 at [18], (2004) 51 ACSR 278 at 283 to 284 per Tamberlin J.

19    Third, a pleading will only be struck out as failing to disclose a reasonable cause of action or defence “where it is clear that there is no real question to be tried”: Spotwire Pty Limited v Visa International Services Inc & Anor [2003] FCA 762 at [10]; Global Brand Marketing Inc v Cube Footwear Pty Ltd [2005] FCA 479 at [22], (2005) 65 IPR 44 at 49 per Goldberg J. Where a claim is not so clearly untenable that it cannot possibly succeed, it will not be struck out: Sun Earth Homes Pry Ltd v Australian Broadcasting Corporation (1990) 98 ALR 101 at 112 to 113 per Burchett J.

20    Finally, and like the power conferred by s 31A, the power is to be exercised with caution and it is not to be lightly exercised: Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510 at [5] per Tracey J; Christou v Stantons International Pty Ltd [2010] FCA 1150 at [4] per McKerracher J. A “pedantic approach” should not be pursued: Australian Competition and Consumer Commission v Craftmatic Australia Pty Ltd [2009] FCA 972 at [14] per Logan J.

The function of pleadings

21    Any consideration of the application of either s 31A or r 16.21 necessarily requires a consideration of the manner in which Mr Takemoto seeks to plead his case in the Further Amended Statement of Claim.

22    Rule 16.02(1) of the Federal Court Rules sets forth the general requirements in respect to the content of pleadings as follows:

A pleading must:

(a)    be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

(b)    be as brief as the nature of the case permits; and

(c)    identify the issues that the party wants the Court to resolve; and

(d)    state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

(e)    state the provisions of any statute relied on; and

(f)    state the specific relief sought or claimed.

Rule 16.02(2) provides as follows:

A pleading must not:

(a)    contain any scandalous material; or

(b)    contain any frivolous or vexatious material; or

(c)    be evasive or ambiguous; or

(d)    be likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)    otherwise be an abuse of the process of the Court.

23    As a very general proposition, the function of pleadings is to state with sufficient clarity the case that must be met: Banque Commerciale S.A., en liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286 to 287 per Mason CJ and Gaudron J. A practice of leaving a “footprint in correspondence” as a means of identifying matters in issue is to be “firmly discouraged”: White v Overland [2001] FCA 1333 at [4] per Allsop J (as his Honour then was). See also: Moss v Lowe Hunt & Partners Pty Ltd (No 2) [2011] FCA 18 at [33] per Katzmann J; SMEC Australia Pty Ltd v McConnell Dowell Constructors (Australia) Pty Ltd (No 2) [2011] VSC 492 at [9] per Vickery J. Rule 16.02(1)(b) requires a pleading to “be as brief as the nature of the case permits” and must “state the material facts on which the party relies”. A pleading which sets forth mere assertions or mere conclusions may be struck out. A pleading which sets out facts at too great a level of generality – or, conversely, with insufficient particularity – may also be struck out: Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [24] per Hely J; Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2008] FCA 1623 at [2] per Greenwood J.

24    It is nevertheless the case that a “pleading is but a means to the achievement of procedural fairness and of the efficient use of judicial resources and those of the parties by the identification of what is truly at issue”: Australian Competition and Consumer Commission v Craftmatic Australia Pty Ltd [2009] FCA 972 at [14] per Logan J. A failure to properly identify the issues to be resolved with the requisite degree of clarity, however, only occasions confusion and is productive of a waste of the time of the parties and the court, and is a waste of private and public resources: Radisich v McDonald [2010] FCA 762 per Gilmour J; Nazdall Pty Ltd, in the matter of Yowdall Pty Ltd (as trustee for the Yowdall Unit Trust) v Herrmann [2013] FCA 94 at [33], (2013) 210 FCR 264 at 273 to 274 per Reeves J.

25    Of particular relevance to the manner in which a claim of misleading and deceptive conduct is to be pleaded pursuant to s 52 of the Trade Practice Act are the following observations of Fox J in Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348:

Section 52(1) is a comprehensive provision of wide impact, which does not adopt the language of any common law cause of action. It does not purport to create liability at all; rather does it establish a norm of conduct, failure to observe which has consequences provided for elsewhere in the same statute, or under the general law.

It follows that “when the section is sought to be used in litigation as the foundation of a cause of action or claim for some specific form of relief, it is imperative that the factual basis upon which the section is alleged to be brought into play must be stated with appropriate clarity in a statement of claim”: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) 42 IPR 1 at 3 per Foster J. This approach has since been expressly applied by Lehane J in Dunn v Australian Society of Certified Practicing Accountants [1999] FCA 651 at [5] to [6].

The contractual claims – the pleadings

26    The pleadings currently under consideration and as set forth in the Further Amended Statement of Claim relevantly appear under the following headings:

    The Japanese Contract

    The Australian Contract

    Trade Practices Claim

    Representations

    Section 5(1) of the Act

    Damages claimed

The “Trade Practices Claim” is to be addressed separately.

27    However expressed, the claim in contract seeks damages for a failure to pay monies upon the termination of a contract. The termination of the contract is not said to have been unlawful. It is the failure to pay monies thereafter which is the subject matter of the contract claims. In very summary form, Mr Takemoto relevantly claims that upon the termination of his contract he was entitled to either:

    12 months’ salary pursuant to an entitlement sourced in what was described as a “Career Transition Program”; or

    reasonable notice pursuant to an “implied term”, such notice being a period of up to 18 months.

The summary judgment application made pursuant to s 31A of the Federal Court of Australia Act focusses attention upon these claimed contractual entitlements.

28    In respect to the “Japanese Contract”, the Further Amended Statement of Claim as filed in the fresh proceeding now before the Court sets forth a pleading that on “1 June 1990 the Applicant was employed by Moody’s Japan KK by way of a contract for service as Managing Director, Investors Service Group” (para [1]). Paragraphs [6] and [7] then plead as follows:

6.    Moody’s Japan KK had in place a Career Transition Program by means of which an employee leaving that company who was at the level of Vice President and above would be paid twelve (12) months’ salary.

7.    As Managing Director the Applicant was above the level of Vice President and was consequently entitled to the benefits of the Career Transition Program. Other Japanese employees of Moody’s Japan KK were paid the Career Transition Program on termination, namely Yoshio Takizawa in 2005 and Naoki Yamuvchi in 2006. Both were Managing Directors.

The Further Amended Statement of Claim then pleads an Article of the Civil Code of Japan, which is said to contain a provision requiring the “performance of duties … be done in good faith”. Paragraphs [9A] and [10] then provide as follows:

9A.    By way of meeting the requirement to act in good faith as understood in Japanese law and as a contractual entitlement either by way of implication or convention, the Applicant was entitled to payment on termination pursuant to the Career Transition Program by Moody’s Japan KK.

10.    The Japanese contract between the Applicant and the Moody’s Japan KK continued to operate until he was paid compulsory severance payments pursuant to Japanese labour law and as defined in the work rules of Moody’s Japan KK. Under Japanese law the said work rules define a contractual entitlement.

29    In respect to these pleadings, it may be observed (inter alia) that:

    paragraph [6] stops short of pleading that the Career Transition Program was a term of the contract;

    the source of any “entitlement” to which para [7] refers is similarly not identified;

    the “entitlement to payment” to which para [9A] refers remains uncertain as to whether it is sourced in an entitlement pursuant to the operation of the Civil Code of Japan or as a “contractual entitlement” and uncertain as to how there is said to be any entitlement “by way of implication or convention”; and

    “the said work rules” in paragraph [10] are not identified – but presumably that phrase is a reference to the terms of the Civil Code of Japan. But how such provisions thereafter “define a contractual entitlement” remains unstated.

30    The Further Amended Statement of Claim then shifts attention to “The Australian Contract”. It is against Moody’s Investors Service that relief is sought. But the manner in which the case in contract is advanced against that company remains obscure.

31    At the outset of its pleading in respect to “The Australian Contract”, paragraph [12] provides as follows (without alteration):

12.    On or about 29 December 2003, by way of agreement recorded in a letter dated 29 December 2003 the Applicant’s position was transferred from the position referred to in paragraph 1 4 to the position of Managing Director Investors Service Group Moody’s Australia Pty Ltd. His duties remained the same (the Australian contract). The Applicant will at the trial herein refer to the said Agreement for all its full terms and true purport thereof.

The form of the pleadings (as amended) correctly employ the practice of striking out that which was previously pleaded. Although inelegantly expressed, paragraph [14] pleads that the “transfer was effected with the consent of” Moody’s Investors Service and Moody’s Japan KK. Paragraph [15] states that the Australian Contract refers “to the Applicant being employed by Moody’s Australia Pty Ltd” and that Mr Takemoto was paid by Moody’s Investors Service. Paragraphs [16] and [17] then provide (without alteration) as follows:

16.17.    As a result of the mutually consensual transfer of the Applicant’s employment referred to in the Agreement referred to in paragraph 12 to 14, the duties and obligations of Moody’s Japan KK were transferred to the First Respondent including the obligation to pay him benefits equivalent to the Career Transition Program on termination. The transference of duties and obligations arises from the letter of 29 December 2003 wherein the Applicant’s position in Australia is described as “the same” as that in Japan.

17.18.    In the further alternative to paragraphs 15 and 16 the duties and obligations of Moody’s Japan KK were assigned to the First or Second Respondents including that relating to the Career Transition Program. The Assignment was effected by the Agreement set out in the letter dated 29 December 2003 and the terms described in paragraphs 12 and 13 above.

Paragraphs [18] and [19] then plead “an implied term of the Australian contract that the Applicant would be paid reasonable notice at its termination” and that “Reasonable notice is eighteen (18) months given the Applicant’s sixteen (16) ears (sic) of service at a senior level”. Paragraph [20] pleads the termination of the Australian Contract. Whether any advance notice had been given of an intention to terminate the contract is not known. Paragraphs [20], [21] and [22] plead as follows (without alteration):

20. 22.    The Applicant was given notice by way of letter dated 26 July 2006 that the Australian contract would terminate on 31 July 2006.

21. 23.    It was a further term of his contract between the First Respondent and/or Second Respondent that separate to any common law entitlement to notice the Applicant would receive fifty two (52) weeks’ salary on termination pursuant to the Career Transition Program. Such a payment is not subject to a requirement for mitigation. The obligation arises from the transference of the obligations of Moody’s Japan KK to the First and/or Second Respondent as recorded in the letter of 29 December 2003 and as set out in paragraphs 12 and 13 above.

22. 24.    The Applicant has received no payment by way of notice or in regard to the Career Transition Program.

Paragraph [24] then pleads (without alteration):

24. 26.    By virtue of the contract of the Applicant being transferred from Japan to the First and/or the Second Respondent in circumstances of mutual consent, where the position and the duties are the same, the Applicant’s period of service in Japan become relevant to the calculation of a period of reasonable notice.

Paragraph [28] contemplates a novation of an earlier contract by pleading as follows (without alteration):

28. 29.    In the alternative to the proposition that his contract was transferred, if it be the case that the movement of employment from Japan to Australia effected a termination of the Applicant’s Japanese employment contract and the commencement of a new employment contract with the First and/or the Second Respondent, by way of novation, then the Applicant says that the First and/or the Second Respondent impliedly undertook to meet any obligation of Japan KK pursuant to the Career Transition Program. This is because the Applicant’s position in Australia was the same as the Applicant’s position in Japan as expressed in the letter of 29 December 2003.

Paragraph [29A] contemplates a further manner in which the contractual claim is advanced, namely:

29A.    In the further alternative there was a multi-party agreement with contractual force whereby the Applicant agreed with the First and/or Second Respondent and Moody’s Japan KK agreed with the First and/or the Second Respondent that the First and/or Second Respondent or the Moody’s Japan KK would pay him an amount equal to the Career Transition Program.

Again, and although inelegantly expressed, paragraph [29B] pleads that neither Moody’s Investors Service Pty Limited nor Moody’s Japan KK have “paid the Applicant the Career Transition Program thereby breaching the agreement it had in 30A above”.

32    With reference to these paragraphs, it may be observed (inter alia) that:

    there is no reference in paragraph [12] to the corporate entity Moody’s Investors Service. What is said to be the “said Agreement” is curiously also unspecified – especially bearing in mind that it is to this “said Agreement” that reference is to be made “for all its full terms and true purport”; and

    although paragraph [29B] refers to paragraph “30A above”, there is no paragraph [30A] (either above or below). The reference may have been intended to refer to paragraph [29A]. The relevance of pleading that Moody’s Japan KK has breached any agreement is also obscure since that corporate entity is not a party to the present proceeding.

33    Whatever may be the source of any entitlement to monies to be paid in accordance with the terms of the Career Transition Program, of central relevance to at least part of the case sought to be advanced by Mr Takemoto, is the factual contention in paragraphs [6] and [7] of the Further Amended Statement of Claim that those employees “would be paid twelve (12) months’ salary”. Reference is made, presumably to substantiate this factual allegation, to the asserted fact that Messrs Yoshio Takizawa and Naoki Yamuvchi were likewise entitled to such a payment and did in fact receive such a payment.

The Career Transition Program – summary judgment?

34    As paragraphs [6] and [7] make clear, central to the claim in contract sought to be advanced by Mr Takemoto is the contention that:

    the Career Transition Program conferred benefits to which he was entitled; and that

    other persons in the same position, namely Messrs Takizawa and Yamuvchi, received those benefits.

In the absence of some claim, for example in estoppel, the relevance of the payment of benefits to Messrs Takizawa and Yamuvchi can be presently left to one side.

35    The primary manner in which Moody’s Investors Service advances its Interlocutory Application is its submissions that there is no evidence which should be permitted to go to trial supporting either of Mr Takemoto’s contentions.

36    It is concluded that there is no evidence which should be permitted to go to trial in respect to any contractual entitlement on the part of Mr Takemoto to any benefit conferred by the Career Transition Program. If it were necessary to resolve any contractual entitlement on the part of Mr Takemoto to the payment of benefits arising by reason of the payments said to have been made to either Mr Takizawa or Mr Yamuvchi, that issue would also have been resolved against Mr Takemoto.

37    In respect to the former issue, the source of any entitlements conferred by the Career Transition Program necessarily starts with an analysis of the terms of that Program.

38    The terms of that Program, as it was in force at the relevant time, sets forth in relevant part as follows:

SECTION 1 – DEFINITIONS

…

1.3    “Eligible Employee” shall mean a full-time salaried employee or regular part-time salaried employee of any Participating Company who is:

(a)    on the United States payroll of a Participating Company and earning a Salary of less than $100,000 at the time of an Eligible Termination, in which case Schedule A hereto shall apply; or

(b)    on the United States payroll of a Participating Company and earning a Salary equal to or greater than $100,000 at the time of an Eligible Termination, in which case Schedule B hereto shall apply.

…

1.5    “Participating Company” shall mean the Company or any other affiliated entity more than 50% of the voting interests of which are owned, directly or indirectly, by the Company and which has elected to participate in the Plan by action of its board of directors.

The Program thereafter sets forth as follows the entitlements of present relevance:

SECTION 2 – SEVERANCE BENEFITS

2.1    Subject to the provisions of this Section 2, in the event of an Eligible termination, an Eligible Employee shall be entitled to receive from the Participating Company the benefits set forth on Schedule A or B hereto, as applicable.

2.2    The grant of severance benefits pursuant to Section 2.1 hereof is conditioned upon an Eligible employee’s signing a Severance and Release Agreement and the expiration of any revocation period set forth therein.

39    An affidavit affirmed by the Managing Director – Human Resources for the Respondent (Mr O’Connell) – states that “[n]o subsidiary of Moody’s Corporation outside of the United States of America has elected to participate in the Career Transition Plan”. Mr O’Connell also states that “Mr Takemoto was never employed on Moody’s US payroll”.

40    There was no challenge on behalf of Mr Takemoto to either the relevance of the terms of what was identified as the “Career Transition Plan” or to the need for Mr Takemoto to establish that he was an “eligible employee” within the meaning of section 1.3 of that Plan. No submission was made on his behalf that there was any relevant difference between what he described as the Career Transition Program and the document titled “Career Transition Plan”.

41    On such evidence as is now available to the Court, there is no basis for concluding other than that Mr Takemoto has no contractual entitlement to any “severance payment” conferred on “eligible employees”. Mr Takemoto has simply never been a “salaried employee of any Participating Company”. He has never been employed “on the United States payroll” and there is no evidence of any other relevant company having “elected to participate in the Plan by action of its board of directors”. Nor, to the extent that it mattered, was there any evidence that Mr Takemoto had ever signed a “Severance and Release Agreement” as required by section 2.2.

42    Rather than addressing the terms of the “Career Transition Plan” in evidence, or the manner in which Mr Takemoto could arguably bring himself within the terms of that Plan, Counsel for Mr Takemoto took refuge in the form of the two Termination Agreements executed by Mr Takizawa and Mr Yamuvchi. The form of these two Agreements was said to be the same. The Agreement signed by Mr Takizawa (and omitting personal information) relevantly provided as follows:

TERMINATION AGREEMENT

This Termination Agreement is entered into as of [xxxxxxxxxxxxxxx] by and between Moody’s Japan, K.K., a corporation duly organized and existing under the laws of Japan (“Moody’s Japan”), and Mr. Yoshio Takizawa, a citizen of Japan currently residing at xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (“Mr. Takizawa”).

WITNESSETH

WHEREAS, Moody’s Japan and Mr. Takizawa have mutually agreed that Mr. Takizawa’s employment with Moody’s Japan shall terminated in accordance with the terms and conditions of this Termination Agreement;

NOW THEREFORE, the parties hereto agree as follows:

…

…

Article 2.    Payment by Employer

21.    Severance Pay

Moody’s Japan will pay to Mr. Takizawa the amount xxxxxxxxxx Japanese Yen as Retirement Allowance and the amount xxxxxxxxxx Japanese Yen as Additional Severance.

If there is presently left to one side any question as to the manner in which paragraph [7] of the Further Amended Statement of Claim is pleaded, together with the relevance of any payments made to either Mr Takizawa or Mr Yamuvchi, the form of either Termination Agreement does not seem to advance Mr Takemoto’s case.

43    The Termination Agreement records the terms upon which Mr Takizawa’s employment with Moody’s Japan was terminated; it says nothing as to the terms upon which Mr Takemoto’s employment with the Respondent was terminated. And such ambiguity as may surround the “Additional Severance” payment in section 2.1 says nothing as to the source of either any entitlement to such a payment or the basis upon which it was paid. Moreover, Mr O’Connell in his affidavit states that there was no employee named “Naoki Yamavchi” – but there was an employee named “Naoki Yamauchi”, who was a former Managing Director of Moody’s Japan K.K. Mr O’Connell also states that ‘[n]either Yoshio Takizawa or Naoki Yamauchi were paid any amounts under the Career Transition Plan”.

44    Had it been necessary to resolve this alternative manner in which Mr Takemoto apparently sought to advance his claim to contractual relief, that alternative manner would also have been rejected.

45    Pursuant to s 31A of the Federal Court of Australia Act, summary judgment should be entered in favour of Moody’s Investors Service in respect to Mr Takemoto’s claim to contractual relief arising by reason of the Career Transition Program. Whether the claimed contractual entitlement is for the payment of 12 months’ salary or 18 months’ salary, the claim is without substance. For the purposes of s 31A(2), it is concluded that Mr Takemoto “has no reasonable prospect of successfully prosecuting … that part of the proceeding…”.

The Career Transition Program abandoned – the proposed amendments

46    The Interlocutory Application sought to be relied upon by Mr Takemoto seeking leave to amend the Further Amended Statement of Claim was supported by an affidavit which merely annexed the proposed Second Further Amended Statement of Claim. No explanation was provided as to why the proposed amendments were being sought, either without leave having been granted or at such a late stage. The only explanation provided was that advanced in submissions, namely, that the proposed amendments provided “clarification” founded upon the Outline of Evidence of Mr Takemoto filed on 15 September 2014.

47    Whether that was a satisfactory explanation – or whether the real explanation is to be found within a realisation or assessment that any reliance upon the terms of the Career Transition Program may not meet with much success – may presently be left to one side. For whatever reason, Mr Takemoto seeks to amend his pleadings.

48    The proposed amendments, in summary form:

    abandoned the long-held reliance upon the Career Transition Program as the source of any contractual entitlement to relief;

    substituted as the form of a term of the contract a term to the effect that Mr Takemoto would be paid the same benefit as had been paid to Mr Takizawa upon the termination of Mr Takizawa’s service;

    included an “estoppel” claim; and

    abandoned the long-held reliance upon the Career Transition Program as the source of any “representation” that had been made.

Although the abandonment of reliance upon the terms of the Career Transition Program may have been readily understandable given knowledge as to its terms conferring only benefits upon an “eligible employee”, some considerable misgiving may be expressed in respect to the proposed pleading of a “practice” in lieu of the Program. Paragraph [6] of the proposed Second Further Amended Statement of Claim is thus expressed in the following terms (without alteration):

Moody’s Japan KK had in place a Career Transition Program practice by means of which an employee leaving that company who was at the level of Vice President and above would be paid twelve (12) months’ salary benefits in excess of legal entitlement. Such benefits were paid in order to facilitate their retirement.

The source of any such “practice” and how such a “practice” may have manifested itself and sit consistently with the existence of the Career Transition Program are all questions left unanswered by the proposed pleading. And the relevance of paragraph [6] to the causes of action sought to be relied upon is not self-evident. But such is the form of the pleading now proposed.

49    Of present relevance is the manner in which the contractual claim is sought to be recast.

50    The proposed amendment, and the content of the term now sought to be relied upon, it was said on behalf of Mr Takemoto, was to be found within paragraph [21] of the proposed Second Further Amended Statement of Claim. That paragraph provides as follows:

It was a further term of his contract between the First Respondent and/or Second Respondent that separate to any common law entitlement to notice the Applicant would receive fifty two (52) weeks’ salary on termination pursuant to the Career Transition Program a payment at least equivalent to that made to Mr Takizawa. Such a payment is not subject to a requirement for mitigation. The obligation arises from the transference of the obligations of Moody’s Japan KK to the First and/or Second Respondent as recorded in the letter of 29 December 2003 and as set out in paragraphs 12 and 13 above and promises made to him by Messrs.  Ramley, Keller and Almeida (see paragraphs 30 to 33).

The evidence sought to be relied upon by Mr Takemoto to resist a summary judgment application in respect to even this proposed further amendment was said on his behalf to be found within paragraphs [21(i)] and [21(ii)] and paragraphs [24] and [25] of his Outline of Evidence filed on 15 September 2014. Paragraph [21] sets forth Mr Takemoto’s evidence in respect to the meeting with Mr Keller in Tokyo in September 2003. Mr Keller was a director of Moody’s Investors Service. That paragraph, in its entirety, provides (without alteration) as follows:

21.    I would also like to make the following comments about that meeting

    i)    I recall asking Mr Keller

“Whether my working accountabilities and conditions including stock options and benefits would remain the same upon my move to Australia”.

ii)    Mr Keller said that

“all my accountabilities and benefits would remain the same and all programs available to the employees of Moody’s were available to me”.

iii)    I understood Mr Keller to be referring to programs available to senior employees upon retirement or termination.

iv)    Later on I found out the label for these programs namely the Career Transition Program, which I believe that Mr Takizawa and others in New York and London received.

v)    I discovered this label in 2005 when I saw the Career Transition Program on the company intranet (as referred of paragraph 38 of my Further Amended Statement of Claim and paragraph 35 of my affidavit sworn 12 October 2009). I have been using that label since to refer to the benefits payable me on the basis of what was received by Mr Takizawa and later by Mr Yamauchi …

Paragraphs [24] and [25] provide as follows:

24.    Like I did in the meeting in Tokyo earlier in the earlier, once again I asked Mr Keller

“Will my business portfolios and working conditions remain the same should I move to Australia?”

25.    Mr Keller replied:

“Every condition and benefit will remain the same. You have nothing to worry about”.

51    In concluding that leave should not be granted to further amend, there is much to be said for Counsel on behalf of Moody’s Investors Service’s principal submission – i.e., enough is enough. In the absence of any real explanation being provided for the present form of the proposed amendment now being relied upon, some five years after the proceeding was first commenced, there is much to be said in support of an order that the application to amend should be itself summarily rejected. There should be no need for “clarification”; Mr Takemoto’s account as to what was said by Mr Keller at the meeting in Tokyo in September 2003 should have been properly set forth when Mr Takemoto filed his first affidavit on 14 October 2009.

52    The merits of the amendment now proposed on behalf of Mr Takemoto are nevertheless now before the Court. Counsel on behalf of Moody’s Investors Service did not resist the merits of those proposed amendments being addressed.

53    When those merits are addressed, however, it emerges that:

    the proposed amendment as to the term of the contract still lacks some precision – but it may be assumed that there is sufficient certainty in a term to the effect that Mr Takemoto is contractually entitled to “a payment at least equivalent to that made to Mr Takizawa”. Why one contract of employment should contain as a term a requirement to pay an employee an amount commensurate to that paid to a different employee is perhaps curious. Whether there is any comparability between the circumstances in which Mr Takizawa left the Moody’s Group and those in which Mr Takemoto’s services were terminated is unknown. Nor is anything known as to the circumstances which led to Mr Takizawa being paid “Additional Severance”. But such an agreement may be made.

The following difficulties also emerge, namely:

    the proposed amendment leaves unstated whether the term of the contract is said to be either an express term or an implied term – but Counsel for Mr Takemoto in submissions submitted that it was either express or implied;

    if the term is an express term, nothing that is said in paragraphs [21(i)] and [21(ii)] or paragraphs [24] and [25] of Mr Takemoto’s Outline of Evidence provides any support for any such term being an express term;

    if the term is an implied term, nothing is said as to why any such term should be implied. Nothing is really said as to why such a term would satisfy any of the “conditions” identified in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. The only document recording the “terms and conditions” of Mr Takemoto’s employment in Australia is to be otherwise found in a letter dated 29 December 2003. Why, for example, “it goes without saying” that the suggested term should be implied was not self-evident; and

    to the extent that in submissions reliance was placed upon the “understanding” of Mr Takemoto and the “understanding” of Mr Keller and the “surrounding circumstances” in support of the implication of the suggested term, there is no specification in the proposed pleading as to the “understanding” of Mr Keller or what the “surrounding circumstances” were said to be.

Reliance on the part of Mr Takemoto upon an asserted requirement of “good faith” under Japanese law did not seem in any relevant way to address why Japanese law was relevant to the implication of a term into an Australian contract of employment. If any knowledge of Japanese law may have provided some foundation for an “understanding” on the part of Mr Keller, any such knowledge of Mr Keller was left unstated. Reliance upon a duty of “good faith” under Australian law, provided no more certain basis for implying the proposed term.

54    In the absence of any term being either properly pleaded or supported by any evidence that would warrant any factual issue proceeding to a final hearing, leave to amend to include the newly formulated term is refused. Had leave been granted, summary judgment would have been entered in favour of Moody’s Investors Service.

55    The proposed “estoppel” pleading has only the advantage of brevity. The proposed amendment was as follows:

29C    Estoppel

The First Respondent is estopped from denying the entitlement of the Applicant to payments at the level provided to Mr Takizawa (Walton Stores (Interstate) v Maher (1998) 164 CLR 387 per Brennan J at 428-429).

In the absence of any “entitlement” being properly identified, the “estoppel” pleading is without substance. Nothing that has been set forth in any of the evidence presently available to the Court can, with respect, be properly characterised as any statement upon which Mr Takemoto could in any sense be said to have properly placed reliance. Left to one side is the manner in which the “estoppel” pleading is expressed.

56    Leave to amend to include a pleading in the form of paragraph [29C] is refused.

The Trade Practices Claim – the pleadings

57    Paragraphs [30] to [51] of the Further Amended Statement of Claim address Mr Takemoto’s claims made under the Trade Practices Act.

58    Again, on behalf of Moody’s Investors Service, it is claimed in respect to these causes of action either that:

    summary judgment should be entered in its favour – pursuant to s 31A of the Federal Court of Australia Act; or

    the paragraphs should be struck out – pursuant to r 16.21 of the Federal Court Rules – and that liberty to re-plead should be refused.

59    The claim made pursuant to the Trade Practices Act is understood to involve a claim that a series of four “representations” were made to Mr Takemoto, namely:

    a representation at a meeting in 2000 by the Director Human Resources of Moody’s Corporation in the United States, a Mr Paul Ramley, that “each employee benefit program available to each employee of what Ramley called “a Moody’s Company, would be available to him” (paragraph [30]);

    a representation in September 2003, made by Mr Thomas Keller that “the programs available to the employees of Moody’s Group companies throughout the world were available to him” (paragraph [31]);

    a representation in October or November 2003 at which Mr Keller “repeated the assertion that the same programs which applied to any Moody’s employee throughout the world applied to the Applicant” (paragraph [32]); and

    a representation made by Mr Mark Almeida, Group Managing Director Investors Service, Moody’s Corporation New York, “that he would be entitled to the same benefits available on termination to employees of the Moody’s group in other countries if he moved to Australia and was employed by the First Respondent…” (paragraph [33]).

60    The form in which these “representations” have been pleaded assumes some importance to both the summary judgment application and the application that paragraphs [30] to [51] of the Further Amended Statement of Claim be struck-out.

61    The paragraphs setting forth each of these four “representations” provide as follows:

30.    Prior to the Applicant being transferred to Australia, he attended a meeting, in the year 2000, of executives from various Moody’s companies located throughout the world. At that meeting, he had a conversation with Mr Paul Ramley, Director Human Resources of the Moody’s Corporation in the United States. During that discussion, Mr Ramley told the Applicant that each employee benefit program available to each employee of any of what Ramley called “a Moody’s Company”, would be available to him. The Applicant understood Mr Ramley to be referring to programs such as the Career Transition Program (“the first representation”). The first representation attracts s.84(1) of the Trade Practices Act 1974 (Cth) hereafter (the Act) in Mr Ramley had apparent authority to speak on behalf of any company in the Moody Group of worldwide companies. The term “Moody’s Company” and “Moody’s Group” referred to in this paragraph and paragraph 32 31 below is used as an appellative. His apparent authority extended to the First Respondent and Moody’s Japan KK.

31.    In September 2003, in the office of the Applicant in Tokyo, Mr Thomas Keller and, at that time, a director of the First Respondent and Moody’s Japan KK, said to the Applicant that the programs available to the employees of Moody’s Group companies throughout the word were available to him (hereafter “the second representation”). The Applicant understood Mr Kelly to be referring to the Career Transition Program and any company with the title Moody’s Incorporated in Australia as being a “Moody’s company”. The Applicant also relies on S.84(1) of the Act in regard to the second representation.

32.    In October or November 2003, at a meeting in Mr Keller’s office in Hong Kong, Mr Keller repeated the assertion that the same programs which applied to any Moody’s employee throughout the world applied to the Applicant (hereafter “the third representation”). Mr Keller was a Director of the First Respondent and Moody’s Japan KK at the time. Again, the Applicant understood Mr Keller to be referring to the Career Transition Program and as referring to any company incorporated in Australia with the title “Moody’s” when he was referring to a Moody’s employee. The Applicant further relies on s.84(1) of the Act.

33.    Before the letter of 29 December 2003 and after the third representation referred to in 33 [sic] above, the Applicant spoke to Mr Mark Almeida, Group Managing Director Investor Services, Moody’s Corporation New York, to confirm the proposition advanced by Mr Keller that he would be entitled to the same benefits available on termination to employees of the Moody’s group in other countries if he moved to Australia and was employed by the First Respondent. Mr Almeida confirmed that he would be entitled to those benefits (the fourth representation). Mr Almeida is an agent of the Second First Respondent for the purposes of s.84(1) of the Act. Mr Almeida was acting within the scope of an apparent authority to make representations on behalf of the Second Frist Respondent and Moody’s Japan KKs.

62    There are at least two difficulties with the manner in which these “representations” are now pleaded, namely:

    there is a marked lack of symmetry between the “representations” as pleaded and the evidence sought to be relied upon; and

    the form in which those “representations” are pleaded is less than satisfactory.

Although both of these difficulties are relevant to any consideration as to whether summary judgment should be entered in favour of Moody’s Investors Service, it is the former difficulty which assumes primary relevance.

63    Counsel for Moody’s Investors Service simply contends that there is no evidence to support any of the representations – let alone any evidence which should be resolved at a final hearing – and that summary judgment should be entered in its favour. Alternatively, either summary judgment should be entered in favour of Moody’s Investors Service by reason of the deficiencies in the pleadings, or those parts of the pleadings should be struck out without any further liberty being reserved to Mr Takemoto to re-plead.

The Trade Practices Claims – summary judgment?

64    The first of the difficulties confronting the manner in which the “representations” are now pleaded is the disturbing lack of symmetry between one or other of the “representations” as pleaded and the evidence of Mr Takemoto as to what was in fact said to him. Thus, Counsel for the Respondent instanced the “third representation” and the evidence set forth in an affidavit of Mr Takemoto sworn on 12 October 2009. In that affidavit, the account given by Mr Takemoto as to what was then said in a meeting with Mr Keller in “about September 2003” was as follows:

Meeting in Hong Kong

32.    At the meeting in Hong Kong at the office of Mr Keller, the discussion in the Hong Kong office was more about the Terms and Conditions. Mr Keller said words to the effect of:

“Moody’s will pay you the same salary in Australian dollars as you were receiving in Japanese Yen.”

33.    Mr Keller, in the same meeting, said to me words to the following effect:

“A letter concerning the Terms and Conditions will be coming to you from Elsa Cheng of Human Resources.”

Attached hereto and marked with the letter “A” is a single page letter that I did receive following our meeting in Mr Keller’s office.

34.    I recall Mr Keller specifically saying words to the effect of:

“When you move to Australia, everything will remain the same in regard to your benefits.”

When Mr Keller said that, I concluded he was referring to stock options, bonus programs and retirement programs.

It will be noted that nothing that is there set forth provides any factual support for a “representation” that “the same programs which applied to any Moody’s employee throughout the world applied to” Mr Takemoto. The annexed letter, Annexure A, is dated 29 December 2003 and appears to be incomplete. A complete copy of that letter was, however, provided during the course of the hearing on 18 September 2014. The letter is expressed to “outline the terms and conditions of your transfer from Moody’s Japan KK to Moody’s Australia Pty Ltd, as a local employee…”. The text of the letter sets out terms and conditions as to Job Title, Start Date, Compensation, Annual Leave, Employment Conditions and a one- time payment. The text of the letter states in relevant part as follows:

5.    Employment conditions

You shall be eligible for fringe benefits commensurate with your position. Information of these benefits will be provided by Julie Morrissey under separate cover. Other than indicated in this document, all working conditions will be governed by work rules of Moody’s Australia Pty Ltd and local regulation of Australia.

The fact that paragraph [32] of the Further Amended Statement of Claim identifies the date of the meeting as “October or November 2003”, whereas Mr Takemoto’s affidavit identifies the date of the meeting as “about September 2003”, may be left to one side. Whatever the date of the meeting and whether reference is made to either the text of the affidavit as to what was said or the text of the 29 December 2003 letter, there emerges no evidence, or so it was submitted on behalf of the Respondent, that supports the making of the “third representation”.

65    Similarly, it is further submitted that the same absence of evidence emerges in respect to the other “representations” now sought to be relied upon. If there was to be found some evidence, it was submitted that there was no evidence which should proceed to final hearing.

66    Counsel for the Respondent opposed, and not without considerable justification, any adjournment being granted to Mr Takemoto on 3 September 2014 in order to enable him to adduce evidence in support of the “representations” as pleaded. Any such evidence should have been filed, so it was submitted, prior to the commencement of the hearing rather than at that point of time when the deficiency in his evidence was highlighted in submissions. The only justification advanced on behalf of Mr Takemoto in support of an indulgence being granted to him to now adduce some evidence supporting his “representations” was the unmeritorious submission that he thought the case would be resolved “on the pleadings”. Such a submission failed to address the fact that he sought to adduce evidence at the outset of the hearing and the fact that the Interlocutory Application being advanced against him clearly identified s 31A of the Federal Court of Australia Act as the source of power upon which summary judgment was sought.

67    The adjournment was nevertheless granted. But the Outline of Evidence as filed on 15 September 2014 fails to fill any void in the evidence and fails to identify any evidence or factual dispute which should be resolved on a final hearing as opposed to an application made under s 31A of the Federal Court of Australia Act. The Outline failed to include any evidence of relevance to the representations as pleaded in the Further Amended Statement of Claim or, for that matter, as sought to be re-pleaded in the Second Further Amended Statement of Claim. The evidence in the Outline said to be of relevance, for example, to the third of the “representations” – namely the “representations” said to have been made by Mr Keller in “October or November 2003” in Hong Kong – is that set out in paragraphs [22] to [25] of the Outline. The text of what was said on that occasion has previously been set forth (at para [50]). But that conversation provides no foundation for either the “representation” as presently pleaded or as sought to be re-pleaded.

68    Nor can the absence of any evidence supporting any of the four “representations” be filled by some “understanding” on the part of Mr Takemoto as to what he thought Mr Keller may have been referring to. The Outline of Evidence makes apparent the basis of Mr Takemoto’s “understanding”. And the basis of that “understanding” is not anything said by Mr Keller – but rather is founded upon a conversation between Mr Takemoto and Mr Takizawa. The Outline of Evidence thus refers to a conversation between Messrs Takemoto and Takizawa at some time in 2003 when Mr Takizawa is recorded as having said:

“I am going to leave Moody’s soon.”

“I will be paid an incentive to leave and to retire.”

“My pay is enough so I can spend 9 months in China studying its history.”

Mr Takizawa is also recorded as having said:

“Moody’s were starting to pay executives to leave.”

69    There is no account of Mr Keller having said anything to like effect. If the case sought to be advanced is that a statement was made or a representation was made by Mr Keller as to Mr Takemoto being entitled to benefits under the Career Transition Program or an entitlement to a benefit commensurate with that paid to Mr Takizawa, there is no evidence to support such a contention. If the case sought to be advanced is in some manner dependent upon an “understanding” on the part of Mr Takemoto, there is no evidence of any statement made by Mr Keller (or anyone else with apparent authority) which would provide any support for any such “understanding”. A conversation between employees may assume passing interest – but no relevance.

70    Judgment should be entered in favour of Moody’s Investors Service pursuant to s 31A of the Federal Court of Australia Act in respect to the trade practices claims. There is no evidence which should proceed to a final hearing in respect to any of the four representations as pleaded.

The Trade Practices Claim – strike out?

71    Given the conclusion that judgment should be entered in favour of Moody’s Investors Service in respect to the trade practices claims, it is unnecessary to resolve the alternative submission advanced on its behalf. This alternative submission focussed attention upon the form of the pleadings and concluded with the submission that judgment should be entered in its favour by reason of deficiencies in the pleadings or that these pleadings should be struck out without liberty to re-plead.

72    Had it been necessary to resolve this alternative submission, it – too – would have been accepted.

73    The alternative submission started from the similarities between one or other of the four “representations” as now pleaded and the form of the pleadings which was previously struck out in 2010.

74    Counsel on behalf of Moody’s Investors Service contends that the same deficiencies which occasioned the orders previously made remain. To resolve this submission it is regrettably necessary to trace through the various previous versions of the pleadings.

75    The first attempt to plead “representations” was set forth in a Statement of Claim filed in June 2009. Objection was taken to the form of that pleading and amendments were proposed. In April 2010 the pleading was struck out and leave refused to amend in the form then proposed on behalf of Mr Takemoto: Takemoto v Moody’s Investors Service Pty Limited [2010] FCA 407. The form of the then pleading and that of the proposed amendments were as follows:

7.    During discussion with Senior Executives of Moody’s during his employment in Japan those executives made certain representations to the Applicant regarding employment benefits available to him.

Particulars of Representations

(i)    At a meeting in Puerto Rico organised for executives by the Respondent in the year 2000 Mr Scott Douglas, Managing Director, Global Marketing told the Applicant that Moody’s was planning to list on the share market and that the value of shares in the Company will increase very substantially. Consequently the value of stock options available to employees under the Moody’s Corporation Key Employees’ Stock Incentive Plan will also increase commensurately. The Applicant informed Mr Douglas that the share options were very important to him.

(ii)    In about December 2002 Mr Thomas Keller, the executive in the Moody’s Group responsible for the oversight of the Asian operations of the Group discussed with the Applicant the prospect of his moving to Australia. Mr Keller held out to the Applicant the prospect of spending more time with his family. Mr Keller further told the Applicant that in Australia the same programs that applied throughout the world would apply to him and that this included stock option programs and the Career Transition Program.

(iii)    In the year 2000 the Respondent held a conference of Managing Directors within the Moody’s Group of companies at the Dural Country Club in Miami, Florida. The conference was attended by Mr Paul Ramley, Director, Human Resources who told the Applicant that Moody’s employment benefit programs applied to people worldwide because the Group would have to move people around a lot. Further, he said that if Moody’s did not apply the programs throughout the world people would not be as willing to move around.

(iv)    In the year 2000 the Respondent held a conference of Managing Directors within the Moody’s Group of companies at the Dural Country Club in Miami, Florida. The conference was attended by Mr Paul Ramley, Director, Human Resources who told the Applicant that Moody’s employment benefit programs applied to people worldwide because the Group would have to move people around a lot. Further, he said that if Moody’s did not apply the programs throughout the world people would not be as willing to move around.The Applicant observed that policy documents relevant to the Career Transition Program were posted on the Group intranet and as such were promulgated as part of the employment policies of each part of the Moodys Group on a world-wide basis.

(v)    Moody’s Investors Service Pty Ltd and Moody’s Australia Pty Ltd represent themselves through the internet as being part of one integrated group of companies known as Moodys.

Particulars

See:

http://www.moodys.com/australiamdcsPage.aspx?mdcsID=G&6template=about

(vi)    In about 1999 or 2000 Mr Edward Young, the predecessor of Mr Thomas Keller, told the Applicant that he would be able to cash in his stock options if he retired at 55. The Applicant was then 45 years.

76    After setting forth some basic principles in respect to pleadings and particulars, the reasons for decision thereafter set forth in support of the orders then made included the following:

[14]    In the present proceeding, the Statement of Claim seeks to set forth the material facts upon which reliance is to be placed primarily (if not exclusively) by way of “particulars”. The “representations” that the Respondent is called upon to meet are not exposed even at the most basic level in any statement of material facts. This difficulty confronting the Respondent is only compounded when each of the “particulars”, in both the Statement of Claim and the proposed Amended Statement of Claim, is examined. If reference is made, by way of example, to the first “particular” set forth in paragraph [7], that “particular” is susceptible of being construed as setting forth a representation that:

•    “Moody’s was planning to list on the share market”;

•    “the value of shares in the Company” would “increase very substantially”; and

•    the “value of stock options available to employees under the Moody’s Corporation Key Employees’ Stock Incentive Plan” would also “increase commensurately”.

A similar dissection of the remaining “particulars” proposed to be set forth in the new paragraph [7] may be undertaken with ever increasing possible “representations” emerging. Left to one side are the difficulties which may be exposed by the correct identification of the corporation which conducted itself in the way alleged – be it one or other of the proposed two corporate Respondents or some other entity within the “Moody’s Group”. Also left to one side is any question as to whether any of the possible representations were false or misleading at the time they were made or whether they were a statement of facts which may not have later come to fruition. A question of more immediate concern is whether the draftsman seeks to elevate each of these possible “representations” contained within the “particulars” to the status of “representations” which are said to be “false or misleading”.

[15]    An identification of the “representations” to be relied upon self-evidently at a later stage also impacts upon the discovery that may be ordered and the evidence to be adduced.

[16]    Of particular concern is the uncertainty forced upon the Respondent of having to discern for itself which of the possible “representations” proposed in the new paragraph [7] are likely to be advanced at the final hearing. Moreover, during oral submissions, Counsel for Mr Takemoto contended that no case was sought to be advanced in respect to the “Moody’s Corporation Key Employees’ Stock Incentive Plan” (“the Plan”) but rather reliance was to be placed upon such entitlements as may be conferred by the “Career Transition Program”. If sole reliance is to be placed on such entitlements possible representations that may have been made in respect to the Plan are either irrelevant or misleading. So much was also made apparent from the proposed amendment to the Application by the deletion of any order sought pursuant to s 87(b) of the Trade Practices Act in respect to the Plan. Counsel also contended that the justification for setting forth as “particulars” such facts as may be contained therein was to set forth the “course of conduct” which it was contended was of relevance.

77    A further attempt was made to plead the causes of action arising under the Trade Practices Act. In this further attempt, the “representations” sought to be pleaded were as follows:

Trade Practices Claim

23.    Prior to the Applicant entering into the Employment Contract, the First and Second Respondent represented that all of the employee benefit programs available to employees in any Moody’s Company anywhere in the world were available to the Applicant (“the first representation”).

Particulars

(a)    The representation was made in a conversation with the Applicant by Mr Paul Ramley Director Human Resources for Moody’s United States at a Meeting of Executives from various Moody’s companies in the year 2000.

24.    Further, and prior to entering into the Employment Contract, the First and Second Respondents again represented to the Applicant that the same programs which applied to Moody’s employees throughout the world applied to him (“the second representations”).

Particulars

(a)    The second representation was made by Mr Thomas Keller, the Executive in the Moody’s group of companies with responsibility for the Asian operations of those companies, which included Moody’s Japan KK in 2 conversations between the Applicant and Mr Keller, the first in the Applicant’s office in Tokyo in about September 2003, the second in Mr Keller’s office in Hong Kong.

25.    On or about 2005, the First and/or the Second Respondent represented to the Applicant that the Career Transition Program applied throughout the world (“the third representation”).

Particulars

(a)    The Applicant observed that policy documents relevant to the Career Transition Program were posted on the Moody’s group intranet, which was able to be accessed by employees of Moody’s companies on a worldwide basis.

78    This version did not survive either. Leave to amend was refused in June 2010: Takemoto v Moody’s Investors Service Pty Limited (No 2) [2012] FCA 622. In refusing leave, the following conclusions were then expressed:

[27]    Paragraphs [23], [24] and [25] of the further revised form of the Amended Statement of Claim plead the making of three representations. The paragraphs that assume central importance for the Trade Practices claim are paras [25], [26] and [27] which are in the following terms:

25.    On or about 2005, the First and/or the Second Respondent represented to the Applicant that the Career Transition Program applied throughout the world (“the third representation”).

Particulars

(a)    The Applicant observed that policy documents relevant to the Career Transition Program were posted on the Moody’s group intranet, which was able to be accessed by employees of Moody’s companies on a worldwide basis.

26.    On the basis of the first, second and third representations, the Applicant concluded that the Career Transition Program relevant to Moody’s Japan KK would apply to the Applicant regardless of the country in which the Applicant worked and would be available to him if and when he was terminated.

27.    But for the conclusion referred to in paragraph 26, the Applicant would not have agreed to enter into service with the First and/or Second Respondent on 29 December 2003.

[28]    Whatever may be the status of the representations in paras [22] and [23], para [26] makes clear the proposition that it was upon the basis of all three representations that the Applicant “concluded that the Career Transition Program” would apply to him. And, “[b]ut for th[at] conclusion”, the Applicant maintains that he would not have “agreed to enter into service with the First and/or the Second Respondent on 29 December 2003”. How a representation made in 2005 could have formed the basis (in whole or in part) for any action taken in 2003 remained unexplained. Nor can the date in para [25] be regarded as either an oversight or perhaps a date permitting some degree of latitude. An affidavit of Mr Takemoto filed on 14 October 2009 confirms the 2005 date and fixes that date as follows with a degree of certainty:

[35.]    In or about 2005, I recall I read a Career Transition Program (“CTP”) document on the company intranet. I recall that in or about the first half of 2005, I went for a business trip to Tokyo. It was there on the company intranet that I read the CTP.

While the present application is to be resolved by reference to the terms of the proposed pleading and not the affidavit, the affidavit has been referred to solely for the purpose of determining whether the date in para [25] was a typographical error. It was not.

[29]    This is a sufficient basis upon which leave to amend should be refused. That decision is only supported by a recognition of the fact that para [23] particularises the representation there pleaded as having been made by the First and Second Respondent in a conversation “in the year 2000”. But the proposed Second Respondent, Moody’s Australia Pty Ltd, was only incorporated in January 2001.

[30]    No leave should be granted to plead reliance upon the Trade Practices Act where there is such uncertainty.

79    With reference to the current Statement of Claim and that which was the subject of the proposed amendments resolved in June 2010, the following comparisons emerge, namely:

(i)    paragraph [30] of the current Statement of Claim is in much the same terms as the former paragraph [23];

(ii)    paragraph [31] (and possibly paragraph [32]) is in much the same terms as the former paragraph [24]); and

(iii)    paragraph [33] is (perhaps) in much the same terms as the former paragraph [25].

It may further be noted that the current Statement of Claim seems to now abandon the preferable drafting style of identifying the “representation” sought to be pleaded and reverts to the more “conversational” style of pleading that previously attracted criticism: [2010] FCA 407 at [14] to [16].

80    Whatever may be the comparisons that can be made, the current Further Amended Statement of Claim in paragraphs [30] to [33] nevertheless do identify with some precision each of the four “representations” now relied upon. Paragraphs [30] to [33] do not contain the potentially irrelevant or misleading allegations that infected the proposed pleading, the subject of decision in 2010: [2010] FCA 407 at [14] to [16].

81    It may further be observed that the pleadings set forth in the current Further Amended Statement of Claim at paragraphs [30] to [33] seek to address the difficulty occasioned by paragraph [25] of the amendments the subject of the June 2010 judgment. That difficulty was the difficulty of pleading reliance upon a representation made in 2005 as a reason for entering into an employment agreement in 2003. It is paragraph [38] of the current Further Amended Statement of Claim which is the counterpart of the former ill-fated paragraph [25]. The former difficulty is now addressed by not now pleading any reliance upon any representation made in 2005.

82    It is thus the case that some of the former difficulties have been addressed.

83    But other difficulties remain. Two of these difficulties are:

(i)    the fact that none of the four “representations” now sought to be pleaded in paragraphs [30] to [33] make any express reference to any representation as to any entitlement under the Career Transition Program; and

(ii)    the fact that all that is pleaded is what Mr Takemoto “understood” to be the subject of what he was being told.

Paragraphs [30], [31], [32] and [33] studiously avoid any pleading as to any “representation” being made as to the applicability of the Career Transition Program. Indeed, the pleading that Mr Takemoto “understood” the statements made to be a reference “to programs such as the Career Transition Program” only serves to emphasise that no statement was in fact made that referred expressly to any entitlement conferred by that Program. In the absence of any “representation” being pleaded which correlates to the case sought to be advanced by Mr Takemoto – namely a “representation” that he was being told that the benefits conferred by the Career Transition Program would continue to be available to him if he moved to Australia – those parts of the current Statement of Claim should be struck out. Moreover, and to the extent that the repeated reference to “programs available to employees” is susceptible of being construed as a reference to the Career Transition Program, any such pleaded representation:

(i)    is not confined to those benefits of the kind sought to be relied upon by Mr Takemoto, namely those benefits available to those employees “at the level of Vice President and above”; and

(ii)    it remains unknown (and un-pleaded) what further benefits may be “available to employees” generally, whether at the level of Vice President or not.

84    Mr Takemoto’s “understanding” is not to be taken as a “representation” as to what he was being told.

85    There remains a failure to comply with, in particular, r 16.02(1)(b) and (d) of the Federal Court Rules. There has certainly been a failure to “be as brief as the nature of the case permits” (r 16.02(1)(b)) and a failure to “state the material facts on which a party relies to give the opposing party fair notice of the case to be made against that party, but not the evidence…” (r 16.02(1)(d)). There may be a “footprint” in paragraphs [30], [31], [32] and [33] of the Further Amended Statement of Claim from which Mr Takemoto’s claims may be tracked, but the form of those paragraphs is – at the very least – “ambiguous” (r 16.02(c)) and such that it occasions “prejudice, embarrassment or delay in the proceeding” (r 16.02(2)(d)).

86    Separate from the conclusion that summary judgment should be entered in favour of Moody’s Investors Service in respect to these trade practices claims is the further conclusion that these paragraphs would, in any event, have been struck out pursuant to r 16.21 of the Federal Court Rules.

87    Of greater difficulty is the question as to whether Mr Takemoto would have been extended a yet further opportunity to plead his claims arising under the Trade Practices Act. The opportunity to re-plead is, perhaps, but a consequence of the need for caution to be exercised before striking out a pleading. Just as caution should be exercised before striking-out a pleading, even greater caution should be exercised before refusing a party an opportunity to re-plead. Ordinarily a party will be permitted an opportunity to re-plead: Thorpe v Commonwealth of Australia (No 3) (1997) 71 ALJR 767 at 774 to 775. Kirby J there observed:

Even if a party makes good its attack on another's pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility. The guiding principle is doing what is just. Courts, particularly today, strive to uphold efficiency and economy in the disposal of proceedings before them. But they also remember that pleadings are a means to the end of justice according to law. Pleadings are the servants, not the masters of the judicial process.

His Honour returned to the same proposition, albeit in dissent, in Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [175], (2007) 232 CLR 245 at 311 where he stated that “[o]rdinarily, where there has been dispute about the admissibility of pleadings, a party is afforded the opportunity to reconsider its position in the light of the court’s ruling on the applicable law. The party which fails is normally permitted to re-plead”. Repeated criticism of a pleading without any concession that the pleading was deficient was, however, there relied upon as the reason for refusing the opportunity to re-plead: [2007] HCA 60 at [99], (2007) 232 CLR 245 at 292 per Gummow, Hayne and Heydon JJ. In some cases, however, an opportunity to re-plead has been refused where it has been concluded that “enough was enough”: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [111] per Ward JA. Liberty to re-plead may be refused where it is concluded that there is not available any reasonable cause of action: e.g., Eagle v Civil Aviation Safety Authority [2014] FCA 1016 at [65] per Bennett J. But the exercise of the discretion to refuse liberty to re-plead is not confined to such situations.

88    If summary judgment were not to be entered in favour of Moody’s Investors Service, and if leave to re-plead were to be refused, Mr Takemoto would be forced to commence a third proceeding with the ever increasing prospect – if not reality – of confronting limitation problems which are now more immediate than when he first sought to litigate his claims in 2009. The present proceeding may be taken to have been commenced possibly within the requisite six year period – the dismissal taking place on 26 July 2006 and the proceeding being commenced in the Federal Magistrates Court on 23 July 2012. Yet these are all difficulties largely – if not entirely – of his own making. Why there was a silence between 2010 and the filing in the current proceeding of an Application in 2014 remains unexplained.

89    Normally a party will be permitted to re-plead if the Court can discern the germ of a case concealed within inadequately drafted pleadings and which, if properly pleaded, can emerge for resolution. Perhaps greater liberty to re-plead should be extended where the perceived inadequacies occur in a pleading of some complexity and where it is necessary to identify with great specificity the allegation to be resolved. The difficulties in pleading a complex cause of action should not be ignored. Perhaps less liberty to re-plead should be extended where there emerges an inability – for whatever reason – to plead a comparatively simple case.

90    Of relevance is the number of opportunities that have been previously extended to a party to adequately plead a case against an opponent. There remains a disturbing failure to plead in paragraphs [30], [31], [32] and [33] only those facts which are “material” to the claim sought to be advanced of misleading and deceptive conduct. Although the current form of the pleading, as it is now set forth in the Further Amended Statement of Claim, is the product of evolution which has shed some of its former deformities, the current form of the pleading has only evolved into a pleading with new deformities which only occasion impermissible uncertainty as to the case to be advanced.

91    Of relevance is also the fact that each of the former permutations of the pleadings since 2009 has attracted detailed submissions from Moody’s Investors Service identifying each of the former deficiencies. Those appearing for Mr Takemoto have also had the benefit of judgments of this Court which have also identified those deficiencies. The present proceeding is not one in which Mr Takemoto has been “kept in the dark” as to why his pleadings have not met the requisite standard. But darkness and gloom remain.

92    Separate from such considerations which are confined to a review of the form of the pleadings, is the fact that the terms of the Career Transition Program are now known. It is now known that Section 1 of that Program limited those entitled to benefits to an “eligible employee”. If each of the “representations” set forth in paragraphs [30], [31], [32] and [33] are to be construed as a representation that those who are “eligible employees” will remain eligible, such a “representation” would not be of any utility to Mr Takemoto. For any of the four “representations” to be of any forensic utility to Mr Takemoto, something more needs to have been said on one or other of the four occasions identified in those four paragraphs. For Mr Takemoto to be able to avail himself of a benefit to which he is otherwise not entitled, something needs to have been said that was reasonably capable of instilling in Mr Takemoto such a belief. A statement, for example, may suffice that if he moved to Australia, Moody’s Investors Service would make available to him the benefits of an “eligible employee”; or a statement that he was in fact an “eligible employee”. But no such statements are pleaded. And such “representations” as are pleaded fall short of setting forth a basis upon which Mr Takemoto would be entitled to any relief for misleading or deceptive conduct. Even after the service in June 2010 of Mr Gray’s affidavit (which annexed the Career Transition Plan) no application was made to plead a representation that would potentially confer upon Mr Takemoto a benefit to which he was not otherwise entitled under the terms of that Plan.

93    There comes a time when the proper administration of justice shifts its attention from attempting to ensure that an applicant has proper access to the courts by (for example) granting repeated opportunities to amend pleadings and shifts its attention to the interests of a respondent (in particular) and the public (more generally). Although any person has an important and cherished right to seek access to the courts, repeated failures to comply with the Rules of Court inevitably expose an opponent to prejudice. Rules of Court, it must be accepted, “should never be allowed to be an instrument of tyranny”: Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30 per Reynolds, Hutley and Bowen JJA. The Rules of Court are not the “master”; “they are servants for the better administration of justice”: Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 729 per Kirby P. But those Rules are an attempt to ensure that the competing interests of the parties are fairly and properly adjudicated. In that way the greater public interests in the orderly administration of justice are promoted.

94    Had summary judgment not been entered in favour of Moody’s Investors Service, it would have been further concluded that Mr Takemoto would not have been granted liberty to re-plead his cause of action. But for the summary judgment, he would have been able to commence such future proceedings as may otherwise have been available to him. But the present claims founded upon the Trade Practices Act should come to an end. He has been given every opportunity, it is respectfully considered, to properly plead his case and he has failed to do so. Like Belshazzar, the current Statement of Claim has been found to be wanting. The Rules of Court set forth the content of pleadings generally and, of present relevance, is the failure to properly plead a “representation” to give effect to the case Mr Takemoto seeks to advance.

95    There comes a time when a Respondent should be freed from repeatedly facing a form of pleading which is repeatedly deficient. There comes a time when even indemnity costs orders in favour of a Respondent is not an adequate answer to the prejudice repeatedly being suffered.

96    Had it been necessary to resolve, no liberty would have been reserved unto Mr Takemoto to have yet a further opportunity to properly plead a case which was susceptible of being pleaded correctly from the outset.

The representations as redrafted ?

97    The recent abandonment of reliance upon the Career Transition Program went beyond the abandonment of that Program to the contractual claims previously made; it extended to the form in which the representations were sought to be pleaded in the proposed Second Further Amended Statement of Claim.

98    The difficulties confronting any attempt to now rely upon a form of pleading founded upon representations as to any entitlement deriving from the Career Transition Program, presumably, formed some part of the forensic decision-making process to abandon reliance upon anything said as to that Program.

99    Whatever may be the reason for seeking to further amend, the fact is that a further amendment is proposed.

100    The form in which each of the representations is now sought to be pleaded assumes – once again – a common format. The second representation, for example, is now sought to be pleaded in the proposed Second Further Amended Statement of Claim (without alteration) as follows:

31. 32.    In September 2003, in the office of the Applicant in Tokyo, Mr Thomas Keller and, at that time, a director of the First Respondent and Moody’s Japan KK, said to the Applicant that the programs available to the employees of Moody’s Group companies throughout the world were available to him (hereafter “the second representation”). The Applicant understood Mr Keller to be referring to programs such as the Career Transition Program Benefits payable to Mr Takizawa and any company with the title Moody’s Incorporated in Australia as being a “Moody’s company”. The Applicant also relies on S.84(1) of the Act in regard to the second representation.

The other three “representations” were also similarly sought to be recast. Although the first of the four “representations” as sought to be pleaded in the Second Further Amended Statement of Claim remains drafted in terms of the Career Transition Program, the continued reference to that Program it was said was an oversight. The same oversight is repeated in (for example) paragraphs [41] and [42] of the proposed Second Further Amended Statement of Claim. But nothing turns on such oversights – or lack of care when re-drafting the proposed amendments. All references to the Career Transition Program, it may be accepted, are but a mistaken reference to a phrase such as “programs such as the benefits payable to Mr Takizawa”.

101    But, again, there is no evidence to support any such representation as sought to be re-pleaded. Contrary to the submission advanced on behalf of Mr Takemoto, there is presently no evidence in support of any such representation having been made which would warrant any factual issue proceeding to a final hearing. The evidence in support of this second “representation” as sought to be re-pleaded was said on behalf of Mr Takemoto to be found within Mr Takemoto’s Outline of Evidence at paragraphs [18] to [21]. But that account of what was then said does not support the representation sought to be pleaded.

102    The same conclusion is reached in respect to the other “representations” as sought to be re-pleaded.

103    The form of the amendments in respect to the trade practices claims proposed in the Second Further Amended Statement of Claim, it is thus considered, do not warrant any leave to amend being now granted. Again, liberty to re-plead should be refused.

CONCLUSIONS

104    It is concluded that the relief sought in the Interlocutory Application filed on 3 September 2014 should be granted. Judgment should be entered in favour of Moody’s Investors Service pursuant to s 31A of the Federal Court of Australia Act in respect to both:

    the contractual claims founded upon the Career Transition Program; and

    the trade practices claim founded upon representations said to have been made in respect to that Program.

Even had judgment not been entered pursuant to s 31A, the paragraphs of the Further Amended Statement of Claim in respect to those claims would have been struck out pursuant to r 16.21 of the Federal Court Rules. Liberty to re-plead would have been refused.

105    Leave to further amend the Further Amended Statement of Claim in the form of the proposed Second Further Amended Statement of Claim should be refused. Those amendments sough to:

    abandon reliance upon the Career Transition Program;

and to substitute:

    reliance upon a term of a representation that Mr Takemoto would be paid the same benefits as were received by Mr Takizawa.

Even if leave to further amend had been granted, judgment pursuant to s 31A would again have been entered in favour of Moody’s Investors Service in respect to both of the claims as sought to be amended. There is simply no evidence which should proceed to final hearing for resolution.

106    There is no reason why costs should not follow the event. The application for an adjournment to enable Mr Takemoto to adduce evidence relevant to the summary judgment application has already attracted an order that costs be paid on an indemnity basis. The balance of the hearing of the Interlocutory Application now under consideration, however, does not attract any feature which would warrant any order other than that costs should be paid on a party/party basis.

THE ORDER OF THE COURT IS :

1.    The parties to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.

Associate:

Dated:    10 October 2014