SUPREME COURT OF QUEENSLAND
CITATION: | Comprite P/L v Returned & Services League of Australia (Queensland Branch) [2008] QSC 234 |
PARTIES: | COMPRITE PTY LTD ACN 010 486 736 (plaintiff) v RETURNED AND SERVICES LEAGUE OF AUSTRALIA (QUEENSLAND BRANCH) (defendant) |
FILE NO/S: | 1047 of 2006 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 26 September 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 September 2008 |
JUDGE: | de Jersey CJ |
ORDERS: | 1.That the defendant’s counter claim be struck out. 2.That the defendant pay the plaintiff’s costs of and incidental to the application to be assessed on the standard basis. |
CATCHWORDS: | ABUSE OF PROCESS – striking out pleading – prejudicial and embarrassing – leave to re-plead Australian Commercial Research and Development Ltd v Commonwealth (1995) 2 Qd R 336, cited David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, referred to |
COUNSEL: | W Sofronoff QC SG, with T Bradley , for the plaintiff J A Griffin QC, with R Clutterbuck, for the defendant. |
SOLICITORS: | Russell and Company for the plaintiff Mylne Lawyers for the respondent |
“(In) breach of the agreement, however, some of those charges were…in excess of …the amounts…the plaintiff was entitled to charge under the agreement; and/or…not properly payable by the defendant to the plaintiff under the agreement.”
The pleading does not specify which terms were breached, and the limit of the entitlement, so that the manner of arriving at the alleged excess can be seen. On 17 January 2007, the plaintiff sought particulars of the terms relied upon, and received no reply. The request was renewed on 28 July 2008 after the proceedings were put into their present consolidated state. The response was as follows:
“The defendant says that because of the construction of the agreement, that is, the agreement of 1 April 1999, that the figures referred to in column 12 of the Schedule accompanying the defence and counter-claim were the only sums which the plaintiff was entitled to charge the defendant.”
That response was inadequate. The defendant should have identified the contractual provisions or mechanism which led to that result.
“Further particulars are substantial and are contained in a separate document incorporated herein and filed herewith.”
None was filed, although the plaintiff believes the document in question resembles a schedule incorporated by reference into an earlier pleading. When Mr Sofronoff QC addressed me on that basis, there was no contrary suggestion from Mr Griffin QC who appeared for the defendant. The document to which Mr Sofronoff referred is a schedule to a report of an accountant which had been annexed to an amended statement of claim of 15 December 2006. I accept that the incorporation of that document is inappropriate, and properly described as vexatious and oppressive. The document contains commentary which, because of the incorporation of the document into the pleading, would necessitate response. Even more fundamentally, the document is part of a forensic accountant’s report commissioned by the defendant upon largely undisclosed oral instructions.
“Each of the 63 folders of annexure 10 details my assessment of the difference between what Comprite charged and what it was entitled to charge, in respect of each art union.”
There is an indication of instructions given to him in para 10 of his affidavit, where he says:
“My instructions were that Comprite was not entitled to make any ‘mark up’ in respect of printing and stationery items.”
Mr Sofronoff formulated his client’s objection in these terms:
“Thus, a general accounting report without any identifiable legal parameters has been made a pleading to which the plaintiff must respond by its own pleading.”
“Further and in the alternative, by its conduct including the size of the amounts claimed by the plaintiff for ‘mail list rental’, the plaintiff represented to the defendant that, for the purposes of each art union, it conducted a substantial operation whereby it obtained and utilized a substantial number of new customer names for the purpose and benefit of the defendant.”
There are two vices in that allegation. The first is its generality, hinging on the word “substantial”. The second is that it leaves open other bases for the representation beyond “the size of the amounts claimed by the plaintiff…”. That flows from the use of the word “including”. Paragraphs 28, 29 and 30 really lead nowhere, in terms of a claim for relief, and Mr Griffin confirmed that they would not pursued.
