Liberty Financial Pty Ltd & Anor v Scott & Anor [2005] VSCA 263 (16 November 2005)

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Liberty Financial Pty Ltd & Anor v Scott & Anor [2005] VSCA 263 (16 November 2005)

Last Updated: 16 November 2005

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 9140 of 2003

LIBERTY FINANCIAL PTY. LTD. & ANOR
LIBERTY FINANCIAL PTY. LTD. & ANOR	Appellants

v.

SCOTT & ANOR	Respondents
SCOTT & ANOR

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JUDGES:	ORMISTON and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	28 October and 2 November 2005
DATE OF JUDGMENT:	16 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 263

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COURTS, PRACTICE AND PROCEDURE – Pleading summons – Claims against former employee and new employer for breach of contract, breach of copyright, misuse of confidential information etc. – Substituted statement of claim struck out as likely to prejudice, embarrass or delay fair trial – Whether properly struck out partly because of provision of particulars by confusing use of schedule and three appendixes – Effect of "directions" and admonitions from judge as to specific claims though no defect directly relied on for making order – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr D.R. Meagher, Q.C. with Mr R. Kendall, Q.C.	Dibbs Abbott Stillman
For the 1^st Respondent	Mr A.J. Maryniak	Allens Arthur Robinson
For the 2^nd Respondent	Mr R.C. Macaw, Q.C. with Mr S.M. Anderson	Freehills – Sydney

ORMISTON, J.A.:

1 The applicant-plaintiffs in this proceeding have sought leave to appeal against an interlocutory order obtained by the respondent-defendants striking out what has been called the "substituted statement of claim" ("the SSC") dated 19 April 2005 and whereby leave was granted to file and serve a "third substituted statement of claim", though the respondents would assert that it will be either the eighth or ninth amended statement of claim. The reasons for this order appear in a lengthy and comprehensive judgment delivered by Harper, J. on 13 September 2005: [2005] VSC 363. The principal vice in the SSC found by his Honour was that, by reason of the defects in its form described by him in elaborate detail, the SSC "may prejudice, embarrass or delay the fair trial of the proceeding": [143]. Thus, of the several bases in rules 23.01 and 23.02 of the Supreme Court (General Civil Procedure) Rules relied upon in the two summonses issued by the respondents, only para.(b) of rule 23.02 was ultimately called in aid by the judge, albeit that some of the applicants’ claims had been challenged on the basis that they should be struck out as not disclosing a cause of action. In fact none of those specific paragraphs were struck out and some of the arguments as to insufficiency were adjourned over to another day. Nevertheless his Honour followed his stated conclusion with two paragraphs [144] and [145] containing a series of admonitions to the plaintiffs as to what might properly be pleaded in respect of what he had just described as "undoubtedly good causes of action". In those paragraphs the judge advised, for example, that the claim in contract "must be confined to those breaches of contract upon which the plaintiffs based their contractual claims", that "they should eschew reference to terms, and more especially contracts, that merely duplicate other terms and other contracts" and that they should plead "only those terms the breach of which will be seriously pursued". As to the plaintiffs’ claim for protection of its alleged confidential information, not dissimilar warnings were given, for example, that "each piece of information and each document said to have been misused must be specified" but not the "pool of information which Liberty claims to be confidential, because only that which is said to have been misused is material". Although required to plead facts about which they intended to call evidence, where the failure to plead the facts might take the defendants by surprise, the applicants were told to be "astute to distinguish between material facts, particulars and evidence", which had not been properly observed in the statement of claim struck out. Again they were told that "the mere repetition of allegations" will "open the fresh pleading to perhaps fatal attack". In summary his Honour said that "the principles expounded in the several judgments in this case must be followed", being a reference to not only the judgment then given but also to earlier judgments given in relation to the applicants’ statement of claim on 30 November 2004 ([2004] VSC 490) and on 16 February 2005 ([2005] VSC 26), as to the latter of which leave to appeal was refused by this Court on 1 April 2005.^[1]

2 The contentions upon which the applicants would base their application for leave to appeal were directed both at the general basis upon which his Honour struck out their statement of claim, saying that, properly understood, their statement of claim would not prejudice, embarrass or delay the fair trial of the action, and also at what they said were the judge’s erroneous directions in that they would "restrict the causes of action pleaded" and would require them "to replead in accordance with a [sic] criteria which in some cases had already been met, in some cases were uncertain in their effect" and which were "ambiguous and confusing".

3 Bearing in mind that this application is brought seeking leave to appeal against an order made on an interlocutory application, I am not satisfied that the learned judge’s decision was either relevantly in error or was attended by such doubt as might on a final hearing lead to the setting aside of the order, or that in general the order produced sufficient injustice to warrant the grant of leave to appeal in the present circumstances. The primary issue is whether, upon the application of the relevant and well-known tests for leave to appeal, the grant of leave might lead to the reversing of the order which struck out the substituted statement of claim. The reasons, in general terms, of his Honour are sufficient to demonstrate why such an order had to be made for in truth, for the reasons he stated, its present form was not merely difficult to comprehend but was almost impossible to plead to and was likely to lead to further difficulties, confusion and delay if it were permitted to proceed as the basis of the plaintiffs’ claim.

4 I would particularly mention two aspects of the form of the statement of claim which was struck out, lest there be any misunderstanding as to the nature of the leave to replead. The SSC extended for well over 180 pages of which some 66 were in the form, largely, of a conventionally pleaded statement of claim alleging a number of causes of action. There followed then one schedule and three appendixes. The schedule ran for 29 pages. It described in detail, by reference also to a large number of documents already included in what seems to be up to 11 court books, the totality of what the first plaintiff said was the information confidential to it relating to its business as a non-conforming lender which it had worked out and put into practice, but, as was admitted by counsel for the applicants, the schedule contained a general description of a large number of items of allegedly confidential information, a considerable proportion of which are not said to have been misused by the defendants and which otherwise are not the subject of the claim. The schedule is referred to in only a relatively small number of paragraphs of the SSC. It is barely mentioned in the first part of the statement of claim, in particular only by inference or cross-reference from what is said in paragraph 3; it is not, I believe, mentioned in relation to the contractual claims based on the Scott confidentiality undertaking or his two employment agreements. It is, however, referred to in general terms in relation to the breach of the equitable obligation as to confidentiality in paragraphs 54 and 55, but in the latter the information which is alleged relevantly to be confidential and the subject of wrongful disclosure is set out in extenso in paragraphs (a) to (ttt) but is also said generally to be "information within that described in the schedule" (emphasis added). Counsel for the applicants candidly admitted that the schedule might well be deleted, asserting that it was only included because the judge had earlier criticised the indefinite nature of the claim to confidential information, and they conceded that the general description in the schedule was added so as to give a broad understanding of the nature of the information which Liberty generally wished to protect. There are cross-references to the schedule in Appendix 3, being particulars of breach, but there is, for the reasons stated by the judge, no good reason for retaining the schedule and, indeed, it adds only a further confusing element to a complex claim.

5 More importantly the judge properly criticised the structure of Appendix 3 which purported to be particulars of breach of the claims in contract, conversion, statutory duties, fiduciary duty and the equitable obligation of confidentiality. It was set out in a form which, although it could be followed ultimately (subject to some very unfortunate and confusing typographical errors), did not conduce to an easy understanding of the plaintiff’s claim and which made the defendants’ task in pleading to it exceptionally hard, if only by reason of the fact that some of the cross-references can easily be overlooked because of its layout. It purports to set out in some 50 paragraphs, with innumerable lettered sub-paragraphs, a series of allegations of acts and facts which amount variously to breaches of one or other of the claims brought against the defendants. From time to time it is said that the particulars in, for example, "paragraphs 7 and 8(a)(i) herein are particulars of the breaches of contract alleged in paragraph 34(a)(i), 34(a)(iii), 34(a)(v), 34(a)(vi), 34(b)(i), 34(b)(ii)" and so on, and then, within the same paragraph of particulars, other sub-paragraphs are relied on also as breaches of the equitable obligations alleged in various different paragraphs of the statement of claim. Both members of the Court hearing this application thought it was as confusing a method of providing particulars of breach as could be conceived. It was said that they were included in a separate appendix because the particulars exceeded three folios, so that the rules required that they be served separately, but it is impossible to tell from their present form whether the particulars of each paragraph in the statement of claim really required particulars exceeding three folios.

6 There is an accepted and proper way of providing particulars under the heading "Particulars of Breach", which are normally appended to each relevant paragraph alleging breaches but, even if it were thought desirable to put these allegations in a separate document, the defendants (and the Court) must be in a position to turn immediately to that document to see the factual bases alleged for each of the relevant breaches in the order they are pleaded, so that they should be listed by reference to paragraphs of the statement of claim alleging breach such as, as in the example given, under 34(a) and (b) or whatever is seen to be most convenient. In the SSC there is a reference to particulars at the very end of that paragraph, which includes a series of allegations in sub-paras.(a)(i)-(viii), (b)(i)-(vi), (c), (d) and (e)(i)-(iv) of that paragraph, but they are also said to be particularised in paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 34, 35, 36, 37, 38, 44 and 50 of Appendix 3, but one will in fact find, for example, that paragraph 16 is also relied upon, albeit by cross-reference from paragraph 17(e)(g)(j). The conventional appending^[2] of particulars to each relevant paragraph or sub-paragraph may in fact produce a degree of repetition and may even turn out in total to be a little longer, but there is no bar on giving particulars by reference back^[3] to earlier paragraphs, which can be effected with relative ease (because of a degree of familiarity with the particulars already given) and avoiding the confusing, almost bewildering, exercise posed by the present Appendix 3.

7 More than sufficient has been said to show why the present statement of claim was rightly struck out by the judge as prejudicial and embarrassing and likely to conduce to delay, but there remains the additional contention that the judge has wrongly "directed" what may or may not be included in the next statement of claim. It is said, with a degree of realism one may concede, that the judge will not take kindly in a specialised list to the repetition of claims which he has already indicated are defective either in form or substance. Although the defects that he perceives in some of the claims seem not, in the end, to have been the fundamental reason for striking out the SSC under rule 23.02(b), it is said that he has already made holdings which preclude the plaintiffs from repeating those claims in any new statement of claim. One may assume that counsel are suggesting, albeit that they did not express it in terms, that there would be some form of issue estoppel by reason of the judge’s incidental findings in the course of his lengthy judgment. Without needing to descend into authorities, it is generally accepted that ordinarily no such preclusion can arise from an interlocutory finding, certainly where, as here, the judge has not explicitly based his conclusion as to the embarrassing form of the pleading on a finding or findings that certain of the causes of action cannot be sustained. The latter might give rise to a strong case for allowing leave to appeal from an interlocutory order on a pleading summons, but in the ordinary course of events, if the issue resolved against the applicant is based merely on procedural requirements, then it is ordinarily not a case for granting leave. If the judge had been strongly convinced that particular causes of action were unsustainable, as pleaded, then he might explicitly have made orders striking out the particular paragraphs asserting those causes of action, giving, almost of necessity, leave to the plaintiffs to replead the balance of their claim. Alternatively, the judge might have approached his decision on the present summonses by making explicit findings that particular causes of action were wrongly pleaded and that relevant paragraphs ought thereby to be struck out, but reaching the conclusion that, instead of making specific orders to that effect, then the whole of the claim should be struck out under the relevant rule (with leave to replead, if appropriate), so leaving the dissatisfied plaintiffs with a basis for saying to this Court that they had effectively been denied the right to plead particular claims. The ratio decidendi of the decision therefore would have been the insufficiency or inadequacy of the relevant pleaded claim and that might fairly have been seen as a basis for leave inasmuch as the judge’s final "directions" might, arguably, have shut the plaintiffs out finally from making such claims.

8 That is not, however, what occurred in the present case. The judge’s comments at the end of his judgment to which I have made reference were advisory, even minatory, and there was a tone of frustration in his advisory comments to which the applicants have taken exception. They were, nevertheless, merely advisory in my opinion and should not preclude a proper pleading of the relevant causes of action; indeed one is inclined to believe that the defect in each case was not one of substance but one of form, such that the judge believed that the nature and substance of the cause of action were obscured by the manner in which it was pleaded, albeit that he seemed at times to consider that there was unlikely to be, in the end, a sustainable cause of action, at least in some cases. Nevertheless, the judge said in those closing paragraphs that generally there were what he described as "undoubtedly good causes of action", so that we would not assume that he was necessarily shutting out any kind of claim, if only it can be properly pleaded.

9 In consequence I consider that there is no true alternative basis for saying that there were either errors in the relevant parts of the judge’s reasoning or that that reasoning was attended by such doubt as to justify the granting of leave to appeal.

10 It is well accepted that, if there is no proper basis for granting leave to appeal because none of the contentions put forward could result in any different order being made, as is the present case, then there is no right to obtain leave to appeal against the judge’s reasons or holdings, albeit adverse to the applicant. Nevertheless, because this dispute has gone on for so long and has raised so many difficulties in pleading, and because it is possible that the issues may arise again and may lead yet again to a further application for leave to appeal, the Court should refer to a few matters, which, if fundamental to the judge’s reasoning, might well have led to the Court’s granting leave to appeal. Those few passages in a long and complex judgment do appear, with respect, to demonstrate some erroneous reasoning, in my opinion, such that the Court thinks it advisable to mention them at this stage, lest the parties proceed to the further pleadings upon the assumption that this Court has accepted as accurate all that was said by the learned judge. It is not an exercise upon which the Court would ordinarily embark, and what is said must strictly be obiter dicta, but it is preferable that reference is made at this stage to those few matters.

11 A number of his Honour’s comments appear, with respect, to be so trenchantly expressed that it is hard to be certain as to what extent the qualifications expressed by him from time to time were intended to permit the repleading of the various claims criticised in such language. We shall therefore refer broadly to each group of claims said by his Honour to be defective in order to indicate those which, if properly pleaded, might subsequently survive.^[4]

12 His Honour’s first apparent error, with respect, is a criticism that the statement of claim repeats allegations as to the subject matter of claimed breaches of contract in that part of the statement of claim which deals with the wrongful disclosure of information in breach of the equitable obligation of confidence. That is stated in paragraph [40] of his judgment, but, apart from the possibility that they might properly be pleaded as alternative claims based on fundamentally different principles, the contractual obligation as to confidential information could, on its face, bind only the first defendant Mr Scott, by reason of his contractual relationship with the first plaintiff (if made out), whereas the alleged breach of the equitable duty may not only be asserted against the individual Mr Scott but also against the second defendant, the Bluestone Group Pty. Ltd. As to the formal defects in that claim as pleaded, I see no reason to differ in substance from what his Honour has said on the subject.

13 In paragraphs [57] to [66] of his Honour’s judgment there seems to be an implicit criticism of the plaintiffs’ pleading breaches of the Scott confidentiality undertaking and his two subsequent employment agreements on the ground that the undertaking could not stand with or survive the later employment agreements. With respect, there may be duplication of allegations, and examples were given by the judge of pleaded breaches which were temporally impossible, so it would seem, but, if each of the agreements imposed separate obligations on the first defendant, then they might be the basis of additional claims against him and certainly of alternative claims, whatever form the pleas presently take. The undertaking was given by way of deed and thus might, I emphasise might, have a different significance from the obligations imposed by the two employment agreements, unless there had been a clear supersession of its obligations. The same may be said of the two employment agreements, but of which it was said in argument on behalf of the respondents that certain breaches occurred before the coming into effect of the second agreement. To what extent that is true is another matter, and there may be clear factual defences to some claims available to the first defendant. On the other hand, there was no concession to that effect and defences to particular agreements may result in it being important that the first plaintiff has a right to maintain each of the agreements as an alternative basis of liability. Although his Honour’s criticisms may be subject to an implicit qualification in paragraph [64], it would not seem appropriate, with respect, that the judge should have asserted^[5] that: "the plaintiffs cannot rely upon both the undertaking and the employment agreements. One must override the other". One can understand the judge’s frustration with largely repetitive claims but, if properly pleaded, the difficulties of the contractual claims in form may not be so great, though possibly they may demonstrate a more obvious defence, but that would be a matter for the first defendant to raise. Again I would not cavil with the judge’s complaints made as to the form of the pleadings. On the other hand, merely because much repetition is involved, that does not turn the claims into claims of a kind which are irrelevant or improper, as seemingly suggested in paragraphs [65] and [66] of the judgment. Alternative claims frequently involve a good deal of repetition. A similar criticism may properly be made of the assertion in paragraph [99] to the effect that "pleading the undertaking as a separate source of obligations is unnecessary" and that it should be "eschewed". The same, with respect, may be said of paragraph [102].

14 In paragraph [108] there is another criticism by his Honour of repetitious pleading when he asserts that the pleading of terms in paragraph 29 and breaches in sub-paragraphs 34(c) and 34(d) of relevant breaches merely duplicated the claims made earlier for breach of copyright. That would, with respect, misapprehend the nature of the claims made, as best the Court understands them. The first of these allegations is that there was a breach of an explicit term by reason of the first defendant "denying the ownership by Liberty of literary, dramatic or artistic work" etc. Breach of copyright is one matter and breach of contract is another, with varying relevant defences. The plaintiffs take the risk that they may recover no additional damages or, indeed, that they will be unable to make out the denial, as is suggested, but that is a matter for a later stage. Likewise it is alleged that in breach of the contract Scott failed to assign to Liberty all his right title and interest in the copyright of the relevant works, and this again may be subject to certain defences and may not lead to additional damages, but it is again a claim different from breach of copyright. The same answer may be given to the assertions in paragraphs [110] to [112] that the sub-paragraphs "have no place". That does not, on the other hand, gainsay the strenuous criticisms made by his Honour as to the manner in which those paragraphs are particularised. See also paragraph [119].

15 In paragraph [120] his Honour complains of an allegation in paragraph 30 of the statement of claim that the defendant Scott "remained bound" by the undertaking and the two employment agreements. His Honour complains that this was "an assertion of law, not of fact and thus need not be pleaded". The assertion, with respect, is inconsistent with para.(2) of r.13.02 of the Supreme Court Rules, which not only permits the raising of a point of law but the pleading of a "conclusion of law if the material facts supporting the conclusion are pleaded". As to the inconsistency of the claim in paragraph 30 and the assertion that it "contradicts" paragraphs 23 and 24 alleging the employment contracts, that is not obvious on the pleading, though the defendants may answer it and plead to the paragraph accordingly.

16 Criticisms are made of paragraph 32 of the SSC in para.[123] of the judgment.^[6] It is asserted by the judge that rr.13.02 and 13.04 made the plea of an implied term that Scott would serve the first plaintiff "with good faith and fidelity" an "unnecessary" plea, seemingly because it raises "a point of law". We cannot accept that as a correct analysis, for the circumstances in which a term that a party shall act in good faith etc. may be implied are by no means settled: see e.g. Carter and Harland: Contract Law in Australia (4^th ed.) paras.624 and 1809.^[7] On the other hand, whether the plaintiffs have pleaded the circumstances of its implication sufficiently and whether in paragraph 34(e) the breach of the alleged implied term has been sufficiently or properly pleaded is quite another matter and the judge’s strictures in that respect may well be accurate. Again, although one may understand the judge’s irritation, the assertion in the final sentence that no court would imply a term of the kind alleged as to non-disclosure of agreed confidential information is overstated, without knowing much more of the circumstances: in any event it is not a matter for resolution on this kind of pleading summons.

17 Finally, in paragraph [125] his Honour again returns to the confidentiality undertaking, asserting that it "has no place in this part of the claim". It is difficult, with respect, to see why reference is made to the particular "part" of the SSC, since paragraph 34 deals with breach of contract generally, and specifically, as may be seen by its heading and the terms of the paragraph, so were the breaches of the confidentiality undertaking itself. There may well be considerable, if not excessive,

duplication in the claims made and there is more than enough to justify the judge’s criticism of the way in which the particulars are given of this particular paragraph, as of others. Nevertheless, it is not appropriate on the present materials to say that a claim under a particular alleged contractual deed has no place in the claim for breach of contract. That again must be a matter for the defendants to raise when the matter is appropriately pleaded.

18 As pointed out above the judge ultimately reached his conclusion that the whole of the SSC should be struck out on the basis of its likelihood to prejudice and delay a fair trial of the action. The later comments, especially those appearing in paragraphs [144] and [145] may, in the context, seem more than advisory, inasmuch as his Honour there states that the new statement of claim "must be confined" to breaches on which the plaintiffs base their contractual claim and that they should "eschew" reference to claims which merely duplicate others. Although these warnings against repetition and the like may not have been essential to the judge’s reasoning, the particular examples noted earlier show, with respect, that the advice and warning may have gone too far and they should not, in my opinion, restrict any properly pleaded claim, so long as it is genuinely believed to raise a separate and potentially alternative claim, notwithstanding that there may be considerable duplication in the allegations both as to terms and as to breaches. I can readily understand his Honour’s difficulties and frustration in dealing with such an obtusely pleaded set of claims but, in rejecting the application to appeal, I have attempted, albeit by obiter comments, to show where I see his Honour to have overstated his objections. Notwithstanding those errors the justice of the case does not require the granting of leave to appeal.

NETTLE, J.A.:

19 I agree with Ormiston, J.A.

- - -

^[1] In an unreported decision of Buchanan and Nettle, JJ.A.

^[2] Headed in each case, e.g., "Particulars of breach (as alleged in sub-para.34(a))", etc.

^[3] By stating, e.g., "The plaintiffs refer to and repeat each of the particulars in sub-paras.(iii) to (ix) given under para.34(a) above".

^[4] I refer also to one apparent error in para.[21] fn.5 which suggests that s.183 of the Corporations Act 2001 did not exist, substantially in that form, before the passing of that Act. Although in the Corporations Law forming part of the Corporations Act 1989 s.183 thereof was concerned with ratification of contracts, that section was repealed (and reformulated elsewhere) by the amending Act No. 61 of 1998, as from 1 July 1998. Subsequently by Act 156 of 1999 a new s.183 was inserted into the Corporations Law relating to the use of corporate information which is identical to the present section, but which differs somewhat from the formerly applicable s.232(5) of the Corporations Law. However, to add to the complexity of the present situation, that section seemingly did not come into operation until 13 March 2000, which would appear, so far as one can glean from the myriad claims made, to be at an early stage of the first defendant’s alleged breaches of duty. Regrettably it is impossible to ascertain precisely which provisions of the amending Act came into operation on that date from the computerised consolidation as at 10 April 2000 appearing on the Scale database. (It is not available on ComLaw.) In part this is the fault of those responsible for substituting one section for another which has a different subject matter, but the fact that a Supreme Court judge can make an error of this kind serves only to demonstrate the appallingly confusing way in which Commonwealth legislation is amended. The Commonwealth should revert to the simple side note references to amendments still used in Victorian legislation which give direct references to the amending sections, the commencing date of which can easily be checked in the endnotes. That gives the reader immediate notice of each amendment. Alternatively (but less satisfactorily) the amended sections in the endnotes should list each amended sub-section and should refer to each amending section, with date of operation.

^[5] As was stated in para.[63].

^[6] We would accept the judge’s first observation that there should not have been a plea in terms "further and alternatively" (emphasis added).

^[7] The requirement in fn.41 that a term will only be implied if it is necessary to give business efficacy to an agreement is likewise too wide a generalisation.

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Liberty Financial Pty Ltd & Anor v Scott & Anor [2005] VSCA 263 (16 November 2005)

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