DISTRICT COURT OF QUEENSLAND

CITATION: 	Watertec Engineering Pty Ltd v Weekes & Anor [2020] QDC 95	
PARTIES:	WATERTEC ENGINEERING PTY LTD (ACN 108 009 972)
(applicant)
v. 
CHRISTOPHER JAMES WEEKES
(first respondent)
and 
CORELLA WATER SERVICES PTY LTD (ACN 629 369 400)
(second respondent)	
FILE NO:	DC No 4170 of 2019	
DIVISION:	Civil	
PROCEEDING:	Application	
ORIGINATING COURT:	
District Court at Brisbane	
DELIVERED ON:	29 May 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	26 May 2020	
JUDGE:	Devereaux SC DCJ	
ORDERS:	1.	 The application that paragraphs 12(c) (second occurrence), 12(d), 14(c)(iv) and 14(c)(v) of the defendants’ defence be struck out is dismissed. 
2.	The application for the provision of further and better particulars is dismissed. 
3.	Leave to the parties to provide written submissions on costs of no more than two pages by close of business 3 June 2020.	
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – whether paragraphs of the defendants’ defence are too vague and general – whether the pleadings have a tendency to prejudice or delay the fair trial of  the proceeding 
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULARS – FURTHER AND BETTER – whether the defendants have adequately pleaded and particularised their defence – whether the requested particulars are material facts on which the defendants rely – whether the plaintiff will be taken by surprise at trial 	
COUNSEL:	B Wacker for the applicant
S Lynch for the respondents	
SOLICITORS:	Quinn & Scattini for the applicant
Davidson & Sullivan Solicitors for the respondents	

[1]	In this application, the plaintiff seeks orders striking out certain paragraphs of the defence, or alternatively, that the defendants give further and better particulars of those paragraphs.  The plaintiff, Watertec Engineering Pty Ltd (“Watertec”), claims that, in breach of a duty of confidence owed to it by the first defendant, Christopher Weekes, Weekes disclosed Watertec’s confidential information to the second defendant, Corella Water Services Pty Ltd (“Corella”), a company controlled by Weekes.  At the time, Watertec employed Weekes.  Watertec claims that Weekes used Watertec’s confidential information to inform the tender by Corella for a contract (the “Corella offer”).  Corella was awarded the contract.  Watertec claims to have suffered loss of profit as a consequence of the breach of confidentiality.  The defendants plead that the information used by them in the Corella offer was “available in standard text books” and “generally available to the public”.  The paragraphs in the Defence the subject of the application use these terms.  Watertec sought particulars of those allegations.  The particulars in respect of both allegations are that the information came from Original Equipment Manufacturers (OEM) manuals.  
[2]	I take the following further summary of Watertec’s claims from the applicant’s outline.  Watertec is in the business of supplying, installing and maintaining water treatment equipment including equipment used in public swimming pools.  From July 2016, Watertec employed Weekes as a service technician.  Weekes, Watertec claims, owed duties of confidentiality in equity and pursuant to the Corporations Act 2001.  Watertec had a contract with the Toowoomba Regional Council (the “Council”) to provide swimming pool maintenance for the Council’s public swimming pools.  In October and November 2018, the following happened.  Weekes took annual leave from his employment with Watertec.  During this time he incorporated Corella.  The Council opened a tender for the provision of swimming pool maintenance.  Watertec prepared an offer in response to the tender and Weekes knew of the contents of the offer.  Weekes caused Corella to submit an offer to the Council. The Council awarded the tender to Corella.
[3]	The essential allegation, then, is that in causing Corella to submit its offer, Weekes caused Corella to use Watertec’s confidential information and thereby breached his duties owed to Watertec.  The defendants deny using confidential information and present a positive case, including the assertion that any information used in the Corella offer was available in standard text books and was generally available to the public.
[4]	The application to strike out the relevant parts of the pleading was brought specifically under r 171(1)(b) of the Uniform Civil Procedure Rules 1999 – that is, it is alleged that the pleading has a tendency to prejudice or delay the fair trial of the proceeding.  Alternatively, it is submitted further and better particulars should be provided because, at present and as further particularised, the defence does not “state specifically any matter that if not stated specifically may take another party by surprise”: r 149(1)(c).
[5]	The argument at hearing focussed on the alternative application.  I am not satisfied the pleading as particularised should be struck out on the grounds pressed.
[6]	The respondents’ material includes an affidavit by Mr Weekes in which he swears that the reference to standard textbooks in the defence is a reference to documents that are called “OEM manuals”.  These manuals are produced by the manufacturers of machines and equipment and used by technicians to repair, service and operate the relevant machine or equipment.  Each component would have a model number and each model number has a corresponding OEM Manual.  The manufacturers store the OEM manuals online.  The manuals may be accessed by the general public.  Each pool being maintained and serviced may have hundreds of relevant OEM manuals.  Mr Weekes goes on to swear that the Council has 27 separate pools being serviced and maintained and so the total number of relevant OEM manuals would be in the thousands.
[7]	In NRNQ (a limited partnership) v MEQ Nickel Pty Ltd [1991] 2 Qd R 592 Byrne J, at 594, said:
Particulars promote the fair and efficient conduct of litigation.  In Bailey v FCT (1977) 136 CLR 214 Gibbs J said (at 219) of them:
‘They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute.  On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds.’
At 593 Byrne J said:
The openness afforded by adequate particulars facilitates effective resolution of the dispute.  Discovery becomes more efficient.  It need be directed only to the issues as they are refined by the particulars.
[8]	Counsel referred me to Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd & Ors [2011] QCA 252, particularly the reasons of Philippides J with which Chesterman JA and North J agreed, at [27]:
Counsel for the appellant listed the well-established principles that are relevant in determining whether a pleading will be regarded as being ‘deficient’.  Considerations relevant in deciding if a pleading is deficient include whether it fails to fulfil the function of pleadings, which are ‘to state with sufficient clarity the case that must be met’ and thus define the issues for decision thereby ensuring procedural fairness.
[9]	I accept the applicant’s submission that the pleading of “standard text books” and “information generally available to the public” is vague and, without particulars, would be objectionable.  The question is whether the particulars given are satisfactory to define the issues with clarity and ensure procedural fairness.  The applicant submits it would be taken by surprise at trial if the defendants were to lead evidence of standard textbooks or information generally available to the public where Watertec has no prior notice of what those sources of information are.  The applicant also points out an inconsistency between the material in fact pleaded and the particulars provided.  I accept the force of that argument too.  But having so particularised the pleading, the defendants are now bound by the particulars; that is, both expressions, “standard text books” and “information generally available to the public” are particularised as references to the OEM manuals.
[10]	In the statement of claim, Watertec asserts that Weekes obtained confidential information of Watertec.  The confidential information is particularised in paragraph 14 of the statement of claim with a list of 12 items.  They include, for example, Watertec’s “trade secrets in maintaining pool equipment to water industry best practice”; Watertec’s “approximately 200 page booklet of procedures”; and Watertec’s costed proposal to the Council to install solar matting versus heat pumps dated 11 October 2018.  The defendants admit that Weekes was exposed to several of the listed items of information but say the information was not confidential in nature, nor did it contain trade secrets.  The defendants deny that Weekes obtained the information in the remaining items.
[11]	At trial, it will be for the plaintiff to prove that the defendants used any of the matters in paragraph 14 of the statement of claim in the Corella offer.  Insofar as the defendants have pleaded a positive case, it will be for the defendants to prove that no confidential information was used and that the information referred to in the defence as having been used was not confidential.  
[12]	The Corella offer is not before the court.  Extracts of it are not pleaded.  
[13]	In this context, the question reduces to whether, having particularised a potentially vague and ambiguous pleading, the defendants should be required to particularise each OEM from which information was used in the Corella offer.  I conclude that the defendants ought not to be so required.  Mr Weekes’ sworn evidence of the multitude of OEM manuals is unchallenged.  As I have said, the primary question at trial will be whether the plaintiff has demonstrated that the Corella offer exhibits the use of confidential information.  The pleading, as particularised, states with sufficient clarity that aspect of the defendants’ case.  Given the public nature of the manuals, and the potential number of them, the further particularisation by listing each manual that might have informed the Corella offer is, in my opinion, beyond the requirement of particulars.  It is not apparent, on the material before the court, how the exercise would promote the fair and efficient conduct of the proceeding.  It would not assist in defining the real issues to be tried nor enable Watertec to know what evidence it will be necessary to have available at trial. Nor is there a substantial danger of Watertec being taken by surprise.  Further particulars as sought would not save expense by keeping the conduct of the case within due bounds.
[14]	The application is refused.  As to costs, if not agreed, I will receive submissions in writing of no more than 2 pages by close of business Wednesday 3 June 2020.