DHL Global Forwarding NZ Ltd v Betham [2015] WSSC 55 (9 June 2015)

SUPREME COURT OF SAMOA
DHL Global Forwarding NZ Ltd v Betham 2015 [WSSC] 55

Case name:	DHL Global Forwarding NZ Ltd v Betham 2015
Citation:	2015 [WSSC] 55
Decision date:	9 June 2015 (Reasons for Judgment)
Judgment Conclusions	8 May 2015
Parties:	DHL GLOBAL FORWARDING NZ LTD a duly incorporated company in New Zealand, having its registered office at 18 Verissimo Drive, Mangere, Auckland, New Zealand, and carrying out business as a freight carrier. Plaintiff AND RAYMOND BETHAM of Apia, Samoa, carrying on business as a sole trader in the name of BETHAM FREIGHT & CUSTOM Defendant
Hearing date(s):	20 November 2014
File number(s):	CP82/14
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- It is for the foregoing reasons that I arrived at my conclusion delivered on 8 May 2015 to dismiss the defendant’s strike out motion.
Representation:	S Leung Wai for plaintiff J Annandale for defendant
Catchwords:	statement of claim – schedule to statement of claim -breach of contract – defendant’s strike out motion – prolix - convoluted –– fact – evidence –material facts - evidentiary facts – subordinate facts or collateral facts – circumstantial evidence –pleadings – reference to law - reference to evidence
Words and phrases:
Legislation cited:
Cases cited:	Arcade Pty Ltd v Carpal Ltd [2011] NSWSC 1423Auckland Australian Competition & Consumer Commission v Pauls Ltd [1999] FCA 1750 Bruce v Odhams Press Ltd [1936] 1 KB 697 City Council v Witherspoon [1989] NZHC 705; [1990] 1 NZLR 76, Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 Couch v Attorney-General [2012] NZHC 2285 Davy v Garett [1878] UKLawRpCh 8; (1877) 7 Ch D 473 Hill v Hart Davis [1884] UKLawRpCh 81; (1884) 26 Ch D 470 Perpetual Trustees Australia Ltd v One Steel Trading Pty Ltd [2007] VSC 370, Hamod v State of New South Wales [2001] FCA 157 Heenan Family Trust 1960 v Da Vella June Gore [2007] NZHC 1023 Karam v Parker [2011] NZHC 1016 Philipps v Philipps [1878] UKLawRpKQB 96; (1898) 4 QBD 127 Price Waterhouse v Fortex Group Ltd R v Exall [1866] EngR 22; (1866) 4 F & F 922 R v Irving [2006] NZCA 512, R v Boshovic [2006] NZCA 519 [19]; R v Smith [2007] NZCA 400 R v Yacob (1981) 72 Cr App R 313 Thompson v Westpac Banking Corporation (No 2) [1986] 2 PRNZ 505 Perriam v Wilkes [2014] NZHC 2192
Text books	Cross on Evidence (1996) 5th Aust ed by J D Heydon Cross on Evidence (2013) 9th NZ ed by D Mathieson Bullen & Leak & Jacobs Precedents of Pleadings 12th ed Bullen & Leak & Jacobs Precedents of Pleadings (2004) vol.1 15th ed Bullen & Leak & Jacobs Precedents of Pleadings 17th ed Black’s Law Dictionary 10th ed by B A Garner
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP82/14

BETWEEN

DHL GLOBAL FORWARDING NZ LTD a duly incorporated company in New Zealand, having its registered office at 18 Verissimo Drive, Mangere, Auckland, New Zealand, and carrying out business as a freight carrier.
Plaintiff

A N D

RAYMOND BETHAM of Apia, Samoa, carrying on business as a sole trader in the name of BETHAM FREIGHT & CUSTOMS
Defendant

Counsel:
S Leung Wai for plaintiff
J Annandale for defendant

Hearing: 20 November 2014

Submissions: 28 November 2014, 1 December 2014

Judgment/ Conclusions: 8 May 2015

Reasons for Judgment: 9 June 2015

REASONS FOR JUDGMENT OF SAPOLU CJ

Introduction

1. In these proceedings, the Court is concerned with a motion by the defendant to strike out the whole of the plaintiff’s statement of claim or, alternatively, to strike out: (a) paras 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, and (b) Schedule One attached to the statement of claim. Because the statement of claim contains 40 paragraphs, the result if the alternative of the plaintiff’s strike out motion is upheld, is that only paras 1, 2, and 14 of the statement of claim would remain. That will make what remains of the statement of claim non-sensical so that one might as well also strike out the remainder of the statement of claim.
2. The grounds given in support of the strike out motion are: (a) the statement of claim pleads matters of evidence as opposed to just pleading a summary of material facts, (b) the statement of claim does not disclose a cause of action, and (c) the pleadings in the statement of claim are prolix and convoluted.
3. On 26 February 2015 I delivered my judgment/conclusion dismissing the strike out motion by the defendant. I also indicated to counsel that my reasons for that conclusion will be reduced to writing and given to them in due course. These are those reasons.
4. As it will appear from what follows, the issues in these proceedings relate to the law of evidence and the law on pleadings. There is very little Samoan case law in both those areas.

Statement of claim

5. The action by the plaintiff is founded on an alleged breach of contract, namely, breach of an “agency agreement” between the plaintiff and the defendant. Paras 1 and 2 of the statement of claim explain the parties as DHL Global Forwarding (New Zealand) Ltd (DHL), the plaintiff, and Raymond Betham a sole trader carrying on business in Apia in the name of Betham Freight & Customs, the defendant.
6. Paras 3-9 of the statement of claim plead the freight agreement (and some of its relevant terms) that was made between the plaintiff and the Corporation of the Bishop of the Church of Jesus Christ of Latter Day Saints (the LDS Church) for managing the air and sea shipment of goods to Samoa by the plaintiff on behalf of the LDS Church. Para 8 pleads that the freight agreement became effective on 1 June 2010. Pursuant to the terms of this freight agreement, the plaintiff had arranged for the shipment of goods to Samoa on behalf of the LDS Church from time to time starting from 2005. It is not clear from the statement of claim how this freight agreement which came into effect on 1 June 2010 could apply backwards to transactions from 2005 to 1 June 2010.
7. Paras 10 and 11 plead that pursuant to the terms of the freight agreement between the plaintiff and the LDS Church, the plaintiff engaged the defendant as its agent in Samoa from about 25 July 2005 to 3 April 2014 for the air and sea shipment of goods from overseas to Samoa on behalf of the LDS Church. This relationship between the plaintiff and the defendant is pleaded as the “agency agreement”.
8. Para 12 pleads that in accordance with the terms of the agency agreement, the defendant was required: (a) to act as agent for the plaintiff in Samoa in accordance with the terms of the freight agreement between the plaintiff and the LDS Church, (b) to arrange and make payment of any duty, levies, or taxes payable in respect of the shipment of goods to Samoa on behalf of the LDS Church, and (c) for the defendant to invoice the plaintiff for the defendant’s charges, including any duty, levies, or taxes payable in respect of those shipments.
9. Para 13 of the statement of claim then pleads that between 26 July 2005 and December 2013 the defendant acted as agent for the plaintiff under the agency agreement for the carriage to Samoa of at least 268 shipments of goods by the LDS Church. Particulars of these shipments are set out in schedule one attached to the statement of claim.
10. Para 14 pleads that duties and taxes are levied by the Ministry of Revenue and Customs Services (the Ministry) on goods imported into Samoa. In the statement of claim, it appears that the terms “Ministry of Revenue and Customs Services,” “ Customs Services,” and “Customs” are used interchangeably to mean the same thing.
11. Para 15 pleads that the defendant has invoiced the plaintiff for the various shipments of goods to Samoa on behalf of the LDS Church. Those invoices included duty, taxes and levies payable to the Ministry. The plaintiff has paid the defendant for those shipments including the duty, taxes and levies in accordance with the invoices provided by the defendant.
12. Para 16 then pleads that the plaintiff has billed the LDS Church for the said shipments and the LDS Church has paid the plaintiff in accordance with the invoices provided to the plaintiff by the defendant.
13. Para 17 of the statement of claim pleads that by letter of 27 August the Ministry advised the LDS Church directly of unpaid duty, taxes and/or levies amounting to $1,178,805.41.
14. Para 18 pleads that by letter of 6 September 2013 the Ministry provided to the LDS Church a list of imports it believed had not had duty, excise and/or VAGST paid on them and requested payment.
15. Para 19 pleads that by letter dated 24 February 2014, Customs requested from the LDS Church payment of $1,787,556.65 for outstanding duty, taxes or excise on the said shipments.
16. Para 20 pleads that the plaintiff was not made aware by the defendant of the letters of 27 August 2013 or 24 February 2014 from the Ministry to the LDS Church until notification was received from the LDS Church on 27 February 2014. Para 21 then pleads that the plaintiff emailed the defendant on 28 February 2014 requesting an explanation for the “unpaid duty”, that is, the unpaid duty, excise or taxes on the said shipments.
17. Para 22 pleads that by email of 29 February 2014, the defendant advised the plaintiff that he was working with Customs in trying to resolve the matter.
18. Para 23 pleads that by email of 7 March 2014, the LDS Church requested a meeting with the defendant and for the defendant to produce certain specified information at that meeting.
19. Para 24 pleads that by email of 11 March 2014, the defendant requested the plaintiff to make the LDS Church aware that the matter would be settled with Customs no later than 14 March 2014.
20. Para 25 pleads that by a further email of 11 March 2014, the defendant advised the plaintiff that a full report would be presented at the meeting to be held on 14 March 2014. As pleaded in para 26, that meeting was held in Apia between the plaintiff, the defendant and representatives of the LDS Church to discuss the unpaid duty.
21. As pleaded in para 27, concern was expressed by the plaintiff and the LDS Church at the meeting of 14 March 2014 that no further receipts had been presented by the defendant for any payments he had made to Customs.
22. Para 28 then pleads that following the meeting of 14 March 2014 the defendant provided receipts for the payment of only ten transactions.
23. Para 29 pleads that on or about 21 March 2014, a meeting was held in Auckland, New Zealand, between representatives of the plaintiff and the LDS Church in which it was agreed that the plaintiff would pay to Customs the unpaid duty owing on behalf of the LDS Church and will seek to recover the unpaid duty from the defendant. On 21 March 2014, the plaintiff advised Customs that it would take over payment of the unpaid duty.
24. Para 30 then pleads that by email of 25 March 2014, the plaintiff requested the defendant to produce all receipts for the 296 declarations on the Samoa Customs Unpaid Duties Report. As pleaded in para 32, the defendant has failed and/or refused to produce such receipts as requested by the plaintiff.
25. By email of 28 March 2014, as pleaded in para 33, the defendant advised the plaintiff that a full report on the outstanding duty/tax would be submitted by 25 April 2015. As pleaded in para 34, the defendant has failed and/or refused to produce any receipts.
26. Para 35 pleads that by letter of 3 April 2014 the plaintiff terminated the representation the defendant had on its behalf in Samoa. This must be the termination of the agency agreement the plaintiff had made with the defendant pursuant to the freight agreement between the LDS Church and the plaintiff.
27. Para 36 then pleads that on 16 April 2014 the plaintiff paid the amount of $1,720,046.95 to the Ministry for the unpaid duty.
28. It is then pleaded in para 37 – 40 of the statement of claim that the plaintiff’s cause of action against the defendant is for breach of contract which is clearly for the alleged breach of the agency agreement between the plaintiff and the defendant. This is for the amount of $1,568,726.98 for duty, excise, and taxes for which the defendant had invoiced the plaintiff and the plaintiff had paid to the defendant on behalf of the LDS Church but the defendant, as alleged, had not paid to Customs. This amount of $1,568,726.98 relates to unpaid duty, excise or taxes which is alleged should have been paid on no less than 268 transactions as further particularised in schedule one attached to the statement of claim.
29. I will now discuss each of the grounds of the defendant’s strike out motion.

First ground of defendant’s strike out motion – The statement of claim pleads matters of evidence as opposed to just pleading a summary of material facts

30. In order to be able to deal in a meaningful way with the first ground of the defendant’s strike out motion that the statement of claim is defective because it pleads matters of evidence as opposed to just pleading a summary of material facts, it is necessary to be clear first about what is “fact” and what is “evidence”. Secondly, it is also necessary to determine whether the statement of claim pleads “matters of evidence” as submitted for the defendant. And, thirdly, it is necessary to determine whether it is true that a statement of claim should plead only a summary of material facts and not matters of evidence.

(a) Fact as distinct from evidence

31. For present purposes, the term “fact” is defined in Black’s Law Dictionary 10th ed by BA Garner at p.708 to mean:
    • “1. Something that actually exists; an aspect of reality – it is a fact that all people are mortal. Facts include not just tangible things, actual occurrences, and relationships, but also states of mind such as intentions and the holding of opinions. 2. An actual or alleged event or circumstance, as distinguished from its legal effect, consequence, or interpretation, 3. An evil deed; a crime”.
32. By contrast to the term “fact”, the term “evidence” is explained in Cross on Evidence (2013) 9th NZ ed by D Mathieson at EVA Intro 1, p.25 as follows:
    • “The evidence of a fact is that which tends to prove it. What is put forward as evidence of a fact may or may not satisfy an inquirer of the fact’s existence. Courts of law usually have to find that certain facts exist before pronouncing on the rights, duties and liabilities of the parties. The evidence they are prepared to receive in furtherance of this task is called admissible evidence”.
33. Even though it is straightforward to define what is “fact” and what is “evidence”, in practice it is not always easy to draw the distinction between the two. This was recognised in Couch v Attorney-General [2012] NZHC 2285, where the Court said at [4]:
    • “[4] The Court cautioned against drawing a bright – line distinction between facts and evidence: Price Waterhouse v Fortex Group Ltd (CA 179/98, 30 November 1998, at 17-19). Nor, with respect, does it really help to talk in terms of ‘facts’ (to be pleaded) and ‘evidence’ (for trial) as if there were some bright – line distinction between the two. There is not. ‘Facts’ can merge into ‘evidence’ without any clear dividing line”.
34. In Bullen & Leake & Jacobs Precedents of Pleadings (2004), vol 1, 15th ed, the learned authors said at 1–31:
    • “It was not always easy to draw the line between facts and evidence”.
35. Contrary to the submissions by counsel for the defendants that the statement of claim pleads matters of evidence instead of just facts, I am of the view that the statement of claim pleads only facts and no matters of evidence. Paras 1 and 2 of the statement of claim defines who are the parties to this case. Paras 3 – 9 set out the contractual relationship and arrangements between the LDS Church and the plaintiff pursuant to a freight agreement and also set out the relevant terms of that agreement. Paras 10 – 12 plead the agency agreement that was entered into by the plaintiff with the defendant pursuant to the freight agreement and set out the relevant terms of that agency agreement. Clause 13 and schedule one attached to the statement of claim set out how the defendant performed his part of the agency agreement with the plaintiff. Paras 14 – 36 set out how the defendant is alleged to have breached the agency agreement. Paras 37 – 40 then set out the plaintiff’s cause of action against the defendant for breach of contract. This is then followed by the plaintiff’s prayer for relief.
36. Throughout the statement of claim only facts are pleaded and no matters of evidence to prove those facts. There are particulars given of the facts pleaded in order to fairly inform the defendant of the claim against him. But those particulars of the facts are matters of fact rather than matters of evidence to prove the facts asserted by the plaintiff.
37. I therefore do not accept the submissions by counsel for the defendant that the statement of claim pleads matters of evidence instead of just facts. Even though it is not always easy to draw the distinction between “facts” and “evidence” as already pointed out, I am of the clear view that what is pleaded in the statement claim in this case is facts and not matters of evidence.
38. I have also decided not to accept the submissions by counsel for the defendant that a statement of claim should just plead a summary of the material facts. Before I come to the reasons for not accepting the submissions for the defendant that a statement of claim should plead just a summary of material facts, it would be helpful to know first what the expression “material facts” means.

(b) Material facts

39. The expression “material fact” is defined in Black’s Law Dictionary 10^th ed by GA Garner at p. 710 to mean:
    • “A fact that is significant or essential to the issue or matter at hand; especially a fact that makes a difference in the result to be reached in a case. What constitutes a material fact is a matter of substantive law”.
40. In the case of Australian Securities and Investments Commission v Rich [2009] NSWSC 1229,Austin J referred at para 172 to Darbyshire v Leigh [1896] UKLawRpKQB 62; [1896] 1 QB 554 where Lord Esher MR said at p.557:
    • “In the case of Philipps v Philipps [1878] UKLawRpKQB 96; (1898) 4 QBD 127 the distinction was pointed out between the material facts which it is necessary for a party to allege in pleading and to prove in order to support his case, which were called by Erle CJ allegata probanda, and the facts which are evidence by which those material facts are to be proved”.
41. In Perpetual Trustees Australia Ltd v One Steel Trading Pty Ltd [2007] VSC 370, Habersberger J said at para 16:
    • “A material fact is one which is necessary to constitute a complete cause of action or defence: Philipps v Philipps [1878] UKLawRpKQB 96; (1898) 4 QBD 127; Bruce v Odhams Press Ltd [1936] 1 KB 697; Rubenslein v Truth and Sportsman Ltd [1960] Vic Rp 75; [1960] VR 473”.
42. In Dymocks Book Arcade Pty Ltd v Carpal Ltd [2011] NSWSC 1423, Ward J said at para 27:
    • “[I] note that there is nevertheless a traditional distinction drawn between the pleading of material facts necessary to identify a cause of action and the particularisation of such facts as pleaded; the latter being required (as necessary) to enable the opposite party to identify the case required to be met (the extent of particulars so required depending both on judgment and on the circumstances of the individual case): Philipps v Philipps [1878] UKLawRpKQB 96; (1898) 4 QBD 127 at [139]; Ratcliffe v Evans [1892] UKLawRpKQB 131; [1892] 2 QB 524 at [532] ...”
43. The expression “material fact” or “material facts” is explained in many Australian cases but it is not necessary to refer to any more of those cases. It would be sufficient to say that “material facts” are facts which are necessary to support, identify, or constitute a cause of action.
44. I come now to the question of whether it is correct, as submitted by counsel for the defendant, that a statement of claim should plead only a summary of material facts.

(c) Should a statement of claim plead only a summary of material facts and not matters of evidence

45. In the English text of Bullen &Leake & Jacobs Precedents of Pleadings (2004) 15^th ed vol 1, which is the only edition of that work available to me, the learned authors have this to say at 1-29 to 1-31 about pleading facts, reference to law., and reference to evidence in a claim:
    • “Facts
    • “1-29. The old rules provided that pleadings were only to state material facts. The discussion set out above shows that the principal function of a statement of case is to state the facts relied on, so in this respect the principle is not changed. Rule 16.4 (1) (a) provides that particulars of claim must include a concise statement of the facts on which the claimant relies. However, under the CPR (Civil Procedure Rules 1998) there is no provision limiting the statement of case to material facts and this is a conscious decision intended to promote flexibility. In particular there is no longer any objection to including references to evidence or legal argument in a statement of case... Foreign law is regarded as a question of fact in the English Courts, and the general rule is that if a party wishes to rely on a foreign law he must plead it in the same way as any other fact. In practice, the statement of case will be supplemented by a detailed expert’s report on the foreign law”.
    • “Reference to law
    • 1-30. The old rule was that matters of law or mere inferences of law should not be pleaded. However, in practice, the ambit of the rule was blurred, and references to law frequently appeared in pleadings under one guise or another. The Practice Direction supplementing CPR, Pt 16 makes it clear that the old rule no longer applies by stipulating that ‘a party may... refer in his statement of case to any point of law on which his claim or defence, as the case may be, is based’. Although detailed legal argument is best set out in the skeleton arguments, it will often be good practice to identify the point of law concerned. This is because the statement of case should clearly state what the case is about; that is its function. Without necessarily requiring the details of the argument to be set out, points of law should be clearly identified where to do so is necessary to give adequate notice to the other side. Reference to case law is not generally appropriate. On the other hand, where reliance is intended to be placed on legislation, the legislation and relevant sections should be identified...
    • “Reference to evidence
    • 1-31. The old rules specifically stipulated that pleadings had to contain only a statement of the material facts on which the party pleading relied, and not the evidence by which they were to be proved. It was not always easy to draw the line between facts and evidence, but in any event the prohibition against pleading evidence is not included in the CPR, though it does appear in one specialist guide. However, it should be emphasised that the purpose of omitting the prohibition is not to qualify the basic requirement for clarity and brevity; rather it is in keeping with the flexible response advocated in CPR generally...
    • Practice Direction 16 states explicitly in paragraph 13.3 that a party may give in his statement of case the name of any witness he proposes to call, and to attach or serve with the statement of case any document which he considers is necessary to the claim or defence. This includes experts’ reports. Where a claim is based on a written agreement, paragraph 7.3 of 16PD states that a copy of the contract should be attached to the particulars of claim. General conditions of sale incorporated in the contract should also be attached. Where either document is bulky only the relevant parts should be attached...
    • It is sometimes convenient to attach key documents other than the contract at issue, but only where such documents are likely to be dispositive. The Commercial Court Guide points out that the permission to attach documents is not a requirement, and should be used only for “obviously critical documents referred to in the statement of case... which are necessary for a proper understanding of the statement of case”...
46. In the most recent publication of Bullen & Leake & Jacobs Precedents of Pleadings 17th ed, cited by counsel for the plaintiff in his written submissions, the learned authors state at 1-27:
    • “1-27. The old rules provided that pleadings were only to state material facts. The discussion set out above shows that the principal function of a statement of case is to state the facts relied on, so in this respect the principle is not changed. Rule 16.4(1)(a) provides that particulars of claim must include a concise statement of the facts on which the claimant relies. But under the CPR there is no provision limiting the statement of case to material facts. This was a conscious decision intended to promote flexibility. In particular, there is no longer any objection to including references to evidence or legal argument in a statement of case”.
47. I have cited at some length from the 15th ed of Bullen &Leake & Jacobs Precedents of Pleadings and the passage from the 17th ed of that text quoted by counsel for the plaintiff in his written submissions because this judgment may be the only window for many Samoan lawyers to that text and some of the new rules enacted under the English Civil Procedure Rules 1998 (CPR). It would also be clear from the above citations that the position set out in the 12th ed of Bullen &Leake & Jacobs Precedents of Pleadings upon which counsel for the defendant relied has changed quite significantly.
48. I have decided that the plaintiff’s statement of claim does not plead matters of evidence. But even if it does, that is not necessarily fatal. It is no longer necessarily objectionable to refer to matters of evidence in a statement of claim. In fact that could be helpful to inform not only the other party but also the Judge who will hear the case about the plaintiff’s case.
49. Counsel for the plaintiff also referred in his submissions to Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 where Stevens J, in delivering the judgment of the New Zealand Court of Appeal, stated at [84]:
    • “ [84] The procedural requirements for statements of claim are spelled out in the HCR. For present purposes, r5.17 (distinct matter to be stated separately), r5.26 (statement of claim to show nature of claim) and r5.27 (statement of claim to specify relief sought) describe the key principles. In summary they are:
      • “The pleading must be accurate, clear and intelligible
      • Sufficient particulars must be given to enable the defendant to be fairly informed of the case to be met
      • While adequate particulars are required, the statement of claim must not stray into setting out the evidence relied upon.
      • Separate causes of action must be separately stated
      • The pleading should set out all the elements of the cause of action.
      • The relief sought must be clearly pleaded in respect of each cause of action and, where there is more than one plaintiff and multiple defendants, the relief sought by each plaintiff against each defendant must be clearly stated”.
50. What is said in Chesterfield Preschools provides much useful guidance to the Samoan bar in the preparation of statements of claim. However, in respect of the third bullet-point requirement in the New Zealand HCR that the statement of claim must not stray into setting out the evidence relied upon, it is not clear how this requirement has been interpreted and applied in practice in New Zealand. If it means that no reference can be made whatsoever in the statement of claim to matters of evidence, then I respectfully prefer the position set out in the new English CPR which has omitted such a prohibition against making any references to the evidence in the statement of claim. From experience, the English position appears to me to be not only flexible but would avoid over concise and inadequately informative pleadings which could lead to surprises at the trial. It could also provide for greater transparency of the plaintiff’s case.
51. For the foregoing reasons, the first ground of the defendant’s strike out motion cannot be sustained.

(d) Attachment of documents to a statement of claim

52. For completeness, I will proceed further to deal with two other matters raised in the defendant’s strike out motion in relation to the first ground. Counsel for the defendant seems to suggest that “Schedule One – Particulars of Invoices” attached to the statement of claim should be struck out. That is because there is no mention in the statement of claim of a “Schedule One – Particulars of Invoices”. Para 13 of the statement of claim refers only to a “Schedule One (the Shipments)”. I see no merit in this point. It is clear from reading the whole of para 13 that what is meant by “Schedule One (Shipments)” is the “Schedule One – Particulars of Invoices” attached to the statement of claim. In any event, a pleading is not to be struck out if it can be remedied by an amendment. The discrepancy here can be remedied by a simple amendment.
53. It is also clear from Bullen &Leake & Jacobs Precedents of Pleadings (2004) 15th ed vol 1, 1-31, that a party may attach to his/her statement of case any document considered to be necessary to a claim or defence. Such document where the claim is based on a written contract includes a copy of the contract and general conditions of sale where it is a contract of sale. There is no requirement that such a document should be sworn. In this case, schedule one attached to the statement of claim relates to how the agency agreement was performed by the defendant. It is also relevant to the assessment of the loss claimed by the plaintiff to have resulted from the alleged breach of the agency agreement by the defendant. Schedule one of the statement should therefore not be struck out.

(e) Evidentiary facts

54. The second matter raised in the submissions of counsel for the defendant is that paras 3-10 and paras 13-40 should be struck out in their entirety or in part because they are “evidentiary facts.” This appears to relate the defendant’s submissions that a statement of claim should not plead matters of evidence. Counsel for the defendant in his submissions maintains that a statement of claim should not plead matters of evidence. He treats evidentiary facts as meaning the same thing as “subordinate facts” and then contrasts that with material facts. I have already dealt with what are “material facts.”
55. I will now deal with “evidentiary facts” and “subordinate facts”. It is always helpful when dealing with submissions of the kind presented by counsel for the defendant to define or explain first the terms or expressions used.
56. What is an “evidentiary fact?”. The short answer is, an “evidentiary fact” is “circumstantial evidence”. Circumstantial evidence is a fact from which the existence of a fact in issue may be inferred. So an evidentiary fact, which is the same thing as circumstantial evidence, would be a fact from which the existence of a fact in issue can be inferred. In Cross on Evidence (1996) 5th Aust ed by J D Heydon, the learned author stated at [1100] – [1105]:
    • “[1100] At some stage, resort almost always has to be had to ‘circumstantial evidence’, which may be defined as any fact (sometimes called an ‘evidentiary fact’, factum probans or (‘fact relevant to the issue’) from the existence of which the Judge or jury may infer the existence of a fact in issue (sometimes called a ‘principal fact’ or factum probandum). A typical instance is afforded by the statement of a witness at a trial for murder that the witness saw the accused carrying a blood-stained knife at the door of the house in which the deceased was found mortally wounded. The prosecutor invites the jury, first, to assume the witness is speaking the truth, and, secondly, to infer that the accused inflicted the mortal wound with the knife.
    • [1105] Evidentiary facts may be proved by testimony, admissible hearsay, documents, things and other evidentiary facts. An example of the proof of one such fact by another is afforded by the statement of a witness at a trial for murder that the witness saw blood on the accused’s coat pocket, in which the accused’s knife was found. The jury is asked first to assume that the witness is telling the truth; secondly, to infer that the blood on the pocket come from the knife; and, finally to infer that the blood was on the knife because the accused stabbed the deceased with that weapon. This process might be prolonged still further, but as the number of steps which have to be taken from the first evidentiary fact to the ultimate inference of a fact in issue increases, the weaker does that evidentiary fact become as a means of proving the matter...”
57. The above passages also appear in Cross on Evidence (1995) 6th NZ ed by D Mathieson at 1.21 and 1.22. The classic explanation of circumstantial evidence or evidentiary fact was given in the old English case of R v Exall [1866] EngR 22; (1866) 4 F & F 922, 928 where Pollock CB said:
    • “It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then if any one link break, the chain would fall. It is more like the case of a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight, but three strands together may be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit”.
58. The authorities cited above show that an “evidentiary fact” is “circumstantial evidence” and explain what is an “evidentiary fact” or “circumstantial evidence”. From this, it should be clear that the plaintiff’s statement of claim does not plea any evidentiary facts or circumstantial evidence, that is to say, facts as evidence from which the existence of a fact in issue may be inferred.

(f) Subordinate or collateral facts

59. Next, what is a “subordinate fact?”. A “subordinate fact” is also referred to in the relevant case law and legal textbooks as a “collateral fact”. In Cross on Evidence (1996) 5th Aust ed by J D Heydon, the learned author stated at [1090]:
    • “[1090] Subordinate or collateral facts which may be in issue are (a) those affecting the credibility of a witness, and (b) those affecting the admissibility of certain items of evidence; they may be in issue in a particular case on account of the law of evidence itself, and not on account of the substantive law or pleadings. An illustration of a fact of the first kind is the existence of a relationship which would tend to make a witness biased in favour of a party calling the witness. The witness may be asked about the relationship in cross-examination and, if denied, the relationships may be proved by the opposite party.
    • “An illustration of a fact of the second kind – in relation to competency – is provided by R v Yacob (1981) 72 Cr App R 313, where the competence of the witness depended on whether she was or was not married to the accused”.
60. The above passage also appears in Cross on Evidence (1997) 5th NZ ed by D Mathieson at 1.14. In Auckland City Council v Witherspoon [1989] NZHC 705; [1990] 1 NZLR 76, Fisher J said at p.83:
    • “Subordinate or collateral facts bear upon the competence or credibility of witnesses, the admissibility of certain items of evidence and other matters collateral to the facts in issue”.
61. In R v Irving [2006] NZCA 512, Arnold J, when delivering the judgment of the New Zealand Court of Appeal, said at [11]:
    • “[11] A collateral fact is one that is not a fact in issue nor relevant to a fact in issue”
62. The same statement of principle in R v Irving was repeated in the New Zealand Court of Appeal decisions in R v Boshovic [2006] NZCA 519 [19]; R v Smith [2007] NZCA 400, [8].
63. As it would be clear from the authorities cited, a subordinate or collateral fact is a fact which affects the credibility of a witness or the admissibility of certain items of evidence. It is not a fact in issue nor relevant to a fact in issue. On the other land, an evidentiary fact or circumstantial evidence is a fact from the existence of which the existence of a fact in issue may be inferred. A subordinate or collateral fact is therefore different from an evidentiary fact or circumstantial evidence.
64. It would also be clear from the authorities cited that none of the pleadings in the plaintiff’s statement of claim pleads a subordinate or collateral fact. That is because there is no pleading which bears upon the competence or credibility of a witness, or the admissibility of any item of evidence.
65. It follows from the above that the submissions of counsel for the defendant to strike out schedule one attached to the statement of claim and the pleadings said to be based on evidentiary facts cannot succeed.

Second ground of defendant’s strike out motion – The statement of claim does not disclose cause of action

66. The second ground of the defendant’s strike out motion that the statement of claim does not disclose a cause of action is problematic in two respects. In the first place, the submissions of counsel for the defendant do not show and clarify the elements of a cause of action for breach of contract and then explain what element or elements of the cause of action is/are not covered in the statement of claim. This would have provided for clarity and ease of understanding the second ground of the strike out motion. Secondly, is the approach applied in the strike out motion to some of the paragraphs of the statement of claim by saying, for example, that individually paras 37 – 40 of the statement of claim do not disclose a cause of action. The real question is not whether a particular paragraph of the statement of claim discloses a cause of action but whether the statement of claim considered as a whole does disclose a cause of action.
67. In my view, the plaintiff’s statement of claim does disclose a cause of action. As already explained in para 36 of these reasons for judgment, paras 1 and 2 of the statement of claim defines who are the parties to this case. Paras 3 – 9 set out the contractual relationship and arrangements between the LDS Church and the plaintiff pursuant to a freight agreement and also set out the relevant terms of that agreement. Paras 10 – 12 plead the agency agreement entered into by the plaintiff and the defendant pursuant to the freight agreement and set out the relevant terms of that agency agreement. Clause 13 and schedule one attached to the statement of claim set out and clarify how the defendant performed his part of the agency agreement with the plaintiff. Paras 14 – 36 set out how the defendant is alleged to have breached the agency agreement. Paras 37 – 40 then set out the plaintiff’s cause of action against the defendant for breach of contract on the basis of the preceding pleadings from paras 1 – 36 of the statement of claim. The prayer for relief then follows.
68. I am of the clear view that the statement of claim, including paras 37 – 40, does disclose a cause of action for breach of contract. The second ground of the strike out motion is untenable.

Third ground of defendant’s strike out motion – The statement of claim is prolix and convoluted

69. As to the third ground of the defendant’s strike out motion that the statement is “prolix” and “convoluted,” it is important to be clear first about what is meant by the terms “prolix” and “convoluted” in this context and then determine whether the statement of claim is in fact prolix or convoluted. Sometimes, the two terms, as the relevant case law shows, are used together if the statement of claim is both prolix and convoluted.

(g) Prolix

70. I start with the term “prolix”. In the old English case of Davy v Garett [1878] UKLawRpCh 8; (1877) 7 Ch D 473, Baggallay LJ said at p.486:
    • “The complaint is that the statement of claim is prolix and embarrassing. The word ‘prolix’ may be used to denote two different things; it may refer to the too lengthy statement of necessary facts, or to the statement of facts unnecessary to be stated. Where the only thing complained of is the statement at unnecessary length of things necessary to be stated, Order XIX., rule appears sufficiently to meet the case...Here I think that the statement of claim is embarrassing, both for the offensive length at which the statements of necessary facts are set out, and from the statement of unnecessary facts.”
71. At the same p.486, Thesiger LJ remarked:
    • “I also am of the opinion that this statement of claim ought to be struck out. It offends against the rules both by needless proxity and by stating evidence. The case as put in the argument on behalf of the plaintiffs rested on a few simple facts which might have been pleaded very shortly. They might be set out in a few words, instead of which we have a statement of claim of forty-five pages...”
72. In the later case of Hill v Hart Davis [1884] UKLawRpCh 81; (1884) 26 Ch D 470, Cotton LJ said at p.472:
    • “I agree that although the rules contain no provision for taking a document off the files for prolixity, yet it is the duty of the Court to see that its files are not made the instruments of oppression, and that without any provision in the rules the Court has the power, and it is its duty, to order oppressive documents to be taken off the file, even though this should result in their being burnt”.
73. In Australian Competition & Consumer Commission v Pauls Ltd [1999] FCA 1750, O’Loughlin J, after referring to the above English cases, referred to Re Brazendale (1991) (unreported decision delivered on 31 October 1991) where Northrop J when discussing Order 11 r.4 said:
    • “It is designed to overcome the problems that had arisen in the past of pleaders adopting a very prolix form of pleading by copying at great length the whole contents of documents, and even, for that matter, conversations, in the pleading itself. The rule was designed to avoid that prolixity and to compel a pleader to state the effect of a document or, under our rules, the spoken words, without referring to the precise terms of them or setting them out in full. This was enforced by the refusal to allow costs of a pleading that was too prolix by reason of adopting a form of that kind”.
74. In the Australian case of Hamod v State of New South Wales [2001] FCA 157, a statement of claim consisting of 500 pages was considered to be too prolix and was struck out on that basis alone.
75. In the case of Delahey & Garra – Marsh [2014] FCCA 499, Judge Scarlett said at para 19:
    • “ 19. The word ‘prolix’ is defined by the Macquarie Dictionary (Revised Third Edition) as meaning:
      • “extended to great, unnecessary, or tedious length; long and wordy”
76. In New Zealand in the case of Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, Stevens J, in delivering the judgment of the New Zealand Court of Appeal, said at [90] – [91]:
    • “[90] The major issue with the statement of claim is that it is overwhelmingly prolix. It comprises 419 paragraphs. The narrative of facts presented by the statement is not straightforward but diffuse: there are large tracts of factual material and much of the material facts relating to an individual claim are dispersed throughout different parts of the document. This makes it difficult, if not impossible to understand. It would be impossible for the defendants to give a targeted response to the claims of misfeasance. As Eichelbaum J said in Thompson v Westpac Banking Corporation (No 2) [1986] 2 PRNZ 505, at p.508:

“The object of obtaining crisp admissions or denials, and thus defining the points at issue, is entirely defeated by a lengthy diffuse narrative, which is likely to elicit only a generalised response”.

[91] Much of the factual material pleaded is irrelevant, provides excessive detail or is evidence rather than pleading. The large tracts of factual information pleaded do not identify the main issues but obfuscate them by adding to the prolix nature of the document and making it burdensome to read. A major concern is the excessive pleading of matters of evidence”

77. In Heenan Family Trust 1960 v Da Vella June Gore [2007] NZHC 1023, Associate Judge Gendall said at [118]”
    • “[118] In my view here there is no doubt that the plaintiff’s statement of claim contains unnecessarily prolix pleadings, it is littered with scandalous and irrelevant allegations...”
78. In the New Zealand case of Perriam v Wilkes [2014] NZHC 2192, at [12], Woolford J described a statement of claim which contains 137 paragraphs and is 32 pages in length with a 17 pages schedule and was difficult to summarise as prolix and convoluted.
79. In view of the authorities I have cited in relation to a statement of claim which has the features of being prolix, the statement of claim in this case which contains 40 paragraphs, 6 pages, and a schedule of 14 pages would not fit the description of being prolix. The pleadings in the statement of claim are also not unnecessarily lengthy, tedious, or wordy. Because the matters pleaded in the statement of claim include two agreements, namely, a freight agreement and an agency agreement, together with 268 shipments of goods over a period from 2005 to 2014, one can understand why the statement of claim contains 40 paragraphs, 6 pages, and a schedule.

(h) Convoluted

80. I turn now to the term “convoluted”. As it appears from the relevant case law, the term “convoluted” in the context of a statement of claim means “unintelligible” or “difficult to comprehend”. In Heenan Family Trust 1960 v Da Vella June Gore [2007] NZHC 1023, Associate Judge Gendall said at [118]:
    • “Throughout, the statement of claim pleads assertions that defendants and others have lied, have forged documents and been guilty of corruption rather than pleading facts which might give some foundation to conclusions of the kind which the plaintiffs are asserting. These pleadings are very hard to comprehend; they are intemperate, convoluted and unintelligible in large measure”.
81. In Karam v Parker [2011] NZHC 1016,Associate Judge Sargisson said at [20]:
    • “[20] The defendant’s practice of repeating or invoking particular paragraphs of the defence over and over again, makes the defence convoluted and virtually impossible to follow”.
82. The statement of claim in this case is definitely not unintelligible or difficult to comprehend. It does not fit into the description of a convoluted claim or defence given in the above New Zealand cases. With respect, the statement of claim is therefore not convoluted as submitted by counsel for the defendant.
83. As the relevant case law in other jurisdiction shows, sometimes a statement of claim is unnecessarily lengthy and wordy as well as being unintelligible and difficult to comprehend. Such a statement of claim would be both prolix and convoluted. So it is not uncommon to find the term prolix and the term convoluted being used together. But as I have found in this case, the statement of claim is not prolix or convoluted or both.

Conclusion

84. It is for the foregoing reasons that I arrived at my conclusion delivered on 8 May 2015 to dismiss the defendant’s strike out motion.

CHIEF JUSTICE SAPOLU