Al-Shennag v Statewide Roads Limited

[2010] NSWSC 760

CITATION:	Al-Shennag v Statewide Roads Limited & Anor [2010] NSWSC 760
HEARING DATE(S):	28 May 2010
JUDGMENT DATE :	9 July 2010
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
DECISION:	(1) The defendant is to answer paragraph 11.1 of the plaintiff’s third request for further and better particulars dated 10 May 2010. (2) The defendant is to provide the further and better particulars of paragraphs 16(d) and (e) of the defence identified in paragraph 50 of this judgment. (3) The defendant is to provide the further and better particulars of paragraph 19 of the defence identified in paragraph 61 of this judgment.
CATCHWORDS:	DEFAMATION - adequacy of particulars of defence - no matter of principle
LEGISLATION CITED:	Civil Procedure Act 2005 Defamation Act 1974 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Al-Shennag v Statewide Roads & Anor [2006] NSWSC 1226 Al-Shennag v Statewide Roads Limited [2007] NSWSC 1472 Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 Sims v Wran [1984] 1 NSWLR 317
PARTIES:	Abdullah Al-Shennag (Plaintiff) Statewide Roads Pty Limited (First Defendant) Bill Woodcock (Second Defendant)
FILE NUMBER(S):	SC 05/269387
COUNSEL:	In Person (Plaintiff) M.S. White (Second Defendant)
SOLICITORS:	Norton Rose (Second Defendant)

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

9 JULY 2010

05/269387 ABDULLAH AL-SHENNAG v STATEWIDE ROADS LIMITED & ANOR

JUDGMENT

1 HER HONOUR: These are proceedings for defamation brought by Mr Abdullah Al-Shennag, an engineer formerly employed by Bankstown City Council. The matter complained of is a report commissioned by the Council to assess the validity of conditions placed by Mr Al-Shennag on three separate development applications that had been lodged with the Council. The report concluded that the matters analysed disclosed a series of mistakes and errors on the part of Mr Al-Shennag underlined by poor engineering judgment.

2 The only remaining defendant to the proceedings is the author of the report, Mr Bill Woodcock. The proceedings have reached the stage where it has been determined in Mr Al-Shennag’s favour that Mr Woodcock’s report conveyed five imputations defamatory of Mr Al-Shennag: see Al-Shennag v Statewide Roads Limited [2007] NSWSC 1472. It remains for the Court to determine the defences raised by Mr Woodcock to those imputations and the amount of damages (if any) that should be awarded to Mr Al-Shennag: see s 7A(4) of the Defamation Act 1974 (now repealed).

3 The application presently before the Court concerns the adequacy of the particulars given of Mr Woodcock’s defence. The defence was filed on 12 November 2009. It responds in terms to each of the paragraphs of the amended statement of claim filed 29 May 2007. In addition, the defence pleads the defences of qualified privilege at common law and under s 22 of the Defamation Act 1974, consent and unlikelihood of harm.

4 Mr Al-Shennag represents himself in the proceedings. By letter dated 11 December 2009, he made his first request for further and better particulars of the defence. The terms of the request reflected Mr Al-Shennag’s lack of legal training. It contained many assertions and statements of intention on the part of Mr Al-Shennag that were unhelpful in refining the real issues in dispute between the parties. The request did also contain a small number of proper requests for further particulars.

5 Mr Woodcock’s solicitors responded to the first request by letter dated 15 January 2010. A careful study of the request and the response discloses that, notwithstanding the difficult and often irrelevant verbiage of Mr Al-Shennag’s request, Mr Woodcock’s solicitors gave it patient attention and endeavoured to respond appropriately to all proper requests. Where they had not understood a particular paragraph of the request to contain any actual request for particulars, they said so. Where the response was that Mr Al-Shennag’s request was “not a proper request for particulars”, the solicitors explained why that was the case, presumably in recognition of the fact that Mr Al-Shennag is not legally represented.

6 Mr Al-Shennag was not satisfied with the response. By letter dated 16 March 2010, he sent a further lengthy request for particulars. As with the first request, the second request contained many irrelevant assertions together with a small number of specific requests.

7 Mr Woodcock’s solicitors responded to the second request by letter dated 16 April 2010. That letter again identified those paragraphs of the letter which the solicitors did not understand to contain any request for particulars and those which they did not regard to be proper requests for particulars. No substantive further particulars were provided in that response.

8 On 10 May 2010, Mr Al-Shennag filed a third request for further and better particulars of the defence. Fearing the futility of responding to that request, counsel for Mr Woodcock invited me, as the judge managing the case, to give a ruling as to whether Mr Woodcock is required to provide a response.

Obligation to give all necessary particulars

9 Mr Al-Shennag’s third request invokes rules 14.14(2), 14.31(1) and 15.1(1) of the Uniform Civil Procedure Rules 2005. The relevant obligation is that contained in rule 15.1(1), which provides “a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet”.

10 The content of that obligation must be determined having mandatory regard to the overriding purpose of the rules to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 of the Civil Procedure Act 2005.

11 It is well recognised that there are restrictions on the detail that can properly be required by way of particulars. The critical task is to identify what is reasonably necessary to protect the other party against surprise: Sims v Wran [1984] 1 NSWLR 317 at 321G.

Context in which the particulars are sought

12 Before turning to the individual matters raised by Mr Al-Shennag’s third request, it is necessary to explain the role of two companies referred to in the amended statement of claim. The first is Statewide Roads Technical Management Limited, referred to in the pleadings as “SWRTML”. That company was Mr Woodcock’s employer at the time he wrote the report. However, it had been deregistered by the time Mr Al-Shennag commenced these proceedings. In those circumstances, Mr Al-Shennag sought to maintain a claim against its parent, Statewide Roads Limited. That company is referred to in the pleadings as “SWRL”.

13 Mr Woodcock’s report was published in July 1999. The proceedings were commenced in June 2005, shortly before the expiration of the six-year limitation period then applicable to claims in defamation. After commencing the proceedings, Mr Al-Shennag took steps to have SWRTML restored to the register. He then applied for an extension of the limitation period applicable to his claim so as to join that company (among others) as an additional defendant to the proceedings. That application was dismissed by Simpson J in November 2006: see Al-Shennag v Statewide Roads & Anor [2006] NSWSC 1226. Accordingly, the proceedings continued against Statewide Roads Limited and Mr Woodcock as the only defendants.

14 In December 2007, there was a separate hearing of the issues reserved for the jury under s 7A(3) of the Defamation Act 1974 (in fact heard by judge alone). At the conclusion of that hearing, Walmsley AJ held that there should be a verdict in favour of Statewide Roads Limited on the basis that it was not a publisher of the report: see A-S v Statewide Roads Limited [2007] NSWSC 1472 at [29]. An appeal against that determination was dismissed: see Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 per Tobias JA, Beazley and Bell JJA agreeing.

15 Interestingly, the Court of Appeal held (at [107]) that the proper order was to dismiss the proceedings against Statewide Roads Ltd, rather than to enter a verdict in its favour, as Walmsley AJ had. The authority cited for that approach was Ritchie’s Uniform Civil Procedure NSW, Uniform Civil Procedure Rules at [51.2.10], where it is stated that the word “verdict” is generally used to refer to a jury decision and that, when a trial is conducted before a judge sitting alone, the judge does not pronounce a verdict but merely gives judgment or an order; but cf section 7A(2) of the Defamation Act 1974, which expressly contemplates the entry of a “verdict” by the Court in certain circumstances.

16 In any event, Statewide Roads Ltd is no longer a defendant to these proceedings. Mr Al-Shennag’s first request dated 11 December 2009 suggests that he may be labouring under a misapprehension as to the legal effect of those events. In that request, Mr Al-Shennag stated that he proposes to file a reply to the defence which will include facts to support the vicarious liability of various parties, including SWRTML and Statewide Roads Limited. He said:

“[the reply] will include the particulars in respect of the joint liability of all tortfeasors (publishers, or who authorised the publication) in this respect which according to the related principles of law their liability are still maintainable even if they are not parties to the current proceedings, given that Mr. Bill Woodcock (through his solicitor) has the obligations and responsibility to seek indemnifications and/or contributions from them or their insurers for the total damages and losses that he may found by the court as being is liable for due to the publication of the same defamatory report until present.”

17 That statement reflects a number of misconceptions. It is enough to say that the issue of any vicarious liability of Statewide Roads Ltd was considered and determined by Walmsley AJ at [27]-[29]. That part of his Honour’s decision was, in turn, considered and upheld by the Court of Appeal at [39] to [46]. Mr Al-Shennag is bound by that determination. Any claim by Mr Al-Shennag against SWRTML is barred by statute and Mr Al-Shennag is bound in that respect by the decision of Simpson J (leave to appeal against which has been refused by the Court of Appeal: see the judgment already cited at [3]).

18 Further, it is wrong to say that Mr Woodcock has any obligation to seek indemnity from any party, and the simple fact is that he has made no such claim in the present proceeding. The issue of vicarious liability of any party for Mr Woodcock’s publication of the report does not, and cannot, arise again in these proceedings. The issues raised by the present application must be considered in that context.

Paragraph 3 of the defence

19 Paragraph 3 of the amended statement of claim states:

“At all material times SWRTML was a consultancy business unit for the First Defendant, SWRL, and that it (SWRTML) was carrying out specific engineering contracts of consultancy services and activities related only to: roads & pavement design; specifications; pavements evaluation for maintenance/reconstruction purposes; contracts documentation and administration; council’s systems restructuring.”

20 Paragraph 3 of the defence responds to that allegation as follows:

“In answer to paragraph 3 of the Amended Statement of Claim, the Second Defendant:
(a) admits that at all material times up to 19 September 1999, SWRTML provided engineering consultancy services to its customers;
(b) admits that SWRTML undertook activities including activities of the kind pleaded in paragraph 3;
(c) denies that the services were provided for the First Defendant; and
(d) otherwise denies the allegations.”

21 Paragraph 1 of Mr Al-Shennag’s third request seeks further particulars as to Mr Woodcock’s admission in paragraph 3(b) of the defence “that SWRTML undertook activities including activities of the kind pleaded in paragraph 3”. In particular, he asks what were the other kinds of activities undertaken by that company and whether any were relevant to the area of the role of a development engineer in local councils.

22 A similar request was included in Mr Al-Shennag’s first request. Mr Woodcock’s response at that time was to assert that the only relevant activity of SWRTML was its employment of Mr Woodcock as a senior consultant. The response proceeded to provide particulars of Mr Woodcock’s relevant activities and experience in local government engineering works. I do not think any further particulars of the admission in paragraph 3(b) of the defence are necessary.

23 Paragraph 2 of Mr Al-Shennag’s third request seeks further detail of the particulars of Mr Woodcock’s experience provided in response to his first request. In my view, those particulars were adequate to enable Mr Al-Shennag to understand the case he has to meet in response to the matters pleaded in paragraph 3 of his amended statement of claim. I do not think any further particulars of those particulars are necessary.

24 Paragraph 3 of the third request seeks clarification and further particulars of the statement in paragraph 3(d) of the defence that Mr Woodcock “otherwise denies the allegations” in paragraph 3 of the amended statement of claim. The particulars sought appear to be directed to establishing the role of the former first defendant, Statewide Roads Limited, in the publication of the matter complained of. As already explained, that company is no longer a defendant to the proceedings and no issue as to its liability can arise. For that reason and in any event, I do not think any clarification of the statement in paragraph 3(d) of the defence is necessary.

Paragraph 4 of the defence

25 Paragraph 4 of the amended statement of claim states:

“At all material times, the Second Defendant, Mr Bill Woodcock, was a senior authorised engineer in SWRTML, and had the delegated authorities and powers which allowed him to negotiate and sign contracts of consultancy services with customers including councils, on behalf of his employer SWRL the principal of the SWRTML consultancy business unit. This delegated authority included to issue and sign relevant outgoing documents and letters of service under the name of SWRTML was delegated to him by the board of directors of SWRTML on behalf of the principal SWRL.”

26 Paragraph 4 of the defence responds to that allegation as follows:

“In answer to paragraph 4 of the Amended Statement of Claim, the Second Defendant:
(a) admits that until late 1999, he was employed to provide services as a senior engineering consultant on behalf of SWRTML;
(b) denies that he was employed by the First Defendant or acted on its behalf;
(c) denies that the First Defendant was the principal of SWRTML; and
(d) denies the balance of the allegations.”

27 Paragraph 4 of the third request seeks clarification of the admission that, until late 1999, Mr Woodcock was employed to provide services as a senior engineering consultant on behalf of SWRTML. In particular, Mr Al-Shennag asks whether Mr Woodcock admits that he was employed as Statewide Roads Limited’s senior consultant engineer “in SWRTML consultancy” (paragraph 4.1). He also seeks further detail of Mr Woodcock’s denial that Statewide Roads Limited was the principal of SWRTML (paragraph 4.2).

28 Those requests appear to be directed to the issue whether there is some liability on the part of Statewide Roads Limited for the publication of Mr Woodcock’s report. Following the Court of Appeal’s dismissal of Mr Al-Shennag’s claim against that company, no question of its liability can arise as an issue in the proceedings. No further clarification of Mr Woodcock’s admission and denials in paragraph 4 of the defence is necessary.

Paragraph 5 of the defence

29 Paragraph 5 of the amended statement of claim alleges:

“At all material times, SWRL, (the principal of SWRTML), and that, according to the principles of law including the common law: a company, like any employer, is vicariously liable in tort for the torts committed by its employees in the course of their employments, and that similarly a company (SWRL), as principal, is liable for any tort committed by its officers, or agents (the directors and Mr. Bill Woodcock) acting within the scope of their actual or apparent authorities. ( Lloyd v Grace Smith & Co [1912] AC 716”).

30 Paragraph 5 of the defence denies that paragraph.

31 Paragraph 5 of Mr Al-Shennag’s third request seeks particulars of that denial. The questions posed by Mr Al-Shennag (in paragraphs 5.1 to 5.3) are directed specifically to the alleged vicarious liability of SWRTML and Statewide Roads Ltd for the publication of the report. For the reasons already explained, there is no issue in the proceedings to which those questions can relate. No further particulars of the denial are necessary.

Paragraph 6 of the defence

32 Paragraph 6 of the amended statement of claim states:

“At all material times the Plaintiff was a highly skilled and specialised engineer by training and by experience including in the then current system and requirements of processing and approving of proposed developments in Local Government Councils, and in the design and assessment of stormwater drainage systems and flood mitigation in proposed developments. Moreover he held numerous relevant professional engineering qualifications from well known and respected Australian universities and was a member of relevant professional institutions.
Particulars
i. Bachelor of Civil Engineering Science (B.Eng. Sc-Civil) in 1980, which required minimum five years full time study at the university;
ii. Master of Civil Engineering Science (M. Eng. Sc-Civil) from the University of New South Wales in 1987 ;
iii. Postgraduate Diploma Building Applied Science from University of Western Sydney; completed in 1999 ;
iv. Master of Applied Science (Construction Management) with credit level (very close to distinction level), from University of Western Sydney, completed in April 2000 ;
v. Postgraduate Diploma in Fire Safety Engineering with distinction level from University of Western Sydney ;
vi. About 25 years postgraduate experience as a Civil and Structural Engineer including about 11 years at Bankstown City Council including as a senior Development Engineer where he completed successfully thousands of engineering tasks including in the assessment and approvals of various types of developments;
vii. Membership of the Institution of Engineers Australia as Chartered Professional Engineer (CPEng), and being registered on the National Professional Engineers Register (NPER).”

33 Paragraph 6 of the defence does not admit that paragraph. Paragraph 6 of the third request interrogates Mr Woodcock as to the non-admission. There is no warrant for requiring Mr Woodcock to answer the questions posed. In accordance with well-established principle, Mr Al-Shennag bears the onus of proving those matters that are not admitted (if he wishes to rely upon them on support of his claim).

Paragraph 7 of the defence

34 Paragraph 7 of the amended statement of claim states:

“In or about July 1999, a staff member of the Civic Services Group (herein referred to as CSG) of the Council nominated and commissioned the Second Defendant, an authorised employee of SWRTML’s consultancy business unit, to act as a so-called independent engineer, supposedly expert and a specialist in the field of assessment and processing of approval of proposed developments by urban councils, to prepare a report about certain issues concerning engineering drainage plans and conditions for three Building Applications related to three proposed developments that had been assessed and processed by the Plaintiff.”

35 Paragraph 7 of the defence responds to that allegation as follows:

“In answer to paragraph 7 of the Amended Statement of Claim, the Second Defendant:
(a) admits that in July 1999, the CSG of the Bankstown City Council ( the Council ) retained SWRTML to prepare a report about three building applications related to three development applications made to the Council that had been reviewed by the Plaintiff; and
(b) denies the balance of the allegations.”

36 Paragraph 7 of the third request poses a series of further questions as to how the Council came to retain SWRTML to prepare the report and as to the nomination of Mr Woodcock as the person who would undertake that task. I do not think it is necessary for Mr Al-Shennag to have any of the information sought in order to know the case he has to meet. It has already been determined in his favour that Mr Woodcock published the report. I do not see any need, at this stage, for the further information sought.

Paragraph 8 of the defence

37 Paragraph 8 of the amended statement of claim states:

“In or about the middle of July 1999, the Defendants published or gave authority or apparent authority to prepare and publish a defamatory report concerning the Plaintiff (copy annexed herewith and marked by the letter ‘A”). The report was prepared and signed by the Second Defendant, Mr. Bill Woodcock, on behalf of the other Defendants and published also under the name of the First Defendant’s owned company, SWRTML, and was sent to the Plaintiff’s employer (the Council) and to his union, the Municipal Employees Union (MEU). The covering letter that attached with the defamatory report and originally sent to Mr. Chris Bullock of the council’s CSG implied the defendants’ authorization to republish it to others in the council and MEU also.”

38 Paragraph 8 of the defence responds to that allegation as follows:

“In answer to paragraph 8 of the Amended Statement of Claim, the Second Defendant:
(a) denies that the First Defendant published or gave any authority to prepare or publish a defamatory report, being annexure “A” to the Amended Statement of Claim ( the Report );
(b) admits the Report was prepared and signed by him on behalf of SWRTML, but denies it was prepared on behalf of the First Defendant;
(c) admits the Report was mailed to Mr Chris Bullock of the Council by SWRTML under cover of its letterhead, on or about 9 July 2009;
(d) denies that the First Defendant authorised any republication of the Report impliedly or otherwise;
(e) denies the Report was defamatory; and
(f) does not admit the balance of the allegations.”

39 Paragraph 8 of the third request seeks further particulars apparently directed to ascertaining who else participated in the preparation of the report or ratified its contents. Those questions do not relate to any issue in these proceedings. It has been determined that Mr Woodcock is a publisher of the report. So far as these proceedings are concerned, he is the only relevant publisher. No further particulars of those admissions and denials are necessary.

40 Paragraph 9 of the third request relates to internal handling of the report within SWRTML and does not appear to relate to any issue in the proceedings.

Causation of damages

41 By paragraph 13 of the defence, Mr Woodcock:

(a) denies that the publication of the report caused any of the damages allegedly suffered by Mr Al-Shennag;

(b) denies that Mr Al-Shennag has any standing to claim the damages pleaded in sub-paragraph 16(ii) of the amended statement of claim; and

(c) denies that Mr Woodcock is liable to Mr Al-Shennag for any of the claimed damages or any damages at all.

42 Paragraph 10 of the third request seeks a series of further particulars of those denials. Those requests misconceive a fundamental principle applicable to the proceedings. Mr Al-Shennag bears the onus of proving the elements of his claim. The purpose of the pleadings is to isolate the matters in issue as to which proof is required. It is open to Mr Woodcock to deny that the publication of his report caused the damages claimed by Mr Al-Shennag. He bears no onus of proof on that issue. The simple consequence is that Mr Al-Shennag must prove those matters. No further particulars are necessary in order to guard Mr Al-Shennag against surprise. He knows, and should not be surprised by, the fact that Mr Woodcock denies that the publication of his report caused the damage claimed by Mr Al-Shennag.

43 One further matter should be explained, however,for Mr Al-Shennag’s benefit. Paragraph 10.2 of Mr Al-Shennag’s request is directed to paragraph 13(b) of the defence. That paragraph responds to paragraph 16(ii) of the amended statement of claim, which claims “non-economic loss ($450,000) for [Mr Al-Shennag’s] and his family’s pain and suffering due to the related distress and loss of usual social activities and happiness”.

44 The simple point made in paragraph 13(b) of the defence is that Mr Al-Shennag has no standing to claim damages on behalf of any member of his family other than himself. He can only maintain the claim in so far as it relates to his own distress. That is plainly right as a matter of law and does not need to be particularised. There should be no need for any further debate on that issue.

Failure to mitigate damage

45 Paragraph 14 of the defence alleges that Mr Al-Shennag has failed to take reasonable steps to mitigate the damages he claims. The particulars of that allegation given in the defence are:

(a) failure to undertake appropriate medical, vocational and rehabilitative treatment, training, counselling or advice with a view to obtaining employment;

(b) failure to seek alternative suitable employment.

46 In each of his first and second requests, Mr Al-Shennag sought further particulars of those allegations and Mr Woodcock refused to provide any, asserting that sufficient particulars of the type of mitigation that should have been undertaken had already been provided.

47 Paragraph 11 of the third request revisits that issue. In my view, there is force in Mr Al-Shennag’s complaint as to the particulars provided to date. The general assertion of a failure to undertake the kinds of treatment and training referred to does not adequately articulate the case Mr Al-Shennag will have to meet at trial on that issue. The use of the word “appropriate” in paragraph (a) of the particulars is an indeterminate term in that context, and gives no content to the matters alleged. Mr Woodcock should answer paragraph 11.1 of the third request. I do not think any further particulars of paragraph 14(b) are necessary and accordingly I do not think Mr Woodcock should be required to answer paragraph 11.2 of the third request.

Qualified privilege

48 Paragraph 16 of the defence pleads the defences of qualified privilege both at common law and under s 22 of the Defamation Act 1974.

49 Particulars 16(d) and (e) of the defence identify, as part of the circumstances alleged to have given rise to an occasion of qualified privilege, the fact that the Council was investigating various complaints made to it about Mr Al-Shennag’s work as an engineer and about his conduct in his capacity as an engineer employed by the Council.

50 Paragraphs 12 and 13 of the third request seek particulars of those complaints. Although I accept that proof of the complaints themselves is a matter for evidence, in my view Mr Al-Shennag is entitled to some particularisation of those complaints. Mr Woodcock should identify the date, the parties to and the form of each complaint (whether oral or in writing) and provide a brief description of the substance of each complaint.

51 Paragraph 14 of the third request seeks particulars of the contention in particular 16(g) of the defence as to the subject matter of the report. In my view, the report speaks for itself and no further particulars are necessary.

52 Paragraph 15 of the third request seeks further clarification of Mr Woodcock’s contention that the report was published in the course of his fulfilling the engagement of SWRTML by the Council and in providing the Council with information on the subject of the matters particularised elsewhere. I do not think any further clarification of that contention is necessary.

53 Paragraph 16 seeks further clarification of the contention that Mr Woodcock had a social, moral or legal duty and interest in providing the report to the Council. I do not think any further clarification of that contention is necessary.

54 Paragraph 17 of the third request contains a series of questions directed to Mr Woodcock’s contention that his conduct in publishing the report was reasonable in the circumstances, which is relevant to the defence under s 22 of the Defamation Act 1974. Some of those questions may be appropriate by way of interrogatory but they are not proper requests for particulars.

Defence of consent

55 Paragraph 17 of the defence pleads that Mr Al-Shennag consented to the publication of the report to the Council and provides particulars of that contention. Paragraph 18 of the third request is an argumentative response to that defence. To the extent that it requests any further particulars, the request appears to be rhetorical. I do not think a response is necessary.

Mitigation of damages

56 Paragraph 19 of the defence states that Mr Woodcock intends to rely on the following matters in mitigation of any damages for which he may be found liable to Mr Al-Shennag:

(a) the circumstances in which the publication was made; and

(b) the reputation of Mr Al-Shennag as an employed senior engineer of the Council at and immediately before the publication.

57 In response to Mr Al-Shennag’s first request, Mr Woodcock identified the circumstances referred to in paragraph 19(a) as being that between 1995 and June 1999, Mr Al-Shennag:

“(a) had a history of complaints made against him to the Council concerning his work on development applications, including the three development applications, the subject of the defendant’s report;
(b) had a history of failing to carry out development application assessments referred to him by other engineers in the Council;
(c) had a history of making irrational and baseless complaints about the promotion of other Council employees;
(d) had restrictions placed on his access to Council files because he accessed them without authority and inserted defamatory notes about other Council staff;
(e) had been the subject of a first, second and subsequently final warning by Council in 1997 arising from performance issues;
(f) had been issued with a further final warning by Council in May 1999;
(g) had been absent from his employment since 3 June 1999;
(h) had been, and was refusing to comply with the Council’s disciplinary processes; and
(i) had caused his superiors at the Council to form the view that the plaintiff was not competently performing his duties as a Council engineer.”

58 In his second request Mr Al-Shennag sought a series of further particulars of those contentions. Mr Woodcock responded that those were matters for evidence. Mr Al-Shennag’s third request again seeks further particulars of those contentions.

59 What is sought in paragraph 19 of the third request goes well beyond what is necessary in order for Mr Al-Shennag to know the case he has to meet. I do think, however, that the particulars provided in Mr Woodcock’s reply to Mr Al-Shennag’s first request (set out above) are pitched at too high a level of generality and are accordingly inadequate. They amount, in substance, to conclusions. In my view, Mr Al-Shennag is entitled to know the facts, matters and circumstances relied upon as the basis for those contentions.

60 I appreciate that this will involve some work on the part of Mr Woodcock and his solicitors, and I am mindful of the overriding purpose. Nonetheless, the circumstances relied upon in mitigation of damages go to the heart of a central issue in the proceedings, namely, what harm the publication of the report has done to Mr Al-Shennag’s reputation (assuming the publication is indefensible which, of course, is yet to be determined). I do not think the particulars that have been provided to date adequately disclose the case Mr Al-Shennag has to meet in that respect.

61 However, having regard to my obligation under s 56(2) of the Civil Procedure Act 2005, I do not propose to order that Mr Woodcock provide a response to paragraph 19 of Mr Al-Shennag’s third request. The order should be that Mr Woodcock identify the facts, matters and circumstances relied upon in support of the contentions set out at paragraph 18 of the letter dated 15 January 2010 from Norton Rose to Mr Al-Shennag.

62 The orders are:

(1) That the defendant answer paragraph 11.1 of the plaintiff’s third request for further and better particulars dated 10 May 2010.

(2) That the defendant provide the further and better particulars of paragraphs 16(d) and (e) of the defence identified in paragraph 50 of this judgment.

(3) That the defendant provide the further and better particulars of paragraph 19 of the defence identified in paragraph 61 of this judgment.

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