Australian Railroad Group Pty Ltd v Rowan

[2004] WASCA 53

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   AUSTRALIAN RAILROAD GROUP PTY LTD & ORS -v- ROWAN & ANOR [2004] WASCA 53

CORAM:   MCKECHNIE J

EM HEENAN J

HEARD:   12 MARCH 2004

DELIVERED          :   12 MARCH 2004

FILE NO/S:   FUL 134 of 2003

BETWEEN:   AUSTRALIAN RAILROAD GROUP PTY LTD (ACN 080 579 308)

First Appellant (First Plaintiff)

AUSTRALIA WESTERN RAILROAD PTY LTD (ACN 094 792 275)
Second Appellant (Second Plaintiff)

WESTNET RAIL PTY LTD (ACN 094 721 301)
Third Appellant (Third Plaintiff)

AND

WILFRED THEO ROWAN
First Respondent (First Defendant)

WILDOR NOMINEES PTY LTD (ACN 067 095 434)
Second Respondent (Second Defendant)

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram   :MASTER SANDERSON

File Number             :  CIV 2059 of 2002

Catchwords:

Practice and procedure - Application for further particulars - Collision between locomotive and road train - Judgment if left to stand will cause no prejudice - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

First Appellant (First Plaintiff)             :        Mr I R Freeman

Second Appellant (Second Plaintiff)         :        Mr I R Freeman

Third Appellant (Third Plaintiff)             :        Mr I R Freeman

First Respondent (First Defendant)         :        Mr R E Keen

Second Respondent (Second Defendant)  :        Mr R E Keen

Solicitors:

First Appellant (First Plaintiff)             :        Phillips Fox

Second Appellant (Second Plaintiff)         :        Phillips Fox

Third Appellant (Third Plaintiff)             :        Phillips Fox

First Respondent (First Defendant)         :        Talbot & Olivier

Second Respondent (Second Defendant)  :        Talbot & Olivier

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. MCKECHNIE J:  I would agree with the reasons expressed by Heenan J that leave to appeal should be refused.

2. EM HEENAN J:  This is an application for leave to appeal from a decision of Master Sanderson, given in the course of dealing with an application for particulars sought by the appellant of the counterclaim proposed by the defendants in this action.

3. The action concerns a collision which took place between a locomotive and goods trains on a line running south towards Esperance at a level crossing where a road train driven by one or more of the defendants came into collision with the train and damage was suffered on both sides.  The action is an action by the railway companies and associated companies for recovery of loss and damage to its rolling stock and equipment, and the counterclaim is by the road train interests for corresponding damage.

4. In the course of the proceedings, there has been a counterclaim which alleges on behalf of the road train interests that the third plaintiff, one of the railway companies, was negligent in failing to discharge its duty of care in respect of this particular level crossing 375 at the material time.  One of the allegations of negligence is that that plaintiff failed to heed reports of investigations into complaints of dangerous incidents at level crossing 375 and similar level crossings within its control in the 5 year period to 6 March 2002, and accidents and near accidents at all such level crossings in the same period.

5. Obviously, that is a request which requires consideration of accidents or near accidents, not just at level crossing 375 but at many others.  It prompted a request for particulars in which the plaintiffs, the defendants to the counterclaim, sought information as contained in the request for particulars at the appeal book page 24, paragraph 6, relating among other things to the number of incidents, the dates and the particular level crossings that were involved.

6. The learned Master declined to order the particulars sought, saying in his reasons:

   "In relation to the remaining requests, 3 through to 6, dealing with paragraph 5 of the counterclaim, I have some doubts as to whether or not they are proper requests in any circumstances.  I think the argument put by the defendants that they are a request for evidence, has some merit.  Of course, there is often a dispute

as to whether or not a request for particulars is a request for evidence and that conundrum arises because there is an overlap between particulars properly considered and evidence.

In any event this is a matter which will be the subject of expert evidence.  It has to be; that is clear from a reading of the pleadings; that being so, I think that to order the particulars as requested by the plaintiffs would be counterproductive."

1. It is from that decision that this present application is made.  In order to secure the grant of leave to appeal from an interlocutory decision, particularly a pleading decision, it is necessary for the applicant to show that there is a strong arguable case that the decision appealed from was wrong and, in addition, that if leave is not granted and the decision stands, there is likely to be unavoidable prejudice or a miscarriage of justice flowing as a consequence of the decision.

2. In this particular instance, it seems obvious that sooner or later it will be necessary for the counterclaiming defendants to identify the other level crossings at which it is alleged there have been accidents or near accidents which have some bearing on the alleged negligence of the plaintiffs.  There is point in the submission by the applicant that the present particulars in the counterclaim do not do this, and may well as a consequence cause some confusion and inadequacy in discovery.  If that happens, it will be due to the way in which the defendants have framed their counterclaim.

3. However, in my opinion, the learned Master was correct in concluding that any problems arising from these inadequacies in the pleadings would eventually be addressed in some other way.  Whether that will be by the provision of expert evidence or by some different method cannot be said with any certainty at this stage, but it seems to me inevitable that the problem will have to be addressed, and will be addressed.

4. That being the case, there does not seem to me to be any need for an appeal court to interfere in the interlocutory management of this action which is already being supervised in a long causes list.  Consequently I do not see that there is any basis upon which it could be said that this decision, if allowed to stand, will cause prejudice or injustice to the plaintiffs.  For those reasons, I would refuse leave to appeal.