Ave v Palermo - [2022] WADC 121

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   AVE -v- PALERMO [2022] WADC 121
CORAM:   PRINCIPAL REGISTRAR MCGIVERN
HEARD:   3 NOVEMBER 2022
DELIVERED          :   21 DECEMBER 2022
FILE NO/S:   CIV 1898 of 2022
BETWEEN:   FAYE MARINA AVE
Plaintiff
AND
LIBERATO PALERMO
Defendant

Catchwords:

Practice and procedure - Pleadings - Application for further and better particulars of statement of claim - Application made prior to filing defence - Exercise of discretion - Whether further particulars necessary and desirable to enable defendant to plead - Turns on own facts

Legislation:

District Court Rules 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff	:	Mr D J Mezger
Defendant	:	Mr R J Carey

Solicitors:

Plaintiff	:	Chapmans Barristers & Solicitors
Defendant	:	McCabes

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

Attorney General of Western Australia v President of the Legislative Council of Western Australia [2020] WASC 399
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
John Holland Pty Ltd v The Minister for Works [2021] WASC 312
Miller v Coles Group Supply Chain Pty Ltd [2021] WADC 119
National Australia Bank Ltd v Rowe [2018] WASC 330
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Sims v Wran [1984] 1 NSWLR 317
Vassilou (an infant) by her Next Friend Tracey Louise Vassilou v Roberman [2007] WADC 145

PRINCIPAL REGISTRAR MCGIVERN:

Introduction

This is an application for further and better particulars of claim, brought by the defendant in an action arising out of a motor vehicle accident on 20 August 2020.
In these reasons I will refer to the applicant and respondent as defendant and plaintiff respectively, reflecting their party status in the substantive action, which was commenced by writ filed on 10 May 2022 and in which:
(a)the plaintiff filed a statement of claim on 15 August 2022; and
(b)the defendant has not yet filed a defence, but filed a request for further and better particulars on 26 August 2022 (Request). That Request has resulted in the present application (brought by chamber summons filed on 8 September 2022).
For the reasons that follow, the application is allowed in part.

Rules

It is convenient to begin by identifying the rules to which I will refer in these reasons, beginning with the observation that, except as otherwise provided by the District Court Rules 2005 (WA) (DCR) the Rules of the Supreme Court 1971 (WA) (RSC) apply to actions in this court.[1]
[1] District Court of Western Australia Act 1969 (WA) s 87; DCR r 6.
In relation to pleadings generally, O 20 r 8 RSC relevantly provides that:
(1)Subject to the provisions of this rule, and rules 11, 12 and 13 every pleading must contain, and contain only, a statement in a summary form of the material facts on which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WADC 121
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, Faye Marina Ave has initiated legal proceedings against Liberato Palermo in relation to an alleged motor vehicle accident that occurred on 20 August 2020. The plaintiff, Ms Ave, filed a statement of claim on 15 August 2022, and the defendant, Mr Palermo, subsequently filed a request for further and better particulars of the claim on 26 August 2022, which has led to the current application. The principal issue in this case is whether the plaintiff's statement of claim contains sufficient detail for the defendant to adequately prepare a defence, or if further particulars are necessary. The application for further and better particulars was heard by Principal Registrar McGivern on 3 November 2022, and the outcome was that the application is allowed in part.

The legal issues that the court had to decide were whether the defendant's application for further and better particulars should be granted and, if so, to what extent. The court considered the relevant rules of pleadings and the objectives of case management in determining whether further particulars were necessary or desirable to enable the defendant to plead. The court also examined whether the plaintiff's statement of claim contained sufficient detail, and if not, which aspects required further particulars. The plaintiff argued that the statement of claim met the requirements of a pleading and that the defendant had already been provided with sufficient particulars through the discovery of documents. The defendant contended that the plaintiff's statement of claim was too vague and imprecise to enable the defendant to understand the case against it and to prepare a sensible defence.

The court found that the plaintiff's statement of claim lacked sufficient particularity in some areas, specifically relating to the nature of the injuries and treatment claimed. The court considered it necessary and desirable for the defendant to be provided with further particulars to enable the defendant to prepare a defence, particularly in relation to issues of causation of loss. However, the court also found that some aspects of the defendant's request for further particulars were unreasonable and disproportionate to the benefit they would provide. The court concluded that the application for further and better particulars should be allowed in part, and directed the parties to discuss the precise terms of the orders and the allocation of costs.

Orders