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 the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.
(2)Without prejudice to subrule (1), the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material.
As to particulars, O 20 r 13 RSC requires that 'every pleading must contain the necessary particulars of any claim, defence or other matter pleaded'[2] and, in relation to making orders giving effect to that broad requirement, relevantly provides:
(3)The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just.
…
(5)An order under this rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.
(6)An order under this rule shall not be made unless a written request for the particulars required by the applicant has been filed and served within 30 days of the service of the pleadings or such other time as the Court may allow.
[2] RSC O 20 r 13(1).

The application

The application was heard at a special appointment on 3 November 2022. Each of the parties made submissions orally and in writing.[3]
[3] Outlines of submissions were filed by the defendant on 18 October 2022, and by the plaintiff on 1 November 2022.
A broad summary of the respective positions of the parties is set out below.

Defendant's (applicant's) position

By the application, the defendant seeks orders that:
1.Within 14 days of the date of this order, the plaintiff do provide the further and better particulars of claim requested in the defendant's request dated and filed 26 August 2022.
2.The plaintiff do pay the defendant's costs of the application, in any event.
In its submissions, the defendant admits that a duty of care was owed to the plaintiff and breached, but notes that the issues of causation of loss, capacity and quantum are in dispute.
In that context, the requested particulars concern the plaintiff's allegations of injury, treatment needs and residual disability, which are relevantly pleaded at pars 4 - 8 of the statement of claim in the following terms:
4.As a result of the accident the Plaintiff sustained injury ('the injuries').
PARTICULARS OF THE INJURIES
(a)Left shoulder injury;
(b)Lower and upper back injury; and
(c)Cervical spine injury.
5.As a result of the injuries the Plaintiff has had and will in the future require treatment ('treatment').
PARTICULARS OF TREATMENT
(a)surgery;
(b)specialist and GP reviews;
(c)physiotherapy;
(d)hospital attendances;
(e)MRI, scans & x-rays;
(f)injections;
(g)medications & painkillers;
(h) occupational and rehab specialist reviews, assessments and programs.
6.As a result of the injuries the Plaintiff sustained residual disabilities ('residual disabilities').
7.As a result of the injuries, treatment and residual disabilities the Plaintiff has and will endure pain, suffering, inconvenience and loss of enjoyment of life.
8.As a result of the injury, treatment and residual disabilities, the Plaintiff has incurred damages, the particulars of which will be provided in accordance with Rule 45C of the District Court Rules 2005 (WA).
The defendant submits that those pleadings are too vague and imprecise to enable the defendant to either understand the case against it, sensibly prepare to meet that case, plead a positive case as to causation and capacity and/or consider an appropriate position to adopt with respect to compromise of the claim.
The defendant's Request (which gives content to the orders sought in the application[4]) is relevantly in the following terms:
[4] See [9] above.
1.As to paragraph 4 of the statement of claim, provide particulars of the nature of the injury alleged to have been sustained to the plaintiff's:
1.1.Left shoulder;
1.2.Upper and lower back; and
1.3.Cervical spine.
2.As to paragraph 5(a) of the statement of claim, provide particulars of:
2.1.The surgical treatment undertaken by the plaintiff, prior to and after the MVA;
2.2.The date of the surgical treatment undertaken for any surgical procedures done prior to or after the MVA;

2.3.The medical diagnosis/comment from a medical practitioner to indicate a need for surgical treatment; and
2.4.The treating surgeon who performed any and all surgical treatment.

3.As to paragraph 5(d) of the statement of claim, provide particulars of:
3.1.The hospital she attended for treatment after the MVA; and
3.2.The specific treatment she received at the hospital.

4.As to paragraph 5(f) of the statement of claim, provide particulars of:
4.1.Specific injections she received after the MVA;
4.2.For what alleged injury she received injections for; and
4.3.What diagnosis/comment from a medical practitioner to indicate a need for this type of treatment.

5.As to paragraphs 6, 7 and 8 of the statement of claim, provide particulars of the residual disabilities allegedly sustained by the plaintiff as a result of the MVA[.]

Plaintiff's (respondent's) position

The plaintiff submits that the defendant's application:
(a)is improperly brought before service of a defence (referring to O 20 r 13(5) RSC);
(b)is an abuse of process;
(c)is unnecessary because the plaintiff has provided sufficient particulars and discovery of the plaintiff's medical and treatment records to enable the defendant to understand the case it has to meet; and
(d)should be dismissed.
In oral submissions, the plaintiff referred to O 20 r 8 RSC in support of those contentions, arguing that:
(a)the statement of claim properly meets the requirements of a pleading in that it identifies the relevant material facts in summary form, and does not descend to evidence;
(b)the Request is for evidence rather than proper particulars; and
(c)that evidence has been given to the defendant by the discovery and production of the plaintiff's relevant documents (in particular, medical records which contain the information sought in the Request).

Consideration

Central issue and approach

It is clear from the express language of O 20 r 13(3) RSC that the discretion to order a party to provide further particulars is very broad.[5]
[5] And there is nothing in the DCR that is inconsistent with that power, or with its exercise by a registrar (as to the latter, see for example: Vassilou (an infant) by her Next Friend Tracey Louise Vassilou v Roberman [2007] WADC 145 (Vassilou) [8].
In this case, since I am satisfied that the defendant has complied with O 20 r 13(6) RSC (in that the Request was filed and served within 30 days of the statement of claim),[6] it is open for me to exercise that discretion and to make such an order.
[6] In oral submissions, the plaintiff invited me to find that, because an unsealed copy of the Request was served on the plaintiff, the defendant had not complied with O 20 r 13(6) RSC. I decline to make that finding which, in my view, would be contrary to the rule being construed and applied in line with the case flow management objectives in O 1 r 4B(1) RSC, as required by O 1 r 4B(2) RSC. There was no suggestion that the Request served on the plaintiff differed from that filed in the action. It is the same Request. In those circumstances, and I am satisfied that is has been both filed and served, within the time allowed.
In considering whether it is appropriate to do so, the central issue for me to determine is whether, having regard to the plaintiff's current pleadings, further particulars are 'necessary or desirable to enable the defendant to plead'. That is because, if that question is determined in the positive, then:
(a)the principal contention of the defendant in support of the application (at [12] above) is sustained;
(b)the correlative objection of the plaintiff (at [14(c)] above) is not sustained; and
(c)the restriction in O 20 r 13(5) RSC against making an order for the provision of further particulars is not engaged, with the result that the plaintiff's objections at [14(a)] - [14(b)] above fall away.
That issue is to be approached, and the discretion to order further and better particulars is to be exercised, in a manner that:
(a)reflects the contemporary role of pleadings, in the context of contemporary case management practices;[7] and
(b)best attains the objectives contained in O 1 r 4A and O 1 r 4B RSC,[8] which relevantly include:
(i)avoiding delays and facilitating the timely disposal of business;
(ii)promoting the just determination of litigation; and
(iii)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute.
[7] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 (Barclay Mowlem) [5].
[8] RSC O 1 r 4B(2); Barclay Mowlem [8].
The general function of pleadings is to provide a statement of a party's case sufficiently clearly that an opposing party has a fair opportunity to meet it,[9] by adequately identifying the issues to be tried and disclosing an arguable cause of action or defence.[10]
[9] Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664.
[10] Barclay Mowlem [7].
In opposing the application, the plaintiff put particular emphasis on:
(a)the production by the plaintiff of discovered documents containing sufficient information for the defendant to discern the facts sought by the Request; and
(b)that part of O 20 r 8(1) RSC which states that a pleading must contain only 'a statement in a summary form of the material facts … but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits'.
As to the latter, the confines of O 20 r 8(1) RSC cannot be an adequate answer to a request for particulars because:
(a)by its own terms, O 20 r 8(1) RSC is expressly subject to the operation of O 20 r 13 RSC;
(b)if no more particularity than a statement meeting the requirements of O 20 r 8(1) RSC were ever required, O 20 r 13 RSC would have no 'work to do', and such a construction should generally be avoided;[11] and
(c)on a proper construction of the Rules, therefore, the role of particulars is to expand the content of a pleading beyond the scope of a statement described in O 20 r 8(1) RSC.
[11] As to which, see: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky Inc) [70] - [71].
It has been recognised, for example, that the requirement to provide proper particulars may sometimes require that parts of the evidence and the names of witnesses be disclosed.[12]
[12] John Holland Pty Ltd v The Minister for Works [2021] WASC 312 (John Holland) [13].
This is not to say that particulars will always be required; on the contrary, they will often be unnecessary.[13] Rather, the question of whether they are required is not to be determined by reference to O 20 r 8(1) RSC, but by reference to whether further detail is necessary and desirable to meet the requisite pleading objectives (and, in the case of an application for particulars before a defence is served, for the purposes of O 20 r 13(5) RSC).
[13] National Australia Bank Ltd v Rowe [2018] WASC 330 [5] - [6] (Vaughan J).
The need for particulars may be approached with the following purpose in mind:
The object of particulars is to save expense in preparing to meet a case which may never be put and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing. It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet.[14]
[14] Sims v Wran [1984] 1 NSWLR 317, 321 (Hunt J), cited with approval in Attorney General of Western Australia v President of the Legislative Council of Western Australia [2020] WASC 399 [104].
This observation is helpful because it underscores that:
(a)the assessment of whether a party is sufficiently appraised of the opposing case as to meet it is not confined to the time of trial. Rather, a party 'meets' a case by (amongst other things) gathering responsive evidence and, in line with the objectives of contemporary case management, should be in a position to do this as efficiently (as to cost and time) as possible; and
(b)the case to be met and the issues to be tried must be determined by reference to the facts as alleged.
A balance is to be struck between:
(a)on the one hand, avoiding the expense, delay and inefficiency that may arise from such lack of particularity or precision in one party's pleading as to impact significantly on the proper preparation for and presentation of the opposing case;[15] and
(b)on the other hand, avoiding the expense, delay and inefficiency of pedantic objections to pleadings and requests for particulars that are unreasonable or disproportionate to the benefit to be derived from them.[16]
[15] John Holland [15] and [23].
[16] Barclay Mowlem [9].
In this case there are, in my assessment, features of both insufficient particularity in the statement of claim and, to a more limited extent, of some disproportionality in the Request, such that the appropriate balance falls somewhere between the respective positions of the two parties.

Determination

In relation to the deficiency of detail in par 4 of the statement of claim, I note that the injuries alleged to have been suffered by the plaintiff are described by reference only to their broad anatomical location.[17]
(a)There is no particularity about the nature of the injuries - including for example by reference to any diagnoses, assessments or treatment - that are said to arise from the accident.
(b)Although details of various conditions may be discernible from the plaintiff's medical records and other documents, the defendant is entitled to know which particular injuries, by reference to their nature and extent, are alleged to have arisen from the defendant's alleged negligence.
(c)That level of particularity is necessary and desirable to enable the defendant to plead because the particular injury or injuries (and any consequential damage and loss) alleged to have been caused by the defendant's negligence:
(i)go to matters in respect of which the plaintiff bears the onus of proof (causation of loss and the assessment of damages); and
(ii)identify the case to be met by the defendant. That is because, if the defendant does not know with some specificity the nature of the injury said to have been caused by the negligence, it will be unable to determine whether, for example, causation of loss is properly traversed (including by way of any positive defence) or conceded in its defence (and, related to this, what expert and other evidence it will need to meet the case against it). Records that identify what injuries or conditions a plaintiff has had (as a factual matter) will not, without more, be capable of identifying whether and the extent to which the responsibility for those matters is sought to be attributed to the alleged negligence of the defendant.
[17] See [11] above. In this regard, I observe that the pleadings are very similar to those assessed to be insufficient in their detail in Miller v Coles Group Supply Chain Pty Ltd [2021] WADC 119 (Miller): see [4], [14] - [18]. Because each case turns on its own pleadings, I do not feel bound by the assessment in that case. Nevertheless, I have formed a similar view in relation to the adequacy of the pleadings in this case, for the reasons that follow in this paragraph.
As to par 6 of the statement of claim, there is no attempt at all to identify, even in summary form,[18] the 'residual disabilities' alleged to have been suffered by the plaintiff. It is patent that that plea needs to be particularised.
[18] For the purposes of O 20 r 8(1) RSC.

It follows from the above that I consider that the particulars sought in pars 1 and 5 of the Request to be reasonable. They are neither onerous on the plaintiff, nor disproportionate to the benefit an answer is likely to produce. Further, they are properly sought before the filing of a defence because they are necessary and desirable to enable the defendant to consider and plead its defence, particularly in relation to the case it must meet on issues of causation of loss.
Similar deficiencies[19] arise from the paucity of detail in par 5 of the statement of claim relating to the plaintiff's alleged need for 'treatment' (as defined in the statement of claim).
(a)The nature of the treatment, and its connection with the alleged injuries (when properly particularised), ought to be apparent from the pleading.
(b)Bald descriptions of, for example, 'surgery' do not put the defendant in a position to consider the case it must meet regarding the causal connection with, or the extent of loss said to be consequent upon, any of the injuries alleged in par 4 of the statement of claim (and, in turn therefore, the alleged negligence of the defendant).
[19] To those identified in [29] above, in relation to the injuries alleged.
It is in my assessment necessary and desirable, to enable the defendant to plead, for the plaintiff to provide further particulars of the alleged need for treatment resulting from the injuries.
Having said that, the Request is itself in some respects objectionable in that it extends to particulars beyond those which are necessary and desirable to enable the defendant to plead.
(a)Specifically, the requests in pars 2.1 and 2.2 of the Request, to provide particulars of the 'surgical treatment undertaken by [sic] the plaintiff' prior to and after the accident, are not proper. They go beyond requests for particulars of the plaintiff's pleaded claim, and appear to be made in anticipation of a positive defence being raised on causation.
(b)It is not necessary for the plaintiff to provide particulars of a plea it has not made, or to provide particulars of an anticipatory reply to a defence that has not been filed.
(c)The requests in pars 2 to 4 of the Request are proper insofar as they are requests for particulars of the nature of any treatment said to 'result from' an injury or injuries identified in par 4 of the statement of claim.
(d)Accordingly:
(i)pars 2.1 and 2.2 of the Request are allowable only if and to the extent they can be appropriately narrowed to that enquiry; and
(ii)since the remaining subparagraphs of the Request broadly reflect the scope of that enquiry, they are allowed.

Conclusion

The application is allowed in part.
I will hear the parties as to the precise terms of the orders that should follow, and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TS
Court Officer
21 DECEMBER 2022