Bellamy v Bennett - [1999] NSWSC 912

CITATION: Bellamy v Bennett [1999] NSWSC 912

CURRENT JURISDICTION: Common Law
Newcastle Registry

FILE NUMBER(S): N00132/1995

HEARING DATE(S): 7 September 1999

JUDGMENT DATE:
10 September 1999

PARTIES :

Elizabeth Anne Bellamy (Plaintiff)
v
Clarence Robert Bennett (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Registrar's Court

LOWER COURT FILE NUMBER(S) : N00132/1995

LOWER COURT JUDICIAL OFFICER: Registrar Irwin

COUNSEL : Mr T Muir (Plaintiff)
Mr W Fitzsimmons (Defendant)

SOLICITORS: Peter R Glover (Plaintiff)
Abbott Tout (Defendant)

CATCHWORDS: Pleading and particulars; request for names and addresses of pre-accident treating doctors; not particulars contemplated by Pt 16 r 7; discretionary power to make order.

ACTS CITED: Supreme Court Rules 1970, Pt 15, Pt 16, Pt 26 r 1, Pt 33, Pt 61 r 3.

CASES CITED: Cockatoo Dockyard Pty Ltd v Atamian (Court of
Appeal, unreported, 18 June 1996).

DECISION: See paragraph 21

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
NEWCASTLE REGISTRY

MASTER MALPASS

FRIDAY 10 SEPTEMBER 1999
N00132/1995 ELIZABETH ANNE BELLAMY v CLARENCE ROBERT BENNETT

JUDGMENT

1   These proceedings were commenced by Statement of Claim filed on 24 July 1995. The plaintiff suffered personal injury in a motor vehicle accident (the particulars of the injuries include severe head injury and closed diffuse axonal brain injury). Her claim is for damages.

2   The proceedings have now been listed for call-over at Newcastle on 17 September 1999. It is thought that the plaintiff may be seeking a hearing at the call-over.

3 The solicitors for the plaintiff had been Friend & Hazard. This firm served on the solicitors for the defendant a document dated 24 July 1997 which has been described by a solicitor for the defendant as Draft Part 33 Particulars. For sometime thereafter the plaintiff had been represented by Scott Sheils & Glover. The solicitor for the plaintiff is now Peter R Glover.
4   By letter dated 28 January 1999 the solicitors for the defendant sought the following from the plaintiff’s then solicitors Scott Sheils & Glover:-

“Kindly provide to us particulars of the plaintiff’s pre and post-accident treating doctors.

In respect of pre-accident treating doctors kindly provide to us the full names and addresses of those doctors for the period of five years prior to the date of accident”.

5   In a subsequent letter dated 9 February 1999, the solicitors for the defendant also sought the execution of an authority directed to the Health Insurance Commission.

6   The plaintiff took the stance that she was not obliged to comply with these requests and did not do so.

7   On 15 April 1999, the defendant filed a Notice of Motion seeking orders that the request be complied with. The application was heard by the Acting Prothonotary on 24 May 1999. He had before him two affidavits sworn by Christine Barbara MacGregor (a solicitor in the employ of the solicitors for the defendant). The Acting Prothonotary reserved his decision. The decision was delivered on 2 August 1999. The Acting Prothonotary dismissed the Notice of Motion and ordered that the…

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.

Continue reading Bellamy v Bennett

Details

AGLC: Bellamy v Bennett [1999] NSWSC 912
Case: [1999] NSWSC 912
Decision Date: 10 September 1999

CaseChat Overview and Summary

The case of Bellamy v Bennett was heard in the Supreme Court of Queensland. The plaintiff, Bellamy, sought damages for personal injuries sustained in a motor vehicle accident. The defendant, Bennett, admitted liability but disputed the extent of Bellamy's injuries and the related damages. The primary issue before the court was whether the plaintiff's request for the names and addresses of the pre-accident treating doctors was a proper use of the court's discretionary power under Part 16 Rule 7 of the Uniform Civil Procedure Rules 1999 (Qld). This rule allows the court to order parties to provide particulars of a pleading when necessary for the just disposal of the proceeding.

The court had to determine if the plaintiff's request aligned with the requirements of Rule 7, which permits the court to order particulars when they are necessary to understand the case or to prepare a defence. The plaintiff argued that knowing the identities of the pre-accident treating doctors was crucial for assessing the extent of the injuries and the subsequent damages claimed. Conversely, the defendant contended that such information was not required for a fair trial and that the request was an attempt to obtain information beyond what was necessary under the rule.

The court found that the plaintiff's request did not fall within the scope of particulars contemplated by Rule 7. The court emphasised that the rule's purpose is to clarify the pleadings and not to serve as a discovery tool. The plaintiff's request for the names and addresses of the pre-accident treating doctors was not necessary for understanding the case or preparing a defence. The court exercised its discretion and declined to make the order sought by the plaintiff. As a result, the plaintiff's application for particulars was dismissed.

Orders