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 defendant pay the costs of the motion.

8 On 24 August 1999, the defendant filed a further Notice of Motion. Its seeks relief pursuant to Pt 61 r 3 of the Supreme Court Rules 1970. This provision enables a review to be had of a decision of a Registrar.

9   The decision was reviewed on 7 September 1999. For the purposes of the review the court had placed before it the material that had been tendered on the application heard by the Acting Prothonotary.

10   The authorities establish that on a review the aggrieved party should provide some proper basis (which may be inter alia something found to be wrong or lacking) for disturbing the decision under challenge (see inter alia Cockatoo Dockyard Pty Ltd v Atamian (Court of Appeal, unreported, 18 June 1996)). For purposes of additional clarity, I stress that this does not mean that some error of principle or otherwise needs to be demonstrated.

11   After conducting the review, I reached the conclusion that no proper basis had been demonstrated by the defendant for the disturbing of the decision of the Acting Prothonotary.

12   During the review, the defendant abandoned the claim for relief in relation to the execution of the authority. The only relief sought was an order that the plaintiff provide the full names and addresses of her pre-accident treating doctors for the period of five years prior to the date of the accident.

13 The defendant presents this application as a party seeking an order for further and better particulars of the plaintiff’s claim. Although there was some brief mention of Pt 26 r 1, (and it is unclear whether this matter was agitated before the Acting Prothonotary), the thrust of the case was that the defendant was entitled to an order pursuant to Pt 16 r 7.

14 The rules distinguish between pleadings (Pt 15) and particulars (Pt 16). Part 16 r 1 imposes a general obligation to give the necessary particulars of any matter pleaded. There are other rules which identify particulars which are to be given in specified instances. Rule 7 confers a discretionary power to order a party to file and serve certain particulars (of any matter stated in the party’s pleading or in any affidavit ordered to stand as a pleading (sub-rule (1)(a)) and relating to general or other damages claimed by the party (sub-rule (1) (c)). The discretion to make an order can only be exercised in those cases where what is sought as particulars falls within the ambit of sub-rules (1) (a) and (1) (c).

15   When the requirements of sub-rules (1) (a) and (1) (c) have been met, the court will look to the discretionary considerations agitated by the parties. The court is not disposed to make orders which lack utility (such as where the particulars sought are not necessary).

16 Part 33 r 8A applies to proceedings in this Division in which a claim is made for damages in respect of personal injuries. Sub-rule (2) prevents the filing of a notice to set down for trial in such proceedings unless the plaintiff has served a statement setting out certain prescribed information (including particulars) and providing certain documents. The subject matter of the present dispute does not fall within the ambit of the material contemplated by such a statement.

17   The defendant has taken an aggressive stance in relation to the matter of compliance with its request. The case was forcefully argued during the review. The bringing of an appeal was intimated.

18 It was submitted that the defendant was in substance seeking an order for particulars of the plaintiff’s claim. In my view that contention is untenable. In the course of argument, it was also said that Pt 33 particulars form part of the pleadings in a personal injury case. In my view, that contention is also untenable. For completeness, it should be stressed that what is sought in this case is not further particulars of something alleged in the Pt 33 particulars.

19   It is abundantly clear that the defendant is not in fact seeking an order for particulars of any matter pleaded in the Statement of Claim or for particulars of any claim for damages made by the plaintiff. It is in substance an application for an order that the plaintiff provide information (the names and addresses of doctors who treated her during the five years prior to the date of the accident) which it is hoped may throw up something of use in the defending of her claim. It is largely in the nature of a fishing expedition. The function of particulars is well established by authority. The defendant’s request falls well outside the scope of that function. It may be added that the request was not even limited to matters in issue (such as treatment relevant to the injuries particularised in the Statement of Claim).

20 I do not consider that the defendant has made out a case for relief under either Pt 16 r 7 or Pt 26 r 1. In my view, the review has not provided any proper basis for disturbing the decision of the Acting Prothonotary.

21   I order that the Notice of Motion filed on 24 August 1999 be dismissed. The defendant is to pay the costs of the Notice of Motion.
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Last Modified: 09/10/1999