CORVER v Rolston
[2007] WADC 173
•26 September 2007 typed from tape and edited by Trial Judge
CORVER -v- ROLSTON & ANOR [2007] WADC 173
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 173 | |
| Case No: | CIV:509/2004 | 26/09/2007 | |
| Coram: | BOWDEN DCJ | 26/09/07 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | ANITA CORVER KEITH ROLSTON BURNAN PTY LTD |
Catchwords: | Appeal from decision of Deputy Registrar Application for leave to bring appeal out of time Application to withdraw particulars filed Application for leave to file substituted further and better answers Costs |
Legislation: | Nil |
Case References: | Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281; 33 WAR 82 Dare v Pulham (1982) 148 CLR 658 The Bank of Western Australia v Stein [2005] WASCA 43 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff (Respondent)
AND
KEITH ROLSTON
First defendant (Appellant)
BURNAN PTY LTD
Second defendant (Appellant)
Catchwords:
Appeal from decision of Deputy Registrar - Application for leave to bring appeal out of time - Application to withdraw particulars filed - Application for leave to file substituted further and better answers - Costs
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Representation:
Counsel:
Plaintiff (Respondent) : Mr T Chin
First defendant (Appellant) : Ms B C Longfield-Turner
Second defendant (Appellant) : Ms B C Longfield-Turner
Solicitors:
Plaintiff (Respondent) : Lawton Gillon
First defendant (Appellant) : Cahill Billington
Second defendant (Appellant) : Cahill Billington
Case(s) referred to in judgment(s):
Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281; 33 WAR 82
Dare v Pulham (1982) 148 CLR 658
The Bank of Western Australia v Stein [2005] WASCA 43
(Page 3)
1 BOWDEN DCJ: This is an appeal against Registrar Kingsley's decision on 20 July 2007 whereby he ordered that:
1. That particulars dated 8 September 2006 (sic 8 December 2006) be withdrawn.
2. The defendant's application (in terms of pars 1 and 2 of the minute of proposed orders dated 31 May 2007) be dismissed.
3. The defendant pay the plaintiff's costs of the application
2 The appellant seeks orders on the appeal that:
(a) The defendant have leave to bring this appeal out of time
(b) The particulars dated 8 December 2006 be withdrawn
(c) The defendant have leave to file the proposed substituted first and second defendant's answers to request for further and better particulars of amended defence dated 31 May 2007
(d) The plaintiff pay the defendant's cost of the application and of this appeal.
1. Application for leave to bring this appeal out of time
The notice of appeal should have been filed by 25 July 2007. It was filed on 9 August 2007. The affidavit of Ms Longfield-Turner of 7 August 2007 indicates that the reason for this delay was that the solicitor's needed time to consider the decision, that the first defendant was away for part of the period of time, that efforts were made to obtain the consent of the plaintiff to filing the document which would have alleviated the needs to appeal Ms Longfield-Turner herself was on leave for a brief period of time.
3 The respondent has not pointed to any prejudice suffered by him. In my opinion the delay is not lengthy.
4 The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. The Bank of Western Australia v Stein [2005] WASCA 43 at par 53.
5 Bearing in mind the relatively brief extension required, and the circumstances of the case, I am satisfied that justice between the parties is best done by granting the defendants leave to bring this appeal out of time.
(Page 4)
2. The particulars of 8 December 2006
There is no appeal against the Registrar's decision in this regard, because the Registrar did in fact order those particulars be withdrawn. In light of the fact that the appellant has appealed against the order or Registrar Kingsley, it is my opinion that therefore means all matters before Registrar Kingsley on 20 July 2007 are to be re-heard.
6 In any event I do consider that the particulars should be withdrawn. The affidavit of Mr Rolston dated 13 June 2007 at par 10 states that "he accepts he made an error in respect of the contact details". The error made by Mr Rolston has been verified by his affidavit. It would be quite wrong and not in the interest of justice to allow particulars to stand when in fact the parties accepts that those particulars have been provided in error in respect of the crucial details.
7 I therefore order that the particulars dated 8 December 2006 be withdrawn.
3. Leave to file the proposed substituted first and second defendant's answers to request for further and better particulars of amended defence dated 31 May 2007
8 In this particular matter the pleadings provided do relate to matters of fact upon which the defendant relies on at trial.
9 The defendants say that they reflect the true contact details.
10 The questions of pleadings and their role in contemporary court cases was recently reviewed by his Honour the Chief Justice in Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281; 33 WAR 82. The Chief Justice said:
"It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.
In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions.
(Page 5)
- …
Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.
In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
…
In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained."
11 His Honour Chief Justice dealt specifically with the provision of particulars and stated that:
"Particulars should be provided, in an appropriate case, where they are necessary to meet the fundamental objectives to which I have referred; that is to say, the true enunciation of the issues that are to be tried and the identification of the case that has to be met. The need to provide particulars must also be assessed in the case management environment to which I have referred; that is to say, an environment in which the parties can be assured that the case will not go to trial before various orders have been made requiring the pre-trial disclosure of all the evidence that will be adduced at trial."
(Page 6)
12 The purpose of particulars is for the other party to know the case that it has to meet at trial (Dare v Pulham (1982) 148 CLR 658 at 664). The proposed particulars will in fact inform the plaintiff of the case that has to meet at trial. The defendant will be held to those particulars at trial.
13 I accept that the information provided is scant. The defendants' answer to the request is in part that "approximately 12 other contacts, the details which the defendants cannot now recall". The defendants plead that they now cannot recall those other contacts notwithstanding that have specifically pleaded (par 20(a) of the amended further amended defence that the plaintiff "did not at any material times contact any of the persons or entities referred to her by the second defendant".
14 This may well be relevant to questions of credibility of the defendant at the trial. However, the defendant's answers to the request made is that he cannot "now recall" the details of those 12 other contacts. Irrespective of his answer being scant that is the answer he chooses to make to the request. The plaintiff may be frustrated by the defendant's lack of recall that however is a matter which may affect credibility at the trial. Notwithstanding that the defendants' answer to the request is that there is "approximately 12 other contacts, the details which the defendant cannot now recall". That is the answer that the defendant chooses to make and the defendant should have leave to file those answers.
15 I do therefore grant leave to the defendant to file the proposed constituted first and second defendants' answers to request the further and better particulars of the amended defence dated 31 May 2007.
Costs
16 The order for costs that I would make is that the defendant pay the plaintiff's costs of the original application on the basis that the original application was necessary because the defendants wish to withdraw their particulars and it is therefore appropriate that the defendants do pay the plaintiff's costs. As far as the costs of this appeal is concerned, I think it that justice is best served by an order that the cost be in the cause.
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