Dale v Dennis

[2005] WADC 49

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   DALE & ORS -v- DENNIS [2005] WADC 49

CORAM:   MAZZA DCJ

HEARD:   11 MARCH 2005

DELIVERED          :   16 MARCH 2005

FILE NO/S:   CIV 1661 of 2000

BETWEEN:   STEPHEN JOHN DALE

First Plaintiff

PAUL ZEMUNIK
Second Plaintiff

SJ DALE ENTERPRISES PTY LTD
Third Plaintiff

AND

JOHN DENNIS
Defendant

Catchwords:

Practice and procedure - Further and better particulars of Scott Schedules - Turns on own facts

Legislation:

Nil

Result:

Orders made for provision of further and better particulars of some items of Scott Schedules

Representation:

Counsel:

First Plaintiff                  :     Mr G M Abbott

Second Plaintiff             :     Mr G M Abbott

Third Plaintiff                :     Mr G M Abbott

Defendant:     Mr P E Harris

Solicitors:

First Plaintiff                  :     Askew & Co

Second Plaintiff             :     Askew & Co

Third Plaintiff                :     Askew & Co

Defendant:     Lewis Blyth & Hooper

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

Nil

Case(s) also cited:

Nil

1. MAZZA DCJ:  Before me is a summons for directions.  Most of the subject matter of that summons has been resolved by consent.  However, one issue remains, namely, the defendant's application for further and better particulars of Scott Schedules prepared by the plaintiff.

The proceedings up to date

1. In very general terms, the plaintiffs claim that they performed various works at the request of the defendant with respect to a number of high performance motor vehicles.  The plaintiffs claim that they are entitled to payment pursuant to a contract entered into between the plaintiffs and the defendant, or alternatively, on the basis of a quantum meruit.  The defendant denies that the plaintiffs are entitled to be paid any sum by him and has counterclaimed seeking damages.  The Scott Schedules prepared by the plaintiffs are, unfortunately, not paginated but run for approximately 100 pages and contain 10 schedules which describe approximately 175 separate items.

2. The defendant has sought further and better particulars of a total of 27 items.  Those items are as follows:

   (a)Schedule 1:  item No's: 7, 10.

   (b)Schedule 2:  Item No's: 2, 6.

   (c)Schedule 3:  Item No's: 2, 3, 4, 6, 7, 8, 9, 10, 22, 23, 24, 25.

   (d)Schedule 4:  Item No's: 1, 4, 12, 23, 24, 25, 26, 32.

   (e)Schedule 5:  Item No's: 20, 23, 24.

Counsel's arguments

1. The defendant's counsel, Mr Harris, submitted in essence that the particulars of the abovementioned items contained in the Scott Schedules are too vague and imprecise for the defendant to proffer any meaningful response.  The plaintiffs' counsel, Mr Abbott, submits that the particulars already provided in the Scott Schedule are sufficient.

Purpose of a Scott Schedule

1. A Scott Schedule is a pleading usually ordered in actions where a party's case is made up of a substantial number of claims.  The Scott Schedule allows the court determining the action to have conveniently before it a document which gives a full description of each claim and the contention of each party with respect to it.  A Scott Schedule is frequently used in building claims and in claims where it is contended that a series of works have been properly performed and the charges made for those works are reasonable.  A Scott Schedule has been aptly described as "a useful procedural device which achieves a considerable saving in time and money":  The Supreme Court Practice 1991, Sweet and Maxwell, at 18/12/29.  Because the aim of a Scott Schedule is for each party to put before the court particulars of their respective cases, it follows that the schedule must provide a sufficient description of the work claimed to have been done to enable the party obliged to respond to do so properly.  Where the works are not properly described, the court has a power to order further and better particulars.

2. Of course, I cannot grant particulars where to do so would be oppressive or unreasonable, or where the information sought is not in the possession of the plaintiffs or could only be obtained with great difficulty:  Odgers on High Court Pleading and Practice, Casson DB, 23^rd ed, Sweet and Maxwell, at p 194.

Resolution of the request for further and better particulars

1.Requests refused

1. I refuse the request for further and better particulars with respect to Schedule 1 Item 10 because that item refers to the same work contained in Schedule 1 Item 8 to which no exception was taken by the defendant.

2. As to Schedule 3 Item 2, it seems to me that the defendant's comments in the Scott Schedules column F do not show a need for any further particulars.

3. As to Schedule 3 Item 10, provided further and better particulars of Schedule 3 Item 8 are given in accordance with these reasons, I do not see that the plaintiff needs to provide further particulars.

4. Schedule 4 Items 24 and 25.  In my opinion, no further particularisation is required.  The defendant has objected to the lack of precision attached to the word "checking", but in my view that word is sufficiently precise.

   2.Requests allowed

5. In my opinion further and better particulars must be provided to the defendant with respect to the following items:

   Schedule 1 Item 7.  The plaintiff must particularise what is meant by "preparation of vehicles".

   Schedule 2 Item 2.  The plaintiff must particularise which mechanical parts were delivered to what machining shops and when.

   Schedule 2 Item 6.  The plaintiff must particularise which mechanical parts were collected from what machining shop and when.

   Schedule 3 Item 3.  The plaintiff must particularise: (a) which parts were removed or dismantled, and (b) which parts were delivered to what machine shops and when.

   Schedule 3 Item 4.  The plaintiff must particularise which mechanical parts, in addition to the oil system, were stripped and dismantled.

   Schedule 3 Item 6.  The plaintiff must particularise which mechanical parts were collected from what supplier.

   Schedule 3 Item 7.  The plaintiff must particularise which additional mechanical parts were collected from what supplier.

   Schedule 3 Item 8.  The plaintiff must particularise how the fluid system which was fitted to Vin 61 was different to the fluid system previously installed in the vehicle.

   Schedule 3 Item 9.  The plaintiff must particularise what building maintenance was carried out to the building used to display Vin 61 at the Perth Royal Show.

   Schedule 3 Item 22.  The plaintiff must particularise what work was done in "analysing requirements".

   Schedule 3 Item 23.  The plaintiff must particularise what work was involved in the "upgrade" and what "mechanical changes" were the subject of instructions from John Dennis.

   Schedule 3 Item 24.  The plaintiff must give particulars of what work was involved in the "completion of NASCAR upgrade".

   Schedule 3 Item 25. What work was required to finalise the vehicles in preparation of Wanneroo Race Meeting.

   Schedule 4 Item 1.  The plaintiff must particularise which parts and motors were collected from Kewdale on what days between 23 and 27 August 1999.

   Schedule 4 Item 4.  The plaintiff must provide particulars of which suppliers were visited, and which vehicle or vehicles were collected.

   Schedule 4 Item 12.  The plaintiff must particularise what work was performed on the Wanneroo test day.

   Schedule 4 Item 23.  The plaintiff must particularise approximately how much lead weight was removed from the vehicle.

   Schedule 4 Item 26.  The plaintiff must particularise what spare parts were collected from which suppliers and when.

   Schedule 4 Item 32.  The plaintiff must particularise what work John Dennis instructed the defendants to do in order to effect the "NASCAR upgrade and other motor changes".

   Schedule 5 Item 23 and 24.  The plaintiff must particularise approximately how much time was spent driving, and how much time was spent assisting on the race days referred to.

6. The only other matter that I need mention is that Schedule 5 Item 20 refers to Schedule 4 Item 37.  It seems to me that this item should in fact be referring to Schedule 4 Item 34.  I note that the plaintiff requires no particulars with respect to Schedule 4 Item 34.

Conclusion

1. I am prepared to make an order for further and better particulars of the Scott Schedules.  I will hear counsel as to the precise form of that order and as to costs.

The future of these proceedings

1. This action was commenced in this court on 27 June 2000.  The matter was entered for trial on 3 May 2001.  Since that time the matter has been the subject of frequent and protracted pre‑trial applications which have engaged the parties in much time and no doubt, great expense.  I was told from the Bar table that there have been eight or nine pre‑trial conferences.  The matter is now almost five years old.  I shudder to think of the cost and trauma which the parties have had to expend to get the matter to this stage, but worse is to come.  Both counsel estimate that the trial this matter will take approximately 15 hearing days.  I wonder whether this litigation is worthwhile.  I have been told from the Bar table that the relationship between the parties' respective instructing solicitors is not good.  I am sure that this is not helping the parties resolve this matter.  I urge the parties to consider alternative methods by resolving this dispute, perhaps by private mediation.

2. In any event, I do not wish this matter to wallow in the mire of further interlocutory disputes.  Both counsel inform me that there are no other pre‑trial issues that need to be resolved.  That being the case, I will hear from counsel as to the most expeditious way this case can be brought to trial.