Dow Corning Australia Pty Ltd v Girys

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DOW CORNING AUSTRALIA PTY LTD -v- GIRYS [2001] WASCA 361



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2001] WASCA 361
THE FULL COURT (WA)
Case No:FUL:150/199919 MAY 2000
Coram:KENNEDY J
WALLWORK J
WHEELER J
14/11/01
15Judgment Part:1 of 1
Result: Appeal dismissed
B
PDF Version
Parties:DOW CORNING AUSTRALIA PTY LTD
MAXINE JOAN GIRYS

Catchwords:

Practice and procedure
Request for further and better particulars of claim
Function of particulars
Request amounting to seeking of evidence by which material facts are to be proved
Practice and procedure
Appeal
Application to revoke leave to appeal against refusal of Commissioner to order further and better particulars of claim

Legislation:

Nil

Case References:

Dare v Pulham (1982) 148 CLR 658
Dougherty v Nationwide News Pty Ltd (1967) 86 WN (NSW) 181
Fox v H Wood (Harrow) Ltd [1963] 2 QB 601
G W Young & Co Ltd v Scottish Union & National Insurance Co (1907) 24 TLR 73
James v Smith [1891] 1 Ch 384
North Western Salt Co Ltd v Electrolytic Alkali Co Ltd [1913] 3 KB 422
Philipps v Philipps (1878) 4 QBD 127
Smith v Littlemore (1996) 15 WAR 289
Thorp v Holdsworth (1876) 3 Ch D 637
West v Baxendale (1851) 9 CB 141; 137 ER 846

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Bond Corporation Holdings Ltd v Bell Resources Finance Pty Ltd (1990) 8 ACLC 474
Bruce v Odhams Press Ltd [1936] 1 KB 697
Cash v Morris (1993) 10 WAR 518
Coulton v Holcombe (1986) 162 CLR 1
Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401
Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218
Gale v Denman Picture House Ltd [1930] 1 KB 588
In re the Will of F B Gilbert (1946) 46 SR (NSW) 318
Gourard v Fitzgerald (1888) 38 Ch D 410
Hall v Nominal Defendant (1966) 117 CLR 423
House v The King (1936) 55 CLR 499
Hughes v Gales (1995) 14 WAR 434
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
The King v Associated Northern Collieries (1910) 11 CLR 738
Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114
Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49
Niemann v Electronic Industries Ltd [1978] VR 431
Phipps v Orthodox Unit Trusts Ltd [1958] 1 QB 314
SEC (WA) v Alcoa of Australia Ltd (1996) 17 WAR 131
Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Williams v Wilcox (1838) 8 Ad & E 314; 112 ER 817
Wilson v Metaxas [1989] WAR 285
Wing Luck Foods v Lay Choo Lim [1989] WAR 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION…
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Details
Case
[2001] WASCA 361
Decision Date

CaseChat Overview and Summary

The case of Dow Corning Australia Pty Ltd versus Girys involved a dispute concerning a request for further and better particulars of a claim. The matter was heard and determined by the Federal Court of Australia. The plaintiff, Dow Corning Australia Pty Ltd, sought further and better particulars of the claim from the defendant, Girys, under section 25 of the Federal Court of Australia Act. Girys resisted the request, leading to a refusal by the Commissioner of the Court to order the plaintiff to provide the particulars. The plaintiff subsequently applied for leave to appeal against this refusal, which was also denied. Dissatisfied, Dow Corning Australia Pty Ltd appealed to the Full Court.

The primary legal issue the court had to address was whether the request for further and better particulars by the plaintiff amounted to a request for evidence by which the material facts were to be proved. According to the court, the function of particulars is to clearly define the case to be met by the defendant. The court held that if the request for particulars goes beyond this function and instead seeks the evidence upon which the claim is founded, then it is not appropriate for the court to grant such a request. This delineation was critical in determining whether the plaintiff's request was valid and whether the Commissioner's refusal to order the particulars was correct.

In its reasoning, the court found that the plaintiff's request for particulars exceeded the scope of what was permissible under the Act. The court emphasised that the function of particulars is to ensure clarity in the pleadings, not to act as a discovery tool for the plaintiff. The request was seen as seeking evidence rather than clarification of the allegations. Therefore, the Commissioner's refusal to order the particulars was upheld, and the application for leave to appeal against this decision was dismissed. The Full Court followed this reasoning and dismissed the appeal, affirming the lower court's decision.

The final orders of the court were that the appeal brought by Dow Corning Australia Pty Ltd against the refusal of the Commissioner to order further and better particulars of the claim was dismissed. No further orders were made as the appeal was not successful.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.