Dow Corning Australia Pty Ltd v Girys
[2001] WASCA 361
•14 NOVEMBER 2001
DOW CORNING AUSTRALIA PTY LTD -v- GIRYS [2001] WASCA 361
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 361 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:150/1999 | 19 MAY 2000 | |
| Coram: | KENNEDY J WALLWORK J WHEELER J | 14/11/01 | |
| 15 | Judgment 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 : DOW CORNING AUSTRALIA PTY LTD -v- GIRYS [2001] WASCA 361 CORAM : KENNEDY J
- WALLWORK J
WHEELER J
- Appellant (Defendant)
AND
MAXINE JOAN GIRYS
Respondent (Plaintiff)
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
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant (Defendant) : Mr G I Macnish
Respondent (Plaintiff) : Mr N J Mullany
Solicitors:
Appellant (Defendant) : Cocks Macnish
Respondent (Plaintiff) : James McManus & Associates
Case(s) referred to in judgment(s):
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
Case(s) also cited:
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
(Page 3)
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
(Page 4)
1 KENNEDY J: This is an appeal by leave of the Full Court from a decision of a Commissioner of the District Court in which he dismissed an application by the appellant for an order that the respondent provide further and better particulars of her claim. The respondent has sought the revocation of the order granting leave to appeal on two grounds, namely:
(1) that leave to appeal was granted ex parte without notice to the respondent or her solicitors, and without knowledge on her part that the application for leave to appeal would be heard on the day on which leave was granted; and
(2) that the decision of the District Court was an interlocutory decision on matters of practice and procedure which should not qualify for the grant of leave to appeal.
2 By s 79(1)(b) of the District Court of Western Australia Act 1969, a party to an action who is dissatisfied with a judgment that is not a final judgment may, by leave of the Supreme Court or a Judge thereof, appeal to the Full Court of the Supreme Court. The expression "judgment" is defined in s 6 of the Act to include a judgment, order or other decision or determination of the District Court.
3 By s 79(2) of the District Court of Western Australia Act, an appeal under s 79 shall be made in the same way as an appeal from a judgment or order of the Supreme Court or a Judge thereof may be made to the Full Court, and in all respects the practice and procedure of the Full Court in the appeal shall be the same as though the appeal were an appeal to the Full Court from a judgment or order of the Supreme Court or a Judge thereof.
4 By O 64 r 4(1)(a) of the Rules of the Supreme Court, r 4 applies to an application under s 79(1) of the District Court of Western Australia Act for leave to appeal to the Full Court from a judgment or order of the District Court. By sub-r 2 of r 4, subject to the rule, an application for leave to appeal may be made ex parte; but, where the applicant thinks fit, it may be made upon notice by originating summons. An ex parte application is required to be made on motion - see the Practice Direction dated 28 June 1994. By sub-r 3, the application is required to be supported by an affidavit of the facts relied on and shall be made upon notice if the court so directs.
5 In the present case, the appellant did not think fit to make its application for leave to appeal upon notice by originating summons. And it was not required to do so. However, her solicitors, in forwarding to the
(Page 5)
- respondent's solicitors a copy of the notice of motion for leave to appeal, advised them that they would let them know the outcome of the appellant's application for leave. It was thereby made abundantly clear that the respondent intended to proceed ex parte; but this advice from the appellant's solicitor elicited no immediate response from the respondent's solicitors. Moreover, the Full Court which granted the leave sought by the appellant did not direct that the application should be made upon notice. In these circumstances, and assuming that the court has the power to make an order revoking leave to appeal, in my view, no basis has been demonstrated for revoking that leave. In order to revoke leave, it would be necessary to undertake a similar type of review of the request for further and better particulars as is necessarily to be undertaken for the resolution of this appeal. I would therefore dismiss the respondent's application as being unnecessary in proceedings which have already given rise to a multitude of interlocutory applications.
6 It is a fundamental rule that every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved. Furthermore, the statement must be as brief as the nature of the case admits - see O 20 r 8, Philipps v Philipps (1878) 4 QBD 127, per Brett LJ at 133, and North Western Salt Co Ltd v Electrolytic Alkali Co Ltd [1913] 3 KB 422, per Farwell LJ at 425. If, however, knowledge or notice is pleaded in relation to a person as a material fact, particulars may be ordered in a proper case, including particulars of the facts and circumstances from which it is alleged that a party ought to have known of a particular matter - see Smith v Littlemore (1996) 15 WAR 289 at 300 - 301 and Fox v H Wood (Harrow) Ltd [1963] 2 QB 601 at 604.
7 In Dare v Pulham (1982) 148 CLR 658, at 664, Murphy, Wilson, Brennan, Deane and Dawson JJ summarised the functions of pleadings and particulars as follows:
"Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liq) (1916) 22 CLR 490, at 517); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v Cameron (1936) 54 CLR 572 at 576-577); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a
(Page 6)
- payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at 517-518; Sri Mahant Govind Rao v Sita Ram Kesho (1898) LR 25 Ind App 195 at 207). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 111, 112, 127), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437, at 446)."
8 A number of other aspects of particulars are considered in the White Book for 1997, at 18/12/1, in which, in a passage cited with approval by Edmund Davies LJ in Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611, it was stated:
"The function of particulars is to carry into operation the overriding principle that litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to reduce costs."
9 The White Book records various statements as to their functions as follows:
"(1) to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;
(2) to prevent the other side being taken by surprise at the trial;
(3) to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;
(4) to limit the generality of the proceedings or of the claim or the evidence;
(Page 7)
- (5) to limit and define the issues to be tried and as to which discovery is required;
(6) to tie the hands of the party so that he cannot without leave go into any matters not included. But if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings. (Authorities omitted)."
10 Whilst it is important that the defendant should know for certain what are the real points in dispute and thereby be enabled properly to prepare the defendant's evidence for the trial (see Jessel MR in Thorp v Holdsworth (1876) 3 Ch D 637, at 639), there is another aspect, which is that the issue may be obscured by too much detail. Furthermore, a party who pleads with unnecessary particularity may, by doing so, fetter his hands at the trial (see James v Smith [1891] 1 Ch 384) or, indeed, may impose on himself an increased burden of proof (see West v Baxendale (1851) 9 CB 141; 137 ER 846).
11 The respondent's action in the present proceedings is against the appellant for damages for injuries which she claims to have suffered due to the formation of granulomae in her right breast, which are alleged to have been caused by the leaking of a silicone gel implant from the prosthesis into her right breast. It is claimed that the appellant ought to have known of the propensity of the silicone gel to be absorbed by the surrounding tissue, thereby eventually causing harm with pain, discomfort and damage, and that the appellant was negligent in its supplying the prosthesis. The respondent has required considerable medical treatment and, it is claimed, has endured pain, suffering and disfigurement, and continues to do so.
12 The learned Commissioner has set out in his reasons the tortuous path which these proceedings have followed. The respondent has amended her statement of claim on numerous occasions. Indeed, the appellant suggests that the statement of claim, dated 12 August 1998, is the fifteenth statement of claim since July 1994. This is, however, somewhat misleading, because the changes in fact effected by what were described as "substituted statements of claim" amounted, in reality, only to amendments. Many of those amendments have been relatively minor in nature. What has occurred in this case is that further and better particulars have been sought of allegations in the latest "substituted" statement of claim which have, for a long time, found their place in previous statements of claim.
(Page 8)
13 It is necessary now to turn to the further and better particulars being sought by the appellant in its notice dated 9 October 1998. Paragraph 1 of the request seeks particulars of par 3 of the statement of claim, which alleges that the respondent underwent a prosthetic enlargement of her breasts, involving the surgical implantation of prostheses supplied by the appellant. It seeks the particulars relied on to support the allegation that the appellant supplied the prostheses, the details of the actual prostheses implanted, and details of the method of implantation of the prostheses into the respondent.
14 Particulars of the actual prostheses implanted had previously been sought in par 1(iii) of a request for further and better particulars dated 3 August 1994, and the respondent had already informed the appellant in her further and better particulars, dated 24 August 1994, that she was unable to identify the particular type, lot or batch number of the prostheses implanted, other than that the prostheses were gel-filled and, at the material time, the respondent's surgeon was utilising the appellant's gel-filled products for the purpose of surgical implantation. A further request that the respondent should identify the prostheses by type, lot number and batch description, or by any other identifying mark, was answered by the respondent in further and better particulars dated 15 October 1996 by saying that she was not able so to identify the prostheses. Notwithstanding this, the appellant has, once again, requested the respondent to identify the prostheses by type, catalogue number, style and size, lot number and batch description, or by any other identifying mark.
15 As to the method of implantation, by her answers to interrogatories filed on 16 October 1996, the respondent had stated that the prostheses were implanted under the fold of the front of the breasts and placed submuscularly.
16 It is trite to say that particulars are given in order to make a party's case plain, whereas interrogatories are administered to assist the opponent's case. Particulars and interrogatories serve different functions and it can be wrong to compel a party to proceed by way of a request for particulars and not to interrogate - see G W Young & Co Ltd v Scottish Union & National Insurance Co (1907) 24 TLR 73, at 74. Furthermore, the point should be made that, if a request for particulars is too detailed, or if it imposes upon the party concerned a burden disproportionate to their importance to the action, the court may refuse to order their delivery - see Dougherty v Nationwide News Pty Ltd (1967) 86 WN (NSW) 181, at 185.
(Page 9)
17 In relation to the request as to the method of implantation, it appears from the appellant's chronology of substantial amendments to the respondent's statement of claim that the last substantial amendment to par 3 of the statement of claim was made on 18 May 1994. The request for the identification of the prostheses, and the method by which they were implanted, did not arise out of any new provision in par 3 of the statement of claim.
18 In my opinion, the request for the particulars relied on to support the allegation that the appellant supplied the prostheses is a request for the evidence by which the supplying of the prostheses is to be proved. In any event, the allegation that the appellant supplied the prostheses or distributed the prostheses has been in the statement of claim for a number of years. The amending of pleadings in a statement of claim does not entitle the defendant generally to reopen requests for particulars of pleadings which have not been amended. In the present case, the appellant has already interrogated the respondent in relation to the method of implantation and has sought and been given further and better particulars of the allegation that the appellant distributed the prostheses and of the details of the actual prostheses implanted. No objection appears to have been taken to the respondent's answers. In my opinion,, the learned Commissioner fell into no error in rejecting the request in par 1.
19 Paragraph 2 of the request seeks further and better particulars of par 5 of the statement of claim, which alleges that, at all material times, it was likely that, following the implantation of the prostheses, a quantity of their silicone gel would be absorbed by the surrounding tissue, thereby eventually causing harm with pain, discomfort and damage. It is noted that the last substantial amendment to par 5 of the statement of claim was made on 16 June 1997. As previously indicated, the present request for further and better particulars is dated 9 October 1998.
20 The appellant seeks (a) precise particulars of every fact, matter, circumstance and thing relied upon for the allegation that it was likely that, (i) following implantation of the prostheses, a quantity of silicon gel contained within the prostheses would be absorbed by the surrounding tissue and (ii) as a result of absorption by the surrounding tissue, harm, pain, discomfort and damage (identifying each) would be caused. The request goes on to ask whether it is alleged that silicone gel was, in fact, absorbed by the surrounding tissue or in any other, and if so which, part of the body, following the implantation of the prostheses and, if so, seeking still further particulars.
(Page 10)
21 It would seem that par 5 of the statement of claim was concerned with foreseeability. The request in subpar (a) is seeking the evidence by which material facts are to be proved, whilst subpar (b) is not properly directed to par 5 of the statement of claim. It appears from pars 9 and 10 of the amended statement of claim that the respondent's allegation is that silicone was absorbed by surrounding tissue, causing granulomae.
22 The learned Commissioner, correctly, in my opinion, held that the respondent was not required to particularise the precise mechanism by which the silicone gel had made its way out of the membrane and been absorbed by the surrounding tissue. It was sufficient for the respondent to plead what had, in fact, occurred, that plea appearing in both par 9 and par 10 of the statement of claim.
23 Paragraph 3 of the request seeks further and better particulars of par 6 of the statement of claim, the last significant amendment to which was apparently made, at the latest, on 21 October 1997. Paragraph 6 of the statement of claim pleads that the propensity of the tissue surrounding the prostheses to absorb silicone gel ought to have been known to the appellant. The appellant seeks particulars of every fact, matter, circumstance and thing relied upon for the allegation that the appellant ought to have known of the alleged propensity of the tissue surrounding the prostheses to absorb silicone gel and when it is alleged the appellant's parent company first became aware of the propensity, and the means by which the parent company became aware of the propensity (and if on more than one occasion) the identification of each occasion and the means by which it is alleged the parent company became aware of the propensity on each such occasion. The request then proceeds to inquire whether it was alleged that the prostheses were, in fact, unsafe and, if so, sought precise particulars of every fact, matter, circumstance and thing relied upon for that allegation. In addition, the appellant sought the identification of each report and clinical test pleaded. In fact, the pleading indicated that full particulars of the reports would be provided after discovery and interrogatories.
24 The respondent had already been required by an order of a District Court Judge on 15 February 1996 to provide further and better particulars of the knowledge of the appellant and of its parent company with respect to the matters now alleged in par 6 (previously in par 4) of the statement of claim. Further and better particulars were provided on 22 April 1996 and again on 16 October 1996. The learned Commissioner noted in his reasons that his Honour Judge Williams, apparently in relation to a challenge to the pleading, held that by par 6 the respondent was saying, in
(Page 11)
- effect, that if you supply the gel, you have a duty to inquire if it is safe, and it was his Honour's view that it was sufficient to allege that if you are supplying the gel you have a duty to inquire as to whether it is safe, that the parent company knew of the propensity and that if reasonable inquiries had been made they would have revealed the propensity. That ruling was not, apparently, challenged by the appellant. The learned Commissioner adopted the views expressed by Williams DCJ. It is now too late for the appellant to seek to reopen this matter. The issues in the case are sufficiently clear to allow the appellant a fair opportunity to meet the case against it.
25 Paragraph 4 of the request seeks further and better particulars of par 7 of the statement of claim which, on the appellant's chronology of substantial amendments, was last amended on 16 June 1997. Only very minor cosmetic amendments had been made to the statement of claim as it stood on 21 October 1997. Paragraph 7 of the statement of claim alleges that the appellant ought to have known that patients in whom the prostheses were implanted were likely to suffer the development of painful granulomae. The appellant sought particulars as to why a person in whom a prosthesis had been implanted was likely to suffer the development of granulomae in the surrounding tissue, the precise manner in which, and the mechanism by which, it is alleged that, as a result of the propensity, granulomae are alleged to have formed in the surrounding tissue, how the appellant's parent company knew of the likelihood of granulomae forming in the manner alleged, and why the appellant ought to have known that the granulomae would form in the manner alleged as a result of the propensity. Once again the respondent was asked to identify each report and clinical test pleaded.
26 The learned Commissioner noted that the respondent had already provided particulars on the issue of knowledge, but that counsel for the appellant had submitted that his client was entitled to know the manner in which the respondent intended to prove the allegations of propensity and to prove that the appellant ought to have known of the matters said to have been known by the appellant's parent company. The Commissioner noted that par 7 of the statement of claim was linked to pars 5 and 6, and that similar considerations applied in relation to par 7. With the exception of the deletion of the words "It is alleged that", with the consequence that par 7 pleaded directly, and not merely as an allegation, that the respondent's parent company knew of the propensity, par 7 was in the same form as it was in the "substituted statement of claim" dated 21 October 1997.
(Page 12)
27 Paragraph 5 of the request seeks further and better particulars of par 8 of the statement of claim to which, on the basis of the appellant's chronology, no substantial amendments have been made at any time. The last amendment of any nature was made on 21 October 1997. This paragraph alleges that the prostheses should not have been supplied for the purpose of surgical implantation without reasonable inquiries having been made of the appellant's parent company for the purpose of ascertaining whether the prostheses were safe, and further alleges that, had such inquiries been made, the appellant would have become aware of the matters pleaded in par 5 of the statement of claim and of the propensity of the silicone material in the prostheses being absorbed by the surrounding tissue and of the deleterious consequences thereof and that, had the appellant become so aware, it should not have supplied the prostheses for the purpose of surgical implantation.
28 The appellant seeks "precise particulars of every fact, matter, circumstance and thing relied upon for the allegation that had the appellant made the inquiries" pleaded in par 8, the appellant would have become aware of the propensity. The learned Commissioner referred back to what he had said in relation to pars 2, 3 and 4 of the appellant's request for further and better particulars and went on to express the opinion that the respondent's statement of claim was sufficient to enable the appellant adequately to plead its case and to prepare for trial. That expression of opinion by the Commissioner was justified in relation to par 8, having regard to the lapse of time since this pleading first appeared in the statement of claim.
29 Paragraph 6 of the request seeks further and better particulars of par 9 of the statement of claim. The only substantial amendments to par 9 listed by the appellant had been the introduction on 16 March 1998 of the plea that the granulomae had been caused by the absorption of silicone from the prostheses, which was undoubtedly implicit previously and the limitation of the respondent's claim regarding granulomae to those formed in her right breast and not both breasts. This amendment was made on 12 August 1998.
30 Specifically, the appellant seeks particulars in relation to the rupture of the prosthesis and answers to what is meant by the phrase "silicone granulomae", when they first developed in the respondent's right breast, why they had to be surgically removed, the mechanism through which it is alleged the granulomae were caused by absorption of silicone gel from the prosthesis, whether the respondent alleged that she had silicone granulomae in her left breast before the operation in January 1999 and, if
(Page 13)
- so, the same particulars as previously sought in relation to her right breast. There is some inconsistency in the drafting of the statement of claim in that, in some instances, there is still a reference to both breasts.
31 In his reasons, the learned Commissioner rightly observed that the rupture referred to in par 9 of the statement of claim merely explained how the granulomae came to be discovered. By an amendment to the statement of claim made on 16 March 1998, the granulomae were alleged to have been caused by the absorption of silicone from the prosthesis. There was no allegation that the rupture was caused in any way by any negligence on the part of the appellant and it was unnecessary for the respondent to provide any further and better particulars in relation to the rupture.
32 The learned Commissioner was of the view that the respondent did not need to plead when the silicone granulomae first developed and that, if the appellant wished to plead that the silicone granulomae had first developed more than six years before the writ was issued, or to plead that they did not have to be surgically removed, then it could do so in its defence. If it did so, then no doubt the timing of the development of the silicone granulomae, and if and when they changed from being latent to patent, would be the subject of evidence, including expert evidence, and submissions to the trial Judge. These and other particulars sought by the request, the Commissioner indicated, were properly to be resolved on the evidence presented at the trial and not on the pleadings, it being sufficient for the pleadings to identify adequately what the issues at the trial will be. He also indicated that the respondent need not particularise the mechanism by which the silicone gel came to be absorbed by the tissue surrounding the prosthesis, it being sufficient for the respondent to identify the nature of the defect in the prosthesis. In my opinion, the learned Commissioner was justified in the conclusion which he reached.
33 Paragraph 7 of the request seeks further and better particulars of par 10 of the statement of claim. That paragraph pleads that, subsequent to the surgical removal of the granulomae referred to in par 9 of the statement of claim, the respondent has continued to develop granulomae as a result of the earlier absorption of silicone from the prostheses and has required the further medical treatment particularised in the paragraph. The words "as a result of earlier absorption of silicone from the prostheses" were added on 16 March 1998.
34 The particulars sought under par 10 of the statement of claim cover nearly a page and a half. They go into very considerable detail, seeking
(Page 14)
- precise particulars as to when the granulomae first developed, each time at which it was alleged the respondent developed granulomae, precise particulars of every fact, matter, circumstance and thing relied upon for the allegation that the granulomae developed as a result of earlier absorption of silicone gel from the prostheses, particulars of when and in what manner and by what mechanism it is alleged the "earlier absorption of silicone from the prostheses" occurred. Other requests are made which can only be described as oppressive.
35 It is clear from the pleadings that the claim was that the granulomae were only discovered after the rupture of the prosthesis in the respondent's right breast, from which it inevitably followed that it was not known when the granulomae first developed. Paragraph 10 of the pleadings sets out details of the medical treatment undergone by the respondent following the removal of the initial granulomae. One of the requests asked is as to the meaning of the word "granulomae", a term which has been used for at least five years by both parties without experiencing any apparent difficulty. The balance of the requests for further and better particulars in par 10 relate to the evidence by which the material facts are intended to be established. That is not a matter for particulars. In my opinion, the learned Commissioner was justified in declining to order the particulars sought in respect of par 10 of the statement of claim.
36 Paragraph 8 of the request seeks further and better particulars of par 11 of the statement of claim, which relates to damages. Paragraph 11 has appeared in its present form since, at the latest, 21 October 1997. The appellant now seeks particulars as to how the various symptoms complained of by the respondent were caused by the development of granulomae, when each such symptom was first experienced and, if treated, when it was treated, whether the respondent had suffered and continues to suffer financial loss because of the granulomae and, if so, the details of it. It is noted that in par 11, the respondent has undertaken to give full particulars of the medical, pharmaceutical and travel expenses before the trial. The learned Commissioner did not consider that these particulars were necessary for the appellant adequately to plead its case and prepare for trial. The Commissioner was entitled to come to that conclusion.
37 These proceedings have had a most unfortunate history. The writ was issued in May 1993. It was indorsed with the respondent's statement of claim. Many amendments have been made over the years to the statement of claim and there have been many interlocutory applications. The appeal book has been cluttered with a great deal of unnecessary
(Page 15)
material, although the summons for an order directing the respondent to provide answers or proper objections to the appellant's requests for further and better particulars dated 9 October 1998 does not find its place in the appeal book. The so-called "substituted statement of claim" is dated 12 August 1998 and, accordingly, the application is out of time. There is nothing to indicate that any application was made for an extension of time, although the second affidavit filed on behalf of the appellant does suggest that the appellant did not file and served its request for further and better particulars until 10 October 1998 because it was not clear whether the respondent was seeking, yet again, to amend her statement of claim. Nevertheless, the position became clear when the last "substituted statement of claim" was served on 13 August 1998. The only explanation given for the appellant's serving its request outside the 30-day limit prescribed by O 20 r 13(6) is that all court documents filed and served in the proceedings are required to be approved by the solicitors in New South Wales. The learned Commissioner concluded that the respondent had delayed making its request for further and better particulars, that this delay was substantial and that there was no good cause for it. Furthermore, he held that the respondent did not need the particulars requested to enable it adequately to plead its case and prepare for trial. In my view, the learned Commissioner was justified in refusing to order that the appellant's application be dismissed.
38 I would dismiss this appeal.
39 WALLWORK J: I agree with the reasons for judgment of Kennedy J and with the order proposed by his Honour.
40 WHEELER J: I have had the advantage of reading in draft the reasons for judgment of Kennedy J. I agree that the appeal should be dismissed, for the reasons given by his Honour.
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