Elliott v Elmwood Holdings Pty Ltd t/as McBOATS - [1999] WADC 42

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ELLIOTT -v- ELMWOOD HOLDINGS PTY LTD t/as McBOATS [1999] WADC 42

CORAM: COMMISSIONER REYNOLDS

HEARD: 18 JUNE 1999

DELIVERED : 20 AUGUST 1999

FILE NO/S: CIV 305 of 96

BETWEEN: MICHELLE ELLIOTT
Plaintiff
AND
ELMWOOD HOLDINGS PTY LTD t/as McBOATS
Defendant

Catchwords:

Practice - Western Australia - Further and better particulars - Order 20 r13(6) Rules of the Supreme Court1971.

Legislation:

Marine and Harbours Act 1981

Result:

Plaintiff successful on her application. Defendant granted leave on conditions.

Representation:

Counsel:

Plaintiff: Mr E M Heenan QC and Mr J C R McManus
Defendant: Mr M J Feutrill

Solicitors:

Plaintiff: James McManus & Associates
Defendant: Cocks Macnish

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

Thorpe v Holdsworth (1876) 3 Ch D 637

Case(s) also cited:

Nil

COMMISSIONER REYNOLDS:

Introduction

Before me for determination are two applications by way of chamber summons, one by the plaintiff made on 2 March 1999 seeking further answers by the defendant to particular requests by her for further and better particulars of the defendant's amended defence ("the plaintiff's application") and the other made by the defendant on 10 March 1999 seeking an extension of time within which it may request further and better particulars of the plaintiff's substituted statement of claim and if an extension is granted then further and better particulars of the substituted statement of claim pursuant to its request dated 10 March 1999 ("the defendant's application").

Background

The plaintiff is the widow of the late Mr Gavin Wayne Elliott ("the deceased") and she claims damages in respect of his death. The deceased was allegedly in the employment of the defendant as skipper of the fishing vessel "Lady Pamela" which was owned by the defendant. He died on 25 February 1995 when the vessel capsized in a cyclone off Onslow. The plaintiff's action against the defendant alleges negligence and breach of duty.
It seems that the Lady Pamela was a fishing boat used for fishing off the north west coast of Western Australia. While at sea in February 1995 a warning or warnings were published of a cyclone. The cyclone came to be known as cyclone "Bobby" and it eventually crossed the north west coast and passed over Onslow. There is a port at Onslow known as Beadon Creek. Beadon Creek provided a safe haven for fishing vessels particularly in cyclonic conditions. On this occasion in February 1995 a number of fishing vessels had sought refuge in Beadon Creek from the cyclone before it actually passed over Onslow.
Although it is not admitted on the pleadings it may be the case that as a result of the approach of the cyclone the deceased who was captaining the Lady Pamela out at sea proceeded to Onslow and arrived there on the afternoon of 23 February 1995. It is pleaded that the deceased came to believe that he could not enter Beadon Creek because of warp lines across the creek and also because he was not able to obtain a mooring for the Lady Pamela in the creek, ie inside the port. This is denied by the defendant. The amended defence provides that a person informed the deceased that it was unlikely that the Lady Pamela could navigate up the creek beyond a vessel named "Harrietta" because of warp wires, ropes and chains that had been placed across the creek by other vessels which had tied up in the shelter of Beadon Creek.
Warping off is the phrase used when vessels are secured by ropes or chains from both sides of a comparatively narrow waterway to prevent them from being washed ashore under a storm. A rope from the vessel would be secured on one of the shore sides of the waterway and then the vessel would make its way to the other shore side and a second rope from the vessel would be secured at a point on that side. The desired position of the boat on the waterway relative to the two sides of the waterway would then be achieved by adjusting the length of the ropes. When the ropes were made tight they would prevent other vessels from passing beyond the position of the vessel warped off. Therefore before the onset of severe weather conditions the ropes although secured on both shore sides may be left slack and perhaps rest on the creek bed to enable other vessels to pass and go further up the creek to shelter from the storm.
Two other interrelated factors which affect a vessel's capacity to travel up a creek are the draft of the vessel and the depth of the water. Therefore in tidal areas high tide would be the most ideal and perhaps only time when a vessel could travel up a creek. It seems that Beadon Creek was in a tidal area.
It seems from my reading of the pleadings that the deceased's belief that he could not take the Lady Pamela into Beadon Creek may have been wrong. There is issue between the parties on when he could have done so and how far up the creek he could have navigated the Lady Pamela having regard to its draft, the level of the tide and warp lines. There is also issue between the parties on the substance of communications between the deceased and the defendant before the cyclone arrived at Onslow. The Lady Pamela was not taken into Beadon Creek and it was still at sea when the full force of the cyclone arrived at Onslow. There is also issue between the parties on the actual position of the Lady Pamela at that time. The plaintiff has pleaded that the Lady Pamela was moored in open sea approximately five nautical miles off the coast of Onslow and the defendant has pleaded that it was anchored within 500 metres of the mouth of Beadon Creek.
The defendant admits that the deceased drowned but denies that it was the result of the Lady Pamela capsizing during the early hours of 25 February 1995 in severe weather caused by the cyclone.
When the plaintiff first made her claim for damages she named the Minister for Transport for the State of Western Australia as the second defendant and the Shire of Ashburton as the third defendant. In certain interlocutory proceedings and by reference to the plaintiff's statement of claim as it was then pleaded the plaintiff was found to have no cause of action against the second defendant and the third defendant and eventually her claims against them were dismissed. The plaintiff appealed against the order dismissing her claims against the second defendant and the third defendant and as I understand it the appeal has been argued and the decision reserved.
The pleadings to which these two applications for further and better particulars relate are the plaintiff's substituted statement of claim dated 29 June 1998 ("the statement of claim") and the defendant's amended defence dated 15 February 1999 (“the defence”).

Further and better particulars of defence sought by the plaintiff

Questions 1 (a) and (b)

The plaintiff has pleaded in paragraph 3(c) of the statement of claim that the deceased had no maritime experience involving cyclones. In para 3(d) she has pleaded that the deceased had no maritime experience, prior to 1 February 1995, off the Western Australian coast. The defendant has pleaded in para 3 of its defence that it does not admit that the deceased had no maritime experience involving cyclones and it denies that the deceased had no maritime experience, prior to 1 February 1995, off the Western Australian coast.
In questions 1(a) and 1(b) the plaintiff sought particulars of the maritime experience which the defendant alleges the deceased had involving cyclones and also the maritime experience it alleges the deceased had prior to 1 February 1995, off the Western Australian coast. The defendant has objected to providing the particulars sought on the basis that it is not a proper request for particulars.
In both instances the plaintiff's pleading is in the negative ie no maritime experience. The defendant has traversed the plaintiff's pleading, in the first instance by a non-admission and in the second instance by a denial. In my opinion the non-admission in para 3(d) of the defence of para 3(c) of the statement of claim is not "pregnant" with an affirmative allegation that the deceased did have previous maritime experience involving cyclones. The non-admission simply puts the plaintiff to proof of the contention that the deceased had no maritime experience in cyclones. There is of course a practical consequence of the defence on this point being expressed in terms of a mere non admission and that is that at trial it would not be entitled thereby to call evidence of fact contrary to the plaintiff's contention. I am of the opinion that the defendant does not have to provide any further and better particulars in relation to para 3(d) of its defence.
Clearly the defendant's denial of para 3(d) is more emphatic than its non-admission of para 3 (c) of the statement of claim. I read this traverse by the defendant to be more than a mere denial. I read into it an affirmative allegation that the deceased did have maritime experience prior to 1 February 1995 off the Western Australian coast. I am therefore of the opinion that the defendant should provide all of the material particulars it intends to rely on to support its denial in para 3(e) of its defence of para 3(d) of the statement of claim.
Paragraph 2 of the plaintiff's request for further and better particulars relates to para 9 of the statement of claim and para 5 of the defence. Paragraph 9 of the statement of claim pleads that the deceased believed (and by reference to para 11 of the statement of claim, mistakenly so) that he could not get the Lady Pamela into Beadon Creek. Particulars of how the deceased came to have this belief are set out in para 9. Such particulars provide that the deceased was informed by the skipper of another vessel that Beadon Creek had been "warped off" and that the skipper of the vessel "Harrietta" had refused permission for the Lady Pamela to moor alongside her. It is further provided that the deceased had overheard numerous radio communications between other vessels the substance of which was that Beadon Creek had been secured with warp lines across it.
Paragraph 5 of the defence contains a denial of the allegations pleaded in para 9 of the statement of claim. Paragraph 5 contains the further plea that the deceased was informed by one Francis Alymore ("Alymore") that:
(a)the master of Harrietta did not want the Lady Pamela to tie up alongside her;
(b)the deceased could insist, because the Lady Pamela was a vessel in distress, that the master of the Harrietta allow the Lady Pamela to tie up alongside it; and
(c)it was unlikely that the Lady Pamela could navigate up the creek beyond the Harrietta because of warp wires, ropes and chains that had been placed across the creek by other vessels which had tied up in the shelter of Beadon Creek.
The defendant set out particulars that Alymore informed the deceased of all of these things during a conversation by way of HF Radio on or about 24 February 1995.
In paragraph 2(c) of the plaintiff's request for further and better particulars she requests the defendant to state whether the details of the alleged HF Radio conversation between the deceased and Alymore were known to the defendant or any officer or agent of the defendant in February 1995 and, if so, when and where the defendant or any of its officers or agents first became so aware of that conversation. The defendant objects to answering this request on the basis that it is not a proper request for particulars as it seeks to elicit matters of evidence and in any event is not relevant to any matter in issue between the parties.
In my opinion the particulars sought are relevant to matters in issue. If the defendant is found to have been the deceased's employer and to have owed him a duty to provide a safe system of work then it would be relevant to know whether the defendant knew of such conversation and the substance of it. It would then be necessary to consider what positive action, if any, the defendant should have undertaken as a consequence of it being aware of such conversation and its substance. For example and without wishing to be exhaustive, (1) should the defendant have made or attempted to have made an inquiry of the master of the Harrietta to establish its true position and the master's intentions on another boat being tied up alongside the Harrietta; (2) should the defendant have made or attempted to have made an enquiry about the number of vessels in Beadon Creek and where they were located in the creek and also what warp lines were across the creek and if any then whether or not they were tight or slack; and (3) should the defendant have given any instructions to the deceased in light of the substance of such conversation and if so what instructions should it have given.
For these reasons I am of the opinion that the defendant should answer para 2(c) of the plaintiff's request for further and better particulars.
Paragraph 3 of the plaintiff's request for further and better particulars relates to para 10 of the statement of claim and para 6 of the defence. Paragraph 10 provides that on 24 February 1995 the deceased informed the defendant,
(a)of the approach of the cyclone,
(b)that he was unable to obtain access to Beadon Creek because its entrance was "warped off",
(c)that he would attempt to obtain access later that day, and
(d)that he proposed to moor the Lady Pamela in open sea.
Particulars have been given that the deceased so informed Robert McGowan of the defendant orally, that the conversation took place by radio at about 8.30 am and that the material substance of the conversation was as described. This pleading goes to the defendant's knowledge as at 8.30am on 24 February 1995. All of these allegations are denied by the defendant in para 6 of its defence.
In para 6 of the defence the defendant says further that:
(a)at or about 2000 hours on Wednesday 22 February 1995 the deceased informed the defendant that a tropical low had formed off the north west coast and that he was monitoring all weather information in case it formed into a cyclone,
(b)that at or about 0900hrs on Thursday 23 February 1995 the deceased informed the defendant that the tropical low had formed into a cyclone and that he was going to anchor the Lady Pamela behind North Sandy Island and monitor weather information to ascertain in which direction the cyclone was heading. The deceased informed the defendant that upon ascertaining the direction of the cyclone he would make a decision as to the safe anchorage to which he would take the Lady Pamela to avoid the cyclone,
(c)prior to 23 February 1995 the defendant had informed the deceased that an appropriate safe anchorage in the event of a cyclone was Beadon Creek.
Under the heading of "particulars" in para 6 of the defence the defendant has pleaded that Robert McGowan, acting on behalf of the defendant, had conversations by way of HF Radio with the deceased at or about 2000hrs on Wednesday 22 February 1995, 0900hrs Thursday 23 February 1995, 1945hrs Thursday 23 February 1995, 0830hrs Friday 24 February 1995 and 1100hrs Friday 24 February 1995.
Paragraph 3(a) of the plaintiff's request for further and better particulars of the allegations contained in para 6 of the defence requests the defendant to state where Robert McGowan was located at the time of the various HF Radio conversations with the deceased. The defendant has objected to answering this request on the basis that it is not a proper request for particulars as it seeks to elicit matters of evidence and in any event is not relevant to any matter in issue between the parties.
In my opinion Robert McGowan's location at the time of each of his various conversations with the deceased by way of HF Radio is a relevant matter. His proximity to Onslow or otherwise may well impact on the extent and reliability of his knowledge of the weather conditions from time to time, his capacity to give instructions to the deceased and his capacity to devise a safe system of work and/or act or cause another person to act in a way consistent with the aim of achieving a safe system of work. I am therefore of the opinion that the defendant should answer the plaintiff's request in para 3(a) of her request for further and better particulars.
Paragraph 3(b) of the plaintiff's request for further and better particulars requests the defendant to state when it informed the deceased prior to 23 February 1995, as alleged, that an appropriate safe anchorage in the event of a cyclone was Beadon Creek and who, on behalf of the defendant, so informed the deceased. The defendant's response to this request is that adequate particulars have been in pleaded in para 6 of its defence.
The actual date, and the time of day if it is known, on which the information was actually given is relevant because it would likely provide some indication on whether the information was given as a general instruction prior to the formation of Cyclone Bobby or as a specific instruction because of Cyclone Bobby. I am therefore of the opinion that the defendant should answer as best it can the plaintiff's request in para 3(b) of her request for further and better particulars.
The defendant has pleaded in para 6(g) of its defence that at or about 1100hrs on Friday 24 February 1995 it instructed the deceased to take the Lady Pamela into Beadon Creek on the next high tide, which was at 1643hrs on 24 February 1995, and that the deceased was to notify it once he had done so. Paragraph 3(c) of the plaintiff's request for further and better particulars requests the defendant to state what, if any, attempts were made by the defendant to communicate with the deceased after 1500hrs on Friday 24 February 1995 as alleged in subpara 6(g) of the defence. The defendant's response to this request is that the best particulars to which the plaintiff is entitled is that a witness will say at trial that the defendant attempted to communicate with the deceased after 1500hrs on Friday 24 February 1995 but was unable to do so because of interference with radio transmissions due to weather conditions associated with the cyclone.
Senior counsel has indicated that the plaintiff would accept this response if it was not qualified with the words "that a witness will say at trial". Whether or not the defendant is entitled to make a qualification of this sort is simply answered by referring to the main object of pleadings and admissions and denials. It is to bring the parties by their pleadings to an issue and to narrow them down to definite issues to diminish expense and delay, especially as regards the amount of testimony required on each side at the hearing. See Thorpe v Holdsworth (1876) 3 Ch D 637 per Jessel M.R. An answer qualified with the words "that a witness will say at trial" is no pledge at all by the defendant of the fact. By qualifying its response in this way the defendant has not answered the plaintiff's request in para 3(c) of her request for further and better particulars. The defendant should provide an answer to the plaintiff's request which is not qualified in this way.
Paragraph 4 of the plaintiff's request for further and better particulars relates to para 11 of statement of claim and para 7 of the defence. Paragraph 11 of the statement of claim sets out that the belief by the deceased that he was unable to enter Beadon Creek was incorrect in that:
(a)such warp lines as were across Beadon Creek were left slack until midday 24 February 1995;
(b)the warp lines would not have obstructed access to the creek prior to midday 24 February 1995;
(c)access to Beadon Creek would not have been denied to any vessel; and
(d)there were a number of moorings in Beadon Creek which the deceased may have used other than alongside the Harrietta.

The defendant denies these allegations in para 7 of its defence and says that:
(a)because of the draft of the Lady Pamela it was only possible for it to enter Beadon Creek at high tide,
(b)the Lady Pamela was unable to enter Beadon Creek at high tide at 0435hrs on Friday 24 February 1995 because there were warp lines across the creek making it impossible for it to navigate up the creek to a safe anchorage and at 0435hrs it was not possible for the deceased to arrange for the other vessels to lower their warp lines;
(c)the deceased could have navigated the Lady Pamela up Beadon Creek as far as the Harrietta at high tide at 1643hrs on Friday 24 February 1995, however at that time it would not have been possible for him to navigate up Beadon Creek beyond the Harrietta because of warp lines which had been placed across the creek.
Paragraph 4(b) of the plaintiff's request for further and better particulars requests the defendant to state the depth and breadth of the navigable channel in Beadon Creek:
(a)at high tide; and
(b)at low tide, on 24 February 1995.
The defendant has responded to this request by stating that the best particulars to which the plaintiff is entitled is that a witness who was familiar with the Lady Pamela and Beadon Creek will say at trial that the Lady Pamela was only able to navigate Beadon Creek at high tide.
The plaintiff complains about this response because of the use of the words "a witness will say at trial". The plaintiff seeks particulars of facts and not of evidence. For the purpose of determining this point I repeat the general comments I made when I dealt with the use of the words "a witness will say at trial" in para 3(c) of the plaintiff's request for further and better particulars. The defendant should provide an answer to para 4(b) of the plaintiff's request for further and better particulars which is not qualified in this way.
Paragraph 4(c) of the plaintiff's request for further and better particulars requests the defendant to state the location of the warp lines across the creek on the morning of 24 February 1995 as alleged in subpara 7(b) of the defence. The defendant's response to this request is that the best particulars to which the plaintiff is entitled is that a witness will say at trial that warp lines had been placed across Beadon Creek and they were used to secure several vessels on the moorings in Beadon Creek. I repeat my previous comments in relation to paras 3(c) and 4(b) of the plaintiff's request for further and better particulars. The defendant should answer the request in para 4(c) without qualifying it with the words "that a witness will say at trial".
Paragraph 4(d) of the plaintiff's request for further and better particulars requests the defendant to state whether any person, and if so whom, on behalf of the defendant was aware of the existence of the warp lines in Beadon Creek on the morning of 24 February 1995 as alleged in subpara 7(b) of the defence and what, if any, information about the existence of such warp lines the defendant conveyed to the deceased and when and how the information was conveyed. The defendant objects to answering this request on the basis that it is not a proper request for particulars as it seeks to elicit matters of evidence.
In my opinion it is relevant to the matters in issue between the parties and the plaintiff is entitled to know whether or not on the morning of 24 February 1995 the defendant knew of the existence of warp lines across Beadon Creek and if so, whether or not it told the deceased about them. I am therefore of the opinion that the defendant should answer the plaintiff's request in para 4(d) of her request for further and better particulars.
Paragraph 5 of the plaintiff's request for further and better particulars relates to the paragraph of the statement of claim secondly numbered 14 and para 11 of the defence. In the paragraph of the statement of claim secondly numbered 14 the plaintiff has pleaded that the defendant failed to provide the deceased with any instructions or advise as to how he should proceed after the communication as alleged in para 10 of the statement of claim to which I have previously referred. The defendant has denied this allegation in para 11 of its defence and says further that it had in place a system for identifying, monitoring, tracking and avoiding cyclones, namely, that it gave the deceased expressed instructions:
(a)on how to identify, monitor and track the movement of a cyclone;
(b)that once a cyclone and its track had been identified he was to take the vessel to safe anchorage, namely, Beadon Creek, Great Sandy Island or Dampier depending upon the position of the vessel at the time the cyclone and its track was identified and to ensure that he was at the safe anchorage at least 24 hours prior to the onset of cyclonic winds.
The defendant has particularised that such instructions were given to the deceased by Robert McGowan, Peter McGowan and Malcolm McGowan on behalf of the defendant during a meeting in or about January 1995. Further instructions were given to the deceased by Robert McGowan on behalf of the defendant, while at sea in or about January 1995.
Paragraph 5(a) of the plaintiff's request for further and better particulars requests the defendant to state precisely or otherwise identify all instructions alleged to have been given to the deceased by Robert McGowan, Peter McGowan and Malcolm McGowan at the meeting alleged in January 1995. Paragraph 5(b) requests the defendant to state precisely or otherwise identify all the instructions alleged to have been given to the deceased by Robert McGowan while at sea as alleged in or about January 1995. The defendant has responded to both of these requests by stating that adequate particulars have been pleaded in para 11 of its defence.
In my opinion the use of the word "adequate" in the responses by the defendant leaves it open to think that the particulars in para 11 of the defence do not amount to the sum total of all of the particulars in relation to such instructions. It is not appropriate to respond to a request by stating that adequate particulars have been given. Whether something is adequate or not is a matter of judgment. These requests by the plaintiff do not call on the defendant to make a judgment on adequacy. They call on the defendant to provide all ie every one of the instructions. If all of the instructions have been provided in para 11 and /or elsewhere in the defence then so be it but the responses to the requests must make it clear that such is the case. The position is not clear with the use of the word "adequate" in both responses. I am therefore of the opinion that the defendant has not yet answered the requests by the plaintiff in paras 5(a) and 5(b) of her request for further and better particulars and that it should do so.
The defendant has pleaded in para 11(d) of its defence that at the time of the deceased's last communication with it, it appeared that the cyclone would not pass directly over Onslow and consequently the Lady Pamela would be safe if it was anchored within 500 metres off the mouth of Beadon Creek. In para 5(e) of the plaintiff's request for further and better particulars she has requested the defendant to state the time of the deceased's last communication with the defendant as so alleged by the defendant. The defendant's response to this request is that adequate particulars have been pleaded in para 6(f) of the defence. Paragraph 6(f) of the defence states that at or about 0830hrs on Friday 24 February 1995 it appeared that the cyclone would cross the coast near Mardi and the deceased informed the defendant that in the circumstances it would be safe for him to anchor the Lady Pamela for the time being approximately 500 metres from the mouth of Beadon Creek.
It may be that the deceased's last communication with the defendant was at about 0830hrs on Friday 24 February 1995 and that the reference in para 11(d) of the defence of the deceased's last communication with the defendant is a reference to the communication at about 0830hrs on Friday 24 February 1995. Although this may be so it is not entirely clear from the defence that such is the case. While the position remains unclear the plaintiff is entitled to an answer to her request in para 5(e) of her request for further and better particulars.
Paragraph 5(f) of the plaintiff's request for further and better particulars requests the defendant to state what attempts were made by it to communicate with the deceased once it became apparent that the cyclone would pass directly over Onslow as alleged in subpara 11(e) of the defence. The defendant responded to this request by stating that the best particulars which the plaintiff is entitled is that a witness will say at trial that the defendant attempted to communicate with the deceased once it became apparent to it that the cyclone would pass directly over Onslow but that it was unable to contact the deceased as radio transmission was impossible due to weather conditions associated with the cyclone.
In relation to this request and response I simply repeat my previous comments on the use of the words "a witness will say at trial". The defendant should answer the request in para 5(f) of the plaintiff's request for further and better particulars without qualifying it with these words.
In para (c) of the second paragraph numbered 14 in the statement of claim it is pleaded that the defendant failed to communicate with any representative of either the harbour master of the Port of Onslow or the Shire of Ashburton as delegate of the Minister of Transport with a view to arranging a safe mooring for the Lady Pamela. This is denied by the defendant in para 11 of its defence in which it further states that the Port of Onslow did not at the material time have a harbour master and it was not possible for the defendant to have arranged with the Port of Onslow, the Shire of Ashburton or the Minister of Transport for the Lady Pamela to have been moored in Beadon Creek.
Paragraph 5(g) of the plaintiff's request for further and better particulars requests the defendant to state whether there is any person, and if so, whom, who performed any of the duties of harbour master at Onslow on 23 and 24 February 1995 in relation to the allegations raised under subpara 11(f) of the defence. The defendant objects to answering this request on the basis that it is not a proper request for particulars as it seeks to elicit matters of evidence and is in the nature of an interrogatory.
I understand that the evidence at trial will be that there was no harbour master although Beadon Creek was a port within the meaning of the Marine and Harbours Act 1981. It may or may not have been the case that the de facto control of the Port of Beadon Creek was operated by an officer of the Shire of Ashburton. This request goes to the issue of whether the defendant, if it is established to have been the deceased's employer, should have done something to secure the entrance of the Lady Pamela to the creek and that it could have done so by dealing with a person who was in control of the creek.
The current position on the pleadings is that the statement of claim refers to any representative of the harbour master and the defence provides clearly that at the time there was no harbour master. These pleadings and particularly that in the defence do not form the basis for any request for particulars in relation to a person, if such a person existed, who performed the same or similar duties of a harbour master if that person was not in fact the harbour master. I am therefore of the opinion that the defendant does not need to give any further answer to the request in para 5(g) of the plaintiff's request for further and better particulars.
Paragraph 14 of the defence is a general plea that if the plaintiff suffered damage or loss as alleged, or at all, then that loss or damage was caused or contributed to by the negligence of the deceased. Particulars are provided that:
(a)the deceased having been advised that as the master of a vessel in distress he could have insisted that the Lady Pamela be moored alongside the Harrietta or that the other vessels lower their warp lines and that he failed to do so contrary to the defendant’s express instructions to anchor the Lady Pamela in a safe anchorage,
(b)once it became apparent to the deceased that the cyclone would pass directly over Onslow it was no longer reasonable for him to have anchored the Lady Pamela 500 metres from the mouth of the creek and he ought to have made an attempt to enter the creek,
(c)at no time did the deceased contact, or attempt to contact the defendant after 0830hrs on 24 February 1995 to seek its advise when the deceased knew, as was the fact, that it was not possible for it to communicate with the deceased in the first instance.
Paragraph 6(a) of the plaintiff's request for further and better particulars requests the defendant to state when, and by whom, the deceased was advised that as a master of a vessel in distress he could have insisted that the Lady Pamela be moored alongside the Harrietta. The defendant's response to this request includes the statement that adequate particulars have been pleaded in para 5(a) of the defence. I have already referred to para 5(a) which set out various items of information that Alymore is alleged to have given to the deceased.
Paragraph 6(b) of the plaintiff's request for further and better particulars requests the defendant to state who on its behalf gave express instructions to the deceased to anchor the Lady Pamela in a safe anchorage and when and how such instructions were given. The defendant's response to this request is that adequate particulars have been pleaded in para 6 of the defence. I have already referred to a substantial part of para 6 of the defence.
In relation to both of these requests it is my opinion that the plaintiff is entitled to at least have it confirmed that the defendant relies on certain other pleadings in its defence for its plea of contributory negligence. She is also entitled to know that certain other pleadings in the defence represent all of the material facts to be relied on by the defendant at trial to support its plea of contributory negligence.

Conclusion on the plaintiff's applications

For the reasons given I am of the opinion that the defendant should file and deliver further answers to the requests in paras 1(b), 2(c), 3(a), 3(b), 3(c), 4(b), 4(c), 4(d), 5(a), 5(e), 5(f), 6(a) and 6(b) of the plaintiff's request for further and better particulars of defence dated November 1998. The defendant should pay the plaintiff’s costs of her application to be taxed or as may be mutually agreed.

The defendant's application for further and better particulars

At the hearing of the defendant's chamber summons counsel made oral submissions and also relied on written submissions seeking an extension of time for the defendant to request further and better particulars of the statement of claim in terms of its request dated 10 March 1999. An extension is necessary because the defendant did not make its request for further and better particulars within 30 days of service of the statement of claim. The statement of claim was served on or about 7 July 1998 and the defendant's request for further and better particulars was filed and served on 10 March 1999.
The court has power to extend the time within which a party may serve a request for particulars of a pleading pursuant to O3 r5 of the Rules of the Supreme Court 1971 ("the Rules"). The court also has a discretion to extend time pursuant to O20 r13(6) of the Rules which deals specifically with written requests for further and better particulars. Particulars are necessary to furnish a statement of a case sufficiently clear to allow the other party a fair opportunity to meet it, define the issues and thereby enable the relevance and admissibility of evidence to be determined and to prevent surprise and delay.
Matters relevant to the defendant's application for an extension of time are set out in the affidavits of Michael James Feutrill, sworn 11 March 1999 and 15 June 1999. The following evidence is contained in such affidavits.
Mr Feutrill is a solicitor who has been employed by the solicitors for the defendant and subject to the supervision of his principal has had the conduct of this matter on behalf of the defendant. Mr Feutrill overlooked the preparation of a request for further and better particulars until some time in or about November 1998. He then planned to prepare a request for further and better particulars and interrogatories for answer by the plaintiff in late November, 1998 or early December 1998. He had good cause to take leave at short notice from late November 1998 to early January 1999. From early January 1999 to late January 1999 Mr Feutrill's principal was on annual leave. These matters are put forward as an explanation as to why Mr Feutrill was unable to draft and have settled the defendant's request for further and better particulars until 10 March 1999.
On 6 January 1999 the solicitors for the defendant wrote to the solicitors for the plaintiff wherein they proposed that the defendant would consent to providing answers or objections to the interrogatories administered on it by the plaintiff's undated notice which was served on 20 November provided that the plaintiff consented to providing the defendant with further and better particulars of her statement of claim and answers to interrogatories administered by the defendant. On 15 February 1999 the solicitors for the plaintiff wrote to the solicitors for the defendant and stated inter alia that the plaintiff did not consent to the defendant providing answers or objections to her request for answers to interrogatories dated 20 November 1998 conditional upon her providing further and better particulars of her statement of claim and answers to interrogatories as they were two separate issues and should be dealt with separately.
At the hearing I expressed sympathy for Mr Feutrill's position from late November 1998 to early January 1999. My position has not changed on that. However by late November 1998 more than four months had already elapsed from the time that the statement of claim had been served. Thus by late November 1998 more than three months had already elapsed since the expiry of the 30 days as provided in O20 r13(6) of the Rules.
Mr Feutrill has had the conduct of this matter subject to supervision. There is no explanation in the material before me on why another solicitor could not have attended to this matter on behalf of the defendant between late November 1998 and late January 1999. By the time the defendant's request for further and better particulars was filed on 10 March 1999 about eight months had already elapsed from on or about 7 July 1998 when the statement of claim had been served and about seven months had already elapsed from the expiry of the 30 days provided in O20 r13(6) of the Rules.
The delay in question is very lengthy indeed. While there is good reason for Mr Feutrill not being able to work on the file for a month or so there is no explanation advanced on why someone else did not do so during his absence. Even if an allowance was made for all of the time that Mr Feutrill's was on leave there still remains lengthy delays for which no adequate explanation has been given.
It seems that as at 6 January 1999, presumably when Mr Feutrill returned from leave some attempt was made by the solicitors for the defendant to salvage the position and obtain more time from the plaintiff's solicitors for the defendant to make a request for further and better particulars by putting forward the proposal in its letter dated 6 January 1999 that the defendant would provide answers or objections to interrogatories if the plaintiff answered the defendant's requests for further and better particulars and interrogatories. While it may have been convenient to resolve the two issues of interrogatories and further and better particulars at or about the same time the defendant was in no position to require the plaintiff to consent to the outcome on one being dependent upon the outcome on the other. Further, at the time of this proposal the plaintiff was not given any indication of what further and better particulars it was being asked to consent to answer.

There are seven numbered paragraphs in the defendant's request for further and better particulars five of which are in turn sub‑paragraphed. The requests in paragraphs 1, 2 and 4 relate to the issue of whether or not the deceased was employed by the defendant. The requests in para 3 relate to communication, if any, between the deceased and the defendant on the location in the open sea where the deceased intended to moor the Lady Pamela. The requests in para 5 relate to what instructions it is alleged the defendant should have given to the deceased, the identity of persons with whom the defendant should have communicated with and why and particulars of the procedure it is alleged the defendant should have had in place to avoid the alleged loss and damage.
The requests in para 6 relate to para 15 of the statement of claim which provides that by reason of the matters alleged in para 14 the deceased did not enter the port of Beadon Creek as he:
(a)was led to believe it was unreasonably hazardous to moor the Lady Pamela in open sea;
(b)was left to maintain the false impression that he was unable to obtain access to, or a mooring in, the port;
(c)was offered no alternative but to moor the Lady Pamela in open sea; and
(d)was not evacuated or rescued from the Lady Pamela.
The submission on behalf of the defendant is that it is not clear from para 15 whether or not the allegations contained therein are pleaded in vacuo or whether the allegations are directed to some want of care on the part of the defendant. Paragraph 15 is prefaced with the words "by reason of the matters alleged in paragraph 14". The first paragraph numbered 14 alleges the duty or duties owed by the defendant to the deceased. The second paragraph numbered 14 sets out various alleged breaches by the defendant of the duty or duties owed by it to the deceased.
It has been submitted on behalf of the defendant that by way of comment the pleading in sub‑para 15(d) is incomprehensible. It certainly does not flow on or relate to the same issues in sub‑paras 15(a), (b), and (c) ie, entry into Beadon Creek and the mooring of the Lady Pamela in Beadon Creek or the open sea. It seems to me that sub‑para 15(d) must be read separate from subparas (a), (b) and (c) of para 15 and with the first paragraph numbered 14. When read in this way it could only mean that if reasonable steps could not be taken to ensure the deceased's safety and/or practicable steps taken to ensure that he was not exposed to hazards then he should have been taken off the Lady Pamela before the cyclone struck.
The requests in para 7 relate to particulars of financial support allegedly received by the plaintiff from the deceased. I note that the plaintiff has already provided a substantial amount of information to the defendant on this issue in her answers to question 6 of the defendant's interrogatories.
If it was clearly the case that this action was close to being listed for trial then I would have no hesitation in refusing to grant the extension sought by the defendant. However it is not so clear. The Full Court of the Supreme Court of Western Australia is still considering the appeal by the plaintiff for the Minister for Transport for the State of Western Australia and the Shire of Ashburton to be rejoined as second and third defendants in the action. If the plaintiff is successful and one or both are rejoined as parties then further time would most likely be needed for interlocutory matters and getting up for trial.
Rather than await the outcome of the plaintiff’s appeal before making a decision on whether or not to grant the extension sought by the defendant I consider it appropriate and preferable that I now grant the extension with accompanying programming orders and thereby make good use of whatever further time may elapse before the appeal is determined.
The merits of the requests already drafted on behalf of the defendant have not been argued. Senior counsel for the plaintiff has foreshadowed that some of the requests at least will be the subject of argument. I make no comment on the merits of the requests in their current form. The defendant may wish to pursue its requests in their current form or it may wish to reconsider them and perhaps draft fresh requests.
I propose to make the following orders on the defendant’s application:
1.Subject to the defendant complying with all of the requirements imposed upon it in these orders the defendant is granted leave to file and serve upon the plaintiff a request for further and better particulars of the statement of claim.
2.The defendant do file and serve its request for further and better particulars of the statement of claim within 21 days of today’s date.
3.The plaintiff do within 21 days of the date of service of the request file and serve answers or proper objections to the defendant’s request for further and better particulars of the statement of claim.
4.If the defendant is dissatisfied with a response by the plaintiff to any of its requests for further and better particulars and wishes to apply for an order that the plaintiff file and serve further answers to its request for further and better particulars of the statement of claim then such application shall be made within 10 days of the date of service of the plaintiff’s answers and/or objections.
5.An application as provided in para 4 shall be given an expedited hearing.
6.The defendant pay the plaintiff’s costs of the defendant’s application to be taxed or as may be mutually agreed.
7.Otherwise the defendant’s application is dismissed.