F v Dobbs & Hansen-Bode Gymnastics Club

[2004] QDC 525

[2004] QDC 525

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

No 5826 of 2001

F	Plaintiff
and
GEOFFREY DOBBS	First Defendant
and
HANSEN-BODE GYMNASTICS CLUB	Second Defendant
and
KERRI HANSEN-KOFOED and JOHN HANSEN-	Third Defendant
KOFOED
BRISBANE
..DATE 25/11/2004
ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 161, r 169 - whether plaintiff's request for further and better particulars of defence (made after 2 years and 4 months) should be rejected on account of delay - no request for trial date signed - not too late for particulars.

25112004 T18/BLS4 M/T CMS133/2004 (Robin DCJ)

HIS HONOUR: This is an interesting application for further	1
and better particulars of the defence which is filed on the 6th of March 2002 in proceedings which must be something of a nightmare to the third defendants who are the respondents.

10

The plaintiff who is now of age seeks to make the third defendants vicariously liable for the consequences to her of inappropriate sexual actions of the first defendant who was employed in a gymnasium allegedly controlled by the third defendants. Those things happened in the early 1990s.

20

Paragraph 17 of the defence is:
"17 Further, the Third Defendants say that in or about 1991

or 1992 the Third Defendants became aware that:-

(a) the First Defendant had developed a friendship with

the parents of the Plaintiff; 30

(b) the relationship between the First Defendant and the parents of the Plaintiff included the parents of the Plaintiff allowing the First Defendant to pick up

and take the Plaintiff and her sister home on

occasions;

(c) an incident had occurred at the home of the parents

of the First Defendant at which it was alleged the	40
First Defendant took some photographs of the Plaintiff and her sister doing gymnastics;

(d) an allegation had been made by the parents of the Plaintiff to Queensland Police Service that the First Defendant at their home had requested the Plaintiff either alone or with her sister to take

her clothes off in a room so that he could take

photographs of either the Plaintiff alone or with	50
her sister;

(e) as a result of being informed of the allegation

raised in the preceding sub-paragraphs, the Third from their employ."

2 ORDER 60

25112004 T18/BLS4 M/T CMS133/2004 (Robin DCJ)

1

It might be noted that the statement of claim does not contend
that anything untoward happened at the gymnasium, rather it
happened at social events attended by the first defendant and
not only the plaintiff but also her sister and perhaps other

young patrons of the gym.	10
The request for particulars was made by letter of 14th of July 2004 and it asked for the following further and better particulars,

"(a) How did the Third Defendants become aware of the	20
matters referred to in paragraph 17(d) of the Third Defendants' defence;
(b) When did the Third Defendants become aware of the matters referred to in paragraph 17(d) of the Third Defendants' defence;
(c) Were the matters communicated to the Third
Defendants as referred to in paragraph 17(d) of the Third	30
Defendants' defence communicated to them wholly orally, wholly in writing, or partly oral and partly in writing;
(d)	If the communications were wholly oral, then state:

(i) Who spoke;

(ii) When they spoke;
(iii)The words that were used, or the meaning and

the effect of the words if the exact words	40
cannot be recalled;

(e) If the communications referred to in 2(d) above were
wholly or partly in writing, identify each such writing
by reference to your list of disclosure or otherwise, and

provide a copy thereof.

(f) With respect to paragraph 17(e) of the Defence; 50

(i) When was the First Defendant dismissed from the

employ of the Third Defendants;

(ii) How was the First Defendant dismissed from the

employ of the Third Defendants;

3 ORDER 60

25112004 T19-20/NW1 M/T CMS134/2004 (Robin DCJ)

(iii)Provide by way of further and better 1

particulars a copy of any writing used for
the purposes of dismissing the First
Defendant from the employ of the Third

Defendants. "

By this stage, although the respondents had used a solicitor	10
to lodge the notice of intention to defend and defence, they appear to have been representing themselves.
Follow-up correspondence from the plaintiff's solicitor, in
particular a "rule 444" letter of 27th of October 2004,	20
elicited the following response from Ms Kerri Kofoed:

"I refer to your letter dated 27th October 2004 and your

request of further particulars dated 14th July 2004.

Whilst I am not unwilling to furnish you with further and
better particulars in this matter I am of the opinion
that the pleadings in this case have already closed in

terms of rule 169.	30
The questions that you have asked may be just as well be asked during the trial. I am of the opinion that an application to further compel us to supply you with these further particulars will constitute an abuse of process.
If you are in disagreement with my submissions, please do not hesitate to contact me. "
40

Mr Marais of counsel represents the third defendants in this
application. Consistently with the attitude taken in his
client's letter, he raises no objection to the request for
particulars. Even if pedantic arguments were open in respect

of their form, it seems to me perfectly clear what information	50
they seek and that the request is a reasonable one.

Opposition to the application is mounted based on delay. It is certainly unusual for particulars to be sought well after 25112004 T19-20/NW1 M/T CMS134/2004 (Robin DCJ) 4 ORDER 60

pleadings have closed as they have here, but rule 161 of the	1
UCPR says nothing to suggest that a time is reached when it is too late to seek particulars. Mr Marais' researches have unearthed a passage which is helpful to his position from Jacob and Goldrien, Principles of Pleading and Practice at

10

page 171:

"Making the application - when? The application should
be made within a reasonable time after the necessity for
it has arisen. It should not be delayed. Ordinarily the
application is made on, and not before, the summons for
directions or by notice under such summons. It is
generally unnecessary to support such application by any

affidavit.	20
The significance of 'delay'. Although the court has
power to order particulars of pleadings at any time, yet,
the court may refuse to order such particulars which a
party would otherwise be entitled to where there has been
inexcusable delay in making the application, or the
application is made at a late stage. This is because
there might be a substantial risk of the trial being
delayed or of other prejudice being occasioned to the
opposite party. Thus, an application for particulars was	30
refused, inter alia, because it was made just 12 days before the trial."

The propositions in the text are supported by references to decided cases, all of them English.

40

I am not persuaded that the present is a case for refusing to
order the particulars. A trial is far from being imminent.

Once a party has signed a request for trial date then that party certainly stands to be embarrassed in taking further interlocutory steps and requires the leave of the Court to do 50

so. That is not the situation here. The philosophy of the
UCPR is contrary to the third defendants' approach of offering
to give the information sought at trial. Mr Marais has
25112004 T19-20/NW1 M/T CMS134/2004 (Robin DCJ) 5 ORDER 60

suggested that at this stage it could be sought through	1
interrogatories which, of course, can be administered only with the Court's leave. It seems to me that seeking the same information through particulars is a preferable and less complicated course. If the plaintiff is content with unsworn

10

particulars rather than sworn answers to interrogatories so be

it.

In my opinion, the Court ought to order particulars.

20

...

HIS HONOUR: And that the plaintiff's and the third defendants' costs of the application be their costs in the cause.

30

Order as per draft.

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40

50

6 ORDER 60