Father Evans v State of New South Wales (No 2)

[2007] NSWSC 1381

CITATION:	Father Evans v State of New South Wales (No 2) [2007] NSWSC 1381
HEARING DATE(S):	23/11/07, 29/11/07
JUDGMENT DATE :	12 December 2007
JUDGMENT OF:	Bell J at 1
DECISION:	1. The plaintiff in proceedings 20152/05 and the plaintiffs in each of the 24 related proceedings are to pay the defendants’ costs of and incidental to the relief claimed in paragraph (1) of the motions; 2. The costs of and incidental to the relief claimed in paragraph (2) of the motions are costs in the cause; 3. No order as to the costs of and incidental to the relief claimed in paragraph (3) of the defendants’ motions
CATCHWORDS:	COSTS
PARTIES:	Father John Evans (Plaintiff) State of NSW (1st Defendant) Sydney Catchment Authority (2nd Defendant)
FILE NUMBER(S):	SC 20152/05
COUNSEL:	D Nock SC / R Odgers (Plaintiff) S Gregory / D Newton (1st Defendant) R Gambi (2nd Defendant)
SOLICITORS:	McLachlan Childton Solicitors (Plaintiff) General Insurance Law Department (1st Defendant) Wotton Kearney Solicitors (2nd Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Wednesday 12 December 2007

20152/05 Father John Evans v State of New South Wales - Costs

JUDGMENT

1 BELL J: The first defendant filed an amended notice of motion on 31 January 2007 claiming orders (1) for the provision of answers to a composite request for particulars in a form reflecting the request; (2) for further and better particulars of the further amended statement of claim (FASOC) requested in letters of 19 January 2006 and 25 August 2006 and (3) further, or in the alternative, striking out the FASOC. The order that was the subject of the claim in paragraph (1) was consented to by the plaintiff in the course of a hearing before the Registrar. The relief claimed in paragraph (2) was determined by my judgment of 30 August 2007: Father Evans v State of New South Wales [2007] NSWSC 955. The first defendant has abandoned the claim to strike out the pleading contained in paragraph (3).

2 The second defendant filed a notice of motion on 31 March 2006 making the same claims for relief as those set out in the first defendant’s amended motion.

3 This judgment deals with the costs of the defendants’ motions.

4 The motions were filed in the proceedings 20152/05 brought by Father Evans. There are 24 sets of proceedings arising out of the same events, which I will refer to as the “related proceedings”. In accordance with directions given by the Registrar it was understood that orders made on the defendants’ motions in these proceedings would be made in each of the related proceedings.

5 In addition to the evidence that was before me on the hearing of the defendants’ claims for further and better particulars each of the parties led evidence on the question of the costs of the motions.

6 The plaintiffs read the affidavit of Luke Torrisi, which was sworn on 2 November 2007, and tendered the documents that were exhibited to it. The plaintiffs also read the affidavit of Ms Metz that was sworn on 11 April 2006.

7 The first defendant tendered the answers to its composite request for further and better particulars of the FASOC (Exhibit “GD5” to the affidavit of Gary Doherty, which was sworn 16 May 2006) The first defendant also tendered correspondence passing between its solicitors, GIO General Insurance Law Department (GILD) and McLachlan Chilton, who act for the plaintiff, commencing on 8 November 2002 and concluding 1 February 2006 (exhibit “B”). It tendered a further bundle of correspondence between GILD and McLachlan Chilton touching on the provision of the documents the subject of a direction made on 15 March 2007 (exhibit “C”).

8 The second defendant read the affidavits of Charles Simon, sworn 27 April 2007 and 20 November 2007.

9 The defendants submit that the plaintiffs should pay their costs of and incidental to the relief claimed in paragraph (1) of their motions.

10 The first defendant submitted that, save for the costs of the hearing on 3 August 2007, the plaintiffs should pay its costs of and incidental to the relief claimed in paragraph (2) of the motion, in the alternative, that those costs be the first defendant’s costs in the cause. In the first defendant’s submission, the plaintiffs and the first defendant should pay their own costs of the hearing on 3 August 2007. In its submission there should be no order as to the costs of paragraph (3) of the notice of motion.

11 The second defendant’s submission was that the plaintiffs ought pay its costs of the relief claimed in paragraphs (1) and (2) of its motion and that there should be no order as to the costs of the relief claimed in paragraph (3).

12 The plaintiffs submitted that each party should bear its own costs of and incidental to the claim made in paragraph (1) of the motions and that the defendants should pay their costs of and incidental to the relief claimed in paragraphs (2) and (3) of the motions.

13 The order sought in paragraph (1) of the motions was that the plaintiff (and the plaintiffs in the related proceedings listed in the Schedule to the motion) provide their answers to the request for further and better particulars of the FASOC made by letter dated 19 January 2006 from GILD to McLachlan Chilton in a form refecting the defendants’ composite requests.

14 The hearing of the relief claimed in paragraph (1) came before Assistant Registrar Howe on 14 June 2006. After the hearing commenced consent orders were made, which included:

1. The plaintiffs’ solicitor is to prepare and serve a merged document comprising GD2 and GD5 of the affidavit of G Doherty in the shortest form possible by 30/06/06.
2. Any answer so provided will supersede the answers provided in GD5.
3. The parties accept that in the merged document, answers to requests from page 110 of GD2 (109 of the request – Avalon at page 55) and thereafter will be dealt with by individual plaintiffs (that is by each plaintiff rather than being merged).
4. Such merged information is to be in both electronic and hard copy form.

15 The FASOC in each of the related proceedings pleads material facts as to liability, largely, in common form. At a status conference on 11 October 2005 Mr Gregory, counsel for the first defendant, informed Assistant Registrar Howe that those acting for the first defendant had embarked on drafting the request for particulars and, at the suggestion of the plaintiffs, sought to do so in “one document that applied across the board” (T 1.55).

16 At a further status conference on 29 November 2005 Mr Gregory reiterated that the first defendant was seeking to prepare a single request in respect of each of the claims in respect of any common matters. The defendants were directed to serve their requests for further and better particulars of each claim by 19 January 2006 and the plaintiffs were ordered to furnish answers to the requests by 20 February 2006. (The 25th proceeding had not been commenced at this date, but nothing turns on this.)

17 On 19 January 2006 the first defendant served its composite request for particulars on McLachlan Chilton. On the same day Wotton & Kearney, the solicitors acting for the second defendant, served a request for further and better particulars in composite form relating to the common facts and allegations pleaded against its client in each claim. In their letter Wotton & Kearney enclosed a copy of the first defendant’s request for particulars requesting that McLachlan Chilton provide a copy of the answers thereto to them.

18 On 22 February 2006 the plaintiffs served answers to the request made by the first defendant comprising responses from each of the 25 plaintiffs. The voluminous answers to the composite request for particulars were contained in Exhibit “GD5” and comprise over 2000 pages.

19 On 22 February 2006 McLachlan Chilton provided answers to the second defendant’s request for particulars (annexure “D” to the affidavit of Charles Simon sworn 27 April 2006). The response grouped certain of the plaintiffs’ responses together. A composite set of answers to the request was provided for the plaintiffs Walden, Andrews, De’Chellis, Elliot, Fowler, Hausler, Lopreiato, Lynch, Moore, Morgan, O’Brien, Nix, Richard Sheppard and Russell Sheppard. The plaintiffs Gauci, Gimson, Hodgkins and Plachozki were grouped together and composite answers provided in relation to their claims. A third grouping comprised the claims brought by Father Evans, Passlow and Quigley. Individual responses were made in relation to the claims brought by Bagala, Avalon, Kuzmanovic and Larden.

20 In written submissions Mr Gambi, who appeared on the second defendant’s behalf, noted that the claims of Bagala (and, in part Avalon) had paragraph numbers which corresponded with those of the plaintiffs who had been grouped together and yet separate answers to the particulars had been given. No particular point is taken in this respect.

21 On 9 March 2006 GILD wrote to McLachlan Chilton asking that they serve answers in a form which reflected the composite request.

22 On 22 March 2006 GILD wrote to McLachlan Chilton renewing its request for answers to be served in a composite form.

23 On 27 March 2006 the first defendant filed its notice of motion in Court claiming relief, including that McLachlan Chilton respond to its request for further and better particulars in a composite form.

24 The second defendant filed its motion on 31 March 2006. On the same day Wotton & Kearney wrote to McLachlan Chilton, asking that the plaintiffs reconsider their answers to the request for further and better particulars and provide them in composite form (annexure “F” to the affidavit of Charles Simon sworn 27 April 2006).

25 The motions came before Assistant Registrar Howe on 20 April 2006, when directions were given with respect to the service of evidence in support of the relief claimed in paragraph (1).

26 On 18 May 2006 the hearing of the claim for relief in paragraph (1) was fixed for 14 June 2006.

27 The service of the composite form of request for particulars by the first defendant (which was also relied upon by the second defendant) was an efficient and economical approach to the conduct of the related proceedings, which raised common issues of liability.

28 Mr Nock submitted that the plaintiffs had offered to make an electronic copy of their responses to the composite request for further and better particulars available (exhibit 1) and that the defendants could have used the electronic document to assemble the material in any way they saw fit. This offer had been rejected by GILD (GILD letter dated 8 June 2006 exhibit 1). Mr Nock submitted that the plaintiffs had been concerned to ensure that their answers to the request for further and better particulars were individualised, since it was necessary for ensure that matters, such as the question of what each plaintiff had been doing on the day, were appropriately attended to (T 23/11/07 28.15-25). This did not address the substance of the defendants’ complaint, which was that the pleading of the claims as to liability were in common form. The provision of an electronic version of the 25 sets of individual responses would not promote the efficient conduct of the litigation for the reasons set out in the GILD letter addressed to McLachlan Chilton dated 8 June 2006 (exhibit 1).

29 The plaintiffs’ response to the composite request by the provision of the individual response for each plaintiff and their refusal to furnish answers in composite form was unreasonable and necessitated the defendants moving the Court for the relief claimed in paragraph (1) of the motions. The defendants were wholly successful in obtaining the relief that they sought.

30 The plaintiffs should pay the defendants’ costs of and incidental to the relief claimed in paragraph (1) of the motions.

31 I turn now to the costs of the claims in paragraph (2) of the motions for the provision of further and better particulars of the FASOC.

32 Following the consent orders made on 14 June McLachlan Chilton served on GILD an amended composite response to the request for further and better particulars on 6 July 2006. On the same day Wotton & Kearney were served with composite answers to its request for further and better particulars.

33 On 15 August 2006 GILD served on McLachlan Chilton two schedules of the plaintiffs’ responses to the composite request, which it asserted were insufficient. The first schedule identified the liability particulars and the second schedule identified the quantum particulars. (The schedules were superseded by later versions, the last being “SK18”).

34 McLachlan Chilton furnished GILD with further responses to its composite request (exhibit “SK11”). On 4 September 2006 GILD served on McLachlan Chilton an amended schedule of the plaintiffs’ responses, which were said to be insufficient.

35 In the period 25 August to 27 August 2006 correspondence passed between GILD and McLachlan Chilton concerning particulars of land title references and ABN numbers relating to relevant businesses.

36 At a status conference on 6 October 2006 Assistant Registrar Howe made consent orders including that the plaintiffs provide all further responses to the defendants’ request for particulars by 1 December 2006. McLachlan Chilton thereafter served on the defendants schedules of loss for each of the plaintiffs superseding previous schedules that had been served with some of the claims.

37 On 29 January 2007 GILD served (i) a revised schedule of the plaintiffs’ responses to requests for particulars on liability which were said to be insufficient (exhibit “SK18” pp 3-5), (ii) a revised schedule of the plaintiffs’ responses to the request for particulars on quantum which were said to be insufficient (exhibit “SK18” pp 6-8), and (iii) a letter pressing for correct property and ABN details (“SK18” pp 9-12).

38 On 31 January 2007 the first defendant filed an amended notice of motion in Court. The Court was informed that only the relief claimed in paragraph (2) was to be pressed at this stage. Paragraph (2) of the first defendant’s motion was listed for hearing on 14 March 2007.

39 On 27 February 2007 McLachlan Chilton wrote to GILD providing further particulars of the ABN numbers and business names of relevant plaintiffs.

40 On 14 March 2007 when paragraph (2) of the motion came on for hearing Mr Nock SC, who with Mr Odgers appeared on behalf of the plaintiffs, contended that McLachlan Chilton had asked GILD to identify the respects in which the plaintiffs’ answers to the request for particulars were insufficient and that there had been no reply. Mr Gregory’s response was that the deficiencies in the pleading were patent.

41 Mr Nock submitted that the plaintiffs had difficulty providing further particulars in the absence of the documents which they had asked GILD to produce and which their expert needed in order to report. He identified these as the National Parks and Wildlife Service’ State of Emergency Plan and Fire Management Plan.

42 The competing positions on 14 March were, on the plaintiffs’ behalf, that many of the requests were not proper requests for particulars and, on the first defendant’s behalf, that the FASOC was pleaded at such a high level of generality that the first defendant did not know the case that was being put against it. Mr Gambi, who appeared on the second defendant’s behalf, did not take an active role. The second defendant’s position until the resumed hearing on 3 August 2007 was that the particulars supplied by the plaintiffs in the composite document were insufficient in the respects identified by the first defendant (T 6/06/07 17.57-58).

43 The hearing of paragraph (2) of the motion was adjourned on the basis of the first defendant’s agreement to the provision of the two documents, described by Mr Nock (T 14.03.07 64.1-12) to McLachlan Chilton and the plaintiffs’ agreement to serve an expert report on liability within eight weeks thereafter. Mr Gregory informed the Court that he did not know whether a document answering the description of the National Parks and Wildlife Service State Emergency Plan existed. He stated that the first defendant would provide any document that fitted that description (T 14.03.07 64.22-25). On 15 March Mr Gregory clarified that the first defendant was consenting only to the production of the two documents that had been described on 14 March.

44 GILD advised McLachlan Chilton by letter dated 27 March 2007 that the National Parks and Wildlife Service did not have a document titled “Bushfire Risk Management Plan” or “State Emergency Plan”. There followed further correspondence between GILD and McLachlan Chilton, by which GILD advised that the “Blue Mountains Bushfire Risk Management Plan” dated 14 December 2000, which was in McLachlan Chilton’s possession was, with the addition of certain annexures attached to GILD’s letter of 11 April 2007, in force as at December 2001. GILD agreed to supply a copy of the State Emergency Plan by letter dated 3 April 2007.

45 On 25 May 2007 McLachlan Chilton served the defendants with the report of Trevor Roche, the expert retained on the plaintiffs’ behalf.

46 On 6 June 2007 the proceedings were before me for directions. On that date Mr Nock advised that the plaintiffs no longer maintained the allegation concerning containment lines pleaded in paragraph 44(h)(ii) and paragraph 45(a)(iii) of the FASOC (a reference to the Father Evans’ FASOC). The plaintiffs were directed to provide further particulars of the FASOC by 15 June 2007.

47 By letter dated 13 June 2007 McLachlan Chilton provided further answers to the outstanding requests for particulars of liability, which had been sought by GILD.

48 There remained an issue between the first defendant and the plaintiffs concerning the sufficiency of a number of the requests for particulars made by the first defendant in its letter of 19 January 2007. The first defendant and the plaintiffs were directed to prepare joint document setting out the request and their respective submissions. This was prepared for the resumed hearing of paragraph (2) of the motion. I will refer to it as the “joint submissions”.

49 At the commencement of the hearing on 3 August Mr Gambi stated that the second defendant had no argument with the plaintiff concerning the particulars.

50 The plaintiffs were substantially successful in their resistance to the supply of the further particulars for which the first defendant pressed at the resumed hearing on 3 August 2007.

51 Mr Gregory submitted that the costs of the relief claimed in paragraph (2) of the first defendant’s motion should be as I have noted in [10] above. In support of this contention he handed up a schedule detailing the additional particulars supplied by McLachlan Chilton on 13 June 2007 and the position taken by the plaintiffs and the first defendant in the joint submissions. A number of further particulars were included in the plaintiffs’ responses in the joint submissions. His contention was that the provision of the Roche Report and the further particulars furnished in the letter of 13 June and in the joint submissions represented a significant advance on the position that obtained prior to bringing the motion. The penultimate column of the schedule identifies the relatively large number of requests in which the plaintiff had provided further particulars.

52 Mr Nock submitted that the earlier history was to be viewed in the light of expected exchange of correspondence between parties concerning the adequacy of particulars, in which the first defendant had moved for an order somewhat precipitately. The plaintiffs maintained that many of the requests for particulars made by the first defendant were, in truth, requests for evidence. Every effort had been made by the plaintiffs to obtain the documents from the first defendant in which Mr Roche had identified as necessary in order to prepare his report. Mr Nock complained of GILD’s pedantic approach in the correspondence that followed the directions made on 15 March by way of illustrating the difficulty that the plaintiffs’ had experienced in dealing with the first defendant (exhibit “C”).

53 Mr Gregory responded to the submissions concerning the first defendant’s provision of documents pursuant to the directions by a submission that, “the document that my friend says they were hamstrung in providing particulars in relation to because they didn’t have it, it didn’t exist” (T 23/11/07 40.57-41.1). Following the hearing on 23 November GILD wrote to McLachlan Chilton and Wotton & Kearney advising that the solicitor with the conduct of the matter on behalf of the first defendant had made an incorrect note of the orders made on 15 March 2007. He had recorded that the document that was to be provided was the NPWS Bushfire Risk Management Plan. As the result the first defendant had omitted to furnish the National Parks and Wildlife Service Fire Management Manual. A copy of the Manual as in force in 2001 was served under cover of the letter of 23 November 2007.

54 The first defendant offered to have the matter re-listed in order to inform the Court of this development. The plaintiffs did not require that course to be taken. McLachlan Chilton and GILD addressed written submissions touching the significance of the late disclosure of the NPWS Fire Management Plan. In my opinion, nothing turns on this omission for the purposes of the determination of the costs of paragraph (2) of the motion.

55 There was substance to the defendants’ complaint concerning the level of generality of the pleading of the FASOC. The direction that the plaintiffs file an expert report supporting their liability claims was made with a view to addressing that concern. The particulars supplied, for example, with respect to failure of the authorities to warn of the approach of the fire was significant in assisting the defendants to understand the case that is made. Nonetheless the first defendant pressed a large number of requests for further and better particulars which were unsuccessful.

56 The second defendant submits that in order to reach the present position with respect to the provision of proper particulars it was necessary for it to file its notice of motion. Ultimately it obtained particulars that were considered satisfactory but this was only after bringing its motion and in part was a consequence of the directions made by the Court. I am mindful that the second defendant did not press further claims on 3 August and of the contents of the schedules annexed to Mr Gambi’s submissions. Nonetheless in my view the appropriate order is that the costs of and incidental to the relief claimed in paragraph (2) of the motion be costs in the cause.

57 Paragraph (3) of each motion claimed an order striking out the FASOC. The claim was expressed to be further or in the alternative to the claims sought with respect to the supply of particulars. The hearing of the claims for relief in the defendants’ motions were listed seriatim. After delivery of judgment on 30 August 2007 Mr Gregory sought time to consider the first defendant’s position with respect to the application. On 20 September 2007 Mr Gregory informed the Court that it was not intended to press for the relief claimed in paragraph (3) and it was dismissed. The second defendant does not press its strike out application. The plaintiff seeks the costs of and incidental to paragraph (3). The strike out application which was not listed for hearing. I consider that there should be no order as to the costs of the claim for relief in paragraph (3) of the motions.

ORDERS

1. The plaintiff in proceedings 20152/05 and the plaintiffs in each of the 24 related proceedings are to pay the defendants’ costs of and incidental to the relief claimed in paragraph (1) of the motions ;

2. The costs of and incidental to the relief claimed in paragraph (2) of the motions are costs in the cause;

3. No order as to the costs of and incidental to the relief claimed in paragraph (3) of the defendants’ motions.

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