Father Evans v State of NSW

[2007] NSWSC 955

CITATION:	Father Evans v State of NSW [2007] NSWSC 955
HEARING DATE(S):	3/8/07
JUDGMENT DATE :	30 August 2007
JUDGMENT OF:	Bell J at 1
DECISION:	1. The plaintiff is to provide answers to the first defendant’s requests for further and better particulars of paragraphs 43(b)(ii); 43 (c)(i)&(ii) and 45 (d) of the FASOC in answer to requests Y6, 15, 18; Z3(a) – (b) 7[3(a)-(b)], 8[3(a)-(b)]; Z5, 7[5], 8[5] and BN4(a) – (b) within six weeks of to-days date; 2. Any plaintiff whose claim is to be further particularised by reason of the matters referred to in paragraphs 48 – 52 above is to supply the same within six weeks of to-day’s date; 3. Otherwise paragraph 2 of the first defendant’s amended notice of motion is dismissed
CATCHWORDS:	Related claims in negligence - particulars
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
CASES CITED:	Sims v Wran (1984) 1 NSWLR 317
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 (Plaintiffs) S Gregory / D Newton (1st Defendant) R Gambi (2nd Defendant)
SOLICITORS:	McLachlan Childton Solicitors (Plaintiffs) General Insurance Law Department (1st Defendant) Wotton Kearney Solicitors (2nd Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Thursday 30 August 2007

020152/05 - FATHER JOHN EVANS v STATE OF NEW SOUTH WALES AND ANOR

JUDGMENT

1 BELL J: The plaintiff, Father John Evans, sues the State of New South Wales as first defendant pursuant to the Crown Proceedings Act 1988 in respect of the acts and omissions of the National Parks and Wildlife Service (NPWS); the NSW Fire Brigade (NSWFB) and the NSWFB Commissioner; and the New South Wales Rural Fire Service (RFS), together with the Sydney Catchment Authority (SCA), a statutory corporation, as second defendant. His claim is brought in negligence and breach of statutory duty and arises out of damage to his property said to have been occasioned by a bushfire on Christmas Day 2001.

2 Father Evans’ claim is one of 25 claims brought against the same defendants arising out of losses said to have been suffered as the result of the bushfire by persons who were residents of Warragamba, Silverdale and Mulgoa at the date of the fire. I will refer to the claims in the other 24 proceedings as the related proceedings. The pleadings are in common form and the same particulars of negligence and breach of statutory duty are relied on in each claim.

3 Father Evan’s proceedings were commenced in the District Court on 21 May 2002. They were transferred to this Court as the result of an order made on 31 March 2005.

4 To-date the proceedings have not progressed beyond the service of a number of amended statements of claim; the present pleading is the further amended statement of claim and was filed on 26 August 2005 (FASOC). There has been a protracted dispute between the plaintiff and the first defendant concerning the sufficiency of the particulars of the claim.

5 Particulars of negligence are pleaded against each of the authorities in paragraph 43, and comprise (i) the failure to monitor the fire and its progress towards the town; (ii) the failure to warn the residents of Warragamba of the approach of the fire; (iii) the failure to provide sufficient means for fighting the fire and preventing it from entering the town; (iv) the failure to provide sufficient means for preventing damage by spot fires occurring within the town, and (v) the failure to provide sufficient personnel or equipment to prevent the loss of the plaintiff’s property. Particulars of the negligence of the NPWS are pleaded in paragraph 44; the NSWFB/NSWFB Commissioner in paragraph 45; the RFS in paragraph 49 and the SCA in paragraph 57. Counts of breach of statutory duty are pleaded against the NSWFB Commissioner in paragraphs 46 – 48 and the RFS in paragraphs 50 - 56.

6 On 29 November 2005 the plaintiff’s proceedings and a number of the related proceedings were listed for a status conference. Directions were given on that day for the first and second defendants to request further and better particulars of all 24 statements of claim by 19 January 2006 and for the plaintiffs to furnish answers to the requests by 20 February 2006.

7 Following the status conference, the solicitor for the first defendant prepared a composite request for particulars of the FASOC and the statements of claim in the related proceedings. The composite request for particulars grouped the common contentions in the pleadings and all requests relating to them, making a single request for all claims for which identical requests could be made.

8 On 19 January 2006 the composite request for particulars was served on McLachlan Chilton, the solicitors acting for all 25 plaintiffs. There was an issue concerning the form of the plaintiffs’ answers to the composite request. The first defendant moved on notice of motion for an order that the plaintiffs provide their answers to the request for further and better particulars in a form reflecting the composite request. The matter came before the Court on 14 June 2006. Orders were made by consent including that the plaintiffs’ solicitor prepare and serve a merged document (the answers reflecting the composite request for particulars) by 30 June 2006.

9 On 6 July 2006 McLachlan Chilton served the composite response to the first defendant’s composite request for particulars.

10 At a status conference on 7 July 2006 the following orders were made by consent:

(ii) The plaintiffs to provide responses to unanswered requests for particulars of the defendants by 21 July 2006;
(iii) the defendants to advise which of the plaintiff’s responses to the requests for further and better particulars are insufficient by 11 August 2006;
(iv) the plaintiffs to respond by stating why they consider their answers to be sufficient and serve amended responses to the requests for further and better particulars identified by the defendants … by 25 August 2006.

11 On 14 July 2006 McLachlan Chilton served an amended composite response to the request for particulars.

12 There followed an exchange of correspondence between McLachlan Chilton and the solicitors acting for the first defendant concerning the sufficiency of the plaintiff’s response to the composite request.

13 By amended notice of motion filed in court on 31 January 2007 the first defendant claimed orders including:

2. Pursuant to r 15.10 of the Uniform Civil Procedure Rules 2005 within 21 days the plaintiff provide the further and better particulars of the further amended statement of claim requested by letters dated 19 January 2006 and 25 August 2006 from the solicitor for the first defendant to the solicitor to the plaintiff.
3. Further or in the alternative, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 the further amended statement of claim be struck out.

14 The motion was filed in accordance with directions made by the Registrar in this proceeding on the understanding that any orders would be made in each of the related proceedings. The claim for the relief in paragraph 2 of the motion was listed for hearing on 14 March 2007. On that date the first defendant was represented by Mr Gregory. Mr Nock SC and Mr Odgers appeared on behalf of the plaintiff and Mr Gambi appeared on behalf of the second defendant.

15 Mr Gregory read the affidavit of his instructing solicitor, Sean Keleher, which was sworn on 30 January 2007. A large number of documents are exhibited to the affidavit. These include a copy of the further amended statement of claim (the FASOC), together with copies of the 24 statements of claim in the related proceedings (SK “1”). Copies of the composite request for further and better particulars made by the first defendant’s solicitors on 19 January 2006 (SK “2”) and the plaintiff’s response thereto (SK “8”) together with the first defendant’s further request of 25 August (SK “9”) and the plaintiff’s response thereto (SK “15”).

16 The plaintiff supplied schedules of damages itemising property destroyed by the fire and identifying any item which could not have been removed from the property before the fire. Copies of these schedules are contained in SK “16” and SK “17”.

17 SK “18” comprises copies of two letters by the first defendant’s solicitor addressed to McLachlan Chilton dated 29 January 2007; the first attaches (i) a schedule of responses to the composite request for further and better particulars which were said to be insufficient (SK “18” pp 3-5) and (ii) a schedule of responses to the composite request for further and better particulars of quantum which were said to be insufficient (SK “18” pp 6-8) and the second pressed for responses to the further request for particulars dated 25 August 2006 (SK “9” pp 1-4)).

18 On the hearing of the motion on 14 March Mr Gregory’s complaint was as to the generality of the pleadings of the FASOC, which was said to make it difficult for the first defendant to understand the case that it was being asked to meet and which had the potential to occasion very great expense in giving discovery. I note the draft classes of documents which the plaintiffs’ propose by way of discovery, which tends to lessen the force of the latter submission (McLachlan Chilton letter dated 13 June 2006, Ex LT “1” to the affidavit of Luke Torrisi sworn on 13 July 2007).

19 The claim was submitted to be somewhat analogous to claims brought in the professional negligence list, which also necessarily depend on expert evidence. The practice in the professional negligence list is for the plaintiff to be required to serve an expert report supporting the allegations of breach of duty and causation at the time of service of the statement of claim. In Mr Gregory’s submission an appropriate course would be to require the plaintiff to serve an expert report in this case.

20 Mr Nock SC submitted that the plaintiffs had supplied the best particulars that they were able to provide in the absence of discovery. The plaintiffs needed access to the NPWS Fire Management Plan before their expert could finalise his report. McLachlan Chilton had asked the first defendant for a copy of this document without success (SK “6” McLachlan Chilton letter to first defendant 17 July 2006).

21 The hearing of the motion was adjourned to allow the first defendant to supply the plaintiffs with copies of two documents which their expert required. The plaintiff agreed within eight weeks thereafter to serve an expert report on liability addressing, inter alia, breach of common law duty; breach of statutory duty and the causal relationship between breach and damage. The proceedings were stood over to 6 June 2006 for further directions.

22 On 6 June 2007 I was informed that the plaintiff had served the report of Trevor Roche, dated May 2007 (Ex “1”) on the defendants. The plaintiffs sought (and obtained) leave to amend the FASOC to delete the allegations of negligence arising out of the failure to have containment lines in position to prevent the spread of the fire into the town (paragraph [44](h)(ii) and [45](a)(iii)). Many of the issues concerning the adequacy of the particulars remained. The parties were directed to prepare a schedule setting out each request, together with a short statement of their competing positions with respect to the request. The resumed hearing of the amended motion for further particulars was stood over to 3 August 2007.

23 The plaintiffs provided an amended response to the first defendant’s request for particulars on 13 June 2007 by citing paragraphs in the Roche report.

24 The parties prepared a composite document setting out each of the requests identified in SK “18”. The first defendant did not press for particulars of the following requests:

D(5); Y9, 17-20; Z2(a)-(d); 7[2(a)-(d)], 8[2(a)-(d)]; Z4, 7[4], 8[4]; Z6, 7[6], 8[6]; AE; AG3(a); AG4(a)-(b); AK2(a)-(b), 3(a)-(b); AL2(a); AM3(b); AQ1(d)(i)-(ii) and AR2[1(d)(i)-(ii)]; AU; BC1(b)/BD2[1(b)]; BE/BF/BG; BM1(d); BM2(a)-(d); BN2(a)(i), (iii)-(iv), 2(b)(i), (iii)-(iv), 3(a)(i)-(iii), 3(b)(i)-(iii); BO2(a)-(b); BP1(a)-(b), 2; CA2 & 3; CB1(c)-(d); CD3(a)-(b), 4(a)-(b); CJ2(a)-(b), 3(a)-(b); CK2(a)-(b); CL1(a)-(b), 2(a)-(b); CO1(a)-(b); CT2(a)-(c); DA2(b)(ii); DB4(a); DB5(a)-(b); DI/DJ.

25 The first defendant did not press its request for further and better particulars of certain allegations insofar as they related to the plaintiffs whose premises were located in the Warragamba/Silverdale area, but pressed for further particulars in respect of those plaintiffs resident in the Mulgoa area. This issue was resolved at the resumed hearing on 3 August and the first defendant did not press for further particulars of requests AB/AC; AD1(a)-(c) and AD2(a)-(c); BJ2(c)-(d).

26 Request Y16(b)(iii) (relating to the claim brought by Gimson) was answered by particulars which the plaintiff acknowledged contained an error. The error has been rectified by the particulars supplied in the composite document.

27 At the resumed hearing Mr Gregory’s submissions were principally directed to the requests concerning the allegations in paragraphs 44(j) and 51 relating to pre-fire management of the Park; paragraphs 44(a)(i), (b), (c), (d) & (g)(ii); 45(b)(i) & (in part) 45(g); 49(a)(i), (c), (d) & (g)(ii)) relating to “first attack”; paragraphs 43(d) and 44(h)(ii) and (i) relating to preventing the fire entering the town; paragraphs 44(d)(b)(iii) and 45(b)(iii) relating to control of the fire; paragraph 44(a)(ii), (e), (h)(ii) & (i); 45(c) & (f); 49(e) & (h) relating to communication between the agencies; and paragraph 43(a) relating to the failure to monitor the fire. In his submission it was apparent from the Roche report that the plaintiffs’ real case depends on the allegations of failing to warn the residents of Warragamba/ Silverdale/Mulgoa of the approach of the fire in time for them to take steps to minimise damage to their property. In Mr Gregory’s submission allegations that were not supported by the expert opinion served in accordance with the directions given on 15 March 2007 should be struck out.

28 It is not necessary to deal with the question of whether an allegation (which is otherwise properly pleaded) may be struck out on the ground that it is not supported by expert opinion that has been served pursuant to direction. This is because the parties were agreed that only paragraph 2 of the amended notice of motion was before the Court for hearing. These reasons are concerned solely with the first defendant’s application for an order for further and better particulars.

29 Part 15 of the UCPR deals with particulars. Relevantly the rules provide:

15.1(1) Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.
…
15.5(1) The particulars to be given by a pleading that alleges negligence (whether contributory or otherwise):
(a) must state the facts and circumstances on which the party pleading relies as constituting the alleged negligent act or omission, and
(b) if the party pleading alleges more than one negligent act or omission, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged negligent act or omission.
(2) The particulars to be given by a pleading that alleges breach of statutory duty:
(a) must state the facts and circumstances on which the party pleading relies as constituting the alleged breach of statutory duty, and
(b) if the party pleading alleges more than one breach of statutory duty, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged breach of statutory duty.

30 The principles relating to the obligation to provide particulars are as stated by Hunt J in Sims v Wran (1984) 1 NSWLR 317 at 321:

The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet. … The object of particulars is to save expense in preparing to meet a case which may never be put … and to make the party’s case plain so that each side may know what are the issues of fact to be investigated at the hearing. … It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he had adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet. (Citations omitted).

His Honour observed (at 321 – 322) that it is often a fine line between giving particulars of the case which is proposed to be made and disclosing the evidence by which it is to be proved. His Honour emphasised that the starting point is the need to guard the other party against surprise.

31 Many of the requests for particulars which are pressed in the composite document do not complain that the facts and circumstances relied on as constituting the negligent act or omission are not stated but rather they seek particulars of what it is said the authorities (or one or more of them) ought to have done. The gravamen of the complaint in many of them is the absence of expert opinion in support of the allegation. In this category are the following requests:

W; AA 9(a) - (d), 4 [1(a)-(d)]; AA 3 (a) – (d), 4[3(a) – (d)]; AF(2); AH 1, 2 & 7; AJ 2(a) – (b); AM1(a), 2 (a); AM 4(a) - (b); AN 1(a) – (b), 2(a) – (b)/AO 3[1(a) – (b)], 3 [2(a) – (b)]; AP; AQ/AR (c)(ii)/AR2 [1(c)(ii)]; AV; AW; AX 2(i) – (iii); AX 3 (b)(i) – (iii); AY 1 (b)(ii); AY 1 (c)(i) – (ii); AZ 1 (b) (ii); AZ 1 (c) (i) – (ii); BK 1 (a) and 2(a); BQ 1 (c); BR 1 (a) (i) – (ii), 1 (b) (i) – (ii); BY 7 (a) – (b); CC (2); CH 1, 2 & 6; CI 2 (a) 0 (b); CL 4 (a) – (b); CM 1 & 2; CN 1 (c); CR 1,2,3 & 4; CS 2.

The claim as particularised in each of the paragraphs that is the subject of the above requests is adequate to inform the first defendant of the case that it is required to meet and to plead to it. The plaintiffs are not required to provide answers to these requests.

32 The particulars of paragraph 10 (request B) are sufficient to enable the first defendant to plead to the allegation. The plaintiffs are not required to answer this request.

33 Request O (1) seeks particulars of paragraph 35 (specifically with reference to time) of the position of the fire in the Park and the Area on 24 and 25 December 2001. The plaintiffs note that the RFS produced maps of the path and a time frame for the fire at the Coronial Inquest. I accept that the plaintiffs are not able to particularise the pleading of paragraph 35 with greater specificity.

34 Request P(6) relates to the pleading of paragraph 36 and asks the plaintiff to identify what would have been required to enable the fire to be effectively controlled. I accept the particulars supplied in the response of 14 July 2006 are a sufficient response to this request.

35 Request BA 1 (a) relates to the pleading of the particulars of negligence against the NSWFB/NSWFB Commissioner of the failure to provide a sufficient warning to the Warragamba Fire Station to enable the Fire Officer in charge to do the matters in paragraph 45(a) (i), (ii) and (iv). The particulars given are a sufficient response to this request.

36 Request BM 1(a) – (b) relates to the allegation in paragraph 45(c) that the NSWFB/NSWFB Commissioner failed to communicate with and coordinate fire fighting activities with the RFS and NPWS before the fire reached the town. The first defendant submits that the particulars supplied do not relate to the communication and coordination of fire-fighting activities with the RFS and the NPWS. This appears to be a reference to the plaintiffs’ amended response of 13 June 2007, which refers to paragraph 142(1) of the Roche report. The pleading of this particular of negligence and the further particulars supplied in the plaintiffs’ initial response is sufficient to enable the first defendant to plead.

37 Each of the plaintiffs plead as particulars of the negligence of all five authorities the failure to warn of the approach of the fire on the evening of 24 December 2001 and thus the failure “to provide sufficient time in which the residents of Warragamba including the plaintiff could have taken steps to prevent or minimise damage to their properties” (paragraph 43(b)(ii)); and the failure to warn the residents of Warragamba including the plaintiff on 25 December 2001 of the imminent approach of the fire and of the need to (i) take immediate precautions for the safety of their property from spot fires; and (ii) remove vehicles and machinery and other property from the path of the fire (paragraph 43 (c)(i) & (ii)).

38 The request for further particulars of the allegation pleaded in paragraph 43(b)(ii) are contained in requests Y6, 15, 18:

What “steps” does the plaintiff contend he:
(a) could
(b) would
have taken to “prevent or minimise the damage” to:
(i) “the premises”
(ii) the “certain property and possessions that were contained within/located on the premises”
had the warning been given on:
a. the evening of 24 December 2001
b. the morning of 25 December (Question 15 only)
c. the early afternoon of 25 December 2001 (Question 15 only).

39 The allegation in paragraph 43(c)(i) is the subject of the requests in Z3(a) – (b) 7[3(a)-(b)], 8[3(a)-(b)]:

What “immediate precautions” would the plaintiff have taken “for the safety of”:
(a) the premises
(b) the “certain property and possessions that were contained within/located on the premises”
from spot fires if so warned?

40 The allegation in paragraph 43(c)(ii) is the subject of the requests Z5, 7[5], 8[5]:

(with sufficient particularity to permit each of them to be identified ) what:
(a) vehicles
(b) machinery
(c) other property
would the plaintiff have removed from the path of the fire if he had been so warned?

41 The plaintiffs’ initial response to these requests was that they were requests for evidence and were not proper requests for particulars. In their amended response of 13 June the plaintiffs referred, by way of further answer to each request, to paragraph 142(o) of the Roche report:

I consider that early warning would have enabled residents and property owners to undertake the following activities to minimise damage to their assets and prepare for possible impact:
Removal of flammable material from around buildings such as firewood, building materials, ground litter etc;
Removal of assets such as cars, caravans and boats to a more secure location;
Family discussion concerning matters such as evacuation, when, where to, security of valuables such as photographs, family and business documents, safety of pets, relocation of stock etc;
Where necessary, arrange assistance from family and friends;
Prepare buildings for impact incl gutters, access to roof space, availability of ladders, water supply etc;
Collaboration with neighbours;
Establish sources of information and fire up-dates;
Advice to family, friends, neighbours etc that may have been absent from the area due to the Christmas break.

42 The plaintiffs resist the provision of the further particulars sought of each of these requests contending that each has provided schedules of all the moveable property located on his/her premises at the date of the fire. The assertions in paragraph 142(o) of the Roche report are not particulars of any claim. I consider that there is force to the first defendant’s submission that in the absence of further particulars of each of the plaintiff’s claims it cannot understand the causal connection between the absence of the warning and the alleged failure to provide sufficient time for the plaintiff to have taken steps to prevent or minimise damage to his/her property (paragraph 43(b)(ii)). The like position obtains with respect to the allegations in paragraph 43(c)(i) and (ii). The plaintiffs will be required to provide answers to the requests for particulars Y6, 15, 18; Z3(a) – (b) 7[3(a)-(b)], 8[3(a)-(b)]; and Z5, 7[5], 8[5].

43 Paragraph 45(d) particularises the negligence of the NSWFB/NSWFB Commissioner in failing to provide advice and keep landholders informed as to the progress of the fire and the means to be adopted to prevent damage to properties such as the plaintiff’s. Requests BN4(a)-(b) seek particulars of what it is contended the plaintiff could or would have done to prevent or minimise the damage to the plaintiff’s premises and “certain property and possessions that were contained within the premises” had the advice and the information been provided. The plaintiff, by his initial response, objected that it is a matter for evidence and by the amended response of 13 June 2007 referred to paragraph 142(o) of the Roche report. Again, paragraph 142(o) of the Roche report does not serve as particulars of the allegation as it relates to any claim. The first defendant cannot understand how the failure to provide advice and information as to the progress of the fire is causally related to the damage claimed. The plaintiffs will be required to provide answers to the requests for particulars BN4(a) – (b).

44 Request BN 5 (a) – (b) is also addressed to the pleading of the particulars of negligence against the NSWFB/NSWFB Commissioner in paragraph 45 (d). It seeks particulars of what “landholders” could or would have done to prevent or minimise damage to property. The first defendant again submits that without further particulars of this allegation it cannot understand how the failure to warn is causally related to the plaintiff’s damage. This request does not raise the same issue on causation as BN4(a) – (b). The plaintiffs are not required to answer request BN5(a) – (b).

45 Requests Y2(f), 3(f), 4(f), 5(e), 11(f), 12(f), 13(f), and 14(e) relate to the pleading of the failure of each of the authorities to warn the residents of Warragamba of the approach of the fire on the evening of 24 December 2001. The first defendant sought particulars of how the plaintiffs alleged the warning should have been communicated to the residents of Warragamba (residents in the vicinity of the area as the case may be). In their initial response the plaintiffs objected that the request was not a proper request for particulars but that, “the plaintiff will allege the communication method should have been by all means practical including but not limited to broadcast by wireless, television, telephone, loudspeaker or other appropriate means”. In their amended response of 13 June the plaintiffs referred to paragraph 122 of the Roche report:

These messages should have been provided to the media throughout Monday and Tuesday. In addition arrangements should have been initiated to visit people or facilities at higher risk to provide initial information and describe the sources to obtain further information.

46 The first defendant pressed its request contending that the particulars did not specify how the messages should have been provided; by press release and, if so, to what media. Additionally the first defendant submitted that, if relevant, the plaintiff should identify the “people or facilities at higher risk”.

47 The plaintiffs’ submissions in the composite document are:

“The allegation is that a warning should have been given and that none was given by any means at all. … The information to be provided to people or facilities at higher risk is a reference to the inhabitants of the area and in particular to persons who occupied premises close to bush areas and/or who had particular fire risks on their properties, such as the storage of flammable materials.”

In the course of oral submissions Mr Nock amplified the answer to this request:

“we would accept that it is sufficient for the defendant to discharge that onus if it was able to say, look, over the ABC and Channel this or that we sent a blanket warning to everybody and the plaintiff should have had his radio turned on or whatever. We would accept that answers that”
(T 45.25-30).

Mr Nock stated that Father Evans’ claim does not involve the assertion that that he was a person (or that his premises were facilities) at higher risk.

48 The particulars supplied by the amended response of 13 June are sufficient save in the case of any plaintiff who contends that he/she is a person (or that his/her premises were facilities) at higher risk such that any of the authorities were negligent in failing to warn of the approach of the fire by means other than by messages in the media throughout Monday and Tuesday. Particulars identifying any such plaintiffs and the facts and circumstances said to give rise to the obligation to warn by means other than messages in the media throughout Monday and Tuesday are to be supplied.

49 Requests BC1(c)/BD2[1(c)] raise the same issue identified in requests Y2(f), 3(f), 4(f), 5(e), 11(f), 12(f), 13(f), 14(e). The particulars supplied are adequate save in the case of any plaintiff who contends that he/she is a person (or that his/her premises were facilities) at higher risk. Particulars identifying any such plaintiffs and the facts and circumstances said to give rise to the obligation to warn by means other than messages in the media throughout Monday and Tuesday are to be supplied.

50 Request CY 3 & 5 relate to the pleading in paragraph 55 (a) of the absence of warnings of the approach of the fire by reason of the failure of the RFS to issue a declaration under s 44 in respect of the Mount Hall fire until 1.00pm on 25 December 2001. The first defendant sought further particulars of the allegation; namely the substance of the warning and how the warning was to be conveyed. In the submissions in the composite document the first defendant confines the request to further particulars of how the warning should have been conveyed to the media. The plaintiffs have particularised this allegation by reference to paragraph 122 of the Roche report. This request raises the same issue as requests Y2(f), 3(f), 4(f), 5(e), 11(f), 12(f), 13(f), and 14(e) above. The particulars given are sufficient save in the case of any plaintiff who contends that he/she was a person (or his/her premises were facilities) at higher risk and accordingly a person who should have received a warning of the approach of the fire by any means other than messages in the media throughout Monday and Tuesday. Particulars identifying any such plaintiffs and the facts and circumstances said to give rise to the obligation to warn by means other than messages in the media throughout Monday and Tuesday are to be supplied.

51 The plaintiff pleads in paragraph 44(i)(i) the NPWS failed to cooperate with the NSWFB, RFS and SCA in controlling the fire in particular by failing to have any or any proper means of communication in place to enable the NPWS to communicate with the other Authorities. This allegation is the subject of request AT1(c). By this request the first defendant sought further particulars of the allegation “any or any proper means of communication” namely what “means of communication” ought NPWS have had in place. The plaintiffs in their initial response of 14 July 2006 answered this request stating, “any practical means available, including but not limited to wireless, telephone, fax”. There was no change to this response by the plaintiffs’ amended response of 13 June. In the submissions contained in the composite document the plaintiffs assert, “there was no means of communication between the Authorities in that their radio networks were not compatible”. Understood in this way, the allegation is sufficiently particularised.

52 In paragraph 45(f)(i) of the FASOC the plaintiff pleads the NSWFB/NSWFB Commissioner failed to cooperate with the NPWS, RFS and SCA in controlling the fire, in particular by failing to have any or any proper means of communication in place to enable the NSWFB Commissioner/NSWFB to communicate with the other Authorities. This is the subject of request BQ1(c). In the plaintiff’s initial response of 14 July 2006 it was contended that the request was not a proper one, and without prejudice that the Authority should have had in place “any appropriate means available”. There was no change to this response in the amended response of 13 June. In the composite document the plaintiffs submit that it will be alleged that the NSWFB did not have the means of communicating by wireless and that their wireless programs were incompatible with the other three Authorities. This stands as particulars of the allegation contained in paragraph 45(f)(i). In the event it is sought to allege that the failure to have any proper means of communication in place to enable the NSWFB Commissioner/NSWFB to communicate with the other Authorities by reason of any circumstance other than the incompatibility of wireless programs, the plaintiffs are to supply further particulars of the same.

ORDER

1. The plaintiff is to provide answers to the first defendant’s requests for further and better particulars of paragraphs 43(b)(ii); 43 (c)(i)&(ii) and 45 (d) of the FASOC in answer to requests Y6, 15, 18; Z3(a) – (b) 7[3(a)-(b)], 8[3(a)-(b)]; Z5, 7[5], 8[5] and BN4(a) – (b) within six weeks of to-days date;

2. Any plaintiff whose claim is to be further particularised by reason of the matters referred to in paragraphs 48 – 52 above is to supply the same within six weeks of to-day’s date;

3. Otherwise paragraph 2 of the first defendant’s amended notice of motion is dismissed.

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