FAULKNER v Tidewater Marine Australia Pty Ltd (No.5)

This matter concerned an application by the plaintiff, Mr Faulkner, for an order that the defendant, Tidewater Marine Australia Pty Ltd, provide further and better particulars of its defence. The dispute arose in proceedings where Mr Faulkner alleged that he had suffered injury and loss as a result of the defendant's negligence. The application was heard by Judge Street in the District Court of New South Wales.

The primary legal issue before the court was whether the defendant's defence, as pleaded, sufficiently particularised the allegations of contributory negligence and failure to mitigate loss. Specifically, the court was required to determine if the defence adequately informed the plaintiff of the specific acts or omissions relied upon by the defendant to establish that the plaintiff had contributed to his own injuries or had failed to take reasonable steps to minimise his losses.

Judge Street applied the principles governing the pleading of contributory negligence and failure to mitigate loss. His Honour noted that a defendant must plead with sufficient particularity the facts and circumstances upon which they rely to establish these defences. The court found that the defence, as currently pleaded, lacked the necessary detail to allow the plaintiff to understand the case he had to meet. Consequently, the defence was considered embarrassing and an abuse of process in its current form.

The court ordered that the defendant provide further and better particulars of its defence within 28 days.