Harvey v Commonwealth Scientific and Industrial Research Organisation

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane
No. 10520 of 1998
Before Mr Justice Ambrose
[P.M. & P.A. Harvey t/a Shortech v. CSIRO]
BETWEEN

PETER MAURICE HARVEY AND PATRICIA ANN HARVEY
TRADING AS SHORTECH
Plaintiffs
AND

COMMONWEALTH SCIENTIFIC AND INDUSTRIAL
RESEARCH ORGANISATION
Defendant

REASONS FOR JUDGMENT - B.W. AMBROSE J.
Delivered the 16th day of August 1999

This is an application by the defendant for further and better particulars of paragraphs 5,7 and 8 of the plaintiff’s statement of claim in response to its request for particulars dated 17 February 1999.
The defendant also applies for an order for production of documents mentioned in particulars already provided by the plaintiffs pursuant to a consent order for particulars made on 26 March 1999.
This action commenced on 11 November 1998. The statement of claim was delivered on 9 December 1998 and a defence counter-claim was delivered on 17 February 1999. With the defence and counter-claim was delivered a request for particulars of the statement of claim although apparently this application was not filed until 19 March 1999.
The plaintiffs delivered their reply and answer to the defence and counter-claim on 17 March 1999 - two days prior to the defendant’s first application for further and better particulars made 19 March 1999.
In any event on 26 March 1999 the plaintiffs consented to an order that they provide further and better particulars by 9 April 1999 in accordance with the defendant’s request of 17 February 1999.
I will not attempt to analyze in detail the statement of claim. It suffices to say that the plaintiffs plead that by an agreement in writing dated 13 December 1990 they provided certain services to the defendant for which they were to be paid a retainer and commission. The written agreement required that the services be provided and paid for during a period of time commencing 1 January 1991 and ending 31 December 1992.
The plaintiffs further contend that upon the expiration of the term for which the written agreement provided they continued to provide services and that they were not paid for some of them. The crux of their case is contained in paragraph 5 of the statement of claim which alleges -
“5.From in or about December 1992 the plaintiff and the defendant -
(a)agreed to extend the contract on the same terms and conditions (save for clause 2.1)
(b)alternatively entered into further contracts on the same terms and conditions (save for clause 2.1) whereby the plaintiff continued to be engaged as a consultant by the defendant to provide services for the defendant.”
The plaintiffs plead that on 30 May 1997 by notice in writing the defendant terminated the contractual arrangements then in place between the plaintiff and the defendant.
In paragraph 7 of the statement of claim the plaintiffs allege that during the period covered by the extended or new agreement they provided services by negotiating contracts between the defendant and another party Digital Exploration Limited. This contract (“the Digital Contract”) was said to have been negotiated in February 1994.
They further allege that they also negotiated a written contract on or about 19 October 1995 between the State of Queensland and the defendant described as “the Prince Contract”. In paragraph 8 of their statement of claim the plaintiffs allege that pursuant to the agreement with the defendant for payment of commission, they were entitled to commission in respect of both the Digital contract and the Prince contract and particulars of relevant invoice numbers, dates and commission allegedly due are set forth in the statement of claim. The sum claimed is $64,875.
In paragraph 8(b) relating to the Digital Contract there is a claim for “further commission due from July 1998". It is asserted that -
“The plaintiff is unable to provide any further or better particulars with respect to commission due from July 1998 until the completion of discovery, inspection and interrogatories.”
In paragraph 8 (b) relating to the Prince Contract, particulars are also given with respect to money allegedly due under that contract and there is a claim for “further commission due from July 1995 to date of trial” and it is stated -
“The plaintiff is unable to provide any further or better particulars with respect to commission due from July 1995 until completion of discovery, inspection and interrogatories.”
In the request for particulars of the statement of claim of 17 February 1999 the defendant sought particulars “of something done orally” but specifically with respect to the allegations contained in paragraphs 5,7 and 8.
It is unnecessary for me to analyze the extent of the particulars sought in that request because the plaintiffs consented to provide further and better particulars pursuant to it.
On 9 April 1999 the plaintiffs delivered particulars pursuant to that request.
The particulars delivered were in my view extensive, comprising seven pages to which were attached a schedule of facts relating to the Digital contract pleaded in paragraph 8 extending over nine pages. The particulars are listed in chronological order starting on 5 August 1993 and ending on 24 December 1996. At the close of the schedule it is stated -
“The plaintiff is unable to provide any further or better particulars until after the completion of discovery, inspection and interrogation.”
A second schedule of particulars relating to the negotiation of the Prince contract pleaded in paragraph 8 runs for 11 pages in chronological order commencing 16 November 1992 and finishing 26 February 1996.
At the end of this schedule it is stated -
“The plaintiff is unable to provide any further and better particulars in response to this request until after the completion of discovery, inspection and interrogation.”
Looking at the facts, matters and circumstances contained in schedule 1 and schedule 2 to the further and better particulars delivered, 9 April 1999 it is clear that there are hundreds of particulars given in chronological order.
The object of particulars is twofold; the first is to allow the party seeking particulars to know precisely the case to be met at trial and thus avoid the incurring of unnecessary expense preparing to meet a case not put forward at trial and the second is to avoid being taken by surprise upon trial. The facts upon which the plaintiffs in this case propose to rely must be particularized to avoid the defendant being taken by surprise by evidence called to prove some fact which may tend to support a “vague allegation” contained in the statement of claim as particularized.
The issues between the parties will be limited by the particulars given to support those issues. A party will not be permitted (except on condition imposed at trial) to raise matters or to call evidence to prove facts of which notice has not been clearly given by particulars provided as required.
Particulars will be ordered to show what facts are to be proved at trial - not how they are to be proved. Particulars of what evidence is to be called to prove matters in issue are not required.
When facts upon which a plaintiff will ultimately seek to rely are solely within the knowledge of a defendant at the time when particulars are required, or are evidenced by documents in the possession of the defendant of which the plaintiff does not have copies, it is obviously impossible for a plaintiff to give particulars of those facts which will not be known until after discovery of documents has been effected or interrogatories answered. It has been common in such circumstances to postpone the obligation to give particulars until after discovery or interrogation of the other side has been completed so that the person required to provide particulars designed to limit the issues at the trial is aware of the documentary evidence in the possession of the other party or facts within the knowledge of that party upon which reliance will be placed to establish those facts. Once the plaintiff becomes aware of such facts then of course if they are to be relied upon at trial particulars should be given. There are many authorities to support these propositions stretching over more than a century and I will do no more than refer to the Supreme Court Practice; Ryan Weld and Lee (now discontinued) in the annotations to Order 23 at p.4357 and to Odgers on Pleading and Practice (15th Edition) at pp.155-166 and the illustrations contained therein.
I do not propose to evaluate or to analyze the lengthy correspondence between the parties relating to whether or not sufficient particulars have yet been provided to apprise the defendant of the case which it must meet. It suffices to say that an enormous number of particulars has been provided and it is the case for the plaintiffs that they cannot provide any more until after discovery has been effected by the defendant. On behalf of the defendant it is contended that it is a large organization and it will be a lot of trouble to procure all the documents that need be discovered. The evidence indicates that the plaintiffs have exhausted all the records in their possession and all the diary notes taken over the years relating to work that was done as alleged pursuant to the pleaded agreement and invoices etcetera forwarded to the defendant, copies of some of which appear to have been lost or mislaid by the plaintiffs. In both the plaintiffs’ statement of claim and in the particulars already given, they assert that they have given all the particulars that they are able to give at this stage and that they will provide more particulars of facts to be proved at trial after completion of discovery.
I am quite unpersuaded that the plaintiffs ought be ordered to provide further and better particulars until after discovery by the defendant has been effected. The willingness of the plaintiffs to provide further particulars after discovery has been made abundantly clear in the form of the particulars already given and in correspondence passing between the solicitors for the plaintiffs and the solicitors for the defendant.
In my view this application for further and better particulars is ill conceived.
The other relief sought by the defendant is the production of “the documents mentioned in the plaintiff’s response dated 9 April 1999" - pursuant to Rule 222.
It was pointed out that particulars given with respect to paragraph 5(a) of the statement of claim include -
“1(c)(vii)‘the plaintiff issued monthly invoices for the retainer as per the original contract’; and
(ix) ‘the plaintiff issued periodical invoices for commission’; and
(xi) ‘the plaintiff’s invoices were prepared from an income statement provided by the defendant’s accounts department’.”
In the course of the 27 pages of particulars they have already provided, the plaintiffs make reference to various documents - many of them asserted not to be in their possession. For example the plaintiffs say that they sent invoices to the defendant which presumably still has them in its possession. They have already disclosed those copies of invoices which have not been lost or mislaid and have further disclosed diary notes and records etcetera recounting in very brief form, meetings and discussions and “facts” relevant to their case. These documents are available and obviously will be discovered. However for the defendant it is contended that under Rule 222 of the Uniform Civil Procedure Rules 1999 the plaintiffs can be required to produce all the documents to which reference is made either in the statement of claim or the particulars of allegations in that statement of claim.
Rule 222 provides -
“222A party may, by written notice, require another party in whose pleadings, particulars or affidavits mention is made of a document -
(a)to produce the document for the inspection of the party making the requirement or the solicitor for the party; and
(b)to permit copies of the document to be made.”
This is the counterpart of the repealed O.35 r.13 of the Supreme Court Rules.
In my view neither the old O.35 r.13 nor the new Rule 222 of the Uniform Civil Procedure Rules 1999 is designed to require a party who does not have a document referred to in pleadings or particulars in its possession to produce that document for inspection. It would be a ludicrous construction of that rule to require the plaintiffs in this case to produce for the inspection of the defendant documents which they gave to the defendant and which they no longer have in their possession but which, inferentially at least, it does.
It may well be that the plaintiffs in this case will obtain documents upon third party discovery relevant to the proof of facts alleged in paragraphs 5, 7 and 8 of their statement of claim. Undoubtedly, to the extent that “mention is made” in the pleadings or particulars of a document coming into the possession of the plaintiffs then if required they must produce that document for the inspection of the defendant and permit copies to be made. The consequences of non-compliance with a requirement under Rule 222 are dealt with under Rule 223; in my view it is quite unlikely that a party in possession of a document received from another party would succeed in obtaining an order that that other party produce the document no longer in its possession so that it might be copied by the party in whose possession it remains.
In my view the application for this order for production is also ill-conceived.
In my view there should be prompt discovery of documents by the plaintiffs and defendant. If third party discovery is needed to produce documents not in the possession of either plaintiffs or defendant, then that should also be effected promptly.
When the plaintiffs have all relevant material obtained on discovery, then they should give any further particulars they are then able to provide. The particulars of course will be of facts and acts and not the evidence by which those facts and acts are to be proved - whether the evidence be oral evidence or documentary evidence. As a matter of convenience, it may be decided to simply assemble the large number of invoices or other documentary material obtained upon discovery and treat the content of those documents as being the equivalent of particulars of the facts upon which the plaintiffs will rely. Although not strictly amounting to particulars in the true sense but rather the evidence by which facts relied upon by the plaintiffs are to be proved nevertheless to avoid the incurring of needless expense by analyzing the documentary evidence with a view to determining what acts or facts that evidence establishes - chronologically as far as provision of services and agreed remuneration for them etcetera are concerned - it would probably be a sensible and effective way of informing the defendant of precisely the case which it must meet when the plaintiff proceeds to trial to simply attach such documents to a short statement of facts which the plaintiffs assert their content proves.
The plaintiffs have indicated that they are anxious to get discovery completed, the pleadings put in order and then to have the whole matter referred to mediation/case appraisal.
On the whole of the evidence and arguments addressed at some length, I am unpersuaded that the plaintiffs ought be ordered to provide any further particulars at this stage or indeed that they should be ordered to produce for the inspection of and copying by the defendant any documents to which reference is made in the particulars already given in the statement of claim when those documents are not in their possession.
Shortly stated it is my view that the defendant’s application is premature. While it is perfectly proper to tie the plaintiffs down by particulars in respect of the case that they propose to argue upon trial, they have made it very clear that they have given all the particulars they can give at the moment and will be unable to give further and better particulars until discovery has been effected. In my view they are perfectly at liberty to take that stand. It would be a ridiculous situation if they were required to tie themselves down to particulars now before they have obtained discovery. Having obtained discovery and being able to give further particulars, it might then be sought to object that the plaintiffs are bound by the particulars already given - albeit that they have intimated that they would give further and better particulars after discovery.
It may be, that after discovery has been effected (including third party discovery if any) the plaintiffs will desire to give further and better particulars. If they do and the defendant is still dissatisfied with the particulars then provided, then yet another application can be made to this Court. To avoid the necessity for a third application being made I propose simply to decline at this stage to make any order for further and better particulars or any order for the production of documents etcetera by the plaintiffs. I propose to adjourn to a date to be fixed the applications already made by the defendant to avoid the necessity for incurring further legal costs should it be dissatisfied with further particulars given after discovery has been completed.
With respect to the costs of this application to date, in my view it ought never to have been brought. I order that the plaintiffs’ costs of the application to date be the plaintiffs’ costs in the cause in any event.
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane
  No. 10520 of 1998
Before Mr Justice Ambrose
[P.M. & P.A. Harvey t/a Shortech v. CSIRO]
BETWEEN
PETER MAURICE HARVEY AND PATRICIA ANN HARVEY
TRADING AS SHORTECH
Plaintiffs
AND
COMMONWEALTH SCIENTIFIC AND INDUSTRIAL
RESEARCH ORGANISATION
Defendant
REASONS FOR JUDGMENT - B.W. AMBROSE
  Delivered the 16th day of August 1999
CATCHWORDS:     PRACTICE - Particulars - Statement of Claim - application for further and better particulars - application for production of documents mentioned in particulars already provided - wh delivery of particulars can be delayed until after discovery, inspection and interrogation.
Uniform Civil Procedure Rules 1999
Supreme Court Rules
Counsel:  Mr C. Carrigan for the plaintiffs
Mr P. O’Shea for the defendant
Solicitors:Crouch & Lyndon for the plaintiffs
Australian Government Solicitor for the defendant
Hearing Date:28 July 1999

[1999] QSC 191

16 August 1999