Jones v Nuske & Ors No. DCCIV-01-634

JEANETTE MARY JONES v DAVID JOHN NUSKE & ORS
[2003] SADC 68
Judge Lunn
Civil
APPEAL AGAINST AN ORDER OF A MASTER REFUSING THE DEFENDANTS’ APPLICATION FOR BETTER PARTICULARS OF THE STATEMENT OF CLAIM

In this action the plaintiff has sued the defendants for damages for slanders which allegedly disparaged her in her occupation of a private investigator. The statement of claim pleads various allegedly defamatory words said by the first two defendants.
Paragraph 19 of the statement of claim pleads:
“19.On dates of which the plaintiff is presently unaware the said Gail Harris republished the third Nuske words to large clients of Allianz Australia Workers Compensation (SA) Ltd including Harris Scarfe, Clipsal, Finemores Transport and a kitchen builder and other WorkCover agents.”
The defendants seek particulars of the alleged republications including their nature, time and place and the identity of the persons in the organisations mentioned to whom the republications were made.
Paragraph 22 of the statement of claim pleads:
“22.The first, second and third Nuske words and the first and second Weinel words became widely known amongst insurers and self-insurers by reason of rumour. The first, second and third defendants are liable for the currency which the first, second and third Nuske words and the first and second Weinel words gained amongst insurers and self-insurers.”
The defendants seek similar particulars of the implied republications implicit in this paragraph.
Paragraph 25 of the statement of claim pleads:
“25.As a result of the publication of the first, second and third Nuske words an (sic) the first and second Weinel words the plaintiff has been greatly damaged in her reputation, has suffered personal distress, has suffered significant damage to her business and has been brought into odium contempt and ridicule.”
In the prayer for relief the plaintiff claims damages for economic loss. The defendants seek particulars of the “significant damage to her business” alleged in paragraph 25.
The defendants took out an application seeking that the statement of claim be struck out with liberty to file an amended statement of claim. The crux of their complaint was the lack of particularity of the paragraphs mentioned above. Although the application did not seek an order for particulars on both the hearing before the Master, and on the appeal before me, it was treated as if it was one only for an order for further particulars under Rule 46A.09. On 19 February 2003 a Master dismissed the plaintiff’s application. She has appealed against that order.
As this action was commenced after 3 June 2000 its pleadings are governed by the new Rule 46A. Much of the old law on pleadings and particulars has been superseded by the provisions of Rule 46A. Rule 46A is to be viewed and interpreted in the light of the mischief which it was designed to overcome. Under the former Rules it was notorious that substantial delays and costs were generated in actions by detailed requests for particulars, and arguments about them, when the resulting amended pleadings contributed little, if anything, to the just and expedient resolution of the action. Rule 46A is intended to limit disputes about proper particularity and pleadings to situations where the lack of particularity would significantly prejudice another party. The old practice also encouraged pleaders to give as little particularity as possible, and to hope either their opponents would not request better particulars or the Court would not order them. The new Rules are intended to counteract this.
In considering the requirements of Rule 46A about the degree of particularity required in pleadings, the starting point is Rule 46A.02 which provides:
“46A.02All pleadings are to:
(a)     be as brief as the nature of the case permits;
(b)    plead only the material facts relied upon and not the evidence or arguments by which they are to be proved. ……..”
In relation to statements of claim Rule 46A.03 (and similar rules for other pleadings) provides:
“46A.03 In an action where damages for personal injuries are not claimed the Statement of Claim must plead, but plead only:
(a)     the material facts relied upon to constitute any cause of action, or grounds for an extension of time or other relief sought;
(b)    such further material facts as are necessary to give other parties fair notice of the case which they will have to answer;
(c)    the general nature of the legal causes of action;
(d)    any statutory provisions relied upon; and
(e)    the general nature of the relief sought.”
This Rule places a positive obligation on the pleader of a statement of claim to include in it both the material facts relied upon to constitute the cause of action and in addition such further material facts as are necessary to give all other parties fair notice of the cases which they will have to answer. This means that it must contain all the necessary particularity. Subparagraph (b) makes explicit what was only implicit in former pleading rules that in addition to pleading the causes of action such further facts must be set out so that the other parties have proper notice of the cases against them which they will have to meet at trial. Under the old rules the Court would make interlocutory determinations about the degree of particularity which was required to enable a fair trial (see Rupcic v Baulderstone (1987) 46 SASR 99 at 101), but Rule 46A puts the onus on the pleader to put the necessary degree of particularity into the initial pleadings without the need for the Court to make any interlocutory determination of the degree of particularity required.
Pleadings have always served the function of placing an outer limit on the extent of the case which the party filing the pleading would be permitted to present at trial. However, it has not always been appreciated that pleadings and particularity also perform a function placing an inner, as well as an outer, limit on the case which that party can present at trial. (See my discussion of the point in Norris v McNair (1992) 167 LSJS 389 at 396-7.) Thus a party cannot claim that a general particular encompasses more specific allegations where fairness requires that the other party should have had notice of the case sought to be made against it at trial in more specific terms, eg where it is significant, a plea that an agreement was made in or about August 2002 will not support the reception of evidence led in support of the plea that the agreement was made on 23 August 2002. If the pleader intends to lead evidence in those specific terms, it should have been pleaded in those terms if fairness so required.
It should be noted that Rule 46A.02(e) requires any legal practitioner who is on the record for the party filing the pleading to give a certificate in the following terms.
“I certify that this pleading is put forward in accordance with the instructions of the (plaintiff/defendant/third party/etc) and complies with the Rules concerning pleadings.”
This certificate is an assurance to the Court by one of its officers that the rules of pleading have been complied with, including that all material facts needing to be pleaded under Rule 46A.03(a) and (b) have been so pleaded. Unless there is evidence to the contrary the Court is entitled to assume that such certificates are correct.
Rule 46A.09(1) and (2) provide:
“46A.09(1) No order is to be made that any further material facts are to be pleaded other than where the material facts pleaded do not disclose facts sufficient to give the other parties fair notice of the case which they will have to meet and the party seeking them would be significantly prejudiced in the conduct of its case by not having them. (The intent of Rule 46A is that parties should include all material facts in their pleadings as initially filed so that there is no unfairness to another party by any lack of particularity and if they have not done so the trial Judge may refuse to allow that party to present a case which is outside the terms of its pleadings.)
(2) No pleading is embarrassing for want of particularity unless the missing particulars would be ordered under (1).”
Subrule (1) limits any order for further particulars to situations where the party seeking them would be significantly prejudiced in the conduct of its case by not having them. However, as the rider to that subrule provides, whether there is any lack of particularity in the pleadings is to be assessed prima facie on the assumption that the party has pleaded all of the material facts. The situations in which particulars will be ordered under subrule (1) should be fairly rare. A party seeking such particulars is required to show that it would be significantly prejudiced, and not merely that it would be possibly prejudiced. The onus is on the party alleging prejudice to establish the fact of it on the balance of probabilities: Mahon v Franhiphite Pty Ltd (1990) 157 LSJS 52 especially at 71; Rowatt v Hagen (1992) 163 LSJS 486, and that it is causally related to the inadequate pleadings: Lewandowski v Lovell (1994) WAR 124.
In this context it is also necessary to consider Rule 46A.10 which reads:
“46A.10(1) At trial a party is not without leave of the Court to cross examine witnesses (other than on credit) or to adduce evidence about matters not properly raised on the pleadings where that course would be likely to prejudice or embarrass other parties in the conduct of their cases.
(2) In determining what issues are properly raised on the pleadings the trial Judge:
(a) will act without undue technicality and with regard to the substantial merits of the case so that no party suffers any injustice thereby; and
(b) in considering whether another party is likely to suffer prejudice or to be embarrassed may have regard to the contents of any Affidavit of Loss, experts’ reports or discovered documents, but they are not to be treated as if they were pleadings.”
The intent of the rider to Rule 46A.09(1) and Rule 46A.10 is that it is primarily for the trial Judge to determine the adequacy of particulars in the light of the overall case as it is at the time of trial and having regard to the actual evidence sought to be adduced at the trial. It is notoriously difficult at the interlocutory stages of an action to gauge whether a party would be significantly prejudiced, as distinct from merely potentially prejudiced, in the conduct of its case at trial in not having further particulars of an opponent’s pleadings. While in some cases it is doubtless necessary to undertake the exercise as best the Court can at an interlocutory stage, the general intent of Rule 46A is that the adequacy of particulars should be left to be assessed by the trial Judge as he or she will be in the best position to do so. A corollary of this is that a party who has not pleaded with sufficient particularity may suffer substantial consequences at trial as a result of it if it is found that the default would be likely to prejudice or embarrass other parties in the conduct of their cases.
Another point which needs to be made on this topic is that it is not for the Court on any argument about the adequacy of the pleadings to inquire how a party intends to prove the matters raised by its pleadings at trial unless the party volunteers that information. Whether the evidence is available to a party to prove what it has pleaded is not relevant unless the bona fides of the plea are put in issue. Where a party is acting bona fide it is entitled, if it so wishes, to run its case on weak and generalised evidence, albeit that it runs a substantial risk of having costs ordered against it if it cannot prove its case.
The pleas here in paragraphs 19 and 22 of the statement of claim are very vague and generalised. However, even if the plaintiff cannot give any better particulars of these allegations it is still entitled to pursue them at the trial in the form in which they are pleaded, but it would be likely to be precluded under Rule 46A.10(1) from leading evidence in any greater particularity on these matters than has been pleaded. If she intends to be more specific in the evidence which is adduced, she would be well advised to seek to amend in the near future. The defendants have not shown that they would be significantly prejudiced, as distinct from possibly prejudiced, in the conduct of their case by not having better particulars of paragraphs 19 and 22. If the plaintiff only leads evidence of the matters in paragraphs 19 and 22 in the generality that is pleaded, the defendants do not have any great case to answer on them.
In his reasons the Master suggested that further particulars could be refused because the defendants could make their own inquiries of Gail Harris about the matters raised by these paragraphs. I do not accept this. There is no evidence that Gail Harris is so closely associated with the defendants that they could expect her co-operation in answering the allegations. It is for the plaintiff, and not Gail Harris, to state what is the plaintiff’s case on these matters.
The application in respect of paragraph 25 of the statement of claim raises the issue of the extent to which a plaintiff is required to plead facts relating to claims for general and special economic loss. While under the rules in force many years ago a plaintiff was not required to plead facts relating to damages because they did not form part of the cause of action that has not been the position in this State for many years. Under Rule 46.04 there has been a substantial requirement to plead facts relating to damages: Taylor v Santos Ltd (No 10), Bleby J, 8/12/99, [1999] SASC 527, unreported. Under Rule 46A.03(b) the plaintiff’s case as to damages is part of the case which the defendant has to answer, and therefore by (b) a plaintiff is required to plead such material facts as are necessary to give the defendant fair notice of her case on damages. What such pleadings will require from the plaintiff will depend upon both the nature of the damages sought and the evidence by which the plaintiff will seek to prove them.
Insofar as a plaintiff does not plead facts relating to her case on damages she may be precluded under Rule 46A.10(1) from leading evidence of those facts at the trial. It may be that insofar as those facts have been dealt with in experts’ reports or discovered documents, the trial Judge may exercise his or her discretion arising from Rule 46A.10(2)(b) to allow the evidence, but there is no necessity for him or her to do so. I was informed that in this action discovery has not yet been made and no experts’ reports have as yet been delivered by the plaintiff. It is for the plaintiff to decide whether she will rely on experts’ reports and/or discovered documents in lieu of pleading her economic loss. Whether such reliance is sufficient will be a matter for the trial Judge. As matters stand at present it is highly unlikely that the plaintiff would be allowed at trial to adduce very much evidence about any damage to her business. However, I am not persuaded that the defendants have shown that they are significantly prejudiced by not having particulars of those damages at the present time. (There was no suggestion that the defendants were considering any offer under Rule 40.)
Accordingly, the appeal is dismissed. I intend to reserve the question of costs to the trial Judge. If the plaintiff seeks to amend paragraphs 19, 22 or 25 hereafter to add particularity, it may be necessary to conduct an inquiry as to whether those amendments should have been made before the present application was heard by the Master. The orders on the appeal are:
1. Appeal dismissed.
2. Question of costs reserved to the trial Judge.

[2003] SADC 68

26 May 2003