Jutta Payne as Executrix of the Estate of Kenneth Charles Payne (Deceased) v Architectural Ceiling Systems Pty Ltd - [2002] WADC 90

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JUTTA PAYNE as Executrix of the Estate of KENNETH CHARLES PAYNE (Deceased) -v- ARCHITECTURAL CEILING SYSTEMS PTY LTD & ANOR [2002] WADC 90

CORAM: KENNEDY DCJ

HEARD: 26 APRIL 2002

DELIVERED : Delivered Extemporaneously on 26 APRIL 2002 typed from tape and edited by Trial Judge

FILE NO/S: CIV 2522 of 2000

BETWEEN: JUTTA PAYNE as Executrix of the Estate of KENNETH CHARLES PAYNE (Deceased)
Plaintiff/Respondent
AND
ARCHITECTURAL CEILING SYSTEMS PTY LTD
First Defendant/Applicant
WALLABY GRIP BAE PTY LTD (IN LIQUIDATION)
Second Defendant

Catchwords:

Appeal - Practice and procedure - Further and better particulars of "employment" ordered

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff/Respondent           :     Ms T Y K Wong
First Defendant/Applicant    :     Ms L K Gunn
Second Defendant              :     No appearance

Solicitors:

Plaintiff/Respondent           :     Slater & Gordon
First Defendant/Applicant    :     Phillips Fox
Second Defendant              :     No appearance

Case(s) referred to in judgment(s):

Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361

Case(s) also cited:

Nil

KENNEDY DCJ: This is an appeal by the first defendant from a decision of a Deputy Registrar, given on 20 August 2001 dismissing its application for leave to request further and better particulars of the statement of claim. As is normal, in relation to matters dealt with in Deputy Registrar's chambers, where they are dealing with great numbers of matters, there are no reasons. I do not say that in any sense critically of the Deputy Registrar.
I have been told from the bar table that there was an argument that lasted approximately an hour before the learned Deputy Registrar. I have no doubt that this was dealt with very carefully. However, I do not have the benefit of that.
In the statement claim, in par 6, it is pleaded that:
"Between in or about 1973 and 1987 the Deceased was employed by the First Defendant and the Second Defendant as a sub‑contract ceiling fixer and was exposed to inhalation of asbestos as a consequence of his employment in the periods aforesaid. Additionally the Plaintiff worked in close proximity to employees of the First Defendant and Second Defendant working with asbestos products and as a consequence was exposed to inhalation of asbestos.
PARTICULARS OF EMPLOYMENT
(1)The Deceased accepted employment contracts from the First Defendant as a sub‑contract ceiling fixer at premises including:
(a)SGIO Building, Perth."
In September 2001, the first defendant sought further and better particulars, including:
1.In relation to par 6 of the amended statement of claim, provide full particulars as to:
1.1Whether the SGIO building employment contract was written or oral;
1.2How SGIO building employment contract came to be offered to the deceased;
1.3Which employees, servants or agents of the first defendant, did the deceased liaise with in relation to his acceptance of the SGIO building employment contract;
1.4What terms and conditions the SGIO building employment contract contained;
1.5The dates the SGIO building employment contract commenced and finished;
1.6The number of days the deceased worked in close proximity to employees of the first defendant at the SGIO building, and was exposed to the inhalation of asbestos.
So far as the law in relation to further and better particulars is concerned, I refer to Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361, and in particular, to the judgment of Kennedy J at page 6, where he says:
"A number of other aspects of particulars are considered in the White Book for 1997, at 18/12/1, in which, in a passage cited with approval by Edmund Davies LJ, in Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611, it was stated:
'The function of particulars is to carry into operation the overriding principle that litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and in incidentally to reduce costs.'
The White Book records various statements as to their functions as follows:
'(1)to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;
(2)to prevent the other side being taken by surprise at the trial;
(3)to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;
(4)to limit the generality of the proceedings or of the claim or the evidence;
(5)to limit and define the issues to be tried and as to which discovery is required;
(6)to tie the hands of the party so that he cannot without leave go into any matters not included. But if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings. (Authorities omitted).' "
In relation to this matter, during the hearing on 26 April, it became clear that while further information had been made known informally to the first defendant, the first defendant was unable to find any reference to "Kenneth Charles Payne" in its records, and do not know what steps to take in relation to the "employment" allegation.
In par 6 of the amended statement of claim, the plaintiff pleads "between on or about 1973 and 1987 the deceased was employed by the first defendant and the second defendant as a subcontract ceiling fixer". The plaintiff pleads in par 6(1) of the statement of claim, "the deceased accepted employment contracts from the first defendant ... at premises including (a) SGIO, Perth".
The plaintiff has produced a document entitled "Plaintiff's Informal Answers to Defendants' Request for Answers to Interrogatories", request 4 states:
"What was the deceased's complete work history (set out the name of each employer, the period of employment and the capacity in which the deceased was employed)."
The plaintiff's response in relation to the relevant period between 1973 and 1987, as pleaded in par 6 of the statement of claim, is as follows:
"1973‑1987 the plaintiff worked as a self employed, subcontract ceiling fixer."
In that document, request 6 states:
"When and for how long was the deceased employed by the first defendant at the SGIO building, Perth, and at Council House, Perth."
The plaintiff's response is as follows:
"The deceased gave instructions that his work at the SGIO building was in or about 1982. The date of work at Council House is not known by the plaintiff."
What the defendant seeks is further and better particulars of the statement of claim relating to the nature of the alleged contractual relationship between the first defendant and the deceased and the date of that contract. What the first defendant has submitted is that the plaintiff should be able to particularise the statement of claim to plead the true contractual relationship between the deceased and the first defendant, which is not one of employer and employee, and the date of the contract at the SGIO building in 1982 and not between 1973 and 1987.
Furthermore, I have had a look at the rest of the file, and when proceedings were taken by the second defendant, there is attached to the solicitor for the second defendant's affidavit, informal information provided by the plaintiff's counsel, to the effect that the plaintiff never actually negotiated with the first defendant but in fact a "Mr Brearley" negotiated, that the money was paid to Mr Brearley, and Mr Brearley then divided the money with the deceased.
On the basis of all of this information, the plaintiff's case is that a Mr Brearley as agent of the deceased, as I understand it, may have arranged the contracts and then split the money with Mr Payne, and Mr Payne was there as an equal at the time.
My tentative view was that some further and better particular should be supplied but I adjourn the matter to 9.00 am today to allow the plaintiff to make further submissions and to perhaps reach some compromise with the defendant, to provide this information, really, in a pleaded form, because that is what pleadings are about.
Unfortunately, it is no answer to say that the plaintiff does not wish to be tied down, because that is the purpose of pleadings. The plaintiff's solicitors very reasonably say that the plaintiff is the widow of the sub‑contract ceiling fixer. She never worked with him and she is now in the United Kingdom, and she cannot comment directly. However, without more assistance from the plaintiff, it seems to be quite obvious that these particulars should be provided, because this is an important issue. So I propose to allow the appeal in relation to that.
I will also make comment about the delay. The first defendant was very late in relation to the application for further and better particulars. I do not have the full history of the matter, and plaintiff's counsel, no doubt because I diverted her attention on the last occasion, was not in a position to give me the chronological details, but if providing further and better particulars in this way, eventually affect the outcome adversely to the plaintiff then obviously the costs should be borne by the first defendant.
If, for example, the first defendant was successful as a result of the further and better particulars, then the costs prior to that time, or a substantial portion of the costs prior to that time, should obviously be borne by the first defendant. But that is a matter for submission later in the day.
The appeal is allowed, the plaintiff is to answer the request for further and better particulars and the costs are reserved.