Knight v City of Bayswater

[2008] WADC 13

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   KNIGHT & ANOR -v- CITY OF BAYSWATER & ANOR [2008] WADC 13

CORAM:   PRINCIPAL REGISTRAR GETHING

HEARD:   23 JANUARY 2008

DELIVERED          :   Delivered Extemporaneously on 23 JANUARY 2008 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 3384 of 2002

BETWEEN:   GILLIAN GAIL KNIGHT

First Plaintiff

WILLIAM PETER KNIGHT
Second Plaintiff

AND

CITY OF BAYSWATER
First Defendant

WESTERN POWER CORPORATION
Second Defendant

Catchwords:

Practice and procedure - Application for further and better particulars

Legislation:

Nil

Result:

One application dismissed, the other partially successful

Representation:

Counsel:

First Plaintiff                  :     Mr N P Lindsay

Second Plaintiff             :     Mr N P Lindsay

First Defendant              :     Mr J Eller

Second Defendant         :     Mr T R Barrie

Solicitors:

First Plaintiff                  :     S C Nigam & Co

Second Plaintiff             :     S C Nigam & Co

First Defendant              :     John Eller

Second Defendant         :     DLA Phillips Fox

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

Dare v Pulham (1982) 148 CLR 658

State of Queensland v J L Holdings Ltd (1997) 189 CLR 146

1. PRINCIPAL REGISTRAR GETHING:  Before me for determination are two applications by the plaintiff dated 30 November 2007.  In the applications, the plaintiffs seek further particulars of the respective defences of the first defendant and the second defendant.

2. The applications arise in the context of a claim by the second plaintiff and his mother, the first plaintiff, for damages arising out of an incident in 2002 in which the second plaintiff was electrocuted.  The electrocution arose when the second plaintiff, then an infant, put his hand inside a metal cabinet to retrieve cigarettes and in doing so his hand was caught by a live electric busbar.  The incident occurred in what is described as a transformer compound at the Bayswater Waves Aquatic Centre.

3. The law relating to pleadings is well settled.  In Dare v Pulham (1982) 148 CLR 658 at 664 the High Court lists three primary functions of pleadings and particulars, namely:

   (a)to furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it;

   (b)to define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at trial; and

   (c)to give the other party an understanding of the claim it has to meet in aid of its right to make a payment into court (at least insofar as that party is a defendant).

Second defendant's defence

1. It is convenient to deal with the application in relation to the second defendant first as that was the way in which the applications were argued before me.  The plaintiffs have sought particulars of par 4.5 of the second defendant's defence dated 15 November 2005.  In par 4.5 the second defendant states:

   "… the Utilities Compound contains equipment that is variously the property of Alinta Gas, the first defendant, 'the City of Bayswater' and Western Power."

2. The plaintiffs say that they need to know what equipment was in the utilities compound and who owns it.  They say they need to know this to know the case they have to meet.  The second defendant opposes the application on two grounds:  firstly, that of delay, in that the request was not made until virtually two years after the pleading had been filed and, secondly, that on the merits there is no need for the information or for the particulars because from the remainder of par 4 it is very clear the case the plaintiffs have to meet.

3. Dealing first with the question of delay, in an affidavit filed 22 January 2008 on behalf of the plaintiffs, it was explained that the reason for the delay is what I will describe as the late consideration by counsel.  That late consideration occurred as the plaintiffs did not wish to incur any unnecessary and potentially significant costs involving counsel if there was a reasonable prospect that this matter would settle.

4. In my view, late consideration by counsel is not an acceptable reason for delay in making an application of this kind.  However, the question of delay takes second priority to the wider question of what is in the interests of justice.  This is clear from the High Court's decision in State of Queensland v J L Holdings Ltd (1997) 189 CLR 146 at 155.

5. Turning then to the merits, the case set out in the remainder of par 4, (being pars 4.6 to 4.24) from the second defendant's perspective has two limbs.  The first limb is that the relevant metal cabinet was owned by the City of Bayswater (the first defendant).  It contained a meter which is described as the second defendant's meter.  The meter does not contain any exposed live electrical cables.  The case that the plaintiffs have to meet is that it was not the second defendant who relevantly caused the second plaintiff's injury.

6. The second limb of the defence is that the area in which there are live electrical cables under the control of the second defendant is in a fully enclosed brick compound.  The case the plaintiffs have to meet there is that the cabling in the brick compound was in a different area than is described in the plaintiffs' statement of claim as being the area in which the second plaintiff suffered his injury.  In my view, the case that the plaintiffs have to meet is sufficiently clear to allow them a fair opportunity to meet it.  Therefore, it is not necessary for there to be any further particulars of the second defendant's defence.

First defendant's defence

1. The relevant defence of the first defendant is its further amended defence dated 28 August 2007.  There are four requests for particulars.  The first relates to par 11 of the first defendant's amended defence.  In par 11(a) there is a plea that the second plaintiff "forcibly" entered an area described as the compound.  In par 11(b) there is an allegation that the second plaintiff "forced" his way into the compound.  The plaintiffs seek particulars of what is meant by the words "forcibly" and "forced".  In the course of submissions, counsel for the first defendant foreshadowed a desire to amend par 11 to replace the words "forcibly" and "forced" with the word "illegally".  That, I am informed by the plaintiffs' counsel in submissions, would deal with the plaintiffs' concerns.

2. The second request for particulars was in relation to pars 5 and 10 where there are allegations that the second plaintiff had entered the compound "illegally".  This request for particulars was not pressed by the plaintiffs in submissions before me.

3. The third request for particulars is for particulars of "obvious warning signs" referred to in pars 5 and 10 of the first defendant's amended defence.  The first defendant's case is that the second plaintiff ignored these "obvious warning signs".  The plaintiffs seek particulars of the obvious warning signs.  In relation to this request, it does seem to me appropriate that particulars be provided so that the plaintiffs understand the case that they have to meet.

4. The fourth and final request is in relation to a plea in par 10 that if the second plaintiff did sustain an injury, it was caused solely by his own negligence.  The plaintiffs seek particulars of the acts which the first defendant would prove through evidence and from which it would invite the Judge to make a finding that the second plaintiff's negligence was the sole cause of his injuries.  If this plea was in a statement of claim, in the ordinary course it would be supported by particulars.  In my view, in order for the plaintiffs to understand the case they have to meet, the plea ought to be supported by particulars.

5. In summary, in relation to the plaintiffs' application against the first defendant, there ought to be particulars of negligence in relation to the plea of negligence in par 10 of the first defendant's amended defence and particulars of the obvious warning signs in pars 5 and 10 of that same pleading.