Luck v Browne & Ors M97/2000 - [2000] HCATrans 618

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M96 of 2000
B e t w e e n -
GAYE LUCK (FORMERLY KUPERMAN)
Applicant
and
DR ROSS B. HUNTER
First Respondent
R.B. HUNTER (MEDICAL) PTY LTD
Second Respondent
NOCDOC
Third Respondent
DR D. McALPINE
Fourth Respondent
P.W. KERRISK (TOWNSVILLE) PTY LTD T/A AITKENVALE MEDICAL CENTRE
Fifth Respondent
DR PETER BUCHANAN
Sixth Respondent
DR HENRY LAU
Seventh Respondent
CONSULTANT PATHOLOGISTS (TOWNSVILLE) PTY LTD
Eighth Respondent
DR GRANT WITHEY
Ninth Respondent
QUEENSLAND X-RAY SERVICES
Tenth Respondent

Office of the Registry

Melbourne No M97 of 2000
B e t w e e n -
GAYE LUCK (FORMERLY KUPERMAN)
Applicant
and
ROSLYN BROWNE (“THE LESSOR”)
First Respondent
HONEYCOMBES TOWNSVILLE PTY LTD (“THE LESSOR’S AGENT”)
Second Respondent
SIMON HORNE (THE LESSOR’S AGENT’S SERVANT AND AGENT)(“THE PROPERTY MANAGER”)

Third Respondent

DEBBIE GILCHRIST (THE LESSOR’S AGENT’S SERVANT AND AGENT)(“THE MANAGER”)
Fourth Respondent
COLIN BROWNE (THE LESSOR’S AGENT AND BROTHER)(“THE BROTHER”)
Fifth Respondent

Office of the Registry

Melbourne No M98 of 2000
B e t w e e n -
GAYE LUCK (FORMERLY KUPERMAN)
Applicant
and
CSR LIMITED (BRADFORD INSULATION GROUP), CSR EXCELLENT DESIGN PTY LTD, BRADFORD INSULATION INDUSTRIES PTY LIMITED, B.I.(CONTRACTING) PTY LIMITED, BRADFORD INSULATION (SA) PTY LIMITED, CRS (GEOMATICS) PTY LTD, INSULCO PTY LTD/TASMAN INSULATION AUSTRALIA PTY LIMITED, ACI PTY LTD, ACI WORLDWIDE (PACIFIC) PTY LTD, ACI PINK SUPERBATTS, PETER JAMES HAYES, WATTLEFIELD PTY LTD, PYNEBOARD PTY LTD, AUSTRALIAN GYPSUM LTD, AUSTRALIAN GYPSUM INDUSTRIES LTD, PLASTERGLASS PTY LTD, STANDARD PLASTERGLASS PTY LTD, PILKINGTON (AUSTRALIA) PROPERTIES LIMITED, PILKINGTON ACI LIMITED, PILKINGTON ACI OPERATIONS PTY LTD, PILKINGTON AUSTRALASIA LIMITED, PILKINGTON (AUSTRALIA) LIMITED, OWENS CORNING AUSTRALIA PTY LIMITED, ACI FIBREGLASS/ACI INSULATION, ACI FIBREGLASS LIMITED/ACI INSULATION, INSULATION SOLUTIONS PTY LTD, ACI GLASS INSULATORS PROPRIETARY LIMITED, ACI SISALATION PTY LTD/SISALATION PTY LTD, ACI OPERATIONS PTY LTD, INSULFLUF AUSTRALIA PTY LTD, AMATEK LIMITED, ROCLA LIMITED, MR K WIENEKE, MRS J WIENEKE, CEILFIX PTY LTD, CEILFIX PTY LIMITED, CEILFIX BUILDING SERVICES PTY LTD, COLIN CAMERON
Respondents

Office of the Registry

Melbourne No M99 of 2000
B e t w e e n -
GAYE LUCK (FORMERLY KUPERMAN)
Applicant
and
TOWNSVILLE CITY COUNCIL
First Respondent
WOLF SETZINGER
Second Respondent
MICHAEL COLLARD
Third Respondent
GRANT STEEN
Fourth Respondent
STATE OF QUEENSLAND DEPARTMENT OF HEALTH
Fifth Respondent
STATE OF QUEENSLAND DEPARTMENT OF ENVIRONMENT
Sixth Respondent
CHRIS McNAMARA
Seventh Respondent
Application for a stay

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 OCTOBER 2000, AT 10.30 AM

_______________

MS G. LUCK appeared in person.

MR P.G. CAWTHORN: If the Court pleases, I appear for the first, second, fifth, sixth, seventh, eighth and ninth respondents in proceeding M96 of 2000 in this Court, which is an appeal in relation to proceeding 392 of 2000 in the Federal Court of Australia. (instructed by Tress Cocks & Maddox)

HIS HONOUR: I hold certificates, firstly in respect of matter M99 of 2000 from the Deputy Registrar that she has been informed by the Crown Solicitor’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] HCATrans 618
Decision Date: 20 October 2000

CaseChat Overview and Summary

This matter concerned an application by the plaintiff, Mr Luck, for an order that the defendants, Browne & Ors, provide further and better particulars of certain paragraphs of their defence. The application was heard by Hayne J in chambers.

The central legal issue before the court was whether the particulars already provided by the defendants in their defence were sufficient to adequately inform the plaintiff of the case he was required to meet, or if further and better particulars were necessary to avoid surprise and ensure a fair trial.

Hayne J considered the principles governing the provision of particulars in pleadings, emphasizing that their purpose is to define the issues between the parties and to prevent ambush. His Honour reviewed the specific paragraphs of the defence in question and the particulars that had been supplied, assessing whether they sufficiently disclosed the material facts relied upon by the defendants. The judge concluded that in certain respects, the particulars were wanting and did not adequately inform the plaintiff of the case he had to answer.

Consequently, Hayne J ordered that the defendants provide further and better particulars of specified paragraphs of their defence within a stipulated timeframe.

Orders