MDL Corporation Pty Ltd v Houston - [2004] WADC 123

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MDL CORPORATION PTY LTD -v- HOUSTON [2004] WADC 123

CORAM: DEANE DCJ

HEARD: 21 MAY 2004

DELIVERED : 16 JUNE 2004

FILE NO/S: CIV 1212 of 2002

BETWEEN: MDL CORPORATION PTY LTD
Appellant (Defendant)
AND
JANENE MARGARET HOUSTON
Respondent (Plaintiff)

Catchwords:

Appeal against order of Deputy Registrar - Whether appellant must supply further and better particulars of defence - If so whether that should occur prior to respondent answering interrogatories administered by appellant

Legislation:

Occupiers Liability Act 1985 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant (Defendant) : Ms F C E Davis
Respondent (Plaintiff) : Mr T P Heard

Solicitors:

Appellant (Defendant) : Phillips Fox
Respondent (Plaintiff) : Bradford & Co

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

Dare v Pulham (1982) 148 CLR 658
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

Case(s) also cited:

Bruce v Odhams Press Ltd [1936] 1 KB 697
Foamlite Australia Pty Ltd v Campbell & Anor, unreported; FCt SCt of WA; Library No 7686; 31 May 1989
Hardie Finance Corp Pty Ltd v Ahern [2003] WASCA 58
Houston v MLD Corporation Pty Ltd [2003] WASCA 257
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Whyte v Ahrens (1984) 26 Ch D 717

DEANE DCJ: In this matter the appellant appeals from an order of a Deputy Registrar of this Court on 18 December 2003 granting the respondent leave to request further and better particulars of defence and requiring the appellant to provide those particulars prior to the respondent filing and serving answers or objections verified by affidavit to interrogatories administered by the appellant dated 19 August 2003 as further amended in chambers on 22 August 2003.
The appellant argues that the order of the Deputy Registrar should be set aside and the respondent's application for leave to request further and better particulars of defence be dismissed.
Moreover the appellant seeks an order that the respondent in 14 days file answers or objections on affidavit to the amended interrogatories administered by the appellant.
Finally the appellant submits that the respondent's request for further and better particulars of the defence is improper in that it is directed at evidentiary issues and interrogates rather than requesting particulars of material facts underlying the defence pleaded and filed.
This appeal being from the decision of a Deputy Registrar is a hearing de novo: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
The respondent issued a writ of summons on 14 May 2002 and 10 days later the appellant filed a memorandum of appearance. Following this on 5 July 2002 the respondent filed her statement of claim pleading that on 6 June 2001, whilst present at the appellant's premises (which is a hairdressing and beauty salon business), the respondent was lying on a table. As she attempted to turn over her right arm contacted the wall of the room. This wall it is alleged consisted of a mural which had sharp cut glass and/or mirror pieces on it and when the respondent came into contact with it she suffered a severe laceration to her right hand and extensor tendon injury to her right index finger. In that way it is said that breach of the Occupiers Liability Act 1985 occurred on the part of the appellant, its servants or agents.
In its defence filed on 22 July 2002 the appellant admits that the respondent was present at the premises on the date specified and that she was lying on a table in a room at the premises. However, it denies that the respondent attempted to turn over but rather she actually did so whilst lying on the table. Further it denies the wall of the premises consisted of cut glass or mirror shaped as a mural and denies that the respondent's right arm came into contact with that mural causing injury. It admits that a mural was hanging on the wall but pleads it did not have sharp edges and in fact was not sharp in any part. It alleges that the table was in a position effectively distanced from the mural to render it unlikely that anybody lying on a table would come into contact with the mural on the wall. Whilst pleading a general denial in the above terms the appellant pleads that if the respondent did suffer the injuries particularised then such injuries were self‑inflicted.
On 17 October 2002 the respondent filed her certificate of discovery followed by the appellant filing its certificate of discovery on 10 September 2002. The action was then entered for trial in December 2002. A pre‑trial conference was listed to be heard on 14 March 2003 but just prior to this in February the appellant applied for leave to administer interrogatories to the respondent and also to issue a subpoena or subpoenas duces tecum requiring production of documents prior to trial.
This application was dismissed and as a result an appeal was heard by a Judge of the District Court on 22 August 2003 who ordered that the appeal be allowed and the order of the Deputy Registrar set aside. The appellant was granted leave to administer interrogatories in an amended form to the respondent and further the appellant obtained leave to issue the subpoenas duces tecum. The amended request for interrogatories was served on the respondent on 2 September 2003 but on 15 September 2003 the respondent sought leave to appeal the decision to the Full Court of Western Australia.
About a month later the listing conference in the matter was adjourned for the third time and the appeal was heard and delivered on 23 October 2003. The respondent's application for leave to appeal was dismissed with the consequence that the respondent was bound to answer those interrogatories as amended.
Rather than doing so, however, on 5 November 2003 the respondent served a request for further and better particulars of defence upon the appellant and on 13 November 2003 it filed an application seeking leave to administer them to the appellant. The hearing of the application was adjourned to a special appointment.
On 18 November 2003 the appellant filed an application seeking the respondent's answers to the interrogatories. The Deputy Registrar ordered that interrogatories 1 to 4 inclusive and 9 be answered or objected to on affidavit within 14 days whilst submissions in respect of interrogatories 5 to 8 inclusive was adjourned pending the hearing of the respondent's application for further and better particulars of defence. The respondent did not comply with the order to provide answers or objections to interrogatories.
And so it was on 18 December 2003 that the orders previously referred to, being the subject of this appeal, were made by the Deputy Registrar.
This appeal arises not only from the respondent's failure to answer the interrogatories administered by the appellant but also the decision of the Deputy Registrar to allow the respondent to request further and better particulars of the defence and requiring the appellant to answer that request and provide those particulars prior to receiving the respondent's answers or objections to the interrogatories administered by the appellant.
Whilst the appellant submits that the orders made by the Deputy Registrar are in the wrong order, the primary focus of its submissions is that the respondent should not be granted leave to request further and better particulars of the defence for a number of reasons.
Emphasis is placed on the unexplained delay by the respondent, its application brought some 15 months out of time. An order for particulars will not be made unless a written request has been filed and served within 30 days of the service of the relevant pleading or such other time as the Court allows; O 20, r 13(6) Rules of the Supreme Court. Clearly there is a wide discretion in the Court to extend the time taking into account factors such as positive case flow management and whether the interests of justice demand that the discretion be exercised.
The appellant further submits that the requests for further and better particulars of the defence are more properly categorised as interrogatories seeking evidence. The respondent's minute of request for further and better particulars is directed to par 4 of the defence which in parts pleads that if the respondent suffered the injuries particularised in par 5 of the statement of claim (which is denied) then those injuries were self‑inflicted.
The respondent requires the appellant to state with particularity;
"(a)the date and time of the day such injuries were self‑inflicted.
(b)precisely where the Plaintiff was located when the injuries were self‑inflicted.
(c)by precisely what means such injuries were self‑inflicted.
(d)if an instrument such as a knife or scissors or any other instrument was used to self‑inflict the injuries what was the instrument?"
The core of the argument, so it would seem on the material available, arises not so much as to questions of where and when the alleged injury or injuries were sustained but in what manner.
In its defence the appellant admits that the respondent was present at its premises on 6 June 2001 being the date of the alleged injury and further that she was lying on a table in a room at those premises. As a matter of commonsense there is no suggestion that the respondent arrived at the premises in an injured state so clearly the suggestion is that if such injuries were self‑inflicted as the appellant pleads then it must have happened on that date and at those premises. Therefore the particulars sought in relation to (a) of par 4 of the defence are unnecessary and indeed superfluous and for that reason would not in my view advance the matter. Therefore the appellant should not be required to answer it. For exactly the same reason I do not consider that the appellant should have to supply an answer to (b) as relevant to par 4 of the statement of claim the appellant admits that the respondent was lying on a table in a room at the premises.
It is the case that the respondent pleads the specific manner in which the injuries were allegedly suffered but the appellant in denying that allegation does not plead the specific manner in which it is alleged the injuries were self‑inflicted. Whilst on one view it might be said that a pleading that the injuries were self‑inflicted is general in nature because it does not specify the precise means by which they were allegedly self‑inflicted, I accept the argument on behalf of the appellant that such material is entirely within the respondent's own knowledge and further that it relates to an issue contemplated in interrogatories administered by the appellant to the respondent.
It is also the case that an allegation that injuries were self‑inflicted has a degree of specificity and particularity about it in the sense that clearly it takes issue with the fact that they were caused by a means other than that alleged by the respondent. The same comment can be made regarding (d) and for that reason in my view the appellant should not have to supply the information sought in either of those requests.
Counsel for the respondent argues that "a party is entitled to a statement of the opponent's case sufficiently clear to allow him or her a fair opportunity to meet it": Dare v Pulham (1982) 148 CLR 658 at 664. There is no argument about the correctness of such a statement as between the parties but in this matter one cannot ignore the fact that the respondent had entered the matter for trial on 17 December 2002 in the full knowledge of the defence which squarely raised the allegation of self‑inflicted injuries. This very clearly suggests that even before the appellant administered its interrogatories, the respondent knew in that sense the case which she had to meet at trial.
The respondent did not consider it appropriate to seek further and better particulars until not only the interrogatories had been administered by the appellant but also when it was evident from the decision of the Full Court that she was bound to answer the interrogatories.
In the light of the pleading in par 4 of the defence it can hardly be argued that the respondent is surprised and therefore unable to know the case she has to meet at trial. Further I accept the appellant's submission that it is entitled to put the respondent to proof and raise alternative matters in its defence without asserting the truth or correctness of matters pleaded in the absolute sense: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 86. How matters unfold at trial is of course an entirely separate question and one which it is not appropriate to discuss at this point in the proceedings.
I am therefore of the view that the appellant should not be required to provide answers to any of the further and better particulars as to par 4 of the defence sought by the respondent. Whilst it has been observed that there is a lengthy unexplained delay by the respondent in the application for leave to request further and better particulars of the defence, it should be noted that in the circumstances were it to have been found that they should be provided, it would be unlikely to result in further significant additional delay. I do not understand that, however, to be the major focus of the appellant's argument and objection in this appeal.
There will be orders that this appeal be allowed and the order of the Deputy Registrar of 18 December 2003 be set aside. The respondent's application for leave to request further and better particulars of defence be dismissed. Further, in all of the circumstances, given the lengthy history of this matter and the desirability of it proceeding to trial as expeditiously as possible, the respondent is to file answers or objections verified by affidavit to the interrogatories administered by the appellant by notice dated 19 August 2003 and as further amended in Chambers on 22 August 2003 within 14 days of the date of the delivery of this judgment and serve a copy of such on the appellant within that same period.