Miller v Coles Group Supply Chain Pty Ltd

[2021] WADC 119

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MILLER -v- COLES GROUP SUPPLY CHAIN PTY LTD [2021] WADC 119

CORAM:   PRIOR DCJ

HEARD:   24 NOVEMBER 2021

DELIVERED          :   Ex tempore

FILE NO/S:   CIV 521 of 2021

BETWEEN:   PETER RODNEY MILLER

Plaintiff

AND

COLES GROUP SUPPLY CHAIN PTY LTD

Defendant

Catchwords:

Appeal - Appeal by defendant from deputy registrar's decision on application for further and better particulars of plaintiff's claim

Legislation:

District Court Rules 2005 (WA), r 15(1), r 15(6)
Rules of the Supreme Court 1971 (WA), O 20 r 13

Result:

Defendant's appeal allowed

Representation:

Counsel:

Plaintiff	:	Mr D J Mezger
Defendant	:	Mr R J Carey

Solicitors:

Plaintiff	:	Chapmans Barristers & Solicitors
Defendant	:	McCabes

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

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Dare v Pulham (1982) 148 CLR 658

Guy v Hampson [2019] WADC 19

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Stewart v Hames [2019] WASCA 127

PRIOR DCJ:

Background

[This decision was delivered extemporaneously on 24 November 2021 and edited from the transcript.]

1. The plaintiff has commenced proceedings against the defendant for damages for negligence for personal injuries he suffered in a workplace accident on 27 March 2019 when he was unloading a truck in Forrest Lakes.

2. At present, both causation and damages are in dispute.  The plaintiff was also injured in a motor vehicle accident subsequent to his workplace accident.

3. This is an appeal by the defendant against the deputy registrar's decision of 12 August 2021 (the decision) dismissing the defendant's application for an order that the plaintiff provide further and better particulars of the statement of claim filed on 26 February 2021.

4. The defendant by his application dated 1 April 2021 sought further and better particulars of the following:

   5As to paragraph 14 of the statement of claim, provide full particulars of the nature of the injury alleged to have been sustained to the Plaintiff's:

   5.1lower back;

   5.2left ankle; and

   5.3left hand.

   6As to paragraph 15(a) of the statement of claim, provide full particulars of the nature of the surgery.

5. Before the defendant filed its defence, it had requested further and better particulars from the plaintiff and the request was refused. The defendant has complied with O 20 r 13 of the Rules of the Supreme Court 1971 (WA).

6. The application by the defendant for further and better particulars was supported by affidavits sworn by Josephine Courtney on 22 June 2021 and 13 July 2021.  These affidavits set out the history of the defendant's attempts to obtain further and better particulars from the plaintiff.

7. The defendant's solicitors advised the plaintiff's solicitors on 15 June 2021 that it considered the plaintiff's pleadings of his alleged injuries was imprecise and insufficient to enable the defendant to either understand the case against it, sensibly prepare to meet the case or to consider an appropriate position to adopt with respect to compromising the claim.  By letters of 23 June 2021 and 30 June 2021 the plaintiff's solicitors advised they would not be providing further and better particulars.

8. The plaintiff submits that what the defendant requests by way of further and better particulars is unnecessary as the particulars requested will be the subject of discovery and inspection of documents.  The plaintiff submits the defendant has more than enough materials and information to know the case they have to answer.  It is submitted such material has been provided to the defendant in the plaintiff's discovery, in particular, various medical reports provided as to the plaintiff's injuries and surgery.

9. The defendant's ground of appeal is:

   The learned Deputy Registrar erred in law by refusing to order the respondent plaintiff to provide further and better particulars that would enable the appellant defendant to understand the case it had to meet, consider a positive case on causation, and/or limit the scope of admissible evidence.

General principles as to appeals from registrars

1. A party who is dissatisfied with a decision of a registrar may appeal to a judge.[1]

   [1] District Court Rules 2005 (WA) r 15(1) (DCR).

2. The appeal is to be by way of a new hearing of the matter that was before the registrar.[2]  This requires the appeal body to exercise its powers whether or not there was an error at the first instance.[3]  The defendant is not required to establish an appealable error was made by the deputy registrar.[4]  The application is to be dealt with as though it had not been previously determined.  A hearing de novo requires that the appeal court consider the matter afresh without regard to any previous decision.[5]

   [2] DCR r 15(6) and Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcolm CJ).

   [3] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14].

   [4] Stewart v Hames [2019] WASCA 127 [8] (Murphy & Mitchell JAA).

   [5] Guy v Hampson [2019] WADC 19 [14] (Bowden DCJ).

The law

1. The law relating to pleadings is well settled.  In Dare v Pulham[6] the High Court lists three primary functions of pleadings and particulars, namely:

   (a)to furnish a statement of the case sufficiently clearly 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).

   [6] Dare v Pulham (1982) 148 CLR 658, 644.

2. The contemporary purpose of pleadings and the role of particulars of pleadings needs to be considered in view of the comments of Martin CJ (as he then was) in Barclay Mowlem Construction Ltd v Dampier Port Authority.[7]

   [7] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 [5] ‑ [8], [15] - [16].

Analysis

1. The plaintiff has pleaded bare assertions of the injury he sustained to the lower back, left ankle and left hand.  The plaintiff has given no detail as to the surgery he undertook for his injuries or for which of the three injuries he sustained which are generally pleaded.  The defendant is entitled to greater particularity.  In my view, these are necessary particulars.

2. While the nature and extent of the plaintiff's injuries in question might be evidenced in expert medical reports and records, the defendant, in my opinion, is entitled to more than a vague assertion of unspecified injury.  The provision of materials in discoverable documents is, in my view, insufficient to answer the defendant's request.  The defendant is entitled to know the case it has to meet.

3. Causation of the plaintiff's injuries may well be an issue in this case.

4. As the plaintiff's case is a negligence case, the plaintiff must prove the existence of a duty, the breach of that duty and that the breach caused harm.

5. It is not onerous or oppressive upon the plaintiff to plead with precision what his injuries are or the surgery he received.

Conclusion

1. When I consider the defendant's application de novo, I am satisfied what the plaintiff has pleaded in pars 14 and 15 of his statement of claim is vague and imprecise as to the nature of the plaintiff's injuries he sustained and the nature of his surgery.

2. In my view, what the defendant requested by way of further and better particulars would serve the primary functions of pleadings and particulars as the High Court described in Dare v Pulham.  The further and better particulars requested by the defendant will give the defendant a reasonable opportunity to meet the plaintiff's case.

3. In those circumstances I allow the defendant's appeal and, if necessary, I would grant leave for the appeal.

4. I make the following orders:

   1.The respondent plaintiff to file and serve substantive answers to requests 5 and 6 of the appellant defendant's request for further and better particulars of claim filed 1 April 2021.

   2.The respondent plaintiff do pay the appellant defendant's costs of this appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

RR

Associate to Judge Prior

22 DECEMBER 2021