North Kalgurli Mines Ltd v FFE Minerals Australia Pty Ltd
[2000] WASC 218
•7 SEPTEMBER 2000
NORTH KALGURLI MINES LTD & ORS -v- FFE MINERALS AUSTRALIA PTY LTD [2000] WASC 218
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 218 | |
| Case No: | CIV:2129/1998 | 4 AUGUST 2000 | |
| Coram: | HASLUCK J | 7/09/00 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | The plaintiffs and the defendant are to provide the further and better particulars specified in the judgment | ||
| PDF Version |
| Parties: | NORTH KALGURLI MINES LTD HOMESTAKE GOLD OF AUSTRALIA LTD NORKAL PTY LTD GOLD RESOURCES PTY LTD FFE MINERALS AUSTRALIA PTY LTD |
Catchwords: | Processing mill on mining tenements Claim for damages after breakdown Further and better particulars of claim and defence Turns on own facts |
Legislation: | Fair Trading Act 1987 (WA) Trade Practices Act 1974 (Cth) |
Case References: | Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 Bruce v Odhams Press Ltd [1936] 1 KB 697 Conde v 2KY Broadcasters Pty Ltd & Anor [1982] 2 NSWLR 221 Dare v Pulham (1982) 148 CLR 658 Fox v H Wood (Harrow) Ltd [1963] 2 QB 601 STP (Gas) Retail Pty Ltd v Jubilee Road Pty Ltd, unreported; FCt SCt of WA; Library No 980690; 17 September 1998 O'Meara v Stone [1884] WN 72 Sims v Wran [1984] 1 NSWLR 317 Smith v Littlemore (1996) 15 WAR 289 WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- HOMESTAKE GOLD OF AUSTRALIA LTD
NORKAL PTY LTD
GOLD RESOURCES PTY LTD
Plaintiffs
AND
FFE MINERALS AUSTRALIA PTY LTD
Defendant
Catchwords:
Processing mill on mining tenements - Claim for damages after breakdown - Further and better particulars of claim and defence - Turns on own facts
Legislation:
Fair Trading Act 1987 (WA)
Trade Practices Act 1974 (Cth)
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Result:
The plaintiffs and the defendant are to provide the further and better particulars specified in the judgment
Representation:
Counsel:
Plaintiffs : Mr M J Buss QC & Mr N A Egan
Defendant : Mr M Orlov & Mr P Gavazzi
Solicitors:
Plaintiffs : Minter Ellison
Defendant : Hammond Worthington
Case(s) referred to in judgment(s):
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Bruce v Odhams Press Ltd [1936] 1 KB 697
Conde v 2KY Broadcasters Pty Ltd & Anor [1982] 2 NSWLR 221
Dare v Pulham (1982) 148 CLR 658
Fox v H Wood (Harrow) Ltd [1963] 2 QB 601
STP (Gas) Retail Pty Ltd v Jubilee Road Pty Ltd, unreported; FCt SCt of WA; Library No 980690; 17 September 1998
Case(s) also cited:
O'Meara v Stone [1884] WN 72
Sims v Wran [1984] 1 NSWLR 317
Smith v Littlemore (1996) 15 WAR 289
WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175
(Page 3)
1 HASLUCK J: There are two interlocutory applications before me being first, the plaintiffs' application for further and better answers to the plaintiffs' request for further and better particulars of the statement of defence; second, the defendant's application for further and better answers to the defendant's request for further and better particulars of the statement of claim. I will deal with these applications in the order just mentioned. Before doing so, it will be useful to outline the nature of the dispute between the parties.
2 It is apparent from the pleadings that the plaintiffs entered into a joint venture agreement for the purpose of exploring, evaluating and exploiting a number of mining tenements in Fimiston, Western Australia. The plaintiffs appointed Kalgoorlie Consolidated Gold Mines Pty Ltd ("KCGM") as manager of the joint venture. In or about 1994, KCGM took steps to purchase a semi-autogenous grinding mill ("SAG" mill) to replace the existing ore crusher at the Fimiston site. Minproc Engineers Ltd ("Minproc") were engaged to prepare specifications for the new SAG mill and to finalise the terms of a contract between KCGM and the successful tenderer.
3 The defendant, FFE Minerals Australia Pty Ltd, was the successful tenderer and entered into a purchase contract with KCGM Engineering Services Pty Ltd ("KCGMES") for the supply and commission of a SAG mill. In late 1994 to September 1995, the defendant proceeded with the contract.
4 Paragraph 19 of the statement of claim asserts that on 2 September 1995, the defendant by its representatives at Fimiston handed over the SAG mill to representatives of Minproc, KCGM and KCGMES on the basis that the SAG mill had been fully commissioned and, thus, was now capable of being used by KCGM for the intended purpose of grinding ore. The events just described are said to comprise "the fitness representation". The oral part of the representation is said to consist of words used by the defendant's representatives at site who told the representatives of KCGM and Minproc that the SAG mill had been fully commissioned. The representation is said to have been evidenced in writing by the defendant's facsimile transmission to Minproc of 3 September 1995.
5 In par 21, the plaintiffs allege that the SAG mill was defective in various ways. The plaintiffs say that the bearings of the SAG mill were never correctly aligned, the jacking cradles were defective, temperature sensors designed to warn of bearing dysfunction were inadequate, and reference is made to various other matters.
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6 In par 25, the plaintiffs say that at midnight on 16 October 1995, the SAG mill completely broke down and was inoperative by reason of misalignment of the discharge end trunnion bearing with the trunnion, thereby causing the trunnion to penetrate through the oil film between it and the bearing, with the result that damage was caused to the bearing and the SAG mill prevented from rotating.
7 This mishap, called the first breakdown, led to a cessation of operations during the period 17 October 1995 to 9 November 1995 and is said to have caused loss and damage to the plaintiffs, particulars of which are provided in par 33 of the statement of claim. In that regard, various matters are brought to account, with the particulars concluding on the basis that "the loss of gross profit was accordingly $4,737,469". The claim also includes reference to a second production stoppage in respect of the period 17 July 1996 to 27 July 1996.
8 The plaintiffs claim that the defendant is liable to them under and by virtue of s 52 of the Trade Practices Act, or alternatively, under and by virtue of s 10 of the Fair Trading Act. The plaintiffs say further, and in any event, that the defendant's conduct in the design, supply, installation and commissioning of the SAG mill was negligent and in breach of a duty of care owed to the plaintiffs.
9 The defendant, by its statement of defence, admits a number of matters bearing upon the circumstances in which it agreed to design and install the SAG mill at the Fimiston site. Nonetheless, importantly, the defendant denies the allegations in par 19 of the claim concerning the fitness representation and says that the matters relied upon by the plaintiffs are incapable of giving rise to the representation in question.
10 In par 25(a) of the statement of defence, the defendant admits that there was a misalignment of the discharge end trunnion bearing at the time that the SAG mill became inoperative on 16 October 1995. The defendant goes on to say that if the reason why the SAG mill became inoperative was by reason of misalignment of the discharge end trunnion bearing with the trunnion (which is not admitted), the misalignment "was dynamically induced by reason of the matters referred to in paragraph 26 of the defence." The defendant says further that the forces generated in the SAG mill as a result of the matters referred to in par 26 of the defence caused the shoulder of the trunnion to come into contact with the thrust face of the discharge end bearing, causing the bearing to skew out of alignment and damage the bearing.
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11 I will return to par 26 of the defence shortly. In general terms, the defendant says that the condition of misalignment was dynamically induced because of the way in which the SAG mill was being operated. Reference is made to a number of matters, including that the SAG mill was or became grossly overloaded, the charge was dry and in a bogged state, the grates at the end of the discharge end of the SAG mill were or became blocked and ore continued to be fed into the SAG mill until the height of the charge was approximately 1.5 to 2 metres above the centre line of the trunnion and the feed chute became blocked.
12 In the course of the hearing, counsel for both parties endeavoured to place before me a simplified version of the way in which the SAG mill operates. For the sake of an orderly exposition, I will draw upon the description given by counsel for the defendant. The parties will understand that I do so simply to facilitate discussion of the procedural issues mentioned below. It should not be assumed by either party that this description will be relied upon for any other purpose or regarded as conclusive. Counsel for the defendant recognised that to some extent par 26 of the defence reflects the defendant's contention or theory as to how the first breakdown came about.
13 When asked to describe to me in layman's language what was being asserted in par 25 and par 26 of the defence wherein it is alleged that the crucial misalignment was "dynamically induced" by the manner in which the SAG mill was being operated, counsel for the defendant set the scene in this way. He said that the SAG mill is like a large cylinder, supported at each end on something looking like an axle, this being the trunnion. That, in turn, sits upon a bearing which is supported by a bearing assembly, so that the huge drum can rotate. The ore, which is fed into the mill at the feed end, is mixed with what is called a "charge" of steel balls and as the huge mill rotates, the material within it is crushed and gradually moves to the discharge end of the mill. Having been forced through grates at the discharge end of the mill, the material is then collected and goes to other parts of the process.
14 Counsel said that water is introduced into the charge to keep the charge wet, but without reducing it to a slurry. The amount of water is monitored by the distributed control system or DCS. If the charge becomes too dry, it becomes tacky and finishes up in what is called a "bogged" state. If such a state develops inside the mill, then as the mill rotates lumps of material will be lifted up and come crashing down so as to create significant shock forces within the mill. The process depends upon the grates at the discharge end remaining open so that the load inside
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- the mill remains balanced. According to counsel for the defendant, if the mill is not being operated correctly the apertures at the discharge end can become smaller, with the result that the rate of extraction of material from the mill is reduced. This can lead to a build-up or blockage against the discharge end. The blockage may result in a pushing effect against the mill as material continues to be fed into it without proper extraction at the discharge end.
15 Counsel for the defendant noted also that in the ordinary course the charge should not go above the centre line of the trunnion and, as reflected in par 26(a)(iv), this may lead to a situation in which the feed chute becomes blocked. Counsel went on to say that, in essence, the defendant's case was that a combination of the factors and circumstances just described would lead to the consequence pleaded in par 25(e) of the defence. That is to say:
"(e) [The defendant] … says that the forces generated in the SAG mill as a result of the matters referred to in paragraph 26 of the defence caused the shoulder of the trunnion to come into contact with the thrust face of the discharge end bearing, causing the bearing to skew out of alignment and damaging the bearing."
16 Counsel for the defendant went on to say this (page 72 of transcript):
" ... that exposition of the defendant's theory of causation arises clearly from the allegations and the particulars that are provided in paragraph 26. It is sufficient to enable in a complex case the plaintiff to know what we say happened, what the defendant says happened as opposed to the theory of causation which has been advanced by the plaintiff in its statement of claim which is essentially that when the mill was commissioned by the defendant's people, it wasn't commissioned properly so that the bearings were misaligned from the moment that the mill was handed over and after the passing of some time, the mill then failed. They are the competing theories."
Plaintiffs' application for further and better answers to the plaintiffs' request for further and better particulars of the statement of defence
17 It is against that background that I must now turn to the plaintiff's request for further and better particulars of the defence. There was little disagreement between the parties as to the relevant principles to be
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- applied. A party to civil litigation is entitled to a statement of the opponent's case in sufficiently clear terms to allow the opposing party a fair opportunity to meet the case being advanced. An action may not be pleaded in general terms and must be alleged with particularity: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 705. The purpose of pleadings and particulars is to concentrate the issues of fact and to prevent surprise and consequent delay: Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 221.
18 These considerations were summarised by the High Court in Dare v Pulham (1982) 148 CLR 658 at 664 as follows:
"Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liq) (1916) 22 CLR 490 at p 517); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v Cameron (1936) 54 CLR 572 at pp 576-577); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518); Sri Mahant Govind Rao v Sita Ram Kesho (1898) LR 25 Ind App 195 at p 207). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at pp 111, 112, 127), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at p 446; 50 ALJR 666 at p 668)."
19 I note also that on some occasions, in special circumstances, the contents of an expert's report will be treated as a sufficient disclosure of the opposing case to overcome the need for particulars: STP (Gas) Retail
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- Pty Ltd v Jubilee Road Pty Ltd, unreported; FCt SCt of WA; Library No 980690; 17 September 1998.
20 Against this background, let me now turn to the particular requests, and the nature of the responses previously given.
As to par 26 of the defence
21 The plaintiffs sought further and better particulars as to the allegation in par 26(a) of the defence that the condition of misalignment was dynamically induced by forces generated in the SAG mill as a result of the conditions under which KCGM was operating the mill. Request 1 went to the allegation that the SAG mill was or became grossly overloaded. Request 2 went to the allegation that the charge was dry and in a bogged state. Request 3 went to the allegation that the grates at the discharge end were or became blocked, causing the charge to back up in the discharge end. Request 4 went to the allegation that ore continued to be fed in until the height of the charge was approximately 1.5 to 2 metres above the centre line of the trunnion and the feed chute became blocked. Request 5 went to the allegation that the SAG mill continued to rotate under the conditions just mentioned until it was shut down by the DCS system at or about midnight on 16 October 1995.
22 The response provided by the defendant to these requests was an objection to answering the request on the ground that the request sought details of the mode of proof of the alleged facts and accordingly was not a proper request for particulars. The stance of the defendant was that the pleading contained sufficient particularity for the plaintiff to understand the matters of causation being alleged against it, although, in its written submissions, the defendant conceded that some further particularisation was required in respect of par 26(c).
23 In my view, the plaintiffs are entitled to the particulars they have requested. It must follow as a matter of logic that if the defendant contends that the mill was being operated incorrectly, then in various respects it must have benchmarks in mind as to what should be regarded as the correct or normal mode of operation. For example, if the defendant pleads that the mill was grossly overloaded, then it is incumbent upon the defendant to provide particulars as to what comprises an acceptable or normal load and then to set out particulars upon which it will rely in saying that the mill was being operated while overloaded or grossly overloaded. The same line of reasoning can be applied to each of the other requests.
(Page 9)
As to par 26(c)
24 The plaintiffs' requests went to the allegation in par 26(c) of the defence that the condition of instability in the bearing assembly resulted from one or more shocks to the bearing assembly and sought particulars of
(a) the date or dates and time or times on which the shock or shocks are alleged to have occurred; and
(b) what is meant by the use of the word "shock".
25 The plaintiffs' request 7 went to the allegation that the condition of instability in the bearing assembly resulted from one or more severe shocks to the bearing assembly caused by the faulty operation of the SAG mill drive motors and particulars were sought of each and every material circumstance giving rise to the allegation that the operation of the SAG mill drive motors was faulty. The defendant said that it would be able to provide these particulars after the plaintiff had given discovery.
26 The plaintiffs' request 8 went to the allegation that the condition of instability in the bearing assembly resulted from one or more severe shocks to the bearing assembly caused by the faulty operation of the SAG mill drive motors and sought particulars of each and every material circumstance giving rise to the allegation that the torque forces alluded to were both sudden and large. The defendant objected to answering this request on the ground that it sought details of the mode of proof of the alleged facts and was not a proper request for particulars.
27 I consider that the defendant is obliged to provide the particulars requested and rule accordingly. The line of reasoning I mentioned earlier applies in this context also. It is not a sufficient answer to suggest that this was a matter that went to the mode of proof. It follows from the decided cases that it is not until the issues are properly defined by pleadings and particulars that a determination can be made by the parties and the Court as to what evidentiary materials will be relevant and admissible.
As to par 37
28 The plaintiffs' request 9 went to the allegation that at all material times the plaintiffs, by their agent KCGM, knew or ought to have known that the defendant refused to assume responsibility to take reasonable care to avoid financial harm of the kind which is the subject of claims in these proceedings. Particulars were sought of various matters in subpars (a) to
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- (h) with a view to establishing the defendant's stance in regard to matters such as who on behalf of KCGM knew or ought to have known that the defendant refused to assume responsibility, the date from which KCGM is alleged to have had the relevant knowledge, particulars of the material documents or conversations and various other matters. With one exception concerning the request in 9(d), the defendant objected to answering the request on the grounds that the request in question was either seeking details of the mode of proof of the alleged facts or was in substance an interrogatory.
29 In regard to this controversy, counsel for the plaintiffs relied upon O 20 r 13(4)(a) which provides, amongst other things, that where a party alleges as fact that a person had knowledge or notice of some fact, matter or thing, then the court may, in such terms as it thinks just, order that party to serve on any other party the particulars of the facts on which he relies. The plaintiffs also relied upon Fox v H Wood (Harrow) Ltd [1963] 2 QB 601 at 604 in which it is said that an allegation that a person ought to have known something has implicit in it not only an allegation that he did not know something, which is a state of mind, but also an allegation that facts and circumstances exist from which he ought to have acquired, either by observation or inference, the knowledge of which he is deficient, and that some fault lies on him in failing to note, or draw an inference from, particular facts and circumstances. The court of appeal was of the view that in such a context particulars of the relevant facts and circumstances should be given. Particulars were normally ordered in such cases.
30 I am persuaded by the plaintiffs' argument in regard to this issue. In my view, the request for particulars of facts and matters relevant to knowledge is appropriate and in accordance with the conventional practice. The required particulars must be provided by the defendant.
As to par 40
31 The plaintiffs' requests numbered 10 to 14 went to the allegation in par 40 of the defence that the breakdown of the SAG mill was wholly caused or contributed to by the plaintiffs, by the acts or omissions of KCGM on behalf of the plaintiffs in operating the SAG mill incorrectly and in failing to shut off the feed and to shut down the mill manually before the DCS shut the SAG mill down automatically at or about midnight on 16 October 1995. In par 40(e) one finds a further allegation of default on the part of the plaintiffs in attempting to restart the SAG mill at the time of the first breakdown while it was grossly overloaded, the
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- charge was dry and in a bogged state, the grates at the discharge end were blocked, ore had been fed into the SAG mill until the height of the charge was approximately 1.5 to 2 metres above the centre line of the trunnion and instrumentation measuring and reporting on the thickness of the oil film indicated that there had been a significant loss of oil thickness.
32 More particularly, request 10 went to an allegation that the mill was being operated in a heavily loaded condition when the load cells were known not to be operating reliably. Request 11 went to an allegation concerning the plaintiffs' alleged failure to shut off the feed when it became apparent that the charge was backing up at the discharge end. Request 12 went to the plaintiffs' alleged failure to shut down the mill manually. Request 13 went to the plaintiffs' alleged default in attempting to restart the SAG mill three times. Request 14 went to the plaintiffs' alleged default in attempting to restart the mill when the instrumentation indicated that there had been a significant loss of oil thickness.
33 In each case the defendant objected to answering requests for particulars on the ground that the requests sought details of the mode of proof of the alleged facts and accordingly was not a proper request for particulars.
34 The dispute between the parties as to this aspect of the matter essentially brought into play again the arguments and issues I have already canvassed while looking at the requests for particulars directed to par 26 of the defence. It follows from that earlier discussion that, in my view, the defendant is obliged to provide the particulars requested in respect of par 40 and I rule accordingly.
Defendant's application for further and better answers to the defendant's request for further and better particulars of the statement of claim
35 I will now turn to the second of the two applications before me, being the defendant's application for further and better answers to the defendant's request for further and better particulars of the statement of claim.
As to par 19 of the claim - the fitness representation
36 Paragraph 19 of the claim reads as follows:
"On 2 September 1995, the defendant by its representatives at Fimiston handed over the SAG mill to representatives of
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- Minproc, KCGM and KCGMES, on the basis that the SAG mill had been fully commissioned and thus was now capable of being used by KCGM for the intended purpose of grinding ore ('the fitness representation')."
37 The defendant's request 10 required the plaintiff to specify precisely which part of par 19 is alleged to constitute the fitness representation. The plaintiffs objected to answering on the ground that it was not a proper request for particulars of the statement of claim. They said that the content of the paragraph speaks for itself.
38 The defendant's request 11 required the plaintiff to say whether it was alleged that the fitness representation was that the SAG mill:
(a) had been fully commissioned?
(b) was now capable of being used by KCGM for the intended purpose of grinding ore?
(c) had been fully commissioned and thus was now capable of being used by KCGM for the intended purpose of grinding ore?
(d) if the answer to question in (c) is yes, is it alleged that the representation that the SAG mill was now capable of being used by KCGM, the intended purpose of grinding ore implicit in the representation that the SAG mill had been fully commissioned?
39 The plaintiffs objected to answering this request on the ground that it is not a proper request for particulars of the statement of claim, the request being in substance an interrogatory rather than a true request for detail of what has pleaded.
40 The defendant argued that answers to request 10 and 11 were necessary to apprise the defendant precisely how the plaintiffs put the case based upon the fitness representation against the defendant.
41 Counsel for the defendant argued that the words commencing in line 3 of par 19 "and thus was now capable of being used by KCGM for the intended purpose of grinding ore" was apparently intended to convey the substance of a representation. However, it was not at all clear whether the preceding words were intended to comprise part of the representation, or whether they were merely part of the circumstances that allegedly gave rise to the representation, either expressly or by implication.
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42 Counsel submitted further that the allegation that the handing over was done "on the basis that the SAG mill had been fully commissioned" was capable of being understood as an allegation that there was an express representation that "the SAG mill had been fully commissioned". It was also capable of being understood as being part of the circumstances that allegedly gave rise to a representation to the effect that the SAG mill "was now capable of being used by KCGM for the intended purpose of grinding ore". The defendant was entitled to know with precision which part of the allegation in par 19 constitutes the representation and which part refers to the circumstances which are alleged to give rise to the representation, expressly or by implication.
43 Counsel for the defendant also referred to some ambiguity as to the party or parties to whom the representation, if any, was addressed. Counsel argued that the answer provided by the plaintiffs that the plea was sufficiently clear in its present form was not acceptable. Put shortly, the defendant was entitled to know how exactly it was that statements made or conduct in the nature of statements made to the three parties mentioned in par 19 could be brought together so as to be said to constitute a fitness representation which gave the plaintiffs a cause of action.
44 Counsel for the plaintiffs submitted in reply that the defendant's requests 10 and 11 were in the nature of interrogatories in that they sought to obtain admissions as to facts which would either support their case or destroy or damage the case of the plaintiffs. They were not proper requests for particulars. Counsel relied upon observations made by Hunt J in Conde v 2KY Broadcasters Pty Ltd & Anor [1982] 2 NSWLR 221 at 222 that the practice of seeking particulars by way of interrogatories should not be encouraged.
45 In my view, the defendant is entitled to further and better particulars of the kind requested. The single sentence comprising par 19 embraces various elements and to my mind it is not entirely clear (notwithstanding the presence of the following particulars) as to what part of the sentence is said to constitute the representation and as to what exactly constitutes the "handing over". In my view, if particulars of the kind requested are provided, these matters will be clarified with the result that the defendant will then be in a position to know precisely the case it has to meet at trial. Accordingly, my ruling is that the particulars should be provided.
46 The defendant's requests 18 and 19 also went to the constituents of the fitness representation with particulars being sought as to the effect of
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- the oral statements comprising the fitness representation and to the status and identity of the party to whom the words were addressed. The plaintiffs had objected to answering request 18 on the basis that particulars would be provided after discovery and interrogatories. The plaintiffs objected to answering request 19 on the grounds that it was in substance an interrogatory rather than a true request for detail of what is pleaded.
47 It follows from earlier discussion that in my view the plaintiffs are obliged to provide particulars in order to enable the defendant to know precisely what case is being advanced against it.
As to par 37 of the claim
48 In par 37 of the statement of claim the plaintiffs repeated various earlier paragraphs and asserted that the defendant at all material times owed to the plaintiffs a duty of care not to act in a fashion that would expose the plaintiffs to an unreasonable risk of suffering financial harm through negligent acts or conduct on its part relating to the design, supply, installation or commissioning of the SAG mill at Fimiston.
49 The defendant's request 20 was in these terms:
"What are the acts, facts, matters and/or circumstances alleged to give rise to a relationship or proximity, as alleged in par 37(4) between:
(a) the plaintiffs and the defendant?
(b) the defendant and KCGM."
50 A supplementary request for particulars was directed to par 37(2) in these terms:
"1. What are the acts, facts, matters and/or circumstances from which it is alleged that the defendant should have acquired either by observation or by inference knowledge that the plaintiffs were vulnerable to financial harm?"
- The defendants also had supplementary requests 2 and 3 concerning paragraph 37(6), which requests were expressed in these terms:
"2. Is it alleged that the defendant should have known that there was a class of persons (namely, ore owners seeking
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- to process their ore through the SAG mill) at risk other than KCGM?
- 3. If the answer to the previous question is 'yes' what are the acts, facts, matters and/or circumstances from which it is alleged that the defendant should have acquired either by observation or by inference knowledge of:
(a) the existence of such class of persons?
(b) the fact that such class of persons was at risk as alleged?"
As to par 33 and par 34 of the claim
52 During the course of the hearing an issue arose as to the nature of the claim for loss of profits being advanced by the plaintiffs. Reference was made to a letter from the defendant's solicitors to the plaintiffs' solicitors purporting to reflect advice by the plaintiffs' solicitors "that the plaintiffs' claim is now to be framed as a claim for the loss of use of money arising from the deferral of the income stream from the sale of processed gold." This was said to have raised a query as to whether the particulars of loss and damage given in relation to par 33, par 34 and par 35 of the statement of claim were still applicable.
53 Counsel for the defendant sought leave to amend the summons to request that an order be made for provision of the relevant particulars. Counsel for the plaintiffs adopted the stance that no such leave should be granted as this would be dealt with in due course when the plaintiff came to review the statement of claim in the light of this hearing and related matter such as discovery and expert's reports.
54 On balance, I have concluded that it would not be appropriate to deal with this matter upon the basis proposed by counsel for the defendant. In complex litigation of this kind various informal exchanges will inevitably occur which may range beyond the facts and matters appearing on the
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- face of the pleadings. Nonetheless, unless and until the pleadings are adjusted by amendment the parties are bound by their pleaded cases and issues concerning relevance and the admissibility of evidence must be determined accordingly. I was left with an impression after hearing argument that the plaintiffs will review their claim for loss and probably seek leave to amend their pleading as to that aspect of the matter. In the meantime, in my view, it would not be appropriate to require the plaintiffs to provide further and better particulars upon the basis of a controversy that is not yet reflected in the pleadings. There will be no order as to this aspect of the matter.
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