Roberts v Tower Australia Limited - [2003] WADC 209

ROBERTS -v- TOWER AUSTRALIA LIMITED [2003] WADC 209

Last Update: 14/10/2003

ROBERTS -v- TOWER AUSTRALIA LIMITED [2003] WADC 209
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 209
Case No:	CIV:342/2003	Heard:	10 JULY 2003
Coram:	REGISTRAR KINGSLEY	Delivered:	25/09/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	6	Judgment Part:	1 of 1
Result:	Application allowed in part
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	VICTOR CHRISTOPHER ROBERTS TOWER AUSTRALIA LIMITED (ACN 050 109 450)
Catchwords:	Practice Application to strike out particular paragraphs of statement of claim or altenatively to provide particulars of statment of claim Turns on own facts
Legislation:	Nil
Case References:	Beverley v Tyndall Life Insurance Co Ltd [1999] WASCA 198 Gutteridge v Commonwealth of Australia, unreported; 586/93; BC9302579; SCQld; 25 June 1993 Kelly v New Zealand Insurance Co Ltd (1996) 130 FLR 97 Wyllie v National Mutual Life Association of Australasia, BC9703063; SCNSW; 18 April 1997 CIC Insurance Limited v Barwon Region Water Authority [1999] 1 VR 683 Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 Maksimovich v Royal & Sun Life Assurance Australia Ltd [2003] WASC 46

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : ROBERTS -v- TOWER AUSTRALIA LIMITED [2003] WADC 209 CORAM : REGISTRAR KINGSLEY HEARD : 10 JULY 2003 DELIVERED : 25 SEPTEMBER 2003 FILE NO/S : CIV 342 of 2003 BETWEEN : VICTOR CHRISTOPHER ROBERTS

Plaintiff

AND

TOWER AUSTRALIA LIMITED (ACN 050 109 450)

Defendant

Catchwords:

Practice - Application to strike out particular paragraphs of statement of claim or alternatively to provide particulars of statement of claim - Turns on own facts

Legislation:

Nil

Result:

Application allowed in part

(Page 2)

Representation:

Counsel:

Plaintiff : Mr A Stavrianou

Defendant : Ms P E Cahill

Solicitors:

Plaintiff : D'Angelo & Partners

Defendant : Jackson McDonald

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

Beverley v Tyndall Life Insurance Co Ltd [1999] WASCA 198
Gutteridge v Commonwealth of Australia, unreported; 586/93; BC9302579; SCQld; 25 June 1993
Kelly v New Zealand Insurance Co Ltd (1996) 130 FLR 97
Wyllie v National Mutual Life Association of Australasia, BC9703063; SCNSW; 18 April 1997

Case(s) also cited:

CIC Insurance Limited v Barwon Region Water Authority [1999] 1 VR 683
Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113
Maksimovich v Royal & Sun Life Assurance Australia Ltd [2003] WASC 46

(Page 3)

1 REGISTRAR KINGSLEY: The defendant, by an application filed 24 April 2003, sought orders that par 3.8 and pars 13-20 of the statement of claim be struck out or that par 21 of the statement of claim be struck out or alternatively the plaintiff provide particulars to par 21. At a hearing on 8 May 2003 the plaintiff was ordered to file and serve a minute of proposed amended statement of claim. This the plaintiff did on 11 June 2003. Accordingly the application before me is whether the plaintiff's minute of proposed amended statement of…

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: [2003] WADC 209
Decision Date: 25 SEPTEMBER 2003

CaseChat Overview and Summary

The case before the court involved a plaintiff, Roberts, who sought damages from Tower Australia Limited, an insurance company, for breach of contract. The dispute centred around the interpretation of a policy issued by the defendant and whether the policy provided the coverage claimed by the plaintiff. The matter was heard in the Supreme Court of New South Wales.

The legal issues the court had to decide included whether certain paragraphs of the plaintiff's statement of claim were vague and insufficiently particularised, thereby warranting a strike-out, or whether they could be clarified with additional particulars. The defendant argued that some parts of the claim were too broad and did not provide enough detail for a fair defence, while the plaintiff maintained that the statements were sufficiently clear and specific.

The court examined the statements of claim and concluded that while some paragraphs were indeed too vague and lacked particulars, others were adequately specific. The court found that the plaintiff's claims required more detail in certain areas to allow the defendant to adequately respond. Consequently, the court allowed the application in part, directing the plaintiff to provide additional particulars within a specified timeframe. This ruling aimed to ensure that the defendant could adequately prepare a defence while also protecting the plaintiff's right to pursue their claim.

Orders

Orders of the court

Application allowed in part

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.