Rosendorff v Totalisator Agency Board of Western Australia
[2000] WASC 46
•29 FEBRUARY 2000
ROSENDORFF -v- TOTALISATOR AGENCY BOARD OF WESTERN AUSTRALIA & ANOR [2000] WASC 46
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 46 | |
| Case No: | CIV:1131/1999 | 21 JANUARY 2000 | |
| Coram: | ACTING MASTER CHAPMAN | 29/02/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | The defendants' application is unsuccessful and the plaintiff's application is partially successful | ||
| PDF Version |
| Parties: | CRAIG ROSENDORFF TOTALISATOR AGENCY BOARD OF WESTERN AUSTRALIA TONY ELLIS |
Catchwords: | Practice and procedure Further and better particulars of pleadings |
Legislation: | Supreme Court Rules O 20 r 13(1) Totalisator Agency Board Betting Act 1960 |
Case References: | Nil Bailey v Commissioner of Taxation (Cth) (1977) 136 CLR 214 Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 Bloeman v Atkinson [1977] QdR 291 Dare v Pulham (1982) 148 CLR 658 Dougherty v Nationwide News Pty Ltd (1967) 86 WN (NSW) 181 Esplanade Hotel Busselton Pty Ltd v Graywinter Properties Pty Ltd & Ors, unreported; SCt of WA; Library No 970656; 28 November 1997 Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566 Lemon & Co Pty Ltd v Moran & Cato Pty Ltd [1921] VLR 240 Nauru Phosphate Royalties Trust v Matthew Hall Mechanical and Electrical Engineers and Richard Butterworth (1992) 10 BCL 179 The Plastic Recyclers Pty Ltd v Sherlock & Lamprell, unreported; SCt of VIC (Fullagar J); 27 November 1987 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
TOTALISATOR AGENCY BOARD OF WESTERN AUSTRALIA
First Defendant
TONY ELLIS
Second Defendant
Catchwords:
Practice and procedure - Further and better particulars of pleadings
Legislation:
Supreme Court Rules O 20 r 13(1)
Totalisator Agency Board Betting Act 1960
(Page 2)
Result:
The defendants' application is unsuccessful and the plaintiff's application is partially successful
Representation:
Counsel:
Plaintiff : Mr C J L Pullin QC & Mr N A Odorisio
First Defendant : Mr P C Doherty
Second Defendant : Mr P C Doherty
Solicitors:
Plaintiff : Clayton Utz
First Defendant : Minter Ellison
Second Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bailey v Commissioner of Taxation (Cth) (1977) 136 CLR 214
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Bloeman v Atkinson [1977] QdR 291
Dare v Pulham (1982) 148 CLR 658
Dougherty v Nationwide News Pty Ltd (1967) 86 WN (NSW) 181
Esplanade Hotel Busselton Pty Ltd v Graywinter Properties Pty Ltd & Ors, unreported; SCt of WA; Library No 970656; 28 November 1997
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Lemon & Co Pty Ltd v Moran & Cato Pty Ltd [1921] VLR 240
Nauru Phosphate Royalties Trust v Matthew Hall Mechanical and Electrical Engineers and Richard Butterworth (1992) 10 BCL 179
The Plastic Recyclers Pty Ltd v Sherlock & Lamprell, unreported; SCt of VIC (Fullagar J); 27 November 1987
(Page 3)
1 ACTING MASTER CHAPMAN: The plaintiff, by way of chamber summons, seeks further and better particulars of the amended defence and the defendants, by way of chamber summons, seek further and better particulars of the amended statement of claim.
Defendants' Application
2 The defendants sought further and better particulars of the amended statement of claim by a request filed on 19 July 1999. The plaintiff provided answers in a document filed on 13 October 1999. The defendants complain that answers 1(c) - (h), 2(d) and (e), 3(c), 5, 7, 9 and 13 are inadequate.
3 Several of the answers provided included words to the effect that the plaintiff is unable to provide the further particulars until such time as the defendants have discovered all documents relating to bets placed by the plaintiff during the relevant period. In the ordinary course I would have thought that such an answer was inadequate. At the hearing of the special appointment counsel for the plaintiff announced that the position of the plaintiff had changed. In regard to each of the requests answered in the manner referred to, the plaintiff was now of the view that the details that were sought were not relevant and therefore no further answer is required.
4 At first blush, that position would seem unlikely to succeed. Having said that, however, I accept the submission of counsel for the plaintiff that the question of relevance must relate back to the pleadings. The plaintiff in his amended statement of claim pleads his case very specifically. In essence, the statement of claim pleads that the bets placed by the plaintiff were in contravention of the provisions of the Totalisator Agency Board Betting Act 1960 and Regulations in that they were made without the deposit of cash at the Totalisator Agency. It is therefore alleged that the plaintiff was not obliged to pay the amount pleaded in the amended statement of claim, details of each payment having been given in the first schedule to the amended statement of claim. It is therefore argued that detail of each individual bet is not relevant.
5 Counsel for the defendants submitted that one of the functions of pleadings is to confine the issues which may ultimately be raised at trial. With this I would agree. The very specific way the plaintiff has chosen to plead his case will confine him at trial and, in my view, confines the further and better particulars he is required to supply.
(Page 4)
6 I will deal with each of the requests said to have been answered inadequately.
Requests 1, 2 and 3
7 Essentially, requests 1, 2 and 3 relate to details of the bets placed. Given the specific way in which the plaintiff has pleaded his case, I am of the view that details of the individual bets are not relevant and the particulars provided are adequate.
Request 5
8 I do not consider the source of the funds is relevant to the pleaded case, and thus no answer is required.
Request 7
9 I agree that the answer given does not specifically state that the second defendant authorised Helen Montgomery to permit the plaintiff to place credit bets. However, I consider the request has been adequately answered.
Request 9
10 I agree with the plaintiff that the facts relied upon have been pleaded and I do not consider more is required.
Request 13
11 I consider the particulars given to be adequate.
Plaintiff's application
12 The defendants have agreed to provide answers to requests 1, 2 and 3 and have indicated they will endeavour to answer request 6(c) and (d).
13 As to the further and better particulars of par 7 of the amended defence and the requests contained in the plaintiff's supplementary request filed on 23 September 1999, counsel for the defendants made the observation that the plaintiff argues that he is under no obligation to provide the detailed particulars which have been requested of him, but at the same time his request for further and better particulars seeks almost
(Page 5)
- identical particulars in relation to payments alleged to have been made by the defendants to the plaintiff.
14 Put at its simplest that may be true, but that does not necessarily relieve the defendants of their obligation to supply appropriate particulars. Whether or not more is required depends upon the pleadings.
15 As the defendants have agreed to provide answers to requests 1, 2, 3, 6(c) and (d), I will not specifically deal with those requests save to perhaps make an order requiring compliance within a specific time. I will now turn to consider the other requests.
16 At par 7 of the amended defence it is pleaded that a specific sum was paid and that particulars will be provided. Given that plea, I consider that particulars should be provided.
17 As to the supplementary request I consider the following.
Request 1
18 I do not consider request 1 should be answered. Paragraph 4(b) does no more than admit bets were placed at the premises pleaded in par 5 of the amended statement of claim. Given the way the plaintiff has pleaded his case, I consider no more is required.
Request 2
19 I am of the view that the request is couched in very wide terms. I consider the plaintiff is entitled to know how much it is said the amount is exceeded. I therefore consider that request 2(h) should be answered but I do not consider the remainder of the request to be of sufficient relevance.
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