Selective Crash Repairs Pty Ltd v Victoria Wool Processors Pty Ltd
[2004] VSC 462
•16 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4696 of 2002
| SELECTIVE SMASH REPAIRS PTY LTD (ACN 006 350 170) | Appellant/Plaintiff |
| v | |
| VICTORIA WOOL PROCESSORS PTY LTD (ACN 050 032 356) | Respondent/Defendant |
---
JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 OCTOBER 2004 | |
DATE OF JUDGMENT: | 16 NOVEMBER 2004 | |
CASE MAY BE CITED AS: | SELECTIVE SMASH REPAIRS PTY LTD v VICTORIA WOOL PROCESSORS PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 462 | |
---
APPEALS – Appeal from a Master – Proceeding dismissed for failure to provide adequate particulars of claim – Whether further and better particulars should be ordered – Appeal allowed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant/Plaintiff | Mr W. Houghton QC with Mr P. McDermott | Battley & Co Pty Ltd |
| For the Respondent/Defendant | Mr I. Stewart | Allens Arthur Robinson |
HIS HONOUR:
On 28 October I heard an appeal from Master Wheeler in this matter. I gave judgment on that appeal on 16 November. I did not then, however, deal with an issue which was touched upon during the hearing, and left on the basis that On 10 August 2004, Master Evans made orders by consent in this matter. By paragraph 3 of those orders, the plaintiff was required to provide further and better particulars of its statement of claim in response to the defendant's request for further and better particulars dated 6 May 2002. The time by which the order was to be obeyed expired at 4.00 p.m. on 24 September 2004.
24 September came and went. By 6 October, the further and better particulars had still not been provided. Accordingly, by summons issued that day and returnable before Master Wheeler on 18 October, the defendant sought orders that the proceeding be dismissed pursuant to either r.24.02 or r.24.05. In the alternative, the defendant sought a self-executing order that the proceeding be dismissed if the further and better particulars were not provided within 14 days of the determination of the application.
Doubtless inspired by the issue of the summons, the plaintiff on 14 October served a set of fresh particulars on the defendant. According to the latter, however, these remained inadequate. When the matter came before the Master on 18 October, he agreed. Indeed, he acceded to the defendant's submission that the proceeding be dismissed, and so ordered; and under the heading "Other Matters" the Master noted that "The further and better particulars served on 14 October 2004 are still inadequate despite the fact that there have been many orders for the provision of same over the past two years."
The plaintiff appealed. That appeal was heard by me on 28 October. The issues were fully argued on both sides. Having considered the matters put before me, I am of the opinion that the appeal should be allowed. I have come to that conclusion despite the fact that I have sympathy for the defendant's position, and differ from the Master only in thinking that the relief ordered by him would probably in the end be of advantage to neither party, and might disadvantage both.
This conclusion requires some explanation. I begin with the proposition that, if the proceeding were dismissed, the plaintiff could start again. Although some part of the claim as presently framed would, as I understand it, be caught by the relevant limitation period (I have not heard argument on the point, and have come to no conclusion about it) a substantial portion would remain following re-issue. Moreover, it is likely that the second attempt would draw upon the experience of the first, and benefit thereby. And in some respects a clean slate might be welcomed by both parties. On the other hand, costs would be thrown away and the date of trial (of a proceeding the writ initiating which was issued in 2002) would be further delayed. In these circumstances, the most practical solution seems to me to be to allow the plaintiff one final attempt at producing the further and better particulars to which the defendant is entitled.
One of the problems which the parties to this proceeding must confront is that the assessment of damages (assuming the plaintiff is entitled to any) will be difficult. As the plaintiff’s name suggests, it is in the business of repairing damaged motor vehicles. I understand that its operations were, and are, extensive and sophisticated. It claims that residues from the defendant's plant were blown by the wind onto exposed vehicle parts and vehicles under repair. The deleterious consequences to individual parts and individual vehicles varied; and the plaintiff's loss likewise. The provision of particulars of the loss flowing from specific damage to specific vehicles or parts of vehicles would therefore, in the best of circumstances, be a laborious and difficult exercise. Yet the defendant in its request for further particulars has sought just that degree of detail. Unless very careful records have been kept by the plaintiff, it would simply not be capable of furnishing information of the kind demanded by the defendant.
It seems to me that both parties have reacted inappropriately to the difficulty with which each was thus confronted. For its part, the defendant demanded particulars the detail of which was over and above that necessary to enable it to meet a properly pleaded and particularised claim in damages; while the plaintiff has made ineffectual attempts to comply with the rules and with orders of the Court without giving sufficient attention to the means by which it will, at trial, attempt to establish the quantum of its claim.
By r.13.10, every pleading shall contain the necessary particulars of any fact or matter pleaded. Furthermore, particulars shall be given if they are necessary to avoid surprise at trial. It necessarily follows that the defendant is entitled to be provided, by way of particulars, with all the information it needs to understand how the plaintiff's claim for damages is calculated, and how the plaintiff will attempt to make good that calculation at trial.
As I understand the plaintiff's present position, it will not at trial seek to undertake the time consuming and inevitably tedious process of identifying individual losses associated with individual parts or individual vehicles. It would not be surprising if the plaintiff's records did not enable such an exercise to be undertaken. Rather (as I anticipate the course of the evidence) the plaintiff will in addition to witnesses of fact call experts to assess as best they can the loss the plaintiff has suffered given the overall number of vehicles, and their make, age and condition, with which the plaintiff worked over the period of the claim. Similarly general evidence will be given about the value of parts which the plaintiff would most likely have bought and sold over that period, together with an assessment of the loss attributable to the nuisance allegedly created by the defendant.
Of course I cannot be certain how the plaintiff will, at trial, seek to prove its damages. My understanding as expressed above may not be accurate. The point, however, is that in whatever way the plaintiff will seek to establish the quantum of its claim, it must give notice to the defendant sufficient to enable that party to assess and evaluate the validity not only of the plaintiff’s general approach to the assessment of damages but also of the particular calculation or calculations involved, and meet them on their merits. In performing this exercise, the defendant is entitled to be given by way of particulars everything it needs to fully understand the way the plaintiff will put this part of his case, with all its strengths and weaknesses.
It may be that, in order to reach this standard, the plaintiff will have to recast the particulars of its loss and damage; and, perhaps, to amend its substantive pleading. If so, so be it. I make no finding either way. What is clear is that it is more than time that the defendant was furnished with the requisite information. But the proper remedy for this failure is not, at this point, the dismissal of the proceeding. The plaintiff is in my opinion entitled to one final attempt. I will, accordingly, allow the appeal. I will at the same time order that the defendant be provided by 4.00 p.m. on Friday 26 November 2004 with such further and better particulars as are required to enable the defendant fully to understand how the plaintiff will seek at trial to establish its damages.
Both parties have put before me written submissions on the question of the costs of the appeal. The respondent points out that its summons of 6 October 2004 has been shown to be justified, and that it has been waiting since May 2002 for the plaintiff properly to particularise its claim. The fact that the appeal has been allowed is in these circumstances of no particular relevance when assessing in whose favour an order for costs should be made. The defendant also points out that as presently formulated the claim extends back to a point beyond which the Limitation of Actions Act would (once the point is taken) not allow it to go; and this aspect of the claim has not been rectified despite the point having been made to the plaintiff on a number of occasions.
It seems to me that the defendant is here on strong ground. The plaintiff should not persist with claims which are statute barred, and in particular should not confuse the issue by providing further and better particulars where it would be unable, at trial, to prove them in the face of the limitation period. Given that appropriate particulars have yet to be provided, and given that those portions of the claim which are caught by the Statute have yet to be abandoned, it is in my opinion proper that the costs of the appeal should be paid by the plaintiff.
The defendant seeks those costs on a solicitor and client basis. I do not think that this is appropriate. Part of the problem has been that the defendant has sought particulars to a degree of specificity and detail which is in my opinion unreasonable. In any event, this does not seem to me to be a case in which the ordinary party/party assessment should be abandoned. Special circumstances must be present to justify a departure from the usual party/party order: Australian Electoral Commission v Towney (No. 2)[1]. I do not discern here the presence of the circumstances to which, in that case, Foster J referred.
[1](1994) 54 FCR 383 at 388, per Foster J
For these reasons, the appeal from the Master will be allowed. The order dismissing the proceeding will be set aside. I order in lieu that the plaintiff have until 4.00pm on Friday 26 November 2004 within which to provide further and better particulars of its statement of claim. To the extent that it can provide those particulars that are the subject of the defendant’s request, it must do so. To the extent that it cannot, it must nevertheless provide such particulars as will enable the defendant to appreciate how it is that the plaintiff intends to prove its loss. It should be mindful of the likelihood that it will not be given permission at trial to prove any damage that has not been the subject of adequate particulars.
---
0