| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SULMAN & ORS -v- ATLAS GROUP PTY LTD & ORS [2003] WADC 64 CORAM : FENBURY DCJ HEARD : 20 JANUARY 2003 DELIVERED : 18 MARCH 2003 FILE NO/S : CIV 1620 of 2002 BETWEEN : DIANNE ELIZABETH SULMAN First Plaintiff
SHEREE ALYCE SULMAN by her next friend DIANNE ELIZABETH SULMAN
Second Plaintiff
CORINNE ELIZABETH SULMAN by her next friend DIANNE ELIZABETH SULMAN
Third Plaintiff
AND
ATLAS GROUP PTY LTD
First Defendant
SOIL AND GARDEN SUPPLIERS PTY LTD
Second Defendant
THE STATE OF WESTERN AUSTRALIA
Third Defendant
STATE PLANNING COMMISSION
Fourth Defendant
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THE STATE HOUSING COMMISSION
Fifith Defendant
THE CITY OF STIRLING
Sixth Defendant
Catchwords: Practice and procedure - Appeal from decision of Registrar refusing lengthy request for further and better particulars of statement of claim - Turns on own facts
Legislation: Nil
Result: Appeal allowed in part Representation:
Counsel:
First Plaintiff : Mr M E Herron
Second Plaintiff : Mr M E Herron
Third Plaintiff : Mr M E Herron
First Defendant : Not applicable
Second Defendant : Not applicable
Third Defendant : Mr R M Mitchell
Fourth Defendant : Mr R M Mitchell
Fifith Defendant : Mr R M Mitchell
Sixth Defendant : Not applicable
Solicitors:
First Plaintiff : Dwyer Durack
Second Plaintiff : Dwyer Durack
Third Plaintiff : Dwyer Durack
First Defendant : Not applicable
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Second Defendant : Not applicable
Third Defendant : State Crown Solicitor
Fourth Defendant : State Crown Solicitor
Fifith Defendant : State Crown Solicitor
Sixth Defendant : Not applicable
Case(s) referred to in judgment(s):
Dougherty v Nationwide News Pty Ltd (1967) 86 WN (PT 1 Part 1) (NSW) 181
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Case(s) also cited:
Nil
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1 FENBURY DCJ: This is an appeal against a Deputy Registrar's decision refusing to order that "the first second and third plaintiffs provide answers to the request for particulars of statement of claim filed by third, fourth and fifth defendants on 5 September 2002 within 14 days.
2 The Deputy Registrar refused to make that order on 13 November 2002. An order was also made that the third, fourth and fifth defendants pay the plaintiffs' costs. 3 The statement of claim in this action is a voluminous document containing some 56 paragraphs in 32 pages. The request for particulars of statement of claim by the third fourth and fifth defendants was of similar dimension, being 26 pages in length, containing numerous requests bearing identical numbers to the paragraphs in the statement of claim. The minute of proposed orders sought by the third, fourth and fifth defendants at the hearing of this appeal, by par 3, seeks an order that the plaintiffs provide answers to the request for particulars "excluding those requests made in relation to pars 6.5, 13.10, 26.13, 26.25, 26.27, 32, 39, 40.3, 40.4 and 40.7 of the statement of claim." 4 Thus the third, fourth and fifth defendants continue to seek answers to requests made in relation to pars 14, 18, 26, 26.10, 26.17, 26.19, 26.20, 26.21, 26.22, 26.23, 35.1, 35.2, 35.3, 35.4, 35.5, 35.6, 36, 37, 40.5 and 40.6. 5 It is to be noted that the third, fourth and fifth defendants were, respectively, the State of Western Australia (in the form of the Environmental Protection Authority), The State Planning Commission and The State Housing Commission. 6 This is an action by the plaintiffs for damages for negligence and/or breach of statutory duty against all six defendants and in the alternative in nuisance against the first, second, third and sixth defendants. The plaintiffs lived near a rubbish tip of which the first and second defendants were occupiers. 7 It is alleged that the plaintiffs suffered injury as a result of exposure to hazardous substances and materials of various kinds that were emitted from the first and second defendants' site. The third, fourth, fifth and sixth defendants are government instrumentalities of one kind or another each of whom is alleged to have failed in the performance of its function in various ways.
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8 The three causes of action pleaded, and the nature of the allegations could not be said to be particularly complex.
9 In his submissions counsel for the third, fourth and fifth defendants acknowledge that there were a large number of questions contained in the request for further and better particulars. However, he said that this was the way the claim had been pleaded, "the scatter gun approach" said to have been taken by the plaintiffs. Counsel submitted that the questions were fair and reasonable and required by the defendants so as to enable them to ascertain what case it was they had to meet. 10 On the other hand the plaintiffs submit that, "in a general sense on the basis that looked at as a whole" the request is oppressive because of its length, the number of questions that would require answer and because of the paragraph breakdown and the like. In essence it was submitted that it would be oppressive and unreasonable for the plaintiffs to be required to answer the request. 11 The purpose of a request for particulars of statement of claim is usefully explained in a paragraph in Seaman's book on Civil Procedure at par 20.13.1. A brief citation of the observations made in that paragraph, deleting the frequent reference to authority, is helpful. "A party is entitled to a statement of the opponent's case sufficiently clear to allow him or her a fair opportunity to meet it… The rules and practices as to particulars must be sufficiently flexible to allow all parties to an action or matter to meet with necessary evidence and without delay to court processes the questions which may be raised at the hearing. Their purpose is to concentrate and define the issues of fact and to prevent surprise and consequent delay. … That flexibility is reflected by directions given in cases of complexity which put aside arguments about material facts and particulars and require the cooperation of the parties in settling a list of the issues to be tried." 12 Two other references in Seaman's work have relevance. In par 20.13.6 the author refers to Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566 at 570, 575: "If the necessary particulars are solely within the knowledge and control of the defendant and can be obtained by discovery and/or interrogatories, a plea of material fact will not be struck
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out for want of particularity if the effect of striking it out would be to deny the plaintiff the right to bring his or her claim." 13 And finally in par 20.13.7: "If a request for particulars is too detailed or imposes a burden disproportionate to their importance to the action, the Court may refuse to order their delivery." – Dougherty v Nationwide News Pty Ltd (1967) 86 WN (PT 1 Part 1) (NSW) 181 at 185. 14 Considering the form of the request for particulars I think it is indeed vulnerable to the sort of criticism mentioned in Dougherty's case. In part, however, the structure of the statement of claim is a contributory factor. I do not propose to accept the plaintiff's submission that the request for particulars should be refused en bloc, although I confess to being tempted, and I shall very briefly endeavour to express a view on those requests that remain to be pursued. 15 I bear in mind the fact that the third defendant was the Environmental Protection Authority, a Government instrumentality, which is said to be the regulator of the sort of conduct the plaintiffs complain was engaged in by the first and second defendants. Obviously, the third defendant was not an active participant in any relevant "business". This point will have some relevance when I come to a consideration of the request relating to par 35. 16 I shall deal with the remaining requests in numerical order. The request numbers coincide with the paragraph numbers in the statement of claim. 17 In par 14 the statement of claim lists numerous types of allegedly hazardous substances that were emitted from the Mirrabooka site. It then gives particulars of what the hazardous substances included and lists a large number of matters that one might, I infer, find at a rubbish tip. The paragraph concludes with the undertaking that further particulars will be provided following discovery and prior to trial. Request 14 seeks specific details of scientific analysis of each substance said to be hazardous together with information about the scientific process of release or emission of those substances from the site. Clearly this is scientific and technical material. It would seem to me to be likely to be contained in expert evidence reports and the like. I think it is a request for evidence and I would not allow it. In any event given the undertaking in the paragraph the request is premature.
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18 Paragraph 18 of the statement of claim alleges the pollution of the plaintiffs' residence. Again, request 18 seeks scientific data with respect to each alleged substance that is said to have polluted the plaintiffs' residence and swimming pool and the like. Similarly, it seems to me this material should be available through expert reports and, in any event, it seems to me to be a request for evidence and is not appropriate. In order to succeed the plaintiff will need to prove that there was enough hazardous material and pollution to cause danger. In any event I accept the plaintiffs' submission that the plea reflects the style of pleading obtainable from Bullen & Leake's well known book on pleadings. I think there are sufficient particulars provided. I agree that the precise levels of any particular substance probably do not matter. As Mr Herron put it:
"We say it was hazardous and we have suffered injury and if we don't prove that then we lose." 19 Paragraph 26.1-26.30 inclusive. These paragraphs have been renumbered par 25.1-30. 20 Paragraph 26 of the statement of claim contains thirty subparagraphs that provide lengthy particulars of documents including correspondence, meetings, submissions, memoranda, general and specific literature, references to certain events and so forth. These are the materials upon which the plaintiffs rely for their assertion in par 25 that the "defendants" had relevant knowledge. The plea is not specific as to which defendant knew what from what material save that some of the items mentioned obviously identify the particular defendant to whom the correspondence was sent or copied or from which it originated. It is to be noted that par 25.1-30, on a fair reading of it, is an attempt to provide particulars of the allegation in par 25 which pleads the defendants' knowledge. I would also make the observation that the materials identified would seem to me to be discoverable. Generally it seems to me that the relevant defendant is adequately identified in each particular. 21 It seems to me that as to the request for particulars of scientific data in request 25, that these should be discernible in the expert evidence reports. As to request 25.17 the plaintiffs should not be required to provide the dates of testing or monitoring emissions on every occasion that such occurred. These matters would presumably be within the knowledge of the third defendant which had the responsibility and duty to supervise and regulate the activities. I would decline to order the plaintiffs to answer request 25.17. Counsel for the plaintiff observed that request 25.20, being a request for particulars of the research "completed
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by and data received by officers of the third, fifth and sixth defendants" would seem to me to ignore the reality that those defendants, or at least the third and fourth defendants, should know what research they have conducted. It is not for the plaintiff to provide them with particulars of their own research. I also think that it is a request for evidence. 22 As to par 25.22 this is a request for evidence and in any event the information can be obtained following discovery. As to the request for particulars relating to literature being par 25.19, .21 and .23, it again seems to me these are requests for evidence. The discovery and inspection procedures will assist the defendants. The literature would seem to me to be generally available and discernible. Quite frankly it is likely that schedules of literature would be prepared and exchanged prior to trial. I do not think it is necessary for the plaintiff to respond to this request. 23 As to par 25.10 – seeking details of pollution allegations about the use of the site it seems to me that the third defendant would have investigated such allegations and would be likely to know and therefore there is no point in requiring the plaintiffs to provide the third defendant with further particulars. In any event the information should be available after discovery. 24 I now come to par 35 of the statement of claim which deals specifically with the third defendant. I think that a shorthand structure of this plea has resulted in a difficulty. As I have mentioned the third defendant is the government regulator. The first and second defendants are the occupiers of the tip. They were the commercial entities involved. The problem arises because after alleging that the third defendant was negligent and/or in breach of its statutory duty, the plea then provides in subparagraph 35.1 that "the plaintiffs repeat the particulars of negligence pleaded in par 29 above as against the first and second defendants." 25 Paragraph 29 provides eleven particulars of negligence relating to the first and second defendants which focus on what it is alleged the occupiers did or failed to do on the property. Thus they are alleged to have permitted hazardous substances to be deposited, permitted them to mix and failed to prevent emissions from escaping, exposing the plaintiffs to risk, failing to provide an effective buffer, failing to provide suitable plant and personnel and premises. Obviously, these are matters that can logically be asserted against the occupiers but it is difficult to see how they could be asserted against the Government regulator. Yet in a shorthand way of pleading, the statement of claim alleges that the third
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defendant was negligent in the same way as the first and second defendant. There might be an argument that s 35.1 should be struck out as being embarrassing. I am unable to say at this stage. What the defendants however do is seek particulars comprising some six pages of request based upon what might be described as a literal interpretation of the pleading and obviously many of those requests are unanswerable because of the fundamental problem I have identified. The pleading is inelegant and needs amendment in my view. The third defendant could not be said to have done or failed to do the things alleged in par 29.1-7, at least. It seems to me the difficulty is obvious and should have been obvious to counsel for the defendants in seeking the further particulars he has. 26 Paragraphs 29.8, 9, 10 and 11 relate to an alleged failure to warn prospective and actual residents, failure to monitor their health and inform them of protected measures. At first glance these might be said to be matters that are relevant for the Environmental Protection Authority, in reality the third defendant. I do not think the defendants are entitled to further particulars of the sub-paragraphs. It is quite clear what is being alleged against the third defendant. In any event the issue seems to me to be taken up by pars 35.2-35.6 of the statement of claim which tends to overlap the references in par 29.8-29.11 inclusive. 27 Referring to pars 35.2-35.6 of the statement of claim, it is noted that these paragraphs allege specific failures of the third defendant in contravention of various sections of the Environmental Protection 1986. Request 35.2(a) says: 28 I agree with Mr Herron's comment that this request really is nonsensical. 29 As to request 35.2(b) where further particulars are sought of 'the steps which the third defendant ought to have taken but failed to take…" I have a different view. It seems to me that the plaintiffs should be required to give particulars of what it is they say the third defendant should have done but did not do. I am prepared to make an order that the plaintiffs answer request 35.2(b).
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30 In relation to pars 35.2(c), (d), (e) and (f), these seem to me to be requests for evidence and the plaintiff should not be obliged to answer them. I am also confident the information will become available following the exchange of expert evidence reports.
31 As to request 35.3, in my view this is in essence a request for evidence and need not be answered. As to par 35.4, as to the first part where the plaintiffs are requested to "provide full particulars of the grounds for revoking or suspending the licence…" I think this is nonsensical. Similarly requesting the plaintiffs to provide dates "on which the Chief Executive Officer…was satisfied…" and particulars of "the conditions which the CEO was satisfied had been breached…" is difficult to understand let alone answer. Similarly request 35.4(c). As to the balance of request 35.4 I think it is a request for evidence. As to 35.5 similarly I think it is a request for evidence and, further, it is oppressive and need not be answered. In relation to request 35.6, par 35.6 alleges that the third defendant "failed pursuant to Section 73 of the Act to take any or any adequate action or give any or any directions to remove, disburse, etc or otherwise deal with waste…or to prevent the condition of a pollution from arising…" 32 Request 35.6 seeks particulars of the action which should have been taken and the directions which should have been given, etc. The paragraph in the statement of claim is inelegantly phrased on one view but it seems to me to be obvious that the action that a regulatory authority might take is to give directions and the like. This is what it is alleged in the plea that the third defendant failed to do. I do not think an answer to this request is necessary. 33 Paragraph 36 of the statement of claim alleges nuisance against the third defendant. The request seeks particulars of the conduct of the third defendant. It seems to me to be obvious that the alleged conduct is failure to fulfil its obligations under the legislation. It is self-evident. Particulars of "the manner in which that conduct caused or permitted the hazardous substances to pollute the air breathed by the plaintiffs…" also seems to me to be difficult of response. It is the inaction of the third defendant that is relied upon. The allegation is sufficiently clear for the third defendant to appreciate the case it has to meet. The third defendant can ascertain the nature of the case by perusal of the previous paragraph being par 35 of the statement of claim. Again I do not think it is necessary to order the plaintiffs to answer the request for particulars No 36.
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34 In taking the approach that I do to these matters I should indicate that I accept the broad submissions made by counsel for the plaintiff, especially at transcript p 43 where he said:
"My learned friend…made the submission that we should be able to say in what respect the substances are hazardous and I have already made the point I think that no we don't have to do that. That is not part of our case, its unnecessary for our case to say in what respects its hazardous. We say the substances were emitted, we suffer this injury. If we prove that causal link, we say by that alone the substances are hazardous; otherwise, we wouldn't have suffered this injury. We don't have to say at a particular limit or a particular contamination or a particular mixture and so on and I don't know that we would ever be able to do that. We could simply say there is no question these various substances were emitted. We suffer the injury. Therefore it follows from that, you can infer from that, that it was hazardous in that sense. We don't have to prove its hazardous in a scientific sense or in a health department sense." 35 As to par 37 of the statement of claim, this relates to the fourth and fifth defendants and pleads knowledge of the condition and nature of the operations being conducted at the sites. The fourth and fifth defendants are The State Planning Commission and The State Housing Commission respectively. Request 37(a) and (b) relate to evidence and need not be answered. Request 37(c) is unnecessary. It is already alleged and dealt with in par 13 and par 14 of the statement of claim. Similarly for request 37(d). As to (e) and (f), this is material which should be available following the exchange of expert reports. As to (e), (f) and (g) (second mentioned) I think this is a request for evidence and does not need to be answered. 36 As to par 40.5 of the statement of claim it is alleged that the fourth and fifth defendants failed to ensure the houses that were built were not exposed to hazardous substances and the like. The request 40.5 seeks particulars of the steps which the fourth and fifth defendants ought to have taken but failed to take to ensure that houses built in the subdivision and members of the public living in the subdivision were not exposed to hazardous substances. On the face of it I think that request 40.5 is
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reasonable and should be answered. Similarly I think the plaintiffs could and should provide the particulars sought in request 40.6.
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