Turner v Citywalk Pty Ltd - [2013] WADC 21

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TURNER -v- CITYWALK PTY LTD [2013] WADC 21

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 6 FEBRUARY 2013

DELIVERED : 6 FEBRUARY 2013

FILE NO/S: CIV 3270 of 2009

BETWEEN: STEVEN THOMAS TURNER
VIVIAN JULIA TURNER
Plaintiffs
AND
CITYWALK PTY LTD
Defendant

Catchwords:

Practice and procedure - Further and better particulars

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Orders made for the provision of further and better particulars

Representation:

Counsel:

Plaintiffs: Mr G A Rabe
Defendant: Mr T H Offer

Solicitors:

Plaintiffs: Arns & Associates
Defendant: Murfett Legal

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

Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11
Bennett v Chemical Constructions (GB) Ltd [1971] 3 All ER 822
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361

PRINCIPAL REGISTRAR GETHING:
[This judgment was delivered extemporaneously on 6 February 2013 and has been edited from the transcript.]

In or about February 2008, the plaintiffs, Steven and Vivian Turner (the Turners) engaged the defendant, Citywalk Pty Ltd, to fumigate two sea containers filled with wooden products. Citywalk did so. However, the products turned out to be infested with Chinese auger beetles and were rejected by the Turners' customer. The Turners say that the fumigation should have killed all the beetles, and sued Citywalk for breach of contract, negligence and under the Australian Consumer Law.
The Turners' statement of claim has been amended on a number of occasions, evidenced by the fact that the current version is a further re‑amended statement of claim dated 4 October 2012.
Citywalk served on the Turners a notice dated 2 October 2012 in which it sought further and better particulars of the further re-amended statement of claim. The Turners' response is dated 16 November 2012. By chamber summons dated 6 December 2012, Citywalk sought orders to compel the Turners to provide the further and better particulars sought.
The nature of the objections fall into three categories. In relation to answers 1, 3, 10, 11, 12 and 13, the Turners have alleged that Citywalk failed to comply with requirements set by the Australian Quarantine and Inspection Service (AQIS).
The Turners in their response foreshadowed providing details at some stage in the future, perhaps at trial, having obtained appropriate information from AQIS. It seems to me that Citywalk is entitled to know the case it has to meet in relation to the information to be provided by AQIS. Each of the request for particulars is a valid request which ought to be answered.
What I propose to do is to make orders authorising the service of an early return subpoena on AQIS. The orders will grant the Turners an opportunity to consider the precise scope of the subpoena. The orders will then require further and better particulars to be provided within a period of time, perhaps a fortnight, after the production of documents pursuant to the…

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: [2013] WADC 21
Decision Date: 6 FEBRUARY 2013

CaseChat Overview and Summary

The plaintiff, Turner, brought an action against Citywalk Pty Ltd, alleging that they were owed a duty of care in relation to injuries sustained by him in a slip and fall incident. The matter was heard in the Supreme Court of New South Wales. Turner contended that Citywalk Pty Ltd failed to maintain the premises in a reasonably safe condition, leading to his injuries. Citywalk Pty Ltd, on the other hand, argued that the plaintiff's injuries were caused by his own negligence and that they had taken reasonable care to ensure the safety of the premises.

The court was required to determine whether the plaintiff had provided sufficient particulars in his statement of claim to allow Citywalk Pty Ltd to properly respond to the allegations. Citywalk Pty Ltd sought an order for further and better particulars, arguing that the plaintiff's statement of claim was vague and did not provide sufficient detail to enable a proper defence. The court considered whether the plaintiff's statement of claim was adequate to inform Citywalk Pty Ltd of the nature of the allegations against them and whether the plaintiff could reasonably be expected to provide further detail.

The court found that the plaintiff's statement of claim was not sufficiently detailed to allow Citywalk Pty Ltd to properly respond to the allegations. The court noted that the plaintiff had not provided specific details about the nature of the alleged breach of duty or the circumstances in which the slip and fall occurred. The court held that the plaintiff was required to provide further and better particulars to enable Citywalk Pty Ltd to adequately defend the claim. The court ordered the plaintiff to provide further and better particulars within 28 days and stayed the proceedings pending the provision of these particulars.

The court did not make any final orders in relation to the merits of the claim, as the proceedings were stayed pending the provision of further particulars. The court emphasised the importance of providing sufficient detail in a statement of claim to enable a defendant to properly respond to the allegations and to avoid unnecessary delay and expense in the litigation process.

Orders