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 early return subpoena.
The second category is to answer 14. Request 14 relates to par 45 of the further re‑amended statement of claim. That paragraph provides:
In or around early April 2007, the Plaintiffs recalled from Bunnings Stores in Western Australia all willow screens sold by them to Bunnings ('2007 recall') and kept that stock isolated from all other items sold by the Plaintiffs at the time, including the willow screen stock the subject of the contract and fumigation referred to at paragraph 43 and paragraph 44 above.
Citywalk requests the Turners to provide:
Full particulars of the total number of willow screens the Plaintiffs recalled from Bunnings stores in early 2007, including full particulars of the number of willow screens recalled from each Bunnings store.
The nature of the Turners' case is that there is going to be reliance on the doctrine of res ipsa loquitur. In the course of submissions, their counsel referred me to the decision of Bennett v Chemical Constructions (GB) Ltd [1971] 3 All ER 822. In that case, Davies LJ said the following of the doctrine of res ipsa loquitur:
In my view it is not necessary for that doctrine to be pleaded. If the accident is proved to have happened in such a way that prima facie it could not have happened without negligence on the part of the defendants, then it is for the defendants to explain and show how the accident could have happened without negligence. As I have said, they made no attempt to do so in this case. (825)
His Lordship then goes on to observe that the defendants may have called evidence to show that the accident in that case could have occurred in a manner inconsistent with negligence on their part (825).
In Bennett, the plaintiff was injured when an electrical control panel fell on him. In this context, Davies LJ stated:
But here the panel fell and I entirely agree with the learned judge that it could not possibly have fallen without some negligence on the part of the defendant's.
…
I said that in my opinion it is not necessary to plead res ipsa loquitur. If the facts pleaded and the facts proved show that the cause of the accident was apparently and on its face some negligence, that is sufficient. (825)
That being the case of the Turners, Citywalk is entitled to know information about the relevant stock in question, in order for it to mount a defence based on how the alleged infestation could have occurred without its negligence. Citywalk is entitled to know specific information about the screens said to have been the subject of the infestation in order for it to know the case it has to meet. For example, knowing the answer to the particulars requested will enable Citywalk to mount a case that will challenge the continuity of the possession of the relevant willow screens.
I also note that, in the answer to the particulars, the Turners state that they can and will give evidence of the facts at trial. In that situation it does not seem to me that requiring the answer to these particulars to be given would impose a disproportionate burden on them. We are at the stage in the life of the action where trial preparation ought to be being undertaken in earnest. In terms of answering the question, it may well be that the answer can be provided in a tabular format which will further decrease the burden on the Turners in complying with the request.
The third category is in relation to answers 4, 5, 6, 7, 8, 9 and 15. The first objection taken to that is that many of these obligations predated the recent suite of amendments to the statement of claim. Counsel for the Turners referred me to the decision of the Court of Appeal in Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361 where Kennedy J (with whom Wheeler and Wallwork JJ agreed) commented at [18]:
The amendment of pleadings in a statement of claim does not entitle the defendants to generally reopen requests for particulars of pleadings which have not been amended.
The discretion to order the provision of further and better particulars is a general discretion. Rules of the Supreme Court 1971 (RSC) O 20 r 13(3) relevantly provides that 'the court may order a party to serve on any other party, particulars of any claim, defence or other matter stated in his pleading and the order may be made on such terms as the court thinks just'. Order 20 r 13(6) provides:
An order under this rule shall not be made unless a written request for the particulars required by the applicant has been filed and served within 30 days of service of the pleadings or such other time as the court may allow.
Given that the discretion in RSC, O 20 r 13(3) and r 13(6) is a general discretion, I do not take the comments in Dow Corning to be an inflexible rule, rather than guidance in the exercise of the discretion. In particular, the context of that case was that there was a second attempt to obtain particulars of the relevant paragraphs. In my view, the balance of the paragraph from which the passage (quoted above [13]) is taken makes it clear that his Honour was exercising the discretion in the particular facts of the case. As guidance in the exercise of discretion, the passage quoted reflects the general principles and RSC O 1 r 4A and r 4B.
Accordingly, I approach Citywalk's request for further and better particulars on the basis of the ability to exercise the discretion at large. It seems to me that the fact that the request is made at a late stage, whilst in some cases may be a reason not to exercise discretion, in this case it does not. The authorities in relation to the purpose of particulars are to the effect that it is fundamental that a party is entitled to a statement of the opponent's case sufficiently pleaded to allow the party a fair opportunity to meet it: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664; and Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1991) 69 CLR 279, 286.
In the course of submissions, it became apparent the Turners' case is primarily one of res ipsa loquitur. The disputed pleadings in relation to breach, being requests 4, 5, 6, 7, 8, 9 and 15, essentially arise in the context of par 8 of the statement of claim. That paragraph provides:
The aforesaid infestation of Chinese auger beetles in the Screens survived the fumigation treatment administered by the Defendant because, in breach of the implied terms of the Contract pleaded inside paragraphs 4(b) and (c) above, the Screens had been exposed to inadequate or zero concentrations of methyl bromide during the fumigation process performed by the Defendant pursuant to the Contract.
There is then a particular of breach that:
The Defendant failed to ensure adequate distribution of the correct concentrations of methyl bromide so as to destroy all stages of the lifecycle of any insect in the Screens at the time of fumigation treatment, including Chinese auger beetles.
There are then eight specific allegations of failures by Citywalk. It is thus apparent from the pleadings that the Turners' case goes further than merely running a case of res ipsa loquitur. What it is doing is also establishing a positive case of breach of contract by Citywalk. If the Turners wish to pursue their case at trial on the basis that, by certain specific failures, Citywalk breached its contract, then Citywalk is entitled to know the case it has to meet.
For example, where there is a reference in particular 8(a)(iv) to a failure to use, 'a sufficient number of fumigant supply pipes', Citywalk is entitled to know what the Turners allege was a 'sufficient' number of fumigant supply pipes. This will then allow Citywalk to prepare its case in at least two areas. Firstly, it will be able to provide evidence as to the number of fumigant supply pipes used. Secondly, it will be able to provide expert evidence as to the sufficiency of that number of fumigant supply pipes. The same reasoning applies to each of the other requests for particulars.
On that basis, it seems to me that in order for Citywalk to know the case it has to meet, it has to receive the answers to the particulars as requested.
This conclusion is consistent with the case management requirements set out in O 1 r 4B of the RSC. If it is the case that the Turners are only relying on res ipsa loquitur, then it is patently unfair that Citywalk has to prepare its case for trial on the basis that it will have to answer a large number of allegations of detailed breaches of specific obligations.
If the Turners' case is to also allege specific breaches, then Citywalk is entitled to know the specific obligation which the Turners say it breached and precisely how that breach occurred.
For these reasons, I propose to order the Turners to provide further and better particulars in response to answers 4, 5, 6, 7, 8, 9 and 15.
I will hear from counsel as to the specific orders required.